Chapter 106

106.50(6)(a)6. 6. The department may dismiss the complaint if the complainant fails to respond to the department within 20 days from the date of mailing of any correspondence from the department concerning the complaint, if the department’s correspondence requests a response and if the correspondence is sent by certified mail, return receipt requested, to the last known-address of the complainant.

106.50(6)(b) (b) Powers and duties of department. The department of workforce development and its duly authorized agents may hold hearings, subpoena witnesses, take testimony and make investigations as provided in this subsection. The department of workforce development may test and investigate for the purpose of establishing violations of sub. (2), (2m) or (2r) and may make, sign and file complaints alleging violations of sub. (2), (2m) or (2r). In addition, the department of safety and professional services may make, sign and file complaints alleging violations of sub. (2r) (c). The department of workforce development shall employ examiners to hear and decide complaints of discrimination under this section, and to assist in the administration of this section. The examiners may make findings and issue orders under this subsection. The department of workforce development shall develop and implement an investigation manual for use in conducting investigations under par. (c).

106.50(6)(c) (c) Investigation and finding of probable cause.

106.50(6)(c)1. 1. The department shall investigate all complaints that allege a violation of this section and that are filed within the time specified under par. (a). The department may subpoena persons or documents for the purpose of investigation. If during an investigation it appears that the respondent has engaged in discrimination against the complainant which is not alleged in the complaint, the department may advise the complainant that the complaint should be amended. If the complaint is amended, the department shall also investigate the allegations of the amended complaint.

106.50(6)(c)2. 2. At the conclusion of the investigation of the allegations, the department shall make a determination as to whether probable cause exists to believe that discrimination has occurred or is about to occur. In making a determination of probable cause, the department shall consider whether the facts concerning the alleged discrimination are sufficient to warrant the initiation of a civil action. If the department determines that probable cause exists, the department shall immediately issue a charge on behalf of the aggrieved person and refer the charge to the attorney general. If the attorney general concurs in the department’s determination of probable cause, the attorney general shall represent the aggrieved person at the hearing under par. (f) or, if an election is made under subd. 2m., shall commence a civil action in the name of the state on behalf of the aggrieved person under sub. (6m).

106.50(6)(c)2m. 2m. Service of copies of the charge shall be made on the complainant, the respondent, and the aggrieved person by certified mail, return receipt requested. When a charge is filed, a complainant, a respondent, or an aggrieved person on whose behalf the complaint was filed may elect to have the claims asserted in that charge decided in a civil action under sub. (6m) in lieu of a hearing under par. (f). The election shall be made no later than 20 days after the receipt by the electing person of service of the charge, along with information about how to make the election. If an election is made, the person making the election shall give notice of doing so to the department and to all other complainants and respondents to whom the charge relates. The department shall notify the aggrieved persons that an election is made.

106.50(6)(c)3. 3. No charge may be issued regarding alleged discrimination after the beginning of the trial of a civil action commenced by the aggrieved party under sub. (6m) or 42 USC 3613, seeking relief with respect to that discriminatory act.

106.50(6)(c)4. 4. If the department initially determines that there is no probable cause to believe that discrimination occurred as alleged in the complaint, it may dismiss those allegations. The department shall, by a notice to be served with the determination, notify the parties of the complainant’s right to appeal the dismissal of the claim to the secretary for a hearing on the issue by a hearing examiner. Service of the determination shall be made by certified mail, return receipt requested. If the hearing examiner determines that no probable cause exists, that determination is the final determination of the department and may be appealed under par. (j).

106.50(6)(d) (d) Temporary judicial relief. At any time after a complaint is filed alleging discrimination in violation of sub. (2), (2m), or (2r), the department may request the attorney general to file a petition in the circuit court for the county in which the act of discrimination allegedly occurred or for the county in which a respondent resides or transacts business, seeking a temporary injunction or restraining order against the respondent to prevent the respondent from performing an act that would tend to render ineffectual an order that the department may enter with respect to the complaint, pending final determination of proceedings under this section. On receipt of the department’s request, the attorney general shall promptly file the petition.

