EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MONONA AVENUE
Case No. 1306 and 1307
A complaint was filed by David Bahr with the Madison Equal Opportunities Commission (MEOC) on June 4, 1984 alleging discrimination on the basis of sex and marital status in regard to housing. Bahr's complaint was assigned MEOC Case No. 1306. A complaint was also filed with the MEOC by Nathan Meyer on June 4, 1984 alleging discrimination on the basis of sex and marital status in regard to housing. Meyer's complaint was assigned MEOC Case No. 1307.
Each complaint was investigated by Mary Pierce of the MEOC staff, and a separate Initial Determination (each dated August 22, 1985) in each case was issued. Each Initial Determination concluded that probable cause existed to believe that discrimination had occurred, as alleged.
Each case advanced to the conciliation process, but conciliation failed (or was waived) in each instance.
Each case advanced to hearing, but prior to the hearing each Complainant was granted leave to and did amend his respective complaint to include an allegation of discrimination on the basis of the fact that he was a student in regard to housing. Ms. Pierce also investigated each amended complaint, and a separate Initial Determination (each dated May 29, 1985) was issued, each concluding that probable cause existed to believe (despite an apparent typographical omission1 in each) that discrimination had occurred as alleged.
Conciliation again failed (or was waived), and each case was again certified to hearing.
A hearing was held commencing on August 6, 1985, both cases having been consolidated for the purpose of hearing. Complainant Bahr and Complainant Meyer each appeared in person, and both were assisted by law student advocate Bill Bendt. Respondent Hinken appeared, pro se. Based on the record of the hearing, including a consideration of the post-hearing briefs, the Examiner enters the following:
RECOMMENDED FINDINGS OF FACT
Bahr told her that she was entitled to keep her options open, but that he felt she was foreclosing the Complainants because they were men and that he intended to file complaints with local, state and federal agencies.
The Respondent then offered to send the Complainants an application. Bahr said he didn't want to play games because he did not believe she would look at the application favorably.
The Respondent then renewed her offer to send an application.
Bahr responded that he did not think there would be any point (to filling out an application) because she had not been interested in checking the references he had already given her.
RECOMMENDED CONCLUSIONS OF LAW
That the Respondent discriminated against the Complainants on the basis of their sex is obvious. She admitted on the record that she told the Complainants that cleanliness was important to her and that she felt that couples (a male and a female) or women in general were cleaner than a group two or more males (See Finding of Fact No. 6). She futilely attempted to explain away her remark at the hearing by testifying that she was at the time upset with the cleanliness of the three males that she shared living quarters with. It is specifically this type of discriminatory stereotyping (the Respondent's reasoning that because some males did not keep their living quarters as clean as she would have liked, a group of males generally would not keep an apartment as clean as she would like) that the ordinance is designed to prohibit.
The Respondent also claims that she cannot be liable for discrimination because she has rented units to two or more males on other occasions. While such evidence may in some cases be probative of the Respondent's motivation, the evidence in this case that the Respondent had rented to groups of males on other occasions has no weight in light of the direct evidence of her discriminatory intent. That the Respondent may not have discriminated against other males (or groups of males) in other rental situations does not by itself preclude a finding of discrimination in this particular instance. (Analogously, that a person did not hit a truck on Monday or Wednesday does not preclude the possibility that the person hit a truck on Tuesday).
The Respondent's other actions also reinforce that her motivations were discriminatory on the basis of sex. While her practice at the time was almost never to require prospective tenants to fill out written applications to be considered for rental, she attempted to discourage the Complainants by telling them she had to think about whether or not to give them an application. Ultimately, the Respondent told them she decided not to give them an application and only offered to give them one after Complainant Bahr threatened to file a discrimination complaint.
The treatment of the Complainants was significantly different than that afforded to the other interested prospective tenants. Neither the two women across the street or the woman who lived nearby were required to fill out applications prior to being considered for and/or granted second interviews. The Respondent told the Complainants that she was not intending to rent out the apartment until later in the summer, but (unsuccessfully) attempted to arrange a second interview with the two women across the street on or around June 1, 1984. Even if the purpose of the second interview at that time would have been only to get a better idea of whether she wanted to rent to the two women, it is clear that the Respondent treated the Complainants differently in that the Complainants would have had to fill out a written application to be considered further (with no guarantee of a second interview) while the two women did not.
Finally, the woman who was rented to (with her son) had to fill out a written application only after the Respondent had given her a second interview and only after the Respondent had decided to rent to her (and brought the written application over with the lease).
While the Complainants carried the obligation of establishing unlawful sex discrimination by a preponderance of the evidence, once that liability is established it is the Respondent's burden to show they are entitled to a less than make-whole remedy.
Section 3.23 (9)(c)2.b. requires that, "If, after hearing, the Commission finds that the respondent has engaged in discrimination, it shall make written findings and order such action by the Respondent as will redress the injury done to the Complainant in violation of this ordinance, bring Respondent into compliance with its provisions and generally effectuate the purpose of this ordinance . . ."
Complainant Bahr and Complainant Meyer each are clearly entitled to out of pocket costs under Section 3.23 (9)(c)2.b.
Complainant Bahr's rent at 931 Jenifer Street was $185 per month or ten dollars more per month than he would have paid to rent the Respondent's apartment (half of $350 equal $175). While the Respondent had indicated to the Complainants that she intended to rent the apartment for $340 per month, there is nothing under the circumstances of this case which would appear to have bound her to that figure and the fact that she actually rented the apartment for $350 per month makes that the appropriate figure to use in this case. Bahr's utilities would have been approximately the same. Twelve months of a $10 per month difference equals $120 out of pocket rental expense that Bahr is entitled to.
Complainant Meyer's remedy is a bit more difficult to identify. He first lived at Red Pine Coop which cost him $250 per month for rent, utilities and food. It is not clear on the record how long he lived at Red Pine or what part of the $250 went for rent. He next moved to 418 S. Livingston where he paid $175 per month and worked around the house which helped offset his utility costs.
The best this Examiner can do is to assume utility costs were comparable (in the absence of evidence to the contrary), and that the rent portion of Meyer's Red Pine payments were comparable to 418 S. Livingston ($175 per month).
Consequently, this Examiner finds no out of pocket cost to Meyer for either rent or utilities until after June 1, 1985 when Meyer moved in at 931 Jenifer Street. There, Meyer had the same ten dollar additional out of pocket expense as Bahr, except Meyer's expense was for a four month period. Therefore, Meyer's out of pocket costs are forty dollars for having been discriminatorily refused rental by the Respondent.
In addition, I have awarded fifty dollars to each Complainant in compensatory damages for the inconvenience each suffered as a result of the Respondent's discriminatory actions, and I have also awarded each of them their costs for, administratively litigating this case.
Marital Status and Student Discrimination
The Complainants did not carry their respective burdens to show that either of them were discriminated against because of their marital status and/or because they were students. Unlike on the sex discrimination issue where direct and circumstantial evidence supported a finding of discriminatory animus on the part of Hinken despite the fact that she had rented to other groups of males, the evidence presented by the Complainants regarding marital status and student discrimination was much weaker. Consequently, the fact that she rented to other single individuals and students (as well as listed the apartment in question at the Campus Assistance Center) carries weight as to these two issues and the Complainants did not establish pretext.
Signed and dated this 8th day of November, 1985.
EQUAL OPPORTUNITIES COMMISSION
Allen T. Lawent
1The Investigator apparently intended to enter a probable cause finding on the issue of the fact that each Complainant was a student, but omitted explicitly stating as much in the Initial Determinations dated May 29, 1985 in Case No. 1306 and Case No. 1307 (each conclusion stated there was probable cause for sex and marital status discrimination).
However, it should be noted that probable cause conclusions already had been entered for sex and marital status discrimination in the August 22, 1984 Initial Determinations and that the investigations for the May 29, 1985 Initial Determinations were focused on the student issue which had been added by amendment to each complaint. Also, the Respondent, although unrepresented, did not object to the "Revised Notice of Hearing" dated June 27, 1985 which included the student issue, and she fully (and successfully) defended against the student issue at the hearing.
In any event, this Examiner finds that the Complainant was fully aware of and understood the intent of the May 29, 1985 Initial Determinations to include probable cause determinations on the student issue, and the regrettable typographical error caused her no harm anyway because she successfully defended against that issue. This Examiner notes, however, that had the Respondent lost on the student issue, a more careful scrutiny would have to be made of whether that issue would have to be reheard in light of the fact that the Respondent was at all times unrepresented.