Section 3.23, Madison General Ordinances

Complainant filed a charge of discrimination based on age discrimination against Respondent, a non-profit religious organization. The court ruled that MEOC could not include the Respondent as an "employer" because state law, at that time, specifically and expressly did not allow non-profit religious organizations to be deemed as employers. St. Vincent De Paul Society v. MEOC, No. 83-1105 (Ct. App. 10/25/84).

A City ordinance may be authorized by Sec. 62.11(5), Wis. Stats. (the home rule statute), notwithstanding statewide concern in the matter it regulates; . . . and where a municipality acts within the legislative grant of power (of the home-rule statute), the test to determine the validity of the ordinance is as follows:

(1) Whether the legislature has expressly withdrawn the power of municipalities to act;

(2) Whether the ordinance logically conflicts with state legislation;

(3) Whether the ordinance defeats the purpose of state legislation;

(4) Whether the ordinance goes against the spirit of state legislation. Anchor Savings & Loan v. MEOC (Schenk), 120 Wis. 2d 391, 355 N.W. 2d 234 (1984).

The Ordinance is within the power of the City of Madison to create and is not prohibited by the federal Constitution. Fed. Rural Elec. Ins. v. MEOC (Kessler), No. 79-538 (Ct. App. 4/27/81), aff'd by an equally divided court (Wis. Sup. Ct., 3/28/82).

. . . nor is the Ordinance's administrative procedure a violation of due process requirements. State ex. rel. Badger Produce v. MEOC (Matlack), No. 79-CV-4405 (Dane County Cir. Ct., 9/23/80), aff'd per curiam, No. 80-1906 (Ct. App. 7/16/81), aff'd by equally divided court (Wis. Sup. Ct., 3/28/82 and 4/6/82).

. . . nor is it preempted by or inconsistent with state legislation. State ex rel. McDonald's Restaurant v. MEOC (Karaffa), No. 82-CV-2423 (Dane County Cir. Ct., 7/6/83); Fed. Rural Elec. Ins. v. MEOC (Kessler), supra.

. . . however, the City does not have the authority to create a private cause of action. Althouse v. Goulette, No. 2164 (Dane County Cir. Ct., 12/8/76).

The Respondent's principal place of business was located outside of the City of Madison. Though the Respondent conducted some business within the City of Madison, the Complainant's job was performed entirely outside of the City of Madison. The Hearing Examiner determined that the Commission was without geographic jurisdiction. Rappe v. Soderholm Wholesale Foods, Inc., MEOC Case No. 21811 (Ex. Dec. 12/13/93).

Respondent moved to dismiss the complaint, asserting that all decisions relating to the Complainant's employment in Hong Kong were made outside of the state of Wisconsin and the U.S. The Hearing Examiner could find no support in the record for the Complainant's contention that the Complainant's current employer, a sister company to the Complainant's former employer, and within the geographical jurisdiction of the Commission, played any part in the elimination of the Complainant's position in Hong Kong. The Hearing Examiner concluded that the Commission was without geographic jurisdiction over the allegations of the complaint. Zabit v. Kraft Foods et al., MEOC Case No. 22563 (Ex. Dec. 5/19/98).

The hearing examiner granted Respondent's motion to dismiss for lack of geographical jurisdiction when Complainant failed to provide any documentary evidence that the alleged acts of discrimination occurred within the Commission's jurisdiction, rather than at the Respondent's facility located outside of the state of Wisconsin. White v. Work Bench Inc., MEOC Case No. 19982018 (Ex. Dec. 12/15/98).

When allegedly discriminatory employment decisions occur in a city outside Madison, the Commission has no jurisdiction. Respondent’s decisions regarding job assignments took place in Middleton. Hawkins v. Volkmann Railroad Builders, Inc., MEOC Case No. 22451 (Ex. Dec. 2/17/00).

After the Complainant was rejected for several part-time jobs bagging groceries, she filed a complaint with the Equal Opportunities Commission, claiming the Respondent had discriminated against her based upon her disability and conviction record. The Respondent moved to dismiss the complaint for lack of jurisdiction. According to the Respondent, the Commission lacked geographical jurisdiction because decisions about hiring new employees were made in Milwaukee, not Madison. Thus, the Complainant could not have been discriminated against in Madison. The Hearing Examiner ruled that the Commission did have jurisdiction. The determining factors were: (1) incongruity with State courts on the question of geographical jurisdiction-whether discrimination “occurs” where the challenged decision was made or where the impact was felt—would produce anomalous results and would serve no useful purpose, and (2) the Hearing Examiner could not have found lack of jurisdiction without undermining the public policy of the City of Madison. Williams (f/k/a Stevenson) v. Copps Food Center, MEOC Case No. 20042113 (Ex. Dec. 2/9/2005).

The Hearing examiner denied the Respondent's motion to dismiss the complaint for a lack of jurisdiction. The Respondent contended that even though the Complainant would have worked within the City of Madison, the Respondent's entire hiring process took place outside of Madison. The Hearing Examiner found that where the effects of discrimination would be felt in Madison, the Commission should have jurisdiction. Stevenson v. Copps Food Center, MEOC Case No. 20042113 (02/09/2005).

Because of the similarity of the employment discrimination provisions of Sec. 3.23, Madison General Ordinances and the Wisconsin Fair Employment Act (WFEA), due process requires no less of the MEOC enforcing the ordinance than is required of DILHR in enforcing the WFEA. Laboratory Consulting, Inc. v. MEOC, et al., No. 85 CV 6300 (Dane County Cir. Ct., 8/29/86).

The MEOC's administrative hearing process was found to be a sufficient and fair forum where constitutional questions and issues may be decided by the Commission. As a result, the court applied the doctrine of abstention and did not exercise jurisdiction over the constitutional claim that was brought because MEOC's proceedings were deemed appropriate. Madison Newspapers, Inc. v. EOC, City of Madison, et al, No. 87-C-479-S (W.D. Wis. 1987).

The Hearing Examiner may not decide if a conflict exists or resolve any potential conflict between ordinances, statutes or constitutions other than the Madison Equal Opportunities Ordinance. Hafner v. Last Coast Producing Corp. et. al., MEOC Case No. 20003184 (Ex. Dec. 1/14/02).

The Hearing Examiner may look to federal case law concerning the Americans with Disabilities Act when provisions of the Madison Equal Opportunities Ordinance at issue are substantially similar to provisions within the Act. Mutchler v. The Disney Store, MEOC Case No. 19982193 (Ex. Dec. 9/25/02).

Although the doctrines of res judicata or collateral estoppel may require the dismissal of a complaint where the same complaint has been decided after an administrative hearing held by a state administrative agency, the doctrines do not apply where the state Equal Rights Division or federal Equal Employment Opportunity Commission has merely made an (investigation) initial determination on the complaint. Monroe v. Swiss Colony, MEOC Case No. 2534 (Ex. Dec. 9/5/80).

After a physical confrontation between Complainant, an African American man, and Respondent, his landlord, Complainant filed a complaint at MEOC alleging racial harassment. Complainant also filed a counterclaim to the landlord's action for assault in the Circuit Court alleging violations of Federal and State Fair Housing Laws. The Court action was settled. Though it was unclear whether there had been an intent to settle the MEOC action, the Hearing Examiner dismissed the MEOC complaint as res judicata. Jackson v. Marvin Hellenbrand, MEOC Case No. 1482 (Ex. Dec. 5/24/93).

The Hearing Examiner ruled that the Complainant's disability discrimination claim before the Commission was not precluded by a finding of no probable cause in a claim litigated before the Equal Rights Division under the Wisconsin Family and Medical Leave Act. The Hearing Examiner decided that while there might be preclusion of some factual findings, the underlying issues of discrimination were not fully litigate before the ERD. Blizzard v. Auto Glass Specialists, MEOC Case No. 20022147 (Ex. Dec. 07/18/05).

The Ordinance validity confers jurisdiction on the Commission to consider discrimination complaints involving state vocational, technical and adult education districts. Atty. Gen. Opinion, OAG 58-81, 70 AG 266 (1981).

The Commission had jurisdiction over claims involving job assignments and discharge as well as hire and hire-related issues (such as retaliation in regard to rehire) where the employer's only business office was located in the City of Madison and it retained control over all job activities even where the job duties were performed one hundred percent on the University of Wisconsin-Madison Campus. Whiteagle v. Badger Mechanical, No. 20133 (MEOC, 1/31/86), app. pending.

. . . but the MEOC's jurisdiction does not extend beyond the City limits. Anchor Savings & Loan v. MEOC (Schenk), supra.

The Respondent moved for dismissal of the complaint for lack of jurisdiction based upon its contention that the Complainant was not an employee of the Respondent. The Hearing Examiner concluded that even though the Complainant was not an employee of the Respondent in a strict sense, she worked at the Respondent's facilities in order to benefit its programs. Therefore the Respondent owed the Complainant a duty of protection under Sec. 3.23(7)(a) of the ordinance. Thompson v. St. Mary's Hospital Medical Center, MEOC Case No. 21734 (Ex. Dec. 3/8/94).

