Chapter DWD 220

DWD 220.11   Charge of discrimination.

DWD 220.12   Election of civil action; certification to hearing.

DWD 220.13   Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing.

DWD 220.14   Notice of hearing.

DWD 220.15   Answer.

DWD 220.16   Pre-hearing conference.

DWD 220.17   Subpoenas and motions.

DWD 220.18   Pre-hearing discovery.

DWD 220.19   Disqualification of the administrative law judge.

DWD 220.20   Exchange of names of witnesses and copies of exhibits.

DWD 220.21   Hearing.

DWD 220.22   Record of hearing.

DWD 220.23   Decision and order.

DWD 220.24   Judicial review.

DWD 220.25   Filing of documents by facsimile transmission or electronic mail.

Ch. DWD 220 Note Note: Chapter Ind 89 as it existed on September 30, 1994 was repealed and a new chapter ILHR 220 was created effective October 1, 1994. Chapter ILHR 220 was renumbered chapter DWD 220 under s. 13.93 (2m) (b) 1. and corrections made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, November, 1997, No. 503.

DWD 220.01 DWD 220.01 Purpose. The purpose of this chapter is to implement the laws prohibiting discrimination in housing and to provide an impartial and speedy procedure for resolving disputes of alleged housing discrimination.

DWD 220.01 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 220.02 DWD 220.02 Definitions. In addition to those terms defined in s. 106.50, Stats., the following are definitions for terms used in this chapter:

DWD 220.02(1) (1) “Act” means s. 106.50, Stats., unless the context requires otherwise.

DWD 220.02(2) (2) “Administrative law judge” means the examiner appointed to conduct hearings under s. 106.50, Stats.

DWD 220.02(3) (3) “Conciliation agreement” means a written agreement setting forth the resolution of the issues in conciliation.

DWD 220.02(4) (4) “Day”, when used in time computations in this chapter, means a calendar day, except that if the last day of the time period is a Saturday, Sunday or legal holiday, the last day shall be the next business day.

DWD 220.02(5) (5) “Department” means the department of workforce development.

DWD 220.02(6) (6) “Division” means the equal rights division of the department.

DWD 220.02(7) (7) “Filing” means the physical receipt of a document at any division office.

DWD 220.02(8) (8) “Lawful source of income” includes, but is not limited to, lawful compensation or lawful remuneration in exchange for goods or services provided; profit from financial investments; any negotiable draft, coupon or voucher representing monetary value such as food stamps; social security; public assistance; unemployment compensation or worker’s compensation payments.

DWD 220.02(9) (9) “Licensing or chartering agencies” means those regulatory agencies established under state law to license persons to perform activities which are covered by the act.

DWD 220.02(10) (10) “Person” includes, but is not limited to, one or more individuals, partnerships, associations, corporations, joint-stock companies, trusts, unincorporated organizations, legal representatives, trustees, or trustees or receivers in bankruptcy.

DWD 220.02(11) (11) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that discrimination probably has been or is being committed. 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.

DWD 220.02(12) (12) “Reasonable cause,” when used in s. 106.50 (6m) (d), Stats., means probable cause, as defined in sub. (11).

DWD 220.02(13) (13) “Receipt of service” means either the date that a document is delivered by certified mail or the date that the division is notified by the U.S. postal service that it was unable to deliver the document by certified mail.

DWD 220.02(14) (14) “Test” means a simulation of any transaction covered by the act for the purpose of comparing the responses given by persons such as landlords, sellers of real estate, and lenders of money for real estate to individuals such as renters or buyers of real estate or borrowers of money for real estate, to determine whether housing discrimination as defined under s. 106.50 (2), (2m) or (2r), Stats., is being or has been committed.

DWD 220.02 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; corrections in (intro.), (1), (2), (12) and (14) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540; CR 06-062: am. (11) Register November 2006 No. 611, eff. 12-1-06.

DWD 220.03 DWD 220.03 Housing for older persons; exemptions and exclusions.

DWD 220.03(1) (1) Certification that housing is for older persons. Housing primarily intended and primarily operated for occupancy by at least one person 55 years of age or older per dwelling unit may qualify as housing for older persons entitled to the exemption under s. 106.50 (5m) (a) 1e., Stats., only if that housing actually satisfied all of the factors required for such housing by s. 106.50 (5m) (a) 1e., Stats., at the time that the alleged discriminatory housing practice occurred.

