UPDATES TO MADISON’S
EQUAL OPPORTUNITIES
ORDINANCE 39.03
CREATED BY:
MELISSA GOMBAR
ERIC KESTIN
CHRISSY THIELE
ANNIE WEATHERBY-FLOWERS
1/2011
EQUAL OPPORTUNITIES ORDINANCE 39.03
City of Madison Ordinance.
Authorizes Equal Opportunities Division to
investigate cases of discrimination which
occurred in the City of Madison.
Created in 1963.
EQUAL OPPORTUNITIES DIVISION MISSION
Enable individuals to live and work free of
discrimination.
Provide community education and technical
assistance regarding equal opportunity
rights.
Investigate and assist in resolutions for
discrimination complaints within the City of
Madison.
EQUAL OPPORTUNITIES DIVISION
The EOD receives complaints in
employment, housing, and public
accommodations.
The time limit for filing a complaint is 300
days in all cases, except housing cases.
In Housing cases, an individual has one
calendar year (365 days) to file the
complaint.
WHO CAN FILE A COMPLAINT?
Three ways a complaint may be filed:
1.
A person who feels they suffered
discrimination,
2.
A parent or guardian of someone who feels
they suffered discrimination, or
3.
An Equal Opportunities Commission
Commissioner.
WHO CAN FILE A COMPLAINT?
 The person who files the complaint is called
the Complainant.
 The employer, housing provider, or public
accommodator responding to the complaint
is called the Respondent.
WHO CAN FILE A COMPLAINT?
The Complainant must allege that:
 She/He
suffered an adverse action,
 She/He
belongs to a protected class, and
 The
adverse action was because of his/her
membership in that protected class.
WHAT IS AN ADVERSE ACTION?
An adverse action is a negative change in
employment status, housing status and/or
benefits or services received from a public
accommodation.
WHAT IS AN ADVERSE ACTION?
A Complainant must be able to point to facts
to show the action is adverse.
The action must be more than a small or
temporary change, which is sometimes
called “materially adverse”.
WHAT IS AN ADVERSE ACTION IN EMPLOYMENT?
An adverse action might be:
Termination
Demotion or transfer with one or more of the
following:
o
decreased wages or salary
o
a less distinguished job title
o
a substantial loss of benefits
o
significantly diminished important job responsibilities
o
loss of seniority
WHAT IS AN ADVERSE ACTION IN EMPLOYMENT?
Example:
A supervisor decides to not take action to
stop harassment by co-workers in retaliation
for an employee making an equal
opportunity complaint.
WHAT IS NOT AN ADVERSE ACTION IN
EMPLOYMENT?
 Requiring an employee to work at home
while recovering from outpatient surgery.
 Suspending someone with pay during an
investigation where there is no other
negative action taken.
WHAT IS NOT AN ADVERSE ACTION IN
EMPLOYMENT?
Transferring an employee where the only
change is one of convenience, such as
traveling an additional 20 minutes to get to
work.
Reassigning or transferring an employee
with no other changes.
WHAT IS AN ADVERSE ACTION IN HOUSING?
An adverse action might be:
Eviction,
Refusing to rent,
Refusing to renew a rental,
Refusing to sell or lease a property,
Advertising a stated preference, such as
gender or race.
WHAT IS NOT AN ADVERSE ACTION IN
HOUSING?
Being evicted for not paying rent.
Not renewing a lease after continual
violations of previous lease.
WHAT IS AN ADVERSE ACTION IN PUBLIC
ACCOMMODATIONS?
An adverse action might be:
Refusing to serve someone.
 Charging different prices for the same
service.
WHAT IS NOT AN ADVERