Chapter 106

106.52(3)(am)4. 4. A public place of accommodation or amusement shall modify its policies, practices, and procedures to permit the full and equal enjoyment of the public place of accommodation or amusement by a person with a disability or a service animal trainer who is accompanied by a service animal. Those policies, practices, and procedures shall ensure that a person with a disability or a service animal trainer who is accompanied by a service animal is not separated from the service animal, that the service animal is permitted to accompany the person with a disability or the service animal trainer to all areas of the public place of accommodation or amusement that are open to the general public, and that the person with a disability or the service animal trainer is not segregated from other patrons of the public place of accommodation or amusement.

106.52(3)(b) (b) Nothing in this subsection prohibits separate dormitories at higher educational institutions or separate public toilets, showers, saunas and dressing rooms for persons of different sexes.

106.52(3)(c) (c) Nothing in this subsection prohibits separate treatment of persons based on sex with regard to public toilets, showers, saunas and dressing rooms for persons of different sexes.

106.52(3)(d) (d) Nothing in this subsection prohibits a domestic abuse services organization, as defined in s. 995.67 (1) (b), from providing separate shelter facilities, private home shelter care, advocacy, counseling or other care, treatment or services for persons of different sexes or from providing for separate treatment of persons based on sex with regard to the provision of shelter facilities, private home shelter care, advocacy, counseling or other care, treatment or services for persons of different sexes.

106.52(3)(e) (e) Nothing in this section prohibits a fitness center whose services or facilities are intended for the exclusive use of persons of the same sex from providing the use of those services or facilities exclusively to persons of that sex, from denying the use of those services or facilities to persons of the opposite sex, or from directly or indirectly publishing, circulating, displaying, or mailing any written communication to the effect that the use of those services or facilities will be provided exclusively to persons of the same sex and will be denied to persons of the opposite sex.

106.52(4) (4) Investigation and review of claims, public places.

106.52(4)(a) (a) Claims filed with department.

106.52(4)(a)1. 1. The department may receive and investigate a complaint charging a violation of sub. (3) if the complaint is filed with the department no more than 300 days after the alleged act prohibited under sub. (3) occurred. A complaint shall be a written statement of the essential facts constituting the act prohibited under sub. (3) charged, and shall be verified.

106.52(4)(a)2. 2. In carrying out this subsection, the department and its duly authorized agents may hold hearings, subpoena witnesses, take testimony and make investigations as provided in this chapter. The department, upon its own motion, may test and investigate for the purpose of establishing violations of sub. (3), and may make, sign and file complaints alleging violations of sub. (3), and initiate investigations and studies to carry out the purposes of this subsection and sub. (3).

106.52(4)(a)3. 3. The department shall employ such examiners as are necessary to hear and decide complaints of acts prohibited under sub. (3) and to assist in the effective administration of this subsection. The examiners may make findings and orders under this subsection.

106.52(4)(a)4. 4. If the department finds probable cause to believe that any act prohibited under sub. (3) has been or is being committed, the department may endeavor to eliminate the act by conference, conciliation and persuasion. If the department determines that such conference, conciliation and persuasion has not eliminated the alleged act prohibited under sub. (3), the department shall issue and serve a written notice of hearing, specifying the nature and acts prohibited under sub. (3) which appear to have been committed, and requiring the person named, in this subsection called the “respondent”, to answer the complaint at a hearing before an examiner. The notice shall specify a time of hearing, not less than 10 days after service of the complaint, and a place of hearing within the county in which the violation of sub. (3) is alleged to have occurred. The attorney of record for any party may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4) and must 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 appeal tribunal or other representative of the department responsible for conducting the proceeding. The testimony at the hearing shall be recorded by the department. In all hearings before an examiner, except those for determining probable cause, the burden of proof is on the party alleging an act prohibited under sub. (3). If, after the hearing, the examiner finds by a fair preponderance of the evidence that the respondent has violated sub. (3), the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subsection and sub. (3). The department shall serve a certified copy of the examiner’s findings and order on the respondent and complainant. The order shall have the same force as other orders of the department and shall 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 with the commission. If the examiner finds that the respondent has not engaged in an act prohibited under sub. (3) as alleged in the complaint, the department shall serve a certified copy of the examiner’s findings on 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.