DWD 220.03(2) (2) Exemptions from occupancy requirements. Housing shall not fail to qualify for the exemptions and exclusions for housing for older persons set forth in s. 106.50 (5m) (a) 1. and 1e. b., Stats., by reason of either of the following:

DWD 220.03(2)(a) (a) The existence of unoccupied units, provided that such units are reserved for occupancy by persons 55 years of age or over.

DWD 220.03(2)(b) (b) The occupancy of one or more units by bona fide employees of the housing (and family members renting in the same unit) who are under 55 years of age, provided that they perform substantial duties directly related to management or maintenance of the housing.

DWD 220.03 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; corrections in (1) and (2) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

DWD 220.04 DWD 220.04 Complaints.

DWD 220.04(1) (1) Who may file complaints. A complaint may be filed by any person or by the person’s duly authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.

DWD 220.04(2) (2) Persons against whom complaints may be filed. A complaint may be filed against any person alleged to be engaged or to have engaged in a discriminatory housing practice prohibited under the act.

DWD 220.04(3) (3) Where to file complaints.

DWD 220.04(3)(a) (a) A complaint may be filed in person with any division office, or it may be mailed or sent by facsimile transmission to one of the following division offices:

DWD 220.04(3)(a)1. 1. Equal Rights Division, 201 East Washington Avenue, Madison, WI 53702. Facsimile number: 608-267-4592.

DWD 220.04(3)(a)2. 2. Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile number: 414-227-4084.

DWD 220.04(3)(b) (b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 220.25 (1).

DWD 220.04(4) (4) Form and content of complaint. A complaint shall be written on a form which is available at any division office or on any other form acceptable to the department. Each complaint shall be signed by the person filing the complaint or by the person’s duly authorized representative. The signature constitutes a certificate that the party or the representative has read the complaint; that to the best of that person’s knowledge, information and belief the complaint is well-founded; and that the complaint is not being used for any improper purpose, such as to harass the party against whom the complaint is filed. Each complaint shall contain substantially the following information:

DWD 220.04(4)(a) (a) The name and address of the complainant.

DWD 220.04(4)(b) (b) The name and address of the known aggrieved persons, if different than the complainant.

DWD 220.04(4)(c) (c) The name and address of the respondent.

DWD 220.04(4)(d) (d) A description and the address of the dwelling which is involved.

DWD 220.04(4)(e) (e) A concise statement of the essential facts, including pertinent dates, constituting the alleged discriminatory housing practice.

DWD 220.04(5) (5) Date of filing of complaint. A complaint is filed when it is received by the department in a form that reasonably meets the standards of sub. (4).

DWD 220.04(6) (6) Date of filing of deferred complaint. A complaint which is deferred to the department by a federal or local fair housing agency with which the department has a worksharing agreement complies with the requirements of sub. (4) and is considered filed when received by the federal or local agency.

DWD 220.04(7) (7) Amendment of complaint. Subject to the approval of the department, a complaint may be amended no later than 45 days before hearing unless good cause is shown for the failure to amend the complaint prior to that time. If the complaint is amended prior to the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. If the complaint is amended after the case has been certified to hearing, the chief of the hearing section or the administrative law judge may remand the complaint to the investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that discrimination has been committed as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 220.05 (1).

DWD 220.04(8) (8) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for withdrawal shall be in writing and shall be signed by the complainant or by the complainant’s duly authorized representative or attorney of record. Upon the filing of a request for withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

DWD 220.04 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (7) Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (3) Register November 2006 No. 611, eff. 12-1-06.

DWD 220.05 DWD 220.05 Preliminary review of complaints.

DWD 220.05(1) (1) Review of complaint. The department shall review every complaint filed to determine all of the following:

DWD 220.05(1)(a) (a) Whether the complainant is protected by the act.

DWD 220.05(1)(b) (b) Whether the respondent is subject to the act.

DWD 220.05(1)(c) (c) Whether the complaint states a claim for which relief can be granted under the act.

DWD 220.05(1)(d) (d) Whether the complaint was timely filed.

DWD 220.05(2) (2) Preliminary determination dismissing complaint. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements of sub. (1). The department shall send the order of dismissal by first class mail to the last-known address of each party and to their attorneys of record.