Respondent moved to dismiss the complaint, asserting that all decisions relating to the Complainant's employment in Hong Kong were made outside of the state of Wisconsin and the U.S. The Hearing Examiner could find no support in the record for the Complainant's contention that the Complainant's current employer, a sister company to the Complainant's former employer, and within the geographical jurisdiction of the Commission, played any part in the elimination of the Complainant's position in Hong Kong. The Hearing Examiner concluded that the Commission was without geographic jurisdiction over the allegations of the complaint. Zabit v. Kraft Foods et al., MEOC Case No. 22563 (Ex. Dec. 5/19/98)

A Complainant who alleges employment discrimination on the basis of race, national origin and color is barred from pursuing his claim when his contractual arrangement with Respondent contemplates that there be no control over the manner in which Complainant sells Respondent's product, where Complainant is responsible for all taxes and expenses incurred in selling the product and is free to set his own hours, schedule and other working conditions. Kabir v. Electrolux, MEOC Case No. 22485 (Ex. Dec. 11/11/96).

Complainant, a Hispanic, charged that the Respondent terminated the Complainant because of his race and national origin/ancestry. The hearing examiner found that the Commission had jurisdiction over the complaint because the Respondent could not prove that the relationship between the Complainant and Respondent was of an independent contract nature, rather than an employee-employer relationship. This was because all the work was done at Respondent's site, all duties were overseen and assigned by Respondent, all tools were provided by Respondent, there was no written contract and Complainant was paid by the hour instead of a flat fee.

Having found that the Commission had jurisdiction, the hearing examiner nevertheless concluded that the Complainant had not carried his burden to overcome the Respondent's independent witness about certain facts in controversy and could not overcome the inference of a lack of a discriminatory motive when the Respondent hired a Hispanic on the day he fired the Complainant, an El Salvadorian. The Commission later adopted the hearing examiner's decision. Castillo v. Fisher and Hellenbrand, MEOC Case No. 22322 (Com. Dec. 11/1/99, Ex. Dec. 3/13/99).

The Complainant alleged that the Respondent discriminated against him on the basis of his political beliefs and sex in housing, employment, public accommodations and in the provision of City services or facilities. Specifically, the Complainant claimed he was discriminated against because Respondent's board of directors was all female or considered feminist. The hearing examiner found that service on Respondent's board of directors was not a public place of accommodation or amusement because the Respondent has highly selective criteria for selecting a director. In addition, there was no evidence that Complainant had standing because there was no indication in the record that he applied for a director position.

The Complainant further alleged that the Commission had jurisdiction to enforce the non-discrimination provisions of a City of Madison contract for the provision of service with the Respondent in the area of domestic prevention and intervention. The hearing examiner found no support in the ordinance for such jurisdiction and indicated that such was a matter that should be taken up before the Common Council or with the Community Services Commission.

The hearing examiner did not address the allegation of housing discrimination as that matter was pending in the Dane County Circuit Court.

The Complainant also alleged a violation of the City facility and Services portion of the ordinance. The hearing examiner found that the Complainant had failed to established standing for the alleged violation because Complainant never requested the services that were the subject of the City facilities and services.

The Complainant also contended that he was discriminated against when he was not allowed to work as a volunteer on Respondent's crisis line because of his sex. The hearing examiner determined that the ordinance does not cover volunteer positions because there is no exchange of compensation as in an employer-employee situation.

The Complainant also alleged discrimination in advertisement when the Respondent identified itself as a feminist organization on its recruitment advertising. The hearing examiner found that this was not a violation of the ordinance because it was a mechanism for the Respondent to identify itself, not to prevent non-feminists from applying for positions within the Respondent's organization. On appeal, the Commission agreed with the hearing examiner's decision. Schenk v. Domestic Abuse Intervention Services, Inc., MEOC Case No. 03384 (Comm. Dec. 8/20/99, Ex. Dec. 3/26/99).

Although the Complainant, a homosexual male, is protected by the Equal Opportunities Ordinance, Sec. 3.23, because of his sexual orientation, Respondent did not discriminate against him on this basis upon discharging him from employment. The Hearing Examiner concluded that Complainant's extreme and undesirable public behavior at a work- related convention was the Respondent's non-discriminatory reason for terminating Complaint's employment. Goad v. Ahrens Cadillac/Oldsmobile, Inc., MEOC Case No. 20022061 (Comm. Dec. 12/26/06, Ex. Dec. 8/6/06).

While the prohibition against employment discrimination in section 7(a) of the Ordinance is stated in terms broad enough to contemplate an action against an individual as set forth in the complaint, it does not contemplate an action against an individual state employee engaged in conduct within his or her job responsibilities. Seshadri v. David Ward, et al., MEOC Case No. 22393 (Ex. Dec. on jurisdiction, 8/7/96).

Complainant filed a charge of discrimination based on sexual harassment and retaliation against the Respondent in his individual capacity. The hearing examiner granted Respondent's motion to dismiss as to sexual harassment finding that the ordinance employment section does not support claims against persons in their individual capacities. The hearing examiner denied the motion as to retaliation finding that the ordinance retaliation section was intended to cover individuals, as well as employer actions.

On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment status.

The Complainant also alleged emotional distress damages stemming from alleged acts of sexual harassment and retaliation, the hearing examiner found that the MEOO is not preempted by the Wisconsin Worker's Compensation Act's (WCA) exclusivity provision. Therefore, parties may seek remedy under either the WCA or the ordinance or both. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

The hearing examiner concluded that the ordinance worked in harmony with the state's Fair Employment Act (FEA) and did not interfere with or violate the letter or spirit of the FEA and should not be preempted by state law. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99).

Complainant filed a charge of discrimination based on age discrimination against Respondent, a non-profit religious organization. The court ruled that MEOC could not include the Respondent as an "employer" because state law, at that time, specifically and expressly did not allow non-profit religious organizations to be deemed as employers. St. Vincent De Paul Society v. MEOC, No. 83-1105 (Ct. App. 10/25/84).

An employer has a duty to follow through when it indicates an employee's job status will be reviewed at a later date. Rosin v. Rite-Way Leasing Company, MEOC Case No. 19982206 (Comm. Dec. 4/22/02, Ex. Dec. 10/3/01).

After the Complainant was rejected for several part-time jobs bagging groceries, she filed a complaint with the Equal Opportunities Commission, claiming the Respondent had discriminated against her based upon her disability and conviction record. The Respondent moved to dismiss the complaint for lack of jurisdiction. According to the Respondent, the Commission lacked geographical jurisdiction because decisions about hiring new employees were made in Milwaukee, not Madison. Thus, the Complainant could not have been discriminated against in Madison. The Hearing Examiner ruled that the Commission did have jurisdiction. The determining factors were: (1) incongruity with State courts on the question of geographical jurisdiction-whether discrimination “occurs” where the challenged decision was made or where the impact was felt—would produce anomalous results and would serve no useful purpose, and (2) the Hearing Examiner could not have found lack of jurisdiction without undermining the public policy of the City of Madison. Williams (f/k/a Stevenson) v. Copps Food Center, MEOC Case No. 20042113 (Ex. Dec. 2/9/2005).

The Hearing Examiner found that the Complainant could maintain an action against the Respondent for alleged sexual harassment by an employee of the Respondent's general contractor. The Hearing Examiner found that the Complainant must be allowed to prove either that the Respondent knew of the likelihood of injuries, could have taken steps to prevent the injuries and did not, or that the Respondent negligently supervised the performance of the contract. Thompson v. St. Mary's Hospital Medical Center, MEOC Case No. 21734 (Ex. Dec. 3/8/94).

The Hearing Examiner concluded that the Complainant had suffered racial harassment at the hands of a co-worker/supervisor and that other managers knew of the harassment and failed to take adequate steps to remedy the problem. The Complainant was not awarded emotional distress damages as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), but the Respondent was ordered to pay the Complainant's costs and attorney fees. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

The Complainant filed charges alleging that the Respondent, a joint private-public commission, did not hire her because of her race, sex and handicap/disability. The hearing examiner determined that the Respondent was not a properly named party because the Respondent's functions were only ministerial. The Respondent was not responsible for the hiring of the position and did not oversee it and had no management authority over the position. Rhyne v. Employment & Training Association, MEOC Case No. 22723 (Ex. Dec. 4/6/99).

The hearing examiner concluded that the Commission was without jurisdiction over the allegations of the complaint because the legislature had retained control over the Complainant's position as a Diagnostic Radiologic Technician. The Complainant was employed by the University Hospital and Clinics Board which is an agency of the state of Wisconsin. The legislature specifically provided for exclusive jurisdiction for the Personnel Commission over state employees, thus, depriving the Commission of jurisdiction. Carey v. UW Health, MEOC Case No. 19992097 (Ex. Dec. 8/17/99).