106.52(4)(a)5. 5. At any time after a complaint is filed, the department may file a petition in the circuit court for the county in which the act prohibited under sub. (3) allegedly occurred, or for the county in which a respondent resides or transacts business, seeking appropriate temporary relief against the respondent, pending final determination of proceedings under this subsection, including an order or decree restraining the respondent from performing an act tending to render ineffectual an order the department may enter with respect to the complaint. The court may grant such temporary relief or restraining order as the court deems just and proper.

106.52(4)(b) (b) Petition for review.

106.52(4)(b)1. 1. A respondent or complainant who is dissatisfied with the findings and order of the examiner under par. (a) may file a written petition with the department for review by the commission of the findings and order.

106.52(4)(b)2. 2. The commission shall either reverse, modify, set aside or affirm the findings and order in whole or in part, or direct the taking of additional evidence. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.

106.52(4)(b)3. 3. On motion, the commission may set aside, modify or change any decision made by the commission, at any time within 28 days from the date thereof if it discovers any mistake therein, or upon the grounds of newly discovered evidence. The commission may on its own motion, for reasons it deems sufficient, set aside any final decision of the commission within one year from the date thereof upon grounds of mistake or newly discovered evidence, and remand the case to the department for further proceedings.

106.52(4)(b)4. 4. If no petition is filed within 21 days from the date that a copy of the findings and order of the examiner are mailed to the last-known address of the respondent and complainant, the findings and order shall be considered final.

106.52(4)(c) (c) Judicial review. Within 30 days after service upon all parties of an order of the commission under par. (b), the respondent or complainant may appeal the order to the circuit court for the county in which the alleged act prohibited under sub. (3) took place by the filing of a petition for review. The respondent or complainant shall receive a new trial on all issues relating to any alleged act prohibited under sub. (3) and a further right to a trial by jury, if so desired. The department of justice shall represent the commission. In any such trial the burden shall be to prove an act prohibited under sub. (3) by a fair preponderance of the evidence. Costs in an amount not to exceed $100 plus actual disbursements for the attendance of witnesses may be taxed to the prevailing party on the appeal.

106.52(4)(d) (d) Penalty.

106.52(4)(d)1. 1. A person who willfully violates sub. (3) or any lawful order issued under this subsection shall, for the first violation, forfeit not less than $100 nor more than $1,000.

106.52(4)(d)2. 2. A person adjudged to have violated sub. (3) within 5 years after having been adjudged to have violated sub. (3), for every violation committed within the 5 years, shall forfeit not less than $1,000 nor more than $10,000.

106.52(4)(d)3. 3. Payment of a forfeiture under this paragraph shall be stayed during the period in which an appeal may be taken and during the pendency of an appeal under par. (c).

106.52(4)(e) (e) Civil actions.

106.52(4)(e)1. 1. A person, including the state, alleging a violation of sub. (3) may bring a civil action for appropriate injunctive relief, for damages including punitive damages and, in the case of a prevailing plaintiff, for court costs and reasonable attorney fees. The attorney general shall represent the department in an action to which the department is a party.

106.52(4)(e)2. 2. An action commenced under this paragraph 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.

106.52(4)(e)3. 3. The remedies provided for in this paragraph shall be in addition to any other remedies contained in this subsection.

106.52 Cross-reference Cross-reference: See also LIRC, Wis. adm. code.

106.52(5) (5) Discrimination by licensed or chartered persons.

106.52(5)(a) (a) If the department finds probable cause to believe that an act has been or is being committed in violation of sub. (3) and that the person who committed or is committing the act 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.

106.52(5)(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.

