221 Coverage

Although there could be situations where services provided by the Respondent, the Division of Vocational Rehabilitation, would be covered by the WPAAL, the services at issue in this case--customized self-employment services which determine eligibility for grant funding--were not covered. Buggs v. State of Wis., DWD, Div. of Voc. Rehab. (LIRC 10/30/23).

A police department is not considered a “public place of accommodation or amusement” within the meaning of the WPAAL, as it does not provide necessities or comforts of the type offered by the businesses enumerated in the statute. Flores v. City of Columbus Police Dep't (LIRC, 02/08/23).

"Familial status" and "domestic violence victim" are not bases of discrimination covered by the WPAAL. Flores v. City of Columbus Police Dep't (LIRC, 02/08/23).

A library is a place of public accommodation. However, the Complainant’s allegation that the Respondent declined to include a book she authored in its collection because of bias against her related to her race and creed was not covered by the WPAAL. Inclusion of a book in the library collection is not a service normally offered to members of the public, but is a discretionary opportunity made available to authors on a selective basis. Lewis v. Wauwatosa Pub. Library (LIRC, 10/31/22).

The commission has generally found that governmental entities are not covered by the WPAAL. The County of Dane is a unit of government and not a "place." While Dane County does operate the Dane County Courthouse, a building that is open to the public, the Courthouse is not a public place of accommodation or amusement within the meaning of the WPAAL; its primary function is not to provide public accommodations or amusements, and it is not comparable to the places of business refenced in the WPAAL. Kreger v. Cnty. of Dane (LIRC, 03/31/22).

Veterinary hospital is a place of business within the meaning of the WPAAL, and pet health care is a service within the meaning of the WPAAL. Nothing in the WPAAL specifies that hospitals or clinics referenced in the statute must be solely for the care of humans. The fact that veterinary services are not specifically referenced in the WPAAL does not compel a conclusion that a veterinary hospital is not covered by the WPAAL as the nature of the business is not dissimilar to those listed in the WPAAL. Shott v. Lake Geneva Animal Hospital (LIRC, 11/11/21).

A radio station was not subject to the WPAAL because it is not a "place," and is not similar to or consistent with the types of businesses enumerated in the statute. The Complainant's allegation that he was denied an opportunity to have his song played on the Respondent's radio station does not set forth a claim that is covered by the WPAAL. McCann v. Midwest Family Broadcasting (LIRC, 11/11/21).

A public defender’s office is not a “public place of accommodation or amusement,” and a public defender is not providing the type of accommodation or amusement that would be covered under the statute. Hortman v. Maguire Law Office (LIRC, 12/29/20).

The Girl Scouts do not operate a public place of accommodation, notwithstanding the fact that the troop meets at a school. The Girl Scouts also fall within the exception contained in the statute for private non-profit organizations providing services to members or guests. Kreger v. Girl Scouts of Wis. Badgerland Council (LIRC, 09/11/2020).

As a general rule, governmental agencies are not considered public places of accommodation or amusement. Sauers v. Village of Prairie du Sac (LIRC, 09/27/19).

For an employer to be accountable for the acts of its employees under the Public Accommodation Act, the employee must have been acting within the scope of his or her employment when engaging in the allegedly discriminatory conduct. The burden to establish that an employee was acting within the scope of his or her employment is on the Complainant. The Complainant must prove that the individual's conduct was motivated by an interest to serve his or her employer. This interest need not be the employee's primary interest, however, it must be at least one of the purposes motivating the employee's conduct. An employee who called a customer a racial epithet was acting outside her scope of employment and therefore her discriminatory conduct could not be attributed to the Respondent. Turner v. Kelly's Market (LIRC, 12/11/18).

The Complainant alleged that Outagamie County violated the WPAAL by taking away custody of his children, improperly billing him for the birth of his children, and garnishing his benefits checks to cover child support/childbirth. A county's department of health and social services is not a covered entity under the WPAAL. It is not a public place of accommodation or amusement as defined in the WPAAL. Even if it was considered a business within the meaning of the WPAAL, the injuries alleged by the Complainant are not the type of injuries contemplated by the WPAAL. Young v. Cnty. of Outagamie Dep't of Health & Soc. Servs. (LIRC, 08/30/18).

A gas station and convenience store is a public place of accommodation or amusement within the meaning of the WPAAL. However, the allegation that the Complainant was denied an opportunity to go through the Respondent’s trash cans is not covered by the Public Accommodations Act. Going through the trash is not an accommodation the Respondent provides to any members of the public. Young v. Kwik Trip, Inc. (LIRC, 09/21/17).

