212.3 Disability discrimination

There is no statutory definition of “impairment” in the Wisconsin Open Housing Act. However, the term “impairment” has been defined in the context of the Wisconsin Fair Employment Act to mean a “lessening, deterioration, or damage to a normal bodily function or bodily condition.” This definition is also appropriate for inquiries under the Wisconsin Open Housing Act. To establish a disability within the meaning of the Wisconsin Open Housing Act, 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) the impairment, whether real or perceived, is one that substantially limits one or more major life activities, or is regarded by the Respondent to substantially limit one or more major life activities. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649.

A perceived impairment may be sufficient to invoke the Wisconsin Open Housing Act. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649.

In this case, although an actual disability was not proven at the hearing, there was evidence that the Respondent was aware that the Complainant had been diagnosed with bulimia. As a result, the Respondent thought that the Complainant suffered from severe depression, that the Complainant was likely suicidal, and that the Complainant was likely to return to the hospital for residential treatment. The next element to be determined is whether the Respondent’s perceptions about the Complainant’s impairment were true, and if they were, whether one or more of the Complainant’s major life activities would be limited. In this case, the Respondent’s perceptions did rise to the level where, if taken as true, the Complainant’s major life activities would have been limited. Therefore, the Respondent’s perceptions of the Complainant show that the Respondent regarded the Complainant as disabled. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649.

The Respondent discriminated against the Complainant on the basis of perceived disability where he sought six months’ advance rent from the Complainant, as opposed to the normal one month’s rent and a security deposit. Thus, the Respondent exacted unequal lease terms from the Complainant because of his disability. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649.

A county zoning board did not violate the Wisconsin Open Housing Law when it refused to issue a shoreland zoning variance to an applicant who had requested the variance in order to modify a home to accommodate his disability. Provisions in the zoning laws allowing for a variance when “special conditions” result in “unnecessary hardship” did not have to be construed to allow the Board to issue a variance as a reasonable accommodation for an applicant with a disability. Prior Supreme Court interpretations of the zoning laws made it clear that “special conditions” applied to conditions affecting the property in question, not to conditions personal to the landowner. Further, the State has a compelling interest in maintaining its shoreland zoning laws. County of Sawyer v. DWD, 231 Wis. 2d 534, 605 N.W.2d 627 (Ct. App. 1999).