106.52 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. 75 to 92, 102 to 105; Stats. 1999 s. 106.52; 1999 a. 186; 2003 a. 23; 2005 a. 155; 2005 a. 354 ss. 1 to 4, 6; 2007 a. 97; 2011 a. 190; 2015 a. 55.

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

106.52 Cross-reference Cross-reference: See also ch. DWD 221, Wis. adm. code.

106.52 Annotation A newspaper’s classified advertising section was not subject to the public accommodations act. Hatheway v. Gannett Satellite Network, 157 Wis. 2d 395, 459 N.W.2d 873 (Ct. App. 1990).

106.52 Annotation Section 106.04 (9) (a) 2. [now sub. (3) (a) 2.] prohibits price differentials or discounts based on the categories specified in the statute. Offering free drinks to women, and not men, is prohibited regardless of whether other promotions offer preferential treatment to men. Novak v. Madison Motel Associates, 188 Wis. 2d 407, 525 N.W.2d 123 (Ct. App. 1994).

106.52 Annotation In order to allege prohibited discrimination in public accommodations, an allegation that the defendant was not a private nonprofit organization was not required in the complaint. Barry v. Maple Bluff Country Club, 221 Wis. 2d 707, 586 N.W.2d 182 (Ct. App. 1998), 97-0736.

106.52 Annotation There is an 8-point test for determining whether an organization is an exempt bona fide private nonprofit organization under sub. (1) (e) 2., the most important of the factors being whether membership in the organization is truly selective. Barry v. Maple Bluff County Club, Inc. 2001 WI App 108, 244 Wis. 2d 86, 629 N.W.2d 24, 00-1178.

106.52 Annotation The defendant doctor and clinic in this case wrongly implied that defendants in s. 106.52 actions must be physical places of accommodation themselves rather than the individuals or corporations who run them. Rose v. Cahee, 727 F. Supp. 2d 728 (2010).

106.54 106.54 Division of equal rights.

106.54(2) (2) The division shall encourage and assist local units of government in guaranteeing all persons an equal opportunity for housing.

106.54(3) (3) All gifts, grants, bequests and devises to the division for its use are valid and shall be used to carry out the purposes for which made and received.

106.54(4) (4) The division shall review complaints of discrimination against public employees exercising their rights with respect to occupational safety and health matters, under s. 101.055 (8).

106.54(5) (5) The division shall receive complaints of discharge, retaliation or discrimination under s. 16.009 (5) (d), 46.90 (4) (b), 50.07 (3) (b), or 55.043 (1m) (c) and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.

106.54(6) (6) The division shall receive complaints under s. 146.997 (4) (a) of disciplinary action taken in violation of s. 146.997 (3) and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.

106.54(7) (7) The division shall receive complaints under s. 321.65 (7) (b) 1. or 2. and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.

106.54(8) (8) The division shall receive complaints under s. 321.66 (5) and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.

106.54(8m) (8m) The division shall receive complaints under s. 103.88 (5) and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.

106.54(9) (9) The division shall receive complaints under s. 49.197 (6) (d) or 49.845 (4) (d) and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.

106.54(10) (10) 

106.54(10)(a) (a) The division shall receive complaints under s. 995.55 (6) (b) and shall process the complaints in the same manner as employment discrimination complaints are processed under s. 111.39.

106.54(10)(b) (b) The division shall receive complaints under s. 995.55 (6) (c) and shall process the complaints in the same manner as housing discrimination complaints are processed under s. 106.50.

106.54 History History: 1971 c. 185 ss. 1, 7; Stats. 1971 s. 101.222; 1977 c. 29; 1981 c. 360; 1983 a. 398; 1989 a. 47; 1995 a. 27 s. 3689; Stats. 1995 s. 106.06; 1997 a. 27, 131; 1999 a. 82 s. 93; Stats. 1999 s. 106.54; 1999 a. 176 s. 1; 2001 a. 26; 2005 a. 388; 2007 a. 200; 2009 a. 56, 76, 140; 2011 a. 260 s. 80; 2013 a. 208.

106.56 106.56 Postsecondary education: prohibition against discrimination on basis of physical condition or developmental disability.

106.56(1) (1) Subject to sub. (3), no school, university or other institution offering courses or programs in postsecondary education or vocational training which is supported wholly or in part by public funds may refuse to admit any person to any school, institution, course or program or any curricular or extracurricular activity, or may otherwise discriminate against any person, solely on the basis of physical condition or developmental disability as defined in s. 51.01 (5).

106.56(2) (2) If admission to any such school, university, institution, program or course requires that a prospective enrollee take a standardized aptitude examination and the prospective enrollee is unable to take such an examination under standard conditions because of physical condition or developmental disability as defined in s. 51.01 (5), the school, university or institution shall make a good-faith effort to modify the examination conditions in a manner which will permit the prospective enrollee to demonstrate aptitude. The failure of any school, university or institution to make such a good-faith effort is discrimination within the meaning of this section.

106.56(3) (3) The prohibition against discrimination under sub. (1) does not apply to:

106.56(3)(a) (a) Courses, programs or activities involving the handling or operation of hazardous substances, machines or appliances if there is no feasible way in which the physical safety of the disabled student or of other persons can be adequately protected; or

106.56(3)(b) (b) The admission of a person who does not meet the minimum physical standards which are reasonably necessary for a particular course, program or activity. The school, university or other institution has the burden of proving that such minimum physical standards are reasonably necessary.

106.56(4) (4) 

106.56(4)(a) (a) The department shall receive and investigate complaints charging discrimination or discriminatory practices in particular cases, and publicize its findings with respect thereto. The department has all powers provided under s. 111.39 with respect to the disposition of such complaints. The findings and orders of examiners may be reviewed as provided under s. 106.52 (4) (b).

106.56(4)(b) (b) Findings and orders of the commission under this section are subject to review under ch. 227. Upon such review, the department of justice shall represent the commission.

106.56 History History: 1975 c. 275, 421; 1977 c. 29; 1977 c. 418 s. 929 (55); 1979 c. 221; 1981 c. 334 s. 25 (2); 1991 a. 295; 1995 a. 27 s. 3690; Stats. 1995 s. 106.07; 1999 a. 82 ss. 94 to 99; Stats. 1999 s. 106.56.

106.56 Cross-reference Cross-reference: See also LIRC, Wis. adm. code.

106.57 106.57 Postsecondary education; accessible instructional material for students with disabilities.

106.57(1) (1) Definitions. In this section:

106.57(1)(a) (a) “Alternative format” means Braille, large print texts, audio recordings created with the use of text-to-speech technology, electronic formats used with screen reader devices or other assistive technology, or digital talking books that are required by a student with a disability to make instructional material accessible to the student.

106.57(1)(b) (b) “Electronic format” means a computer file or other digital medium embodying instructional material that can be made into an alternative format or that is capable of serving as an alternative format, if used with a screen reader device or other assistive technology.

106.57(1)(c) (c) “Institution of higher education” means an institution or college campus within the University of Wisconsin System, a technical college within the technical college system, or a private, nonprofit institution of higher education that is a member of the Wisconsin Association of Independent Colleges and Universities.

106.57(1)(d) (d) “Instructional material” means a textbook or other material written and published in print format primarily for use by students in postsecondary instruction that is required or essential to the success of a student with a disability in a course of study in which the student is enrolled, as determined by the instructor of the course in consultation with the person specified in sub. (2) (b) who requests that material in alternative format or electronic format under sub. (2) (a).

106.57(1)(e) (e) “Maintain the structural integrity” means to include all of the information provided in the original instructional material, including the text of sidebars; the table of contents; chapter headings and subheadings; footnotes; indexes; glossaries; bibliographies; nontextual elements, such as pictures, illustrations, graphs, charts, and screenshots; and any other data that are pertinent to the instructional material, when that original instructional material is provided in alternative format or electronic format.