106.50(6)(e) (e) Conciliation.

106.50(6)(e)1. 1. Upon the filing of a complaint alleging discrimination in violation of sub. (2), (2m) or (2r), the department may endeavor to eliminate the discrimination by conference, conciliation and persuasion. The department shall notify the parties that conciliation services are available.

106.50(6)(e)2. 2. Conciliation efforts may be undertaken by the department during the period beginning with the filing of the complaint and ending with the dismissal of the complaint under par. (c) 4. or the issuance of a charge under par. (c) 2.

106.50(6)(e)3. 3. If conciliation resolves the dispute, a written conciliation agreement shall be prepared which shall state all measures to be taken by each party. The agreement may provide for dismissal of the complaint if the dismissal is without prejudice to the complainant’s right to pursue the complaint against any respondent who fails to comply with the terms of the agreement. The agreement shall be signed by the respondent, the complainant and the aggrieved person and is subject to approval by the department. A conciliation agreement entered into under this subdivision is a public record and is subject to inspection under s. 19.35, unless the parties to the agreement request that the record be exempt from disclosure and the department finds that disclosure is not required to further the purposes of this section.

106.50(6)(e)4. 4. Whenever the department has reasonable cause to believe that a respondent has breached a conciliation agreement, the department shall refer the matter to the attorney general with a recommendation that a civil action be filed for enforcement of the agreement.

106.50(6)(f) (f) Hearing procedures.

106.50(6)(f)1. 1. After the department issues a charge under par. (c) 2., the department shall serve the charge, along with a written notice of hearing, specifying the nature and acts of discrimination which appear to have been committed, and requiring the respondent to answer the charge at a hearing before an examiner. The notice shall specify a time of hearing, not less than 10 days after service of the charge, and a place of hearing within the county in which the violation is alleged to have occurred.

106.50(6)(f)2. 2. If an election is not made under par. (c) 2m., the hearing shall be conducted by a hearing examiner. If the attorney general has concurred in the department’s determination of probable cause under par. (c) 2., the aggrieved person on whose behalf the charge was issued shall be represented by the attorney general. Any other person who is aggrieved, with respect to the issues to be determined at the hearing, may be represented by private counsel.

106.50(6)(f)3. 3. The department, the attorney general, or a party’s attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney shall be in substantially the same form as provided in s. 805.07 (4) and shall be served in the manner provided in s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the hearing examiner who is responsible for conducting the hearing.

106.50(6)(f)4. 4. The testimony at the hearing shall be recorded by the department. Discovery shall be conducted as expeditiously and inexpensively as possible, consistent with the need of all parties to obtain relevant evidence. The hearing under this paragraph shall be conducted as expeditiously and inexpensively as possible, consistent with the needs and rights of the parties to obtain a fair hearing and a complete record. The burden of proof is on the party alleging discrimination.

106.50(6)(f)5. 5. If after the hearing the examiner finds by a fair preponderance of the evidence that the respondent has violated sub. (2), (2m) or (2r), the examiner shall make written findings and order the respondent to take actions that will effectuate the purpose of sub. (2), (2m) or (2r), and may order other penalties, damages and costs as provided in pars. (h) and (i). The department shall serve a certified copy of the final findings and order on the aggrieved party, the complainant and the respondent. The order shall have the same force as other orders of the department and be enforced as provided in this subsection except that the enforcement of the order is automatically stayed upon the filing of a petition for review under par. (j).

106.50(6)(f)6. 6. If the examiner finds that the respondent has not engaged in discrimination as alleged in the complaint, the department shall serve a certified copy of the examiner’s findings on the aggrieved party, the complainant and the respondent together with an order dismissing the complaint. If the complaint is dismissed, costs in an amount not to exceed $100 plus actual disbursements for the attendance of witnesses may be assessed against the department in the discretion of the department.

106.50(6)(g) (g) Time limitations.

106.50(6)(g)1. 1. The department shall commence proceedings with respect to a complaint before the end of the 30th day after receipt of the complaint.

