229 Miscellaneous

Wis. Stat. §111.39(3) applies to cases filed under the WFEA. It makes dismissal mandatory when a person filing the complaint fails to respond to any correspondence from the Department. The Wisconsin Public Accommodation and Amusement Law ("WPAAL") does not contain any comparable provision. Rather, Wis. Admin. Code DWD § 221.07 which applies to cases under the WPAAL, makes dismissal discretionary when a Complainant fails to respond to correspondence from the Department. Brookens v. Wendy's (LIRC, 08/31/22).

The 300-day filing limit in the Public Accommodations and Amusements Act is not a jurisdictional requirement, but is a statute of limitations that is subject to waiver. Young v. City of Eau Claire (LIRC, 01/04/2018).

Under the Public Accommodations Act, unlike the Fair Employment Act, there is no statutory provision like Wis. Stat. § 111.39(3), mandating dismissal for failure to respond to a letter from the ERD. Instead, there is only an administrative rule, which provides that the ERD “may” dismiss for a non-response. Dismissal of a public accommodation complaint for lack of response to an ERD letter, then, is a matter of discretion. The ALJ did not exercise discretion, but simply dismissed on the assumption that dismissal was mandated. The matter was remanded for consideration under the correct standard. Soto v. Menards, Inc. (LIRC, 06/27/14).

The exceptions that apply to the 300-day statute of limitations in employment discrimination cases under the Wisconsin Fair Employment Act can also be applied by analogy in cases brought under the public accommodations discrimination law. These include what is sometimes referred to as the “discovery rule,” as well as the doctrine of equitable tolling. The discovery rule can delay the initial running of the statutory limitations period until a Complainant discovers he has been injured by another. Equitable tolling can suspend the running of the statute of limitations for the time reasonably necessary to conduct the necessary inquiry to determine if an unlawful motive was possibly at work. Tabatabai v. Wis. Physicians Serv. Health Ins. Co. (LIRC, 02/29/12).

The circuit court awarded the Respondent reasonable costs and attorney’s fees pursuant to sec. 814.025(1), Stats. for the frivolous claims brought by the Complainant against the Respondent. Both the Equal Rights Division and the Labor and Industry Review Commission had found that there was no probable cause to believe that the Respondent had violated the Wisconsin Public Accommodations Law by giving preferential treatment to others on the basis of race. The Complainant presented no new evidence in his appeal to the circuit court to provide a factual basis for his allegations. The Complainant should have known that without more than conclusory statements his claim would be as unsuccessful in court as it was in the previous administrative hearing. Harris v. Curley (Dane Co. Cir. Ct., 08/11/04).

Standing is not an issue of any significance when commencing complaints of public accommodations discrimination, because there is no statutory provision which imposes a standing limitation on who may bring complaints. Malecki v. Vic Tanny Int'l of Wis. (LIRC, 08/07/92).

A complaint of sex discrimination in the provision of different showering and dressing facilities for men and women at a health club was timely, even though the male Complainant filed the complaint several years after first joining the club, because the maintenance of different facilities for men and women is a continuing act. Malecki v. Vic Tanny Int'l of Wis. (LIRC, 08/07/92).

By 1989 Act 47, effective September 12, 1989, the legislature repealed the Public Accommodations Law, as it then existed in sec. 942.04, Stats. (1987), and recreated it in sec. 101.22, Stats. Prior to this change in the law, the Equal Rights Division did not have authority to conduct hearings on allegations of violations of the Public Accommodations Law. Neldaughter v. Mound View Cheese (LIRC, 07/31/91). [Ed. note: sec. 101.22, Stats., has been renumbered sec. 106.52, Stats.]