A respondent has no obligation to make contact with a law enforcement entity when there is no evidence of criminal conduct at the worksite. An employer did not fail to provide an environment free of sexual harassment when it acted promptly upon being notified of possible harassment. Pflaum v. Union Transfer and Storage, Inc., MEOC Case No. 20002092 (Ex. Dec. 4/5/02).

Complainant alleged she was not given the same opportunities as other persons not of her protected classes and that she was terminated because she was a Black lesbian. Respondent filed a motion in limine to prevent the Complainant from taking any discovery or introducing any testimony relating to Complainant's compensatory, punitive or emotional damages, arguing that the Commission is without statutory authority to make an award of such damages and in fact, is preempted from doing so by the Wisconsin Fair Employment Act.

The Respondent further argued that the Wisconsin Worker's Compensation Act provides the exclusive remedy for emotional damage awards where emotional injury arises out of the employment context. The Hearing Examiner determined that the WFEA did not preempt the ordinance by comprehensively regulating the field of employment discrimination.

The Hearing Examiner found that the Commission did have the authority to make awards of compensatory damages for emotional injuries that resulted from acts of discrimination, since loss of equal employment opportunity and violation of civil rights fall outside of coverage of the Worker's Compensation Act. Cooper v. TCI Cablevision of Wisconsin, MEOC Case No. 21036 (Ex. Dec. 4/16/91).

The City consented to an Order Granting Absolute Writ of Prohibition, prohibiting MEOC from exercising jurisdiction to hear claims against the petitioner in matters of alleged employment discrimination or public accommodation discrimination where the question involved is one of a student's academic performance. State ex rel. Area Vocational, Technical and Adult Education District No. 4 v. Equal Opportunities Commission of the City of Madison and Clifford E. Blackwell, 91 CV 1537 (Dane County Cir. Ct. 7/29/91).

The Complainant alleged she was the subject of sexual harassment by other employees which caused emotional distress and ultimately led her to leave her employment. Respondent filed a motion to dismiss for lack of jurisdiction, asserting that the Worker's Compensation Act barred the Complainant's claim. The Hearing Examiner held that the agency had jurisdiction, finding an implied exception to the exclusivity of the Worker's Compensation Act. Because the legislature adopted the Fair Employment Act and its specific protections regarding sexual harassment long after it adopted the WCA, it cannot have adopted the FEA only to have it rendered meaningless by the previously adopted WCA. Madalon v. Midcontinent Broadcasting; WTSO-AM/WZEE-FM, MEOC Case No. 21531 (Ex. Dec. 1/5/93).

The Respondent moved to dismiss because of a conflict in the extent of exemptions provided for the employment activities of religious organizations in both the Wisconsin Fair Employment Act (FEA) and the ordinance. The Hearing Examiner found that the Commission could exercise jurisdiction but only to the extent provided in the FEA. Potter v. Madison Gospel Tabernacle, MEOC Case No. 21269 (Ex. Dec. 2/14/94).

Where the Respondent moved to dismiss the complaint for lack of jurisdiction alleging the Commission is without jurisdiction to address the allegation of conviction record discrimination because the Commission is preempted by state and federal law, the Examiner ruled that although not preempted by the Wisconsin Fair Employment Act, the Ordinance was preempted by the applicable federal statute that automatically disqualified an individual from employment who had been convicted of a crime involving injury to another person. Respondent provides physical and related care of elderly and/or developmentally disabled persons. Complainant was convicted of second degree sexual assault stemming from an allegedly consensual sexual relationship with a 15-year-old male. Pagel v. Elder Care of Dane County, MEOC Case No. 22442 (Ex. Dec. 10/31/96).

The Respondent moved to dismiss the complaint for lack of jurisdiction because of the differences in remedial authority of the FEA and the Equal Opportunities Ordinance. The Hearing Examiner determined that previous decisions by the Wisconsin Supreme Court have upheld the ordinance's validity in the face of a potential conflict with the FEA. On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment statutes. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

Complainant alleged she was not given the same opportunities as other persons not of her protected classes and that she was terminated because she was a Black lesbian. Respondent filed a motion in limine to prevent the Complainant from taking any discovery or introducing any testimony relating to Complainant's compensatory, punitive or emotional damages, arguing that the Commission is without statutory authority to make an award of such damages and in fact, is preempted from doing so by the Wisconsin Fair Employment Act. The Respondent further argued that the Wisconsin Worker's Compensation Act provides the exclusive remedy for emotional damage awards where emotional injury arises out of the employment context. The Hearing Examiner determined that the WFEA did not preempt the ordinance by comprehensively regulating the field of employment discrimination. The Hearing Examiner found that the Commission did have the authority to make awards of compensatory damages for emotional injuries that resulted from acts of discrimination, since loss of equal employment opportunity and violation of civil rights fall outside of coverage of the Worker's Compensation Act. Cooper v. TCI Cablevision of Wisconsin, MEOC Case No. 21036 (Ex. Dec. 4/16/91).

The Complainant alleged she was the subject of sexual harassment by other employees which caused emotional distress and ultimately led her to leave her employment. Respondent filed a motion to dismiss for lack of jurisdiction, asserting that the Worker's Compensation Act barred the Complainant's claim. The Hearing Examiner held that the agency had jurisdiction, finding an implied exception to the exclusivity of the Worker's Compensation Act. Because the legislature adopted the Fair Employment Act and its specific protections regarding sexual harassment long after it adopted the WCA, it cannot have adopted the FEA only to have it rendered meaningless by the previously adopted WCA. Madalon v. Midcontinent Broadcasting; WTSO-AM/WZEE-FM, MEOC Case No. 21531 (Ex. Dec. 1/5/93).

The Complainant filed a discrimination claim against the Respondent for refusing to reasonably accommodate her disability, carpal tunnel syndrome or repetitive motion syndrome. The Complainant later amended her complaint to include sex discrimination. Respondent filed a motion to dismiss on the basis that the claim was preempted by the exclusivity provision of the Wisconsin Worker's Compensation Act. (WCA)

The Hearing Examiner found the Commission to have jurisdiction to investigate the complaint. With respect to the claim of sex discrimination the Examiner determined that there was no overlap of jurisdiction between the ordinance and the WCA and that the Complainant's allegation of sex discrimination did not represent a ruse to bring her claim of handicap/disability discrimination before the Commission.

With respect to the claim of handicap/disability discrimination, the Hearing Examiner concluded that the WCA's purpose of compensating an employee for an injury did not overlap with the ordinance's intent to assure an employee the highest level of employment given an employee's handicap/disability. While recognizing that some damages might overlap, the Hearing Examiner found that the complaint should be permitted to be processed through investigation to determine whether such an overlap might in fact exist. The Commission adopted the Examiner's decision in its entirety.

The Circuit Court reversed the Commission's finding of jurisdiction over the allegation of handicap/disability discrimination as a result of the Commission's withdrawing its decision on this point. The Circuit Court did not discuss this issue. The Court affirmed the Commission's finding of jurisdiction on the allegation of sex discrimination, finding no overlap between the WCA's provisions and those of the ordinance. Schoenemann v. Madison Gas and Electric, MEOC Case No. 21699 (Comm. Dec. 1/28/93, Ex. Dec. 7/31/92). Madison Gas and Electric Co. v. Equal Opportunities Commission of the City of Madison and Schoenemann, 93 CV 0894 (Dane County Cir. Ct. 11/22/93).

The Respondent's motion to dismiss for lack of jurisdiction was based on a conflict between the WCA and the EOO was denied. The Hearing Examiner determined that, due to the Court of Appeals' decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison, the remedies remaining to the Commission are not in conflict with the remedies under the WCA. Should the Common Council make the Commission's authority to award compensatory damages in employment cases clear, the issue of preemption by the exclusivity principle may once again be raised as a bar to the Commission's proceeding. Puent v. Corning Besselaar Clinical Research Units, Inc., MEOC Case No. 22366 (Ex. Dec. On jurisdiction 1/10/97).

Respondent contended that the exclusivity provision of the WCA required dismissal of the complaint. The Hearing Examiner determined, in accordance with the Wisconsin Supreme Court's decision in Byers v. LIRC, 208 Wis. 2d 388 (1997) that individuals can pursue remedies under either or both laws. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex Dec. on jurisdiction 4/28/97, 8/10/99).

The Hearing Examiner denied Respondent's motion to dismiss the complaint based on the exclusivity principle of the Workers Compensation Act. The Wisconsin Supreme Court in Byers v. LIRC, 208 Wis. 2d 388 (1997) determined that the WCA was not necessarily the exclusive remedy for claims of sexual harassment. The Hearing Examiner determined that though the Byers decision applied to the Wisconsin Fair Employment Act, the rationale applied equally to the Madison EOO. Harvey v. Marshall Erdman & Associates, MEOC Case No. 21614 (Ex. Dec. 5/9/97).