106.50(6)(g)2. 2. The department shall investigate the allegations of the complaint and complete the investigation not later than 100 days after receipt of the complaint. If the department is unable to complete the investigation within 100 days, it shall notify the complainant and respondent in writing of the reasons for not doing so.

106.50(6)(g)3. 3. The department shall make final administrative disposition of a complaint within one year after the date of receipt of a complaint, unless it is impracticable to do so. If the department is unable to do so, it shall notify the complainant and respondent in writing of the reasons for not doing so.

106.50(6)(h) (h) Damages and penalties.

106.50(6)(h)1. 1. If the hearing examiner finds that a respondent has engaged in or is about to engage in a discriminatory act prohibited under sub. (2), (2m) or (2r), the hearing examiner shall promptly issue an order for such relief as may be appropriate, which may include economic and noneconomic damages suffered by the aggrieved person, regardless of whether he or she intervened in the action, and injunctive or other equitable relief. The hearing examiner may not order punitive damages.

106.50(6)(h)2. 2. In addition to any damages ordered under subd. 1., the hearing examiner may assess a forfeiture against a respondent who is not a natural person in an amount not exceeding $10,000, unless the respondent who is not a natural person has been adjudged to have committed any prior discriminatory act under sub. (2), (2m) or (2r). If a respondent who is not a natural person has been adjudged to have committed one other discriminatory act under sub. (2), (2m) or (2r) during the preceding 5-year period, based on the offense date of the prior discriminatory act, the hearing examiner may assess a forfeiture in an amount not exceeding $25,000. If a respondent who is not a natural person has been adjudged to have committed 2 or more prior discriminatory acts under sub. (2), (2m) or (2r) during the preceding 7-year period, based on the offense date of the prior discriminatory act, the hearing examiner may assess a forfeiture in an amount not exceeding $50,000.

106.50(6)(h)3. 3. In addition to any damages ordered under subd. 1., the administrative law judge may assess a forfeiture against a respondent who is a natural person in an amount not exceeding $10,000, unless the respondent who is a natural person has been adjudged to have committed any prior discriminatory act under sub. (2), (2m) or (2r). If a respondent who is a natural person has been adjudged to have committed one other prior discriminatory act under sub. (2), (2m) or (2r) based on an offense date that is before September 1, 1992, the administrative law judge may assess a forfeiture in an amount not exceeding $25,000. If a respondent who is a natural person has been adjudged to have committed 2 or more prior discriminatory acts under sub. (2), (2m) or (2r) based on an offense date that is before September 1, 1992, the administrative law judge may assess a forfeiture in an amount not exceeding $50,000.

106.50(6)(i) (i) Attorney fees and costs. The hearing examiner may allow a prevailing complainant, including the state, reasonable attorney fees and costs. The state shall be liable for those fees and costs if the state is a respondent and is determined to have committed a discriminatory act under sub. (2), (2m) or (2r).

106.50(6)(j) (j) Judicial review. Within 30 days after service upon all parties of an order or determination of the department under this subsection, the respondent, the complainant or the aggrieved party may appeal the order or the determination to the circuit court for the county in which the alleged discrimination took place by the filing of a petition for review. The court shall review the order or determination as provided in ss. 227.52 to 227.58.

106.50(6m) (6m) Civil actions.

106.50(6m)(a) (a) Any person alleging a violation of sub. (2), (2m), or (2r), including the attorney general on behalf of an aggrieved person, may bring a civil action for injunctive relief, for damages, including punitive damages, and, in the case of a prevailing plaintiff, for court costs and reasonable attorney fees.

106.50(6m)(b) (b) An action commenced under par. (a) may be brought in the circuit court for the county where the alleged violation occurred or for the county where the person against whom the civil complaint is filed resides or has a principal place of business, and shall be commenced within one year after the alleged violation occurred or terminated. The one-year statute of limitations under this paragraph shall be tolled while an administrative proceeding with respect to the same complaint is pending.

106.50(6m)(c) (c) The court may issue a permanent or temporary injunction or restraining order to assure the rights granted by this section. The court may order other relief that the court considers appropriate, including monetary damages, actual and punitive, a forfeiture as provided in sub. (6) (h) and costs and fees as provided in sub. (6) (i).