The Public Accommodations Act prohibits any person from denying to another the full and equal enjoyment of a place of public accommodation for a discriminatory reason, and prohibits any person from directly or indirectly publishing, circulating, displaying or mailing any written communication which the communicator knows is to the effect of denying a place of public accommodation to another for a discriminatory reason. Because the Complainant alleged that someone orally notified him that his access would be denied in the future, he has not alleged an injury in violation of the Act. Young v. DWD (LIRC, 01/30/15).

The Complainant’s allegation that she was given differential treatment compared to a white male customer in negotiating a transaction at a retail store states a claim under the WFEA’s prohibition against preferential treatment. The Complainant’s comparison of her experience and the experience of a white male customer did not show preferential treatment because of sex or race. Differences in the treatment of the two customers was satisfactorily explained as being motivated by non-discriminatory economic considerations, reducing the idea of racial or sexual bias to speculation. Khan v. Value Village (LIRC, 12/04/14), (appealed to circuit court then elected a jury trial).

The Wisconsin Public Accommodations & Amusements Law does not prohibit conduct motivated by a desire to retaliate against a person because they have complained of alleged discrimination under the law. (In Schmid v. Shape Up Shoppe (LIRC, 01/11/93), LIRC held that retaliation was covered by the public accommodations law; however, that holding was the result of different statutory language at the time). Tabatabai v. Wis. Physicians Serv. Health Ins. Co. (LIRC, 02/29/12).

The allegation in the complaint that the Respondent was motivated by race and national origin bias when it paid the Complainant less for a submitted medical expense was properly denied for failure to state a claim under the public accommodations law. The relationship of insurer and insured is fundamentally dissimilar from the types of relationships that the public accommodations law is designed to cover. The nature of the services provided within that relationship is also fundamentally dissimilar from the nature of the types of services to which the law is designed to ensure equal access. The only exception to this principle is sec. 106.52(3)(a)4., Stats., which specifically covers refusal to furnish or charging a higher rate for any “automobile” insurance because of race, color, creed, disability, national origin or ancestry. Tabatabai v. Wis. Physicians Serv. Health Ins. Co. (LIRC, 02/29/12).

A claim that a health insurance company violated the public accommodations law by writing allegedly offensive notes in its internal records because of race and national origin bias was properly dismissed for failure to state a claim under the law because the nature of the relationship and the services involved was fundamentally dissimilar from the types of relationships the law is intended to cover. Further, the offensive statements in internal documents could not be considered a violation of sec. 106.53(3)(a)3., Stats., because the point of that section is to prevent statements from being publicized so that they have the effect of discouraging or deterring individuals from even attempting to patronize certain establishments. Written notes in a purely internal log would not constitute publishing, circulating, displaying or mailing those documents. Tabatabai v. Wis. Physicians Serv. Health Ins. Co. (LIRC, 02/29/12).

There are a variety of government entities that supply necessities and comforts of the kind offered by the businesses enumerated in the Wisconsin Public Accommodation and Amusements Law. The State itself, through the Department of Natural Resources, provides places for outdoor recreation, including camping, hunting and fishing. County and local governments also provide such places of recreation for the public. Further, various hospitals and nursing homes are government-owned and operated. Such government entities supply necessities or comforts of the kind offered by the businesses listed in the Law’s definition of public place of accommodation or amusement and are therefore subject to the Law. Duarte-Vestar v. DOA (LIRC, 10/16/09).

The primary function of the Department of Administration, a State agency, is to provide support services to other State agencies. The DOA is not comparable or consistent with the entities enumerated in the public accommodation or amusement statute. The DOA does not supply necessities or comforts of the kind offered by the listed businesses in the law’s definition of public place of accommodation or amusement. Duarte-Vestar v. DOA (LIRC, 10/16/09).

The Complainant alleged that when he attended an event at a stadium, an individual employed by a television station which was providing television coverage of an event at the stadium asked him to leave the building. The Complainant filed a complaint against both the television station and the individual employed by the television station. The complaint was properly dismissed on jurisdictional grounds. Neither the television station nor the individual named in the complaint operated the stadium. Further, with respect to the individual named as a Respondent in the complaint, even assuming that the television station was a place of public accommodation (which it is not) the complaint would have been dismissed because the individual was acting as an agent of an employer. Agents should not be separately named as Respondents. Young v. WEAU-TV (LIRC, 05/18/07).

