223 Remedies

The assessment of forfeitures within the statutory range set forth in Wis. Stat. §106.52 is within the sound discretion of the Equal Rights Division. The commission found that a $500 forfeiture per violation, for a total of $4,500, was appropriate as it reflected the seriousness of the violations, while taking into account the absence of the type of aggravating factors that might warrant assessing the highest possible penalty per violation. Swayne and Lax Tennis, Ltd. v. Watson, Inc. (LIRC, 09/24/03).

The Public Accommodations and Amusements Act does not authorize the Department to award compensatory damages to a prevailing Complainant. Because the Act does not contain a provision guaranteeing a right to trial by jury (a right which is, by contrast, provided under the recently amended Open Housing Act), allowing the Department to award compensatory damages would raise significant constitutional questions. The constitutional guarantee of the right to a trial by jury in civil matters requires a jury trial in cases in which damages are to be awarded. The Department may, however, award equitable remedies such as “out-of-pocket” expenses. Humphrey v. Comfort Inn (LIRC, 09/06/94).

“Out of pocket expenses” are amounts which are actually spent by the injured party as a necessary consequence of the prohibited discrimination by the Respondent and are in the nature of expenses of mitigation. In this case, the Complainants were not entitled to reimbursement for their meals then they left a restaurant due to the Respondent's use of racially derogatory language. The cost of the meals was not an expense incurred in mitigation of the harm suffered. The Complainants’ actions in leaving the restaurant without paying their bill cannot be condoned, regardless of the discriminatory behavior that prompted them to do so. Bond v. Michael’s Family Rest. (LIRC, 03/30/94).

A Complainant was not entitled to reimbursement for the cost of counseling sessions where the only evidence in the record regarding the sessions was the Complainant's own testimony that her daughter suffered severe emotional harm as a result of her exposure to racial epithets by the Respondent. The Complainants presented no expert testimony at the hearing establishing the need for the counseling; nor did they present their medical bills for the counseling. Bond v. Michael’s Family Rest. (LIRC, 03/30/94).

Although a finding of discrimination generally implies a finding of intent, it is not enough to simply find that every act of discrimination is an inherently “willful” act which would justify the imposition of a forfeiture under the Wisconsin Open Housing Act. In this case, the Respondent intentionally used the word “nigger,” knowing that the word was improper and could reasonably be construed by a listener as an offensive racial epithet. However, there was no evidence to suggest that the Respondent was aware of the existence of the Public Accommodations Law or knew that her actions in using the racial epithets were in violation of that statute. Therefore, the Labor and Industry Review Commission cannot conclude that the Respondent knew or should have known that her actions violated the law. Accordingly, the Commission declines to assess a forfeiture penalty. Bond v. Michael’s Family Rest. (LIRC, 03/30/94).