106.50(6m)(d) (d) If the attorney general has reasonable cause to believe that any person is engaged in a pattern or practice of discrimination in violation of sub. (2), (2m) or (2r) or that any person has been denied any of the rights granted under sub. (2), (2m) or (2r), and such denial raises an issue of general public importance, the department of justice may commence a civil action.

106.50(8) (8) Discrimination by licensed or chartered persons.

106.50(8)(a) (a) If the department finds reasonable cause to believe that an act of discrimination has been or is being committed in violation of this section by a person taking an action prohibited under sub. (2), (2m) or (2r) and that the person is licensed or chartered under state law, the department shall notify the licensing or chartering agency of its findings and may file a complaint with such agency together with a request that the agency initiate proceedings to suspend or revoke the license or charter of such person or take other less restrictive disciplinary action.

106.50(8)(b) (b) Upon filing a complaint under par. (a), the department shall make available to the appropriate licensing or chartering agency all pertinent documents and files in its custody, and shall cooperate fully with such agency in the agency’s proceedings.

106.50 History History: 1971 c. 185 s. 1; 1971 c. 228 s. 42; 1971 c. 230; 1971 c. 307 s. 51; Stats. 1971 s. 101.22; 1975 c. 94, 275, 421, 422; 1977 c. 29; 1977 c. 418 s. 929 (55); 1979 c. 110; 1979 c. 177 s. 85; 1979 c. 188, 221, 355; 1981 c. 112, 180; 1981 c. 391 s. 210; 1983 a. 27, 189; 1985 a. 238, 319; 1987 a. 262; 1989 a. 47 ss. 2 to 5, 8 to 11; 1989 a. 94, 106, 139, 359; 1991 a. 295, 315; 1993 a. 27; 1995 a. 27 s. 3687; Stats. 1995 s. 106.04; 1995 a. 225; 1995 a. 448 ss. 66, 68; 1997 a. 112, 237, 312; 1999 a. 82 ss. 38 to 74; Stats. 1999 s. 106.50; 1999 a. 150 s. 672; 1999 a. 162; 2001 a. 30 s. 108; 2001 a. 109; 2005 a. 25; 2007 a. 11; 2009 a. 95; 2011 a. 32, 258; 2017 a. 317; 2021 a. 196; s. 35.17 correction in (5m) (am).

106.50 Note NOTE: 1991 Wis. Act 295, which affected this section, contains extensive legislative council notes.

106.50 Cross-reference Cross-reference: See also ch. DWD 220, Wis. adm. code.

106.50 Annotation “Harassment” under sub. (2) (f) includes sexual harassment as defined in s. 111.32 (13). Sexual harassment injures the tenant’s dignity and civil rights, and those injuries are compensable. Chomicki v. Wittekind, 128 Wis. 2d 188, 381 N.W.2d 561 (Ct. App. 1985).

106.50 Annotation A violation of sub. (2) (d) requires that an ordinary reader find that an advertisement suggests a particular class is preferred or “dispreferred.” Milwaukee Fair Housing Council v. LIRC, 173 Wis. 2d 199, 496 N.W.2d 159 (Ct. App. 1992).

106.50 Annotation The state, in administering the fair housing act, may not order a zoning board to issue a variance based on characteristics unique to the landowner rather than the land. County of Sawyer Zoning Board v. Department of Workforce Development, 231 Wis. 2d 534, 605 N.W.2d 627 (Ct. App. 1999), 99-0707.

106.50 Annotation To establish a disability under this section, the complainant must show: 1) that he or she has an actual impairment, a record of impairment, or is regarded as having an impairment; and 2) that the impairment, whether real or perceived, is one that substantially limits one or more major life activities, or is regarded by the respondent as substantially limiting one or more major life activities. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649, 00-3562.

106.50 Annotation This section should be interpreted parallel to its federal analog. State law, like the relevant federal law, allows landlords to impose reasonable occupancy requirements based on factors such as the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit. Jones v. Baecker, 2017 WI App 3, 373 Wis. 2d 235, 891 N.W.2d 823, 15-0325.