106.57(1)(f) (f) “Publisher” means a person that is in the business, whether for profit or not for profit, of selling instructional material in which the person owns or controls some or all of the copyright. “Publisher” does not include a person that is a member of a nationwide exchange network that facilitates and supports the delivery of instructional material in alternative format to students with disabilities, if that material is delivered to those students through that network within 7 working days after a request for that material is made.

106.57(1)(g) (g) “Student with a disability” means a student enrolled in an institution of higher education who is blind or visually impaired, or who has a specific learning disability or other physical condition that prevents the student from using instructional material in standard print format, and who needs reasonable accommodations to read.

106.57(1)(h) (h) “Writing” includes facsimile transmission or electronic mail.

106.57(2) (2) Request for instructional material in alternative or electronic format.

106.57(2)(a) (a) Except as provided in this paragraph, an institution of higher education, on behalf of a student with a disability, may request a publisher to provide instructional material in alternative format or electronic format by submitting to the publisher a request that complies with par. (b) and with any additional requirement imposed by the publisher under par. (c). An institution of higher education may not request a publisher to provide instructional material under this paragraph if the instructional material in the particular format needed by the student is commercially available from the publisher of the material.

106.57(2)(b) (b) A request under par. (a) for instructional material in alternative format or electronic format shall be prepared and signed by the coordinator of services for students with disabilities at the institution of higher education or by another employee of the institution of higher education who is responsible for providing services or accommodations for students with disabilities or for monitoring compliance with the federal Americans with Disabilities Act, 42 USC 12101 to 12213, or the federal Rehabilitation Act of 1973, 29 USC 701 to 796L, on behalf of the institution of higher education, shall provide notice to the publisher of the publisher’s duties under this section, and shall certify all of the following:

106.57(2)(b)1. 1. That a copy of the instructional material in standard format has been purchased for use by a student with a disability by the student or by the institution of higher education in which the student is enrolled. The institution of higher education shall keep records sufficient to verify that a separate copy of instructional material in standard format has been purchased for each student with a disability for whom instructional material in alternative format or electronic format is requested under par. (a), and a publisher has the right to inspect, or receive copies of, those records that relate to instructional material published by the publisher.

106.57(2)(b)2. 2. That the student is a student with a disability.

106.57(2)(b)3. 3. That the instructional material is for use by the student with a disability in connection with a course at the institution of higher education in which the student is enrolled.

106.57(2)(b)4. 4. Whether the institution of higher education has in its possession a copy of the instructional material in electronic format and, if so, whether that copy is capable, if used with assistive technology, of serving as an alternative format suitable for the needs of the student with a disability or of being converted, using generally available technology, into the particular alternative format needed by the student.

106.57(2)(c) (c) A publisher may require a request under par. (a) to also be accompanied by a statement signed by the student or, if the student is a minor, the student’s parent, guardian, or legal custodian agreeing to all of the following:

106.57(2)(c)1. 1. That the student will use the instructional material in alternative format solely for his or her own educational purposes.

106.57(2)(c)2. 2. That the student will not copy or distribute the instructional material in alternative format for use by others.

106.57(3) (3) Provision of instructional material in alternative or electronic format.

106.57(3)(a) (a) In response to a request under sub. (2) (a), on behalf of a student with a disability, for instructional material in alternative format or electronic format, a publisher shall do one of the following:

106.57(3)(a)1. 1. Provide to the requester a copy of the instructional material in alternative format by delivering a computer disk or file.

106.57(3)(a)2. 2. Provide to the requester access to the instructional material in alternative format by providing an Internet password or by providing that access in any other appropriate matter.

106.57(3)(a)3. 3. Provide to the requester a copy of the instructional material in electronic format.

106.57(3)(a)4. 4. At its option, grant to the institution of higher education permission to convert the instructional material into the particular alternative format needed by the student with a disability.