Hmmm, what do you know, no concerns about staff time, and well, no real concerns . . . should have know that the concerns were coming from the police department . . . . and their number one advocate Paul Skidmore. Sorry guys. Nothing to see here.
Date: June 9, 2015
To: Mayor Soglin, Chief Koval, Council President DeMarb, Ald. Skidmore
From: Adriana Peguero, Assistant City Attorney
Re: Impact of creating Homelessness as a Protected Class
You have inquired about the impact of adding Homelessness to the list of Protected Classes in MGO 39.03, the City’s Equal Opportunities Ordinance. This Memo addresses the practical implications regarding processing of complaints and enforcement. Some of the concerns that have been raised regarding adding Homelessness as a protected class include increasing workload for DCR staff, whether this would affect policing practices, and how businesses (public accommodations) would be affected.
The City’s Equal Opportunities Ordinance and the Complaint Process
The City of Madison’s Equal Opportunities Ordinance, codified in Madison General Ordinance 39.03, was created with the purpose of providing equal opportunities in the areas of Housing, Employment, Public Accommodations, and the use of City Facilities. The ordinance prohibits discrimination on the basis of a long list of protected classes, including Sex, Race, Religion or Nonreligion, Color, Nation Origin or Ancestry, Age, Disability, Marital Status, Source of Income, Receipt of Rental Assistance, Arrest Record, Less than Honorable Discharge, Physical Appearance, Sexual Orientation, Gender Identity, Political Beliefs, Familial Status, Student Status, Social Security Number, Domestic Partnership, Citizenship, Credit History, Genetic Identity, Victim of Domestic Abuse, Sexual Assault or Stalking, and Unemployment. The City of Madison has one of the most expansive lists of protected classes in the nation.
A person who feels they were denied equal opportunity in housing, employment, or public accommodations may file a complaint with the City’s Department of Civil Rights (DCR) and have that complaint investigated by staff. A complaint is first reviewed, and a complainant must establish a prima facie case of discrimination by alleging they 1) suffered an adverse action, 2) belong to a protected class, and 3) the adverse action was related to their membership in a protected class. If the complainant satisfies those criteria, an investigator and mediator is assigned. If mediation is not successful, the investigation continues. At the conclusion of the investigation, the investigator issues a determination. If the investigator makes a probable cause finding, the parties are given an opportunity to resolve the case through conciliation, and if that is not successful, the case is referred to the Hearing Examiner, who will conduct a public hearing and issue a finding. If the Hearing Examiner determines that a person was discriminated against because of their membership in a protected class, the Hearing Examiner may award damages to a complainant, including but not limited to, out of pocket expenses, economic and noneconomic damages, and front and back pay. Either party may appeal the findings of the Hearing Examiner to the Equal Opportunities Commission (EOC), and then may seek Judicial Review on appeal if not satisfied with those findings.
In 2013, 107 cases filed with DCR were forwarded through the investigative process, and in 2014, 106 cases filed were forwarded through the investigative process. The majority of the cases filed are in the area of Housing. The most recent additions to the list of the protected classes include Unemployment (added in 2013) and Nonreligion (added in 2015). As of today, there have been no cases filed in either of those categories.
DCR Staffing Concerns
The addition of the most-recently added protected classes (Unemployment and Nonreligion) have so far resulted in no complaints being filed based on membership in those classes. While I do believe there will be complaints filed based on Homelessness, I do not believe it would be significant enough to require additional staff. DCR staff has indicated that they should be able to absorb the workload commencing from any additional complaints filed.
DCR also has limited jurisdiction to investigate complaints. They have no jurisdiction over Dane County, therefore would be unable to process any complaints against County staff or a County facility. Similarly, DCR has no jurisdiction over the Madison Police Department, so any complaints against its officers would have to be made with the Police and Fire Commission or the Professional Standards and Internal Affairs Unit within the Police Department. DCR could process complaints against other City agencies.
Public Places of Accommodation
Public accommodations are defined as facilities and services that a person holds out to be open to the common and general use, participation, and enjoyment of the public for any purpose. This term is interpreted broadly to include places of business and recreation, hotels, motels, resorts, restaurants, taverns, barbers, nursing homes, hospitals, and other places providing goods and services. This would apply to most businesses in the City of Madison.
A common misconception about businesses and protected classes is that members of a protected class are afforded additional rights or protections because of this membership. That is not the case. For example, a business may still have a policy that only customers may use the restroom. As long as that business applies that policy equally to people wanting to use the restroom, there would be no basis for a complaint of discrimination to be made. If a business was allowing non-customers to use the bathroom if they were men, but not allowing non-customers who were women to use the restroom, that could be the foundation for a complaint. This same principle would apply to homelessness. A complaint could only be sustained if the business was not allowing someone to use the restroom because they were homeless, and the burden to prove that was the case would be on the complainant.
Another example of this would be a business that only permits patrons to be in the establishment for a certain period of time after making a purchase. If a coffee shop has a policy that customers may only stay on the premises for two hours after making a purchase, they may still enforce that policy, they just must enforce it equally, and not discriminate against a person because they of their gender, their status as a student, the fact that they are homeless, etc.
In regard to enforcement by the Madison Police Department, if a person is engaged in any behavior that violates the law, being a member of a protected class does not shield that person from being the subject of a police investigation or arrest. As long as the Police Department is applying the law equally to men and women, homeless and non-homeless, able-bodied and disabled, etc. there would be no issues with police enforcement practices.
History of Homelessness as a Protected Class
The Equal Opportunities Commission (EOC) began discussing adding Homelessness as a protected class in 2013. The EOC heard from numerous advocates and community organizations about the pros and cons of adding this protection in. In Late 2014, Ald. Weier agreed to sponsor this ordinance change, in the areas of Employment and Housing only. On 1/28/15 the ordinance was referred to the Common Council for Introduction, and a fiscal note was completed with no appropriate required.
After numerous referrals, the ordinance was returned to the Common Council as a Substitute for adoption on 6/2/15, adding Homelessness as a protected class in the areas of Housing, Employment, and Public Accommodations, and was passed. The fiscal note approved on 6/2/15 also indicated no appropriation was required.
The ordinance was vetoed by Mayor Soglin on 6/9/15, and will return to the Common Council on 6/16/15 for consideration of that veto.