106.50 Annotation Courts have recognized that prohibited discrimination can occur principally in two ways. The first is by disparate treatment. Disparate treatment occurs when some people are treated less favorably than others because of a protected criterion. Proof of discriminatory motive is critical to a disparate treatment claim. Alternatively, a plaintiff may allege that a particular practice, even if not evidencing intentional discrimination, may have a disproportionally adverse effect on minorities and other protected classes. Jones v. Baecker, 2017 WI App 3, 373 Wis. 2d 235, 891 N.W.2d 823, 15-0325.

106.50 Annotation A plaintiff alleging disparate treatment racial discrimination may elect to prove his or her case using either the direct method, involving the presentation of direct or circumstantial evidence of disparate treatment, or the burden-shifting framework first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the direct method, summary judgment for the defendant is warranted on a disparate treatment claim if the plaintiff cannot produce either direct evidence of discriminatory intent or indirect evidence creating an inference of discriminatory intent. The plaintiff’s evidence, whatever its nature, must sufficiently demonstrate that discriminatory intent was a substantial factor motivating the defendant’s conduct. Jones v. Baecker, 2017 WI App 3, 373 Wis. 2d 235, 891 N.W.2d 823, 15-0325.

106.50 Annotation The Wisconsin open housing law permits, but does not require, the department to receive and process class action complaints of housing discrimination. 70 Atty. Gen. 250.

106.50 Annotation The insurer of an apartment had a duty to defend an owner and manager for liability under this section. Gardner v. Romano, 688 F. Supp. 489 (E. D. Wis. 1988).

106.50 Annotation Federal rent vouchers are not clearly within the meaning of “lawful source of income.” Knapp v. Eagle Property Management Corp. 54 F.3d 1272 (1995).

106.50 Annotation Closing the Door on Cohabitants Under Wisconsin’s Open Housing Law. Neuman. 1995 WLR 965.

106.52 106.52 Public places of accommodation or amusement.

106.52(1) (1) Definitions. In this section:

106.52(1)(a) (a) “Complainant” means a person who files a complaint alleging a violation of sub. (3).

106.52(1)(b) (b) “Conciliation” has the meaning given in s. 106.50 (1m) (d).

106.52(1)(c) (c) “Disability” has the meaning given in s. 106.50 (1m) (g).

106.52(1)(cm) (cm) “Fitness center” means an establishment, whether operated for profit or not for profit, that provides as its primary purpose services or facilities that are purported to assist patrons in physical exercise, in weight control, or in figure development. “Fitness center” does not include an organization solely offering training or facilities in an individual sport or a weight reduction center, as defined in s. 100.177 (1) (e).

106.52(1)(d) (d) “Lodging establishment” means any of the following:

106.52(1)(d)1. 1. A bed and breakfast establishment, as defined in s. 97.01 (1g).

106.52(1)(d)2. 2. A hotel, as defined in s. 97.01 (7).

106.52(1)(d)3. 3. A tourist rooming house, as defined in s. 97.01 (15k).

106.52(1)(d)4. 4. A campground.

106.52(1)(e) (e)

106.52(1)(e)1. 1. “Public place of accommodation or amusement” shall be interpreted broadly to include, but not be limited to, places of business or recreation; lodging establishments; restaurants; taverns; barber, cosmetologist, aesthetician, electrologist, or manicuring establishments; nursing homes; clinics; hospitals; cemeteries; and any place where accommodations, amusement, goods, or services are available either free or for a consideration, subject to subd. 2.

106.52(1)(e)2. 2. “Public place of accommodation or amusement” does not include a place where a bona fide private, nonprofit organization or institution provides accommodations, amusement, goods or services during an event in which the organization or institution provides the accommodations, amusement, goods or services to the following individuals only:

106.52(1)(e)2.a. a. Members of the organization or institution.

106.52(1)(e)2.b. b. Guests named by members of the organization or institution.

106.52(1)(e)2.c. c. Guests named by the organization or institution.