The Respondent’s use of the phrases “women only” and “exclusively for women” did not conform with the advertising provisions of the Wisconsin Public Accommodations and Amusements Law that were in effect at the time of the hearing. Subsequent to the issuance of the Administrative Law Judge’s decision, the legislature amended the Wisconsin Public Accommodations and Amusements Law. The newly amended statute, which went into effect on June 3, 2003, provides, “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.” Sec. 106. 52(3)(e), Stats. Because a fitness center is now permitted to discriminate based upon sex, the cease-and-desist order in the Administrative Law Judge’s decision was no longer enforceable. Swayne v. Dave Watson, Inc. (LIRC, 09/24/03).

The Wisconsin Public Accommodation and Amusement Law does not prohibit discrimination based upon age, except with respect to lodging. While it would certainly be regrettable if the Complainant were treated unfavorably with regard to his seating on a bus because of his age, such allegations do not constitute a claim for which relief can be granted under the law. Kartin v. Duluth Transit Auth. (LIRC, 08/15/03).

The city clerk’s office is not a public place of accommodation or amusement. While it is possible that there are vending machines in the city clerk’s office, it is clearly not the function of the city clerk’s office to sell sodas or snacks to the public, and the city clerk’s office does not operate in order to provide goods or services to individuals. Moore v. City of Madison (LIRC, 09/26/02).

The Respondent, the Wisconsin Youth Soccer Association (WYSA), is a private, non-profit organization. The WYSA requires that players try out and be accepted onto a team and that they adhere to certain rules of conduct adopted by the organization. Thus, membership in the WYSA requires more than the mere payment of a fee. Therefore, the WYSA comes within the exception in sec. 106.52(1)(e), Wis. Stats. It is not a public place of accommodation or amusement within the meaning of the law. Holloway v. Wis. Youth Soccer Ass'n (LIRC, 07/16/02).

A blood plasma center which pays donors for blood plasma donations that are used to produce medical products is not a place of public accommodation within the meaning of the Wisconsin Public Accommodations and Amusements Law. Therefore, its refusal to accept a donation of blood plasma from the Complainant cannot be considered a violation of the statute. Ponick v. Community Bio Resources (LIRC, 08/30/01).

Even an isolated instance of harassing behavior can be sufficient to deprive a restaurant patron of the full enjoyment of a place of public accommodation. Here, the Complainant’s contentions that she heard a restaurant manager make an overtly racist remark over a walkie-talkie, and that this made her feel embarrassed and unwelcome, led to a conclusion that the Complainant’s experience at this place of public accommodation was less than fully enjoyable. Moreover, it can be inferred that the Complainant’s enjoyment was not equal to that of non-black restaurant patrons, who presumably did not have to listen to derogatory about their race. Even presuming that the manager intended the remark to be a harmless joke, the fact remains that he made a remark which was inherently racist and offensive, and which the Complainant found to be embarrassing and unwelcome. LIRC declined to draw any adverse conclusion from the Complainant’s failure to register a complaint directly with the Respondent. Moreover, there is no reason to conclude that harassment must be condoned by management before an individual can be found to have been deprived of the full and equal enjoyment of a place of public accommodation. Hampton v. Pizza Hut (LIRC, 07/27/00).

“Economic class” is not a protected category under the public accommodations statute. Green v. PDQ (LIRC, 01/20/99).

Access to the governing bodies and committees of corporations, even those who are alleged to operate public places of accommodation are not protected by Wisconsin’s Public Accommodations statute. Therefore, the allegedly discriminatory makeup of the board of directors in this case could not form the basis for a claim under sec. 106.04(9)(a)2, Stats. Barry v. Maple Bluff Country Club, 221 Wis. 2d 707, 586 N.W.2d 182 (Ct. App. 1998).

[Ed. Note: sec. 106.04(9)(a)2., Stats. has been renumbered sec. 106.52(3)(a)2., Stats.] Private nonprofit organizations are outside the scope of the public accommodations statute only when they are providing accommodations, amusements, goods and services to: (a) members of the organization, (b) guests named by members, and (c) guests named by the organization. Whether a private nonprofit organization is outside the scope of the statute is conditioned on the relationship of the club or its members to the persons to whom services or facilities are provided. The obligation to plead and prove this statutory proviso is the club’s because it is seeking the benefit of it in this case. Barry v. Maple Bluff Country Club, 221 Wis. 2d 707, 586 N.W.2d 182 (Ct. App. 1998).