DWD 220.05(3) (3) Appeal of preliminary determination. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written request with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the preliminary determination. The department shall serve the decision of the administrative law judge upon the parties. If the decision reverses or sets aside the preliminary determination, the complaint shall be remanded for investigation. If the decision affirms the preliminary determination, it is the final decision of the department. The department shall send a copy of the decision and order and notice of appeal rights by first class mail to the last known address of each party and to their attorneys of record.

DWD 220.05 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (2) and (3) Register March 2004 No. 579, eff. 4-1-04.

DWD 220.06 DWD 220.06 Testing.

DWD 220.06(1) (1) Conditions under which testing may be done by the department. The department may engage in testing for the purpose of establishing violations of s. 106.50 (2), (2m) or (2r), Stats. by verifying allegations of unlawful housing discrimination or to determine whether sufficient evidence exists to initiate its own complaint. Testing may occur under circumstances including but not limited to the following:

DWD 220.06(1)(a) (a) Where no other means exits for verifying or refuting the allegations contained in a complaint, or where the findings of the investigator would be significantly strengthened by the inclusion of test results.

DWD 220.06(1)(b) (b) Where the number or content of complaints against a specific respondent is sufficient to indicate that a pattern of unlawful discrimination may exist.

DWD 220.06(1)(c) (c) Where demographic statistics would lead a reasonable person to believe that a pattern of unlawful discrimination exists in a particular geographical area.

DWD 220.06(2) (2) Testing procedures. Any person engaged in testing for the department shall do so only after having specific authorization by the department. The results of each test for potential discrimination shall be submitted to the department in written form by those persons who conducted the test.

DWD 220.06(3) (3) Notice of testing. The department may not give notice of testing to the person who shall be tested. If the testing is undertaken as the result of a complaint naming a specific respondent, the department shall delay sending the notice of the complaint to the respondent until after the completion of the testing.

DWD 220.06 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

DWD 220.07 DWD 220.07 Investigations.

DWD 220.07(1) (1) Conduct of investigation. Except as provided under sub. (2), the department shall investigate all complaints that satisfy the review under s. DWD 220.05 (1). In conducting investigations under this chapter, the department may seek the cooperation of all persons to provide requested materials to the department; to obtain access to premises, records, documents, individuals, and other possible sources of information; to examine, record, and copy necessary materials; and to take statements of persons reasonably necessary for the furtherance of the investigation. The department may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

DWD 220.07(2) (2) Dismissal of complaint prior to completion of investigation.

DWD 220.07(2)(a) (a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:

DWD 220.07(2)(a)1. 1. The complainant has failed to respond to correspondence from the department concerning the complaint within 20 days after the correspondence was sent by certified mail to the last known address of the person filing the complaint, in accordance with the provisions of s. 106.50 (6) (a) 6., Stats.

DWD 220.07(2)(a)2. 2. The allegations in the complaint have been previously dismissed by the department or by a state or federal court.

DWD 220.07(2)(b) (b) A complainant may appeal from an order dismissing a complaint under this subsection by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the dismissal of the complaint. The decision of the administrative law judge shall be served upon the parties. If the decision reverses or sets aside the dismissal, the complaint shall be remanded for further investigation. If the decision affirms the preliminary determination, the complainant may seek judicial review if it is a final decision and order as defined in s. DWD 220.24.

DWD 220.07 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: rn. to be (1) and am., cr. (2) Register March 2004 No. 579, eff. 4-1-04.

DWD 220.08 DWD 220.08 Initial determinations.

DWD 220.08(1) (1) General. At the conclusion of the investigation, the department shall issue an initial determination which shall state whether or not there is probable cause to believe that housing discrimination occurred as alleged in the complaint. This initial determination shall set forth the facts upon which its conclusion is based.

DWD 220.08(2) (2) Initial determination of probable cause. If the initial determination of the department is that probable cause exists, the department shall issue a charge under s. DWD 220.11.

DWD 220.08(3) (3) Initial determination of no probable cause. If the initial determination of the department is that there is no probable cause to believe that housing discrimination occurred as alleged in the complaint, it shall dismiss the complaint. The department shall notify the parties and their attorneys of record of the complainant’s right to appeal as provided in s. DWD 220.09.