Complainant filed a charge of discrimination based on sexual harassment and retaliation against the Respondent in his individual capacity. The hearing examiner granted Respondent's motion to dismiss as to sexual harassment finding that the ordinance employment section does not support claims against persons in their individual capacities. The hearing examiner denied the motion as to retaliation finding that the ordinance retaliation section was intended to cover individuals, as well as employer actions.

The Complainant also alleged emotional distress damages stemming from alleged acts of sexual harassment and retaliation, the hearing examiner found that the MEOO is not preempted by the Wisconsin Worker's Compensation Act's (WCA) exclusivity provision. Therefore, parties may seek remedy under either the WCA or the ordinance or both.

The hearing examiner concluded that the ordinance worked in harmony with the state's Fair Employment Act (FEA) and did not interfere with or violate the letter or spirit of the FEA and should not be preempted by state law. On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment statutes. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

As a general proposition, municipal ordinances may contain bases of discrimination more inclusive than the bases of discrimination listed in Section 66.432, Wis. Stats. and 101.22, Wis. Stats. Atty. Gen. Opinion, OAG-46-85 (12/17/85).

The Hearing Examiner found that Complainant's claim of age and sex discrimination had to be arbitrated as required by the Complainant's employment contract. The Hearing Examiner retained jurisdiction to permit review of the arbitrator's decision so that the Commission could ensure that the purposes of the ordinance had been met. Schultz v. Caluori & Shearson Lehman Hutton, Inc., MEOC Case No. 21259 (Ex. Dec. 7/16/91).

The Respondent filed a wide ranging Motion to Dismiss for lack of jurisdiction stating a variety of statutory, constitutional and procedural grounds. The Hearing Examiner found that the Respondent's claims that it was not capable of being sued because of the operation of Wis. Stats. Sec. 893.80(4) were inapplicable because actions before the Commission were not actions for intentional torts.

Also, the Hearing Examiner relied on Wis. Stats. Sec. 893.80(5) to find an exception to the prohibition against suits for the exercise of quasi-judicial power such as hiring. This section provided that the prohibition did not apply where there was another statute that provides rights and remedies. The Hearing Examiner determined that the Fair Employment Act and by extension, the Ordinance was such "another statute."

The Respondent contended that the ordinance as applied by the Commission represented an unconstitutional vesting of judicial authority in the Commission. The Hearing Examiner concluded that because the ordinance provided for appropriate judicial review that the Commission was acting within constitutional limits.

Additionally, the Respondent asserted that to the extent that the Commission exercised its authority to award emotional and other compensatory damages, it violated the Respondent's right to a jury trial under the State and Federal constitutions. The Hearing Examiner ruled that because this type of administrative action was not present in the common law at the time of statehood that the Wisconsin constitution's provision for jury trial did not apply. The Hearing Examiner also stated that the 7th amendment's right to a jury trial had not been imposed upon the states by the 14th amendment and was therefore not a bar to the Commission's actions.

The Hearing Examiner determined that the Complainant had stated a claim for pattern and practice discrimination that would allow proof of acts outside of the ordinance's 300 day limit for the filing of complaints. Since the Respondent had notice of this claim, it was premature to rule on the sufficiency of the claim and that the Complainant should be permitted to attempt to prove the allegations at hearing. Villarreal v. Madison Metropolitan School District, MEOC Case No. 21122 (Comm. Dec. 6/28/94, Ex. Dec. 12/27/93, Ex. Interim Dec. 1/22/93).

Respondents' moved to dismiss complaints of discrimination on the basis of political belief (trade unionism) based on preemption by federal law. The Complainants had filed unfair labor practice complaints at approximately the same time as their Commission complaints. The Hearing Examiner granted Respondents' motion, applying the Supremacy Clause of the U.S. Constitution and well-settled federal law on preemption. Moyer, Carey and Kaatz v. Thrift Painting and Genesis Companies Inc., EOC Case Nos. 22440, 22441, 22447, 22448, 22449, and 22450 (Ex. Dec. 7/7/97).

The hearing examiner concluded that the Commission was without jurisdiction over the allegations of the complaint because the legislature had retained control over the Complainant's position as a Diagnostic Radiologic Technician. The Complainant was employed by the University Hospital and Clinics Board which is an agency of the state of Wisconsin. The legislature specifically provided for exclusive jurisdiction for the Personnel Commission over state employees, thus, depriving the Commission of jurisdiction. Carey v. UW Health, MEOC Case No. 19992097 (Ex. Dec. 8/17/99).

Complainant was ostensibly terminated for acquiring property from her employer with an IOU, which violated store policy regarding payment of the full purchase price. Although other employees were involved in the transaction, Complainant—who was more than ten years older than her coworkers—was the only employee disciplined. Respondent maintained that Complainant was actually terminated for shopping on the clock, but the fact that Complainant alone was disciplined, while younger coworkers were spared, was sufficient to demonstrate age discrimination. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

The Hearing Examiner found that the Complainant had failed to meet her burden of proof on either claim of discrimination and therefore dismissed the complaint. The Complainant contended that the Respondent had discriminated against her on the basis of her age (she was approximately 15 years older than most of her coworkers) and on the basis of race by association (she had befriended one of the few African-American assembly workers). Schulz v. Ultratec, Inc., MEOC Case No. 21584 (Ex. Dec. 9/2/94).

The Madison Equal Opportunities Commission may not interpret municipal statutes such as the Madison Equal Opportunities Ordinance cannot provide remedies that conflict with remedies provided under state or federal law. Municipal ordinances may not preempt state regulation in the same area. Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

It was not age discrimination to select a younger job applicant over a 35-year-old with more experience because: (1) the job involved team teaching and the principal who made the hiring decision believed, based on information in the complainant's employment pool interview summary, that the younger teacher could interact more favorably with other faculty members; (2) the younger teacher was multilingual (as required by one of the job specifications) and had spent more time overseas than the complainant; and (3) the employer had hired at least 20 teachers at or above the complainant's experience level, including some recommended by the same principal who was involved in this case. Lazar v. Madison Metro. Sch. Dist., MEOC Case No. 2472 (Comm. Dec. 6/26/81, Ex. Dec. 12/16/80).

Although a job applicant's training and experience clearly exceeded that of the individual, who was hired, the employer's concerns about the applicant's working relations with the staff and her telephone manner justified its decision not to hire her as a telephone communications coordinator. Strachan v. Independent Living, No. 2778 (Ex. Dec. 8/24/82).

A complainant established a prima facie case of age discrimination by showing that (1) s/he was 18 years of age or older, (2) s/he applied for or worked at a job for which s/he was qualified, (3) s/he was affected by an adverse employment decision, and (4) the employer continued to seek applicants with her qualifications; . . . but these elements may be altered to fit each particular case (e.g., where the job is abolished after a complainant's discharge); . . .and a complainant need only show that age was a causative or determinative factor. State Medical Society v. MEOC (May), No. 82-CV-2560 (Dane County Cir. Ct., 3/2/83).

Where one of the complainant's own references said that the complainant (while extremely competent, very well educated and very well qualified) had interpersonal problems getting along with people and working well with people, the complainant was unable to show that the employer's belief that the younger applicant it hired could get along better with co-workers and others was a pretext for age discrimination. Lindas v. MATC, MEOC Case No. 20256 (Ex. Dec. 3/11/85).

The Respondent discriminated against the Complainant, an Asian-American woman, on the basis of her race by failing or refusing to hire her. The Complainant applied for a position as bus person but was not hired whereas persons of other races were hired during the same time frame. [Complainant's claim of discrimination on the basis of national origin failed because she presented no evidence that the Respondent knew that she was a Korean American] The Respondent was ordered to cease and desist from discriminating against the Complainant and other prospective employees. The Complainant was awarded $2,939.00 in back pay, $750.00 in emotional damages, attorney's fees and costs. Chung v. Paisans, MEOC Case No. 21192 (Ex. Dec. on liability 2/10/93, on attorney's fees 7/29/93 and 9/23/93).

A 61-year-old employee did not prove age discrimination where he was unable to perform essential lifting duties required of the job. Wopat v. St. Vincent de Paul Society, MEOC Case No. 2551 (Ex. Dec. 10/7/80).

Although an employee's new supervisor had never specifically warned her, either verbally or in writing, of any particular deficiencies regarding three workplace incidents or any other reservations he might have had about her attitude or work performance, the employee nevertheless failed to prove that the employer's articulated reasons for her discharge were a pretext for age discrimination; while her discharge without warning after approximately six years of service in the dining facility was a questionable employment practice, the complainant failed to show it was discriminatory. Starin v. Elks Club, MEOC Case No. 2871 (Ex. Dec. 9/14/82).

A 49-year-old woman manager who was abruptly terminated from her job and replaced by a younger woman failed to show the employer's articulated reasons were a pretext for age discrimination. The complainant failed to persuasively show that her male supervisor, who had previously promoted her, was engaged in a "youth movement" aimed at eliminating older women managers or that he replaced her because he was having an intimate relationship with the younger woman who succeeded her. Stenbroten v. Wis. Dairy Herd Improvement Coop, MEOC Case No. 2849 (Comm. Dec. 11/30/84, Ex. Dec. 6/1/84).

A 56-year-old coordinator showed that her age was a determining factor in the elimination of her position by establishing that: (1) her supervisor had expressed displeasure with her age; (2) alternate work was found for younger employees not performing as well as she; (3) she was not considered for other available positions; and (4) another employee over 40 was "laid off" and later replaced by someone younger. State Med. Society v. MEOC (May), supra.

The Hearing Examiner found the Complainant was terminated because she failed to meet four of six entry level requirements for her position, rather than because of her age. Moreover, the Complainant had been disciplined several times without improvement in her performance. The Commission affirmed. On the Complainant's appeal, the City's motion for declaratory judgment was granted when the Court found that it was the Complainant's poor work performance that resulted in dismissal. Gathing v. YMCA of Metropolitan Madison, Inc., & East YMCA of Madison, MEOC Case No. 21198 (Comm. Dec. 1/9/92, Ex. Dec. 7/11/91). Nancy Gathing v. Madison Equal Opportunities Commission, et al., 92 CV 0677 (Dane County Cir. Ct. 3/16/93).

Complainant, a fifty-eight (58) year old female who was terminated, filed a claim of discrimination against Respondent based on age and sex in regards to terms and conditions of employment and termination of employment. The hearing examiner concluded Respondent had discriminated against Complainant because her supervisor was overheard making disparaging comments relating to Complainant's age and because statistics indicated that the Respondent overwhelmingly promoted, hired and transferred individuals who were 35 years and under.

The hearing examiner did not find that Respondent discriminated against Complainant because of her sex despite Complainant's ability to establish a prima facie case. This was because statistics for promotions and terminations relating to sex were not as probative as compared to the age discrimination statistics. May v. State Medical Society, MEOC Case No. 2584 (Comm. Dec. 4/21/82, Ex. Dec. 10/20/81) See Painters Union Local 802 v. Madison Newspapers Inc.

Complainant claimed that she was terminated because of her age. She was sixty-two when Respondent terminated her employment. Complainant established that she was never disciplined for poor performance, that management-level employees, including the company president, had made derogatory remarks about her age, weight and appearance, and that she was replaced with someone much younger. Noting that Complainant only needed to show that age partly motivated her termination, the Hearing Examiner found that Respondent had discriminated against Complainant. Respondent offered one nondiscriminatory explanation-poor job performance-but this explanation was not entirely credible. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The Complainant claimed that the Respondent's refusal to issue a policy for auto insurance was based on his previous arrest record. On Respondent's motion to dismiss, the Hearing Examiner found the Commission to be without jurisdiction, and dismissed the complaint. Hieb v. American Standard, MEOC Case No. 3255 (Comm. Dec. 12/3/92, Ex. Dec. 3/11/92).

Where the Respondent moved to dismiss the complaint for lack of jurisdiction alleging the Commission is without jurisdiction to address the allegation of conviction record discrimination because the Commission is preempted by state and federal law, the Examiner ruled that although not preempted by the Wisconsin Fair Employment Act, the Ordinance was preempted by the applicable federal statute that automatically disqualified an individual from employment who had been convicted of a crime involving injury to another person. Respondent provides physical and related care of elderly and/or developmentally disabled persons. Complainant was convicted of second degree sexual assault stemming from an allegedly consensual sexual relationship with a 15-year-old male. Pagel v. Elder Care of Dane County, MEOC Case No. 22442 (Ex. Dec. 10/31/96).

Where the Complainant, a black, African American male was arrested for allegedly passing forged checks was later barred from Respondent's store on two occasions because several of Respondent's employees who believed Complainant passed the bad checks also felt they had been harassed and intimidated by the Complainant, the Hearing Examiner found that although Complainant presented a prima facie case of discrimination, his exclusion from the store was a legitimate nondiscriminatory reason since Respondent's actions were based on the erroneous belief that Complainant had, in fact, passed forged checks and harassed and intimidated several employees of Respondent. Barlow v. Woodman's Food Market, MEOC Case No. 3334 (Ex. Dec. 8/29/96).

221.19 Miscellaneous

The Hearing Examiner found that termination of an employee for absence, even though the employee's absence was due to his arrest, does not constitute discrimination on the basis of arrest record. Complainant was absent from work on the weekend of June 25 and 26, as well as June 27, because he had been arrested after leaving work on June 24. Since weekend production lines at Oscar Mayer are operated by only as many workers as are actually necessary, any unexpected absences tend to result in a disruption of production operations. Both of the Complainant's absences were deemed unexcused and he was terminated pursuant to Oscar Mayer policy. The Commission affirmed the Examiner's Decision without comment. Bordson v. Oscar Mayer Food Corp., MEOC Case No. 20989 (Comm. Dec. 4/4/90, Ex. Dec. 9/29/89).

Complainant claimed that she was terminated from her employment due to her boyfriend's arrest. The Hearing Examiner found that the Commission was without jurisdiction because "arrest record by association" does not fit within the "by association" framework of race and sex cases decided under Title VII, which hold that the race or sex of the complainant is a factor in the discrimination. Additionally, the Common Council specifically adopted "by association" protection in the ordinance's housing section and did not extend it to other provisions. Ezrow v. PDQ, MEOC Case No. 21966 (Ex. Dec. 9/15/94).

Complainant was suspended from work after making threats to beat another employee with a bat. Employer investigated the threat incident and in the process discovered the full nature of a significant conviction record involving violence and sexual assault. Employer terminated Complainant for failing to disclose the full nature of his conviction record at the time of hire. Although the employer’s investigation into the issue of whether Complainant had properly disclosed his conviction record was flawed, Complainant was unable to prevail at the pretext stage since nothing in the record suggested that the Complainant’s race or conviction record was the true motive for Complainant’s suspension and termination. Johnson v. Webcrafters, MEOC Case No. 20042097 (Ex. Dec. 3/30/06).

Complainant charged that Respondent discriminated against him on the basis of his conviction record when it did not hire him for a receptionist position. Respondent moved to dismiss the complaint on the grounds that a conviction for 2nd degree homicide was as a matter of law substantially related to the Complainant's prospective employment as a receptionist. The hearing examiner concluded that a hearing was necessary and could not find that the ordinance would allow for finding any particular conviction to automatically preclude employment in a specific position. Rogers v. New Horizons, MEOC Case No. 19982232 (Ex. Dec. 8/10/99).

The Hearing Examiner concluded that despite the Respondent's questionable record-keeping practices, the Complainant failed to demonstrate that he had been fired as a result of his arrest record. Mitchell v. Marge's Amoco, MEOC Case No. 21935 (Ex. Dec. 12/15/95).

Complainant, a 42-year-old male, claimed that he was discriminated against in regard to his age when the Respondent allegedly charged a higher price for a ticket to a play to those under 60. The ticket included public bus fare to and from the play plus refreshments. The Examiner found that no discrimination occurred because of an implied exemption for the Madison Senior Center based on city support for the Center both as a matter of policies expressed in the ordinances and in financial appropriations for its operation. The Commission rejected the Examiner's reasoning, but found no discrimination since the Senior Center charged the same amount for its services regardless of age, and merely passed along a federal subsidy for bus fare for persons 60 and older. Schultz v. Madison Senior Center, MEOC Case No. 3188 (Comm. Dec. 5/24/90, Ex. Dec. 9/15/89).

A disabled person is someone who: (1) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; or (2) has a record of such impairment; or (3) is perceived as having such impairment. Stanton v. Dairy Equipment, MEOC Case No. 2540 (Ex. Dec. 6/9/82).

222.12 Perceived Disability

A lay person's testimony by itself does not support a conclusion of law that an individual was disabled; however, testimony other than expert medical testimony did support a conclusion that the person was perceived or regarded by the employer as disabled. Siebert v. Backey & Assoc., MEOC Case No. 2694 (Ex. Dec. 7/8/81).

An employee who was perceived by his employer to be disabled was nevertheless not discriminated against in regard to rehire where the evidence showed that his previous performance as a welder had been unsatisfactory and no jobs were available as a painter or janitor at the time he tried to return to work. Siebert v. Backey and Assoc., supra.

An employer who had otherwise lawfully discharged an employee, believing that episodes of fainting and dizziness on the job were not disability related, was not required to hold the employee's job open for two years until he was diagnosed as hypoglycemic. Rogers v. Stop-n-Go, MEOC Case No. 2437 (Ex. Dec. 7/16/81).