A complaint was appropriately dismissed where the Complainant alleged that the Respondent, a grocery store, treated customers differently based upon whether or not they had certain coupons which were attainable only in certain editions of a local newspaper. Even if this was true, it would not be a violation of the law prohibiting discrimination in public accommodations because of sex, race, color, creed, disability, sexual orientation, national origin or ancestry. Scarvaci v. Kohl’s Food Stores (LIRC, 07/20/98).

The Rock County Sheriff’s Department is not a “public place of accommodation or amusement” as that term is defined in the Wisconsin Public Accommodations and Amusements Act. The Sheriff’s Department is totally dissimilar in nature from the businesses listed in the statute. Therefore, the Complainant’s allegations that the Sheriff’s Department, among other things, denied him permission to make a phone call, and denied him medical attention were appropriately dismissed. Perry v. Rock County Sheriff’s Dep't (LIRC, 06/25/97).

The nature of the businesses listed in the Public Accommodations Act involve businesses that offer health and beauty aids, food, drink, recreation and lodging to patrons. They are accommodations generally offered by businesses classified as service industry businesses. The Respondent’s business in this case, which consists of leasing real property to entrepreneurs for the establishment of their own place of business, does not constitute the operation of a public place of accommodation within the meaning of the law. The Respondent does not supply necessities or comforts of a kind enumerated in the statute. Young v. Trimble (LIRC, 07/11/94).

In a case brought under the Wisconsin Public Accommodations and Amusements Act, the Complainant, a lesbian, alleged that she and the members of her baseball team, which played in games sponsored by the Respondent, experienced verbal harassment from both spectators at the game and players on other teams who shouted comments such as “fag,” “dike,” “queer,” “go home,” and “she’s got AIDS.” The heckling that occurred in this case created a hostile environment which had the effect of denying the full and fair enjoyment of a public accommodation to the Complainant. However, the Respondents were not liable in this case because they did not exercise a degree of control over the persons engaging in the harassment. Neldaughter v. Dickeyville Athletic Club (LIRC, 05/24/94).

A health club which provides services to the general public subject to no requirement other than payment of fees for the services does not involve the type of "membership" anticipated by the Legislature in its description of a "bona fide private, nonprofit organization or institution," providing services to "members of the organization or institution," "during an event." Sec. 101.22(1)(bp)2, Stats. The "membership" which the Respondent's health club invokes is no more than a method of accounting for fee payments. Schmid v. Shape Up Shoppe (LIRC, 01/11/93). [Ed. note: sec. 101.22(1)(bp)2, Stats., has been renumbered sec. 106.52(1)(e)2., Stats.]

Sec. 101.22(4)(mn), Stats. is an anti-retaliation provision which applies to the Public Accommodations Law. When a public place of accommodation retaliates against a person who has filed a complaint of discrimination by further limiting or denying access to that person, this tends to coerce, intimate, threaten and interfere with that person's exercise and enjoyment of their statutory right to file a charge of discrimination. Schmid v. Shape Up Shoppe (LIRC, 01/11/93).

The denial of an opportunity to be on an amateur softball team is not a denial or a limitation of a public place of accommodation or amusement. First, the right to be on an amateur softball team is simply not a "place." Second, the right to be on a softball team is dissimilar from the other things mentioned in the statute because it relates to something which is in the normal course not offered to members of the public at large subject only to ability to pay but is rather offered with great selectivity. Third, it is at least arguable that an amateur league team is a "bona fide private, non-profit organization or institution," particularly in the sense of being private. Admittance to the team is entirely dependent upon invitation extended by the group on the basis of private and personal considerations, such as friendship, compatibility and ability. Neldaughter v. Mound View Cheese (LIRC, 07/31/91).

In order to determine whether the Public Accommodations Act is applicable, the nature of the Respondent's business must be considered. Only if the Respondent's business or activity constitutes a "public place of accommodation or amusement" can it be found that the Respondent has violated the law. A company which provides management services for the owners of a shopping center with commercial tenants does not offer "accommodations to the public" as those terms are normally understood. The company serves the property owners that are its clients. The company is totally dissimilar in nature from the businesses listed in the Public Accommodations Law. Wang v. Executive Management, Inc. (LIRC, 12/19/90).

In order to be a place of public accommodation, a business must be of the same type as those identified in the statute. The classified advertising section of the Respondent's newspaper is not subject to the provisions of the Public Accommodations Act because newspapers are totally dissimilar in nature from businesses listed in the Act and since newspapers do not offer public accommodations in the sense that term is normally understood. Hatheway v. Gannett Satellite Network, 157 Wis. 2d 395, 459 N.W.2d 873 (Ct. App. 1990).