106.52(1)(f) (f) “Respondent” means the person accused in a complaint or amended complaint of committing a violation of sub. (3).

106.52(1)(fm) (fm) “Service animal” means a guide dog, signal dog, or other animal that is individually trained or is being trained to do work or perform tasks for the benefit of a person with a disability, including the work or task of guiding a person with impaired vision, alerting a person with impaired hearing to intruders or sound, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.

106.52(1)(g) (g) “Sexual orientation” has the meaning given in s. 111.32 (13m).

106.52(2) (2) Department to administer. The department shall administer this section through its division of equal rights. The department may promulgate such rules as are necessary to carry out this section. No rule may prohibit the processing of any class action complaint or the ordering of any class-based remedy, and no rule may provide that complaints may be consolidated for administrative convenience only.

106.52(3) (3) Public place of accommodation or amusement.

106.52(3)(a) (a) No person may do any of the following:

106.52(3)(a)1. 1. Deny to another or charge another a higher price than the regular rate for the full and equal enjoyment of any public place of accommodation or amusement because of sex, race, color, creed, disability, sexual orientation, national origin or ancestry.

106.52(3)(a)1m. 1m. Deny to an adult or charge an adult a higher price than the regular rate for the full and equal enjoyment of a lodging establishment because of age, subject to s. 125.07.

106.52(3)(a)2. 2. Give preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry.

106.52(3)(a)3. 3. Directly or indirectly publish, circulate, display or mail any written communication which the communicator knows is to the effect that any of the facilities of any public place of accommodation or amusement will be denied to any person by reason of sex, race, color, creed, disability, sexual orientation, national origin or ancestry or that the patronage of a person is unwelcome, objectionable or unacceptable for any of those reasons.

106.52(3)(a)3m. 3m. Directly or indirectly publish, circulate, display or mail any written communication which the communicator knows is to the effect that any of the facilities of a lodging establishment will be denied to an adult because of age, subject to s. 125.07.

106.52(3)(a)4. 4. Refuse to furnish or charge another a higher rate for any automobile insurance because of race, color, creed, disability, national origin or ancestry.

106.52(3)(a)5. 5. Refuse to rent, charge a higher price than the regular rate or give preferential treatment, because of sex, race, color, creed, sexual orientation, national origin or ancestry, regarding the use of any private facilities commonly rented to the public.

106.52(3)(am) (am)

106.52(3)(am)1. 1. Subject to subds. 2., 3., and 4., no person may do any of the following:

106.52(3)(am)1.a. a. Refuse to permit entrance into, or use of, or otherwise deny the full and equal enjoyment of any public place of accommodation or amusement to a person with a disability or to a service animal trainer because the person with a disability or the trainer is accompanied by a service animal.

106.52(3)(am)1.b. b. Charge a person with a disability or a service animal trainer a higher price than the regular rate, including a deposit or surcharge, for the full and equal enjoyment of any public place of accommodation or amusement because the person with a disability or the trainer is accompanied by a service animal.

106.52(3)(am)1.c. c. Directly or indirectly publish, circulate, display, or mail any written communication that the communicator knows is to the effect that entrance into, or use of, or the full and equal enjoyment of any of the facilities of the public place of accommodation or amusement will be denied to a person with a disability or a service animal trainer because the person with a disability or the trainer is accompanied by a service animal or that the patronage of a person with a disability or a service animal trainer is unwelcome, objectionable, or unacceptable because the person with a disability or the trainer is accompanied by a service animal.

106.52(3)(am)2. 2. The prohibitions specified in subd. 1. apply to a service animal trainer only if the animal accompanying the service animal trainer is wearing a harness or a leash and special cape. Subdivision 1. does not prohibit a person who is accompanied by an animal from being asked whether the animal is a service animal that is required because of a disability or is an animal that is being trained to be a service animal and does not prohibit a service animal trainer from being required to produce a certification or other credential issued by a school for training service animals that the animal is being trained to be a service animal. Subdivision 1. prohibits a person with a disability from being required to produce documentation of his or her disability or a certification or other credential that the animal is trained as or is being trained to be a service animal.