The Hearing Examiner found that the Complainant's failure to comply with the terms of a consensual medical leave of absence was the reason for his termination, rather than the Respondent's perception of the Complainant's serious drug abuse problem. In general, the Hearing Examiner determined the Complainant to be a less than credible witness on his own behalf. James v. Klein Dickert Co., Inc., MEOC Case No. 20612 (Ex. Dec. 2/23/89).

The Hearing Examiner found that the Complainant failed to demonstrate with competent medical evidence that she had an actual handicap/disability that required accommodation. The testimony supported a finding that the Respondent perceived the Complainant to be handicapped/disabled because of her conduct at the workplace and the manager's belief that she had a mental impairment. Despite this perception the Respondent terminated the Complainant for a specific instance of misconduct rather than as a result of any belief in the Complainant's handicap/disability. Joseph v. The Swiss Colony, MEOC Case No. 20984 (Ex. Dec.6/28/89).

The Complainant alleged that the Respondent unlawfully discriminated against her because of her disability-cocaine addiction-in failing to reasonably accommodate her disability and in discharging her from her employment. Both the Hearing Examiner and the Commission found that no discrimination occurred. The Circuit Court upheld the Commission's decision that proof of addiction must be made by an expert medical witness. Since there was no expert testimony proving the Complainant's addiction, the case was dismissed. Also, the Circuit Court upheld the Examiner's determination that there is no requirement for an employer to accommodate a perceived disability where no disability exists. Busto v. Wisconsin Power and Light, MEOC Case No. 20945 (Comm. Dec. 3/14/90, Ex. Dec. 9/25/89); State ex rel. Elizabeth Busto v. MEOC and WP&L, 90 CV 1594 (Dane County Cir. Ct. 1/9/91).

The Respondent discriminated against the Complainant on the basis of what it perceived to be a disability, namely a broken wrist, by changing the Complainant's position from Program Administrator to Residential Coordinator, though it presented no evidence that Complainant was unable to perform her duties. Respondent's subsequent termination of Complainant did not constitute retaliation because the Respondent had no knowledge of the complaint to MEOC when it took steps to terminate her for misconduct. The Commission dismissed the complaint, finding that the Complainant's broken wrist constituted a temporary condition and was therefore not a disability. Lewis v. Creative Community Living Services, Inc., MEOC Case No. 21063 (Comm. Dec. 4/14/93, Ex. Dec. 9/28/92).

The mention of a past injury does not create an awareness of a complainant's disability. A complainant must demonstrate that a respondent knew of the complainant's disability or regarded the complainant as having a disability. A respondent who regarded a complainant as having a disability effectively terminated her by not re-evaluating her job status after she drew unemployment benefits. Rosin v. Rite-Way Leasing Company, MEOC Case No. 19982206 (Comm. Dec. 4/22/02, Ex. Dec. 10/3/01).

The Complainant, an African American, walks with a pronounced limp.  He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint’s car, made disparaging remarks about his race and mobility, and requested he leave the premises.  After hearing, the hearing examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability.  The hearing examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

222.13 Permanent Versus Temporary Conditions

The Respondent discriminated against the Complainant on the basis of what it perceived to be a disability, namely a broken wrist, by changing the Complainant's position from Program Administrator to Residential Coordinator, though it presented no evidence that Complainant was unable to perform her duties. Respondent's subsequent termination of Complainant did not constitute retaliation because the Respondent had no knowledge of the complaint to MEOC when it took steps to terminate her for misconduct. The Commission dismissed the complaint, finding that the Complainant's broken wrist constituted a temporary condition and was therefore not a disability. Lewis v. Creative Community Living Services, Inc., MEOC Case No. 21063 (Comm. Dec. 4/14/93, Ex. Dec. 9/28/92).

222.14 Conditions Found to Be Disabilities

Back Injury Stanton v. Dairy Equipment, supra.

Back Injury (history of) Siebert v. Backey & Assoc., supra.

Eye Sensitivity Laitsch v. Llama Imports, Ltd., MEOC Case No. 2656 (Com. Dec. 12/10/81, Ex. Dec. 7/16/81).

Heart Attack McFayden v. MEOC, infra.

Height and Weight Pham v. Emer. Crises Center, infra.

Hypertension Rogers v. Stop-n-Go, infra.

Migraine Headaches Maxson v. MEOC (Means Serv.), 84 CV 4150 (Dane County Cir. Ct. 7/18/85).

Thumb and Wrist Injury Steinbring v. Oakwood

(history of) Lutheran Home, MEOC Case No. 2763 (Comm. Dec. 3/10/83, Ex. Dec. 2/11/82).

Note: For a more extensive listing of disabling conditions under state law, see Wis. Fair Employment & Housing Decision Digest V (Wisconsin Equal Rights Division).

(See section 213.3)

The Hearing Examiner found that the Complainant's failure to comply with the terms of a consensual medical leave of absence was the reason for his termination, rather than the Respondent's perception of the Complainant's serious drug abuse problem. In general, the Hearing Examiner determined the Complainant to be a less than credible witness on his own behalf. James v. Klein Dickert Co., Inc., MEOC Case No. 20612 (Ex. Dec. 2/23/89).

The Complainant alleged that the Respondent unlawfully discriminated against her because of her disability-cocaine addiction-in failing to reasonably accommodate her disability and in discharging her from her employment. Both the Hearing Examiner and the Commission found that no discrimination occurred. The Circuit Court upheld the Commission's decision that proof of addiction must be made by an expert medical witness. Since there was no expert testimony proving the Complainant's addiction, the case was dismissed. Also, the Circuit Court upheld the Examiner's determination that there is no requirement for an employer to accommodate a perceived disability where no disability exists. Busto v. Wisconsin Power and Light, MEOC Case No. 20945 (Comm. Dec. 3/14/90, Ex. Dec. 9/25/89); State ex rel. Elizabeth Busto v. MEOC and WP&L, 90 CV 1594 (Dane County Cir. Ct. 1/9/91).

222.23 Back Problems, Lifting Restrictions

The fact that an individual returned from a short term medical leave of absence and stated that he was unable to lift heavy loads did not establish that he was disabled or perceived to be disabled. Wopat v. St. Vincent de Paul Society, MEOC Case No. 2551 (Ex. Dec. 10/7/80).

An adult who was four feet tall and weighed 65 pounds was not discriminated against on the basis of disability nor physical appearance where the employer established that her low interview scores were related to her lack of practical experience; although her education and ability to handle stress were somewhat underrated by the panel, she failed to show that the ratings were a pretext for discrimination. Pham v. Respite Emer. Crisis Center, MEOC Case No. 2676 (Ex. Dec. 8/26/81).

A shipping and receiving clerk who was discharged within a few months of having returned to work after a massive heart attack was not discriminated against on the basis of disability where he could perform the lifting or carrying requirements which were an essential part of his job. McFayden v. MEOC (University Bookstore), No. 81-CV-3744 (Dane County Cir. Ct., 11/15/82).

The Hearing Examiner found that the Complainant's failure to comply with the terms of a consensual medical leave of absence was the reason for his termination, rather than the Respondent's perception of the Complainant's serious drug abuse problem. In general, the Hearing Examiner determined the Complainant to be a less than credible witness on his own behalf. James v. Klein Dickert Co., Inc., MEOC Case No. 20612 (Ex. Dec. 2/23/89).

The Complainant failed to prevail on his discrimination claim based on the alleged disability, fractured hip and irritable colon, in regard to termination of employment. Due to lack of documents, records or testimony regarding the alleged disability, the Hearing Examiner was unable to conclude that the Complainant had a physical impairment within the meaning of the ordinance. Also, the Hearing Examiner found that it was the Complainant's unsatisfactory work performance that warranted his discharge. Studinski v. Madison Property Management, Inc., MEOC Case No. 21298 (Ex. Dec. 7/9/92).

In discouraging Complainant from seeking advancement within the company, and in failing to provide her with any opportunity to explain whether her congenital hip condition would affect her performance of duties associated with the position she desired, Respondent discriminated against Complainant based upon her disability. The position required interaction with local physicians and marketing experience. The successful candidate was allegedly chosen because she had professional marketing experience, but Complainant demonstrated that Respondent, through its director, repeatedly discouraged her from seeking advancement, steering her towards less visible positions. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

The Complainant, an African American, walks with a pronounced limp. He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises. After hearing, the hearing examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability. The hearing examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

The fact that an individual returned from a short term medical leave of absence and stated that he was unable to lift heavy loads did not establish that he was handicapped or perceived to be handicapped. Wopat v. St. Vincent de Paul Society, MEOC Case No. 2551 (Ex. Dec. 10/7/80).

Where a store manager's doctor had previously diagnosed him as tired and overworked, it did not constitute disability discrimination to discharge him after he suffered a second episode of fainting and dizziness which incapacitated him and required him to be sent home; while the employer knew that he suffered from high blood pressure, high cholesterol and a weight problem, it had no reason to believe that any of these conditions had caused the fainting and dizziness; . . . and a doctor's diagnosis made two years after an employee had been discharged, although admissible at hearing as a hearsay exception, was not as critical to the findings as the diagnosis of the physician who had been seeing the employee close to the time of his discharge. Rogers v. Stop-n-Go, MEOC Case No. 2437 (Ex. Dec. 7/16/81).

The fact that an employee has difficulty completing job duties does not place an employer on notice that an employee has a disability or require the employer to make inquiries into the reasons for the employee's difficulties. If an employer does not know of an employee's disability, then any action it took could not have resulted from the employee's membership in a protected class. An employee who did not inform his employers of his disability was terminated because the employer believed he was falsifying data on reports. Vogt v. Best Buy Stores, L.P., MEOC Case No. 22749 (Ex. Dec. 3/26/01).

The perception of a disability by a supervisor imputes perception of a disability to a Respondent employer. A Complainant was discriminated against when she was terminated due to a perceived disability. Teich v. Center for Prevention and Intervention, MEOC Case No. 20002153 (Ex. Dec. 6/12/02, On Fees 8/5/02).

Where a job applicant had been authorized by her own physician and the employer's doctor to return to work for at least a three-month probationary period, the employer's refusal to rehire her as a nursing assistant because of past wrist and thumb injuries was disability discrimination; . . . and the employer's claim that she was not rehired because of her past absenteeism was not credible where she had never been warned about it and had been offered rehire by the employer in positions other than nursing assistant. Steinbring v. Oakwood Lutheran Home, supra.

In the typical disability accommodation case, the accommodation at issue is one which would enable an individual to perform his or her essential job functions; . . . and an employer is not required to pay another employee to actually perform such essential functions on a regular basis for the handicapped individual, or to transfer that individual to a new position. McFayden v. MEOC (University Bookstore), supra.

As a general proposition, municipal ordinances may contain bases of discrimination more inclusive than the bases of discrimination listed in Section 66.432, Wis. Stats. and 101.22, Wis. Stats. Atty. Gen. Opinion, OAG-46-85 (12/17/85).

The MEOC found that Respondent discriminated against Complainant when it terminated Complainant for violating the company dress code, which prohibited eyebrow rings. Respondent appealed the decision, and the Dane County Circuit Court reversed the discrimination finding. Complainant and the MEOC appealed. The Court of Appeals affirmed, holding that enforcement of the dress code served legitimate nondiscriminatory business purposes. Regarding the issue of proving and/or disproving "reasonable business purposes," the Court of Appeals held that because the MEOC had historically imposed upon complainants the burden of disproving articulated "reasonable business purposes," it could not impose upon this Respondent the burden of proving "reasonable business purposes" as affirmative defenses. Sam's Club, Inc. v. MEOC (Maier), No. 02-2024 (Ct. App. 7/24/2003).

The hearing examiner found that Complainant, a receiving clerk at Respondent's warehouse, was not discriminated against by Respondent when Respondent gave Complainant a reasonable accommodation after Complainant suffered a heart attack and was later retired as permanently disabled. The accommodation allowed Complainant to have a thirty (30) pound lifting and carrying restriction in the warehouse, but Respondent was unsuccessful in ascertaining how long Complainant's accommodation would be needed after serval attempts to receive the information from Complainant. The hearing examiner ruled that the accommodation was an undue hardship and the discharge was non-discriminatory in nature. McFadyen v. University Bookstore, MEOC Case No. 2539 (Comm. Dec. 6/29/81, Ex. Dec. 2/3/81).

An employer does not owe a duty of reasonable accommodation to people it does not employ. A complainant who applied for a job was not entitled to engaging in an interactive process for determining accommodations when no decision had been made to hire her. Mutchler v. The Disney Store, MEOC Case No. 19982193 (Ex. Dec. 9/25/02).

A respondent employer does not incur an automatic duty to initiate reasonable accommodations because an employee has a mental disability. The severity and nature of the disability must be taken into account when determining an employer's duty. Mutchler v. The Disney Store, MEOC Case No. 19982193 (Ex. Dec. 9/25/02).

An employee's medical history of treatment for a back injury (which the employer was aware of) was protected by the ordinance's prohibition against disability discrimination. Stanton v. Dairy Equipment, supra.

A handicapped employee's discharge for failing to call in (although he was physically able to) on three consecutive days when he was absent and later failing to provide adequate reasons for this conduct was not discrimination where the employer made no exceptions to this rule for non-disabled employees. Stanton v. Dairy Equipment, supra.

Respondent discriminated against the Complainant on the basis of a diagnosed physical disability, severe urinary incontinence. The Complainant requested and was ultimately granted a leave of absence in order to attempt to have this condition surgically corrected. However, before having the surgery, Complainant received a letter from her supervisors outlining their dissatisfactions with Complainant's job performance. Respondent had made no previous complaints regarding her performance. In a written reply, Complainant denied these allegations. She was subsequently terminated. Nelson v. Weight Loss Clinic of America, Inc. et al., MEOC Case No. 20684 (Ex. Dec. 9/29/89).

A job applicant's marital status was not a factor in her failure to be hired as an Outreach Worker where the (nonprofit) employer showed that the person selected possessed non-discriminatory qualities which were in line with the stated purpose of the organization's funding; . . . and basing a hiring decision on the needs of the competing applicant with two children was not discriminatory as there was no evidence of either applicant's marital status and because "parental status" was not a protected class. Sanchez v. Neighborhood Youth Corps., MEOC Case No. 2129A (Ex. Dec. 11/23/76).

An employer's unwritten work rule prohibiting (any) employees from associating with married (co-) employees of the opposite sex outside of work-related matters was not discriminatory on the basis of marital status. Fed. Rural. Elec. Ins. v. MEOC, et al., 131 Wis. 2d. 189 (1986).

The Hearing Examiner concluded that the Respondent had not discriminated against the Complainant on the basis of his marital status when it denied the Complainant employment because of his wife's employment. The Hearing Examiner held that the Respondent's policy of not hiring relatives or close friends of persons who were employed by Respondent's competitors did not constitute discrimination on the basis of marital status. Gustafson v. WPS, MEOC Case No. 20539 (Ex. Dec. 5/19/87).

The regulation and control of a savings and loan's lending practices have been preempted by the State of Wisconsin in Chapter 215, Wis. Stats., by establishing a comprehensive and all-encompassing scheme regarding savings and loan association practices . . . and the application of the City of Madison's local credit anti-discrimination ordinance (prohibiting discrimination on the basis of marital status in regard to refusal to grant a loan) to the Respondent's credit practices was contrary to the spirit of the state's structure of all aspects of credit and lending by savings and loan associations and was without authority and in conflict with the state comprehensive plan. Anchor Savings & Loan v. MEOC (Schenk), 120 Wis. 2d 391, 355 N.W.2d 234 (1984).

The Hearing Examiner dismissed the complaint, finding that although the Complainant proved that he applied for employment and was not hired, he was unable to prove that Respondent's loss of his application was related to his national origin, ancestry or disability, or that the Respondent did not actually lose his application. Colon v. Famous Footwear, MEOC Case No. 20747 (Ex. Dec. 9/7/88).

The Examiner found the Respondent discriminated against the Complainant, a black male from Nigeria, on the basis of his race and national origin in failing to grant him a promotion. Respondent's failure to investigate and update Complainant's work record though it updated the file of the successful applicant-- a white female less senior to Complainant--constituted discrimination. The Respondent cited the Complainant's Nigerian accent as one of the deciding factors in not promoting him.

The Examiner found this constituted national origin discrimination, since the accent would not have interfered with the Complainant's work. The Complainant was awarded back pay plus $15,827.59 in costs and attorney's fees. In a supplemental decision, Complainant was also awarded front pay.

The Commission, in overruling the Examiner's decision, found that the Respondent demonstrated legitimate, nondiscriminatory reasons for refusing to promote Complainant. Although it was determined that the person making the employment decision had little first hand experience of Complainant's working abilities at the time of application, this only demonstrated poor business sense on the part of MUHL and did not constitute discrimination. Reviewing testimony, the Commission also determined that the Complainant's accent did create a communication difficulty with customers as well as co-workers and that clear oral communication was a necessary job requirement. Oviawe v. Madison United Hospital Laundry. Ltd., MEOC Case No. 20723 (Comm. Dec. 8/3/90, Ex. Dec. 9/29/89).

After hearing, the Hearing Examiner found that the Respondent had discriminated against the Complainant on the bases of her race, color and ancestry when it failed to hire her for a teaching position. The Hearing Examiner dismissed a claim of discrimination based upon the Complainant's sex and a claim that the Respondent had retaliated against the Complainant for her filing of an internal complaint of discrimination. The Hearing Examiner awarded the Complainant $25,860 in back pay and $25,000 compensatory damages for emotional distress, and costs and reasonable attorney's fees. The Commission reversed the Hearing Examiner and found that the Complainant had not proven her claim of discrimination and dismissed the complaint. Villarreal v. Madison Metropolitan School District, MEOC Case No. 21122 (Comm. Dec. 6/28/94, Ex. Dec. 12/27/93, Ex. Interim Dec. 1/22/93).

Complainant, a Hispanic, charged that the Respondent terminated the Complainant because of his race and national origin/ancestry. The hearing examiner found that the Commission had jurisdiction over the complaint because the Respondent could not prove that the relationship between the Complainant and Respondent was of an independent contract nature, rather than an employee-employer relationship. This was because all the work was done at Respondent's site, all duties were overseen and assigned by Respondent, all tools were provided by Respondent, there was no written contract and Complainant was paid by the hour instead of a flat fee.

Having found that the Commission had jurisdiction, the hearing examiner nevertheless concluded that the Complainant had not carried his burden to overcome the Respondent's independent witness about certain facts in controversy and could not overcome the inference of a lack of a discriminatory motive when the Respondent hired a Hispanic on the day he fired the Complainant, an El Salvadorian. The Commission later adopted the hearing examiner's decision. Castillo v. Fisher and Hellenbrand, MEOC Case No. 22322 (Com. Dec. 11/1/99, Ex. Dec. 3/13/99).

The Respondent discriminated against the Complainant, an Asian-American woman, on the basis of her race by failing or refusing to hire her. The Complainant applied for a position as bus person but was not hired whereas persons of other races were hired during the same time frame. [Complainant's claim of discrimination on the basis of national origin failed because she presented no evidence that the Respondent knew that she was a Korean American] The Respondent was ordered to cease and desist from discriminating against the Complainant and other prospective employees. The Complainant was awarded $2,939.00 in back pay, $750.00 in emotional damages, attorney's fees and costs. Chung v. Paisans, MEOC Case No. 21192 (Ex. Dec. on liability 2/10/93, on attorney's fees 7/29/93 and 9/23/93).

A four-foot tall, 65-pound female who applied for a position at an emergency crisis center was not discriminated against on the basis of her physical appearance where she had expressed concerns about her ability to deal with certain clients at the center. Pham v. Respite Emer. Crisis Center, MEOC Case No. 2676 (Ex. Dec. 8/26/81).

Employee requirements relating to physical appearance are permitted when such requirements are uniformly applied . . . to employees in a business establishment for a reasonable business purpose [see Sec. 3.23(2)(k), Madison General Ordinances] . . . and a "reasonable business purpose" in the context of the physical appearance anti-discrimination prohibitions is broader than the business purpose exceptions allowed under the statutes prohibiting discrimination based on such factors as age or disability. State ex rel. McDonald's Restaurant (Karaffa) v. MEOC, No. 83-1571 (Ct. App. 8/28/84).

The Complainant alleged discrimination based on sexual orientation (perceived homosexuality) and his physical appearance (wearing an earring and a small braid on the back of his neck), when he was told he was not needed at the temporary agency where he had been placed by a referral agency. Respondent asserts instead that the Complainant was inappropriately dressed for business purposes. The Hearing Examiner determined that the Respondent had discriminated against the Complainant based on physical appearance. The Respondent was ordered to cease and desist from further acts of discrimination. The Complainant was entitled to wages lost in the sum of $4.95. The charges based on sexual orientation were dismissed. Regan v. Lyons Mortgage Co. MEOC Case No. 20846 (Ex. Dec. 1/31/89).

The Hearing Examiner determined that the Respondent had not discriminated against the Complainant, a male driver who wore makeup and jewelry, on the bases of sex, sexual orientation and physical appearance, when it disciplined him for an apparent violation of an agreement settling an earlier discrimination action. The Examiner did conclude that the Respondent had retaliated against the Complainant in violation of the ordinance for issuing a disciplinary letter. The Examiner ordered the Respondent to withdraw the disciplinary letter and to stop retaliating against the Complainant, but awarded no monetary damages nor attorney's fees.

The Commission found that in addition to retaliation, the Complainant had demonstrated that he had been discriminated against on the basis of his physical appearance. The Commission also reversed the Hearing Examiner's determination that attorney's fees for the Complainant's earlier consultations with attorneys was not awardable, and remanded the case to the Hearing Examiner for the determination of appropriate attorney's fees. The Commission concurred with the Hearing Examiner's conclusion that emotional damages were not appropriate in this instance, but specifically declined to adopt the Examiner's rationale. Maxwell v. Union Cab Cooperative, MEOC Case No. 21028 (Comm. Dec. 7/10/92, Ex. Dec. 12/31/91); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, No. 95-0190 (Ct. App. 9/20/95); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, No. 93-0657 (Ct. App. 3/24/94); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison, 92 CV 3260 (Dane County Cir. Ct. 12/1/94).

An outside porter discharged for violating an employer's requirement to be clean shaven failed to rebut the employer's articulated purpose for the rule that a beard would result in an increased risk of food poisoning. State ex. rel. McDonald's Restaurant v. MEOC (Karaffa), supra.

An employee who was disciplined, suspended and effectively discharged in part for having worn skirts with hemlines which the employer considered too long was found not to have been discriminated against on the basis of physical appearance where she failed to carry her burden of showing that the articulated safety reason for the adoption of the rule was a pretext for physical appearance discrimination. Quinn-Gruber v. Wis. Physician's Serv., MEOC Case No. 2877 (Comm. Dec, 1/27/83, Ex. Dec. 9/27/82).

For the purposes of the Ordinance, prescribing and proscribing employee attire both have the same meaning. An employee was not discriminated against on the basis of physical appearance when she was terminated for wearing facial jewelry in violation of the Respondent's policy. Sam's Club v. MEOC (Maier), No. 01-CV-2943 (Dane County Cir. Ct., 7/19/02).

The MEOC found that Respondent discriminated against Complainant when it terminated Complainant for violating the company dress code, which prohibited eyebrow rings. Respondent appealed the decision, and the Dane County Circuit Court reversed the discrimination finding. Complainant and the MEOC appealed. The Court of Appeals affirmed, holding that enforcement of the dress code served reasonable nondiscriminatory business purposes.

The MEOC maintained that appealing to conservative customer preferences was not reasonable, but the appellate court concluded that attracting and maintaining customers plainly depended upon customer preferences and customer satisfaction. In response to another argument advanced by the MEOC-that Respondent could not describe with sufficient precision the conservative image it maintained-the Court of Appeals held that whether Respondent defined "conservative" with precision was unrelated to whether Respondent could reasonably have chosen to promote its conservative image. Finally, the Court held that one could not rationally distinguish between retail and office settings when determining whether dress codes serve some "reasonable business purpose." The Court stated that requiring cleanliness, uniforms, or prescribed attire is acceptable when intended to further some reasonable goal that benefits the business. Sam's Club, Inc. v. MEOC (Maier), No. 02-2024 (Ct. App. 7/24/2003).

Respondent discriminated against the Complainant on the basis of race by association. Complainant, a white woman, maintained social relations with Black and Hispanic men. The Hearing Examiner found Respondent failed to promote the Complainant because of such associations when Respondent failed to prove that the successful candidate for the position was at least as qualified as the Complainant. Leatherberry v. GTE, MEOC Case No. 21124 (Comm. Dec. 4/14/93, Ex. Dec. 1/5/93).

The Hearing Examiner found that the Complainant had failed to meet her burden of proof on either claim of discrimination and therefore dismissed the complaint. The Complainant contended that the Respondent had discriminated against her on the basis of her age (she was approximately 15 years older than most of her coworkers) and on the basis of race by association (she had befriended one of the few African-American assembly workers). Schulz v. Ultratec, Inc., MEOC Case No. 21584 (Ex. Dec. 9/2/94).

A prima facie case may also be established by showing that a policy or practice of the employer (e.g., an applicant test) has the effect of excluding a disproportionately high number of persons of the complainant's race. Jones v. Madison Serv. Corp., MEOC Case No. 2574 (Ex. Dec. 11/24/81).

While some of an employer's reasons for selecting a white over a black for a permanent laborer position were not believable, there were legitimate factors which justified hiring the white instead of the otherwise equally qualified black. Donahue v. MG&E, MEOC Case No. 2560 (Comm. Dec. 9/10/81, Ex. Dec. 2/9/81).

Where two employees were otherwise equally qualified for a Claims Processor job, it was not discriminatory to hire the white applicant where the black applicant had a negative job reference from a previous employer; . . . and it was also not discriminatory to reject the same black applicant for a subsequent position based on the negative reference and the applicant's failure to list on her application the employer responsible for the reference. Thompson v. Wis. Life, MEOC Case No. 2479 (Ex. Dec. 10/13/81).

Where a complainant did not show that he met the minimum qualifications for the job he applied for and did not otherwise raise an inference of race discrimination, his complaint was dismissed for failure to establish a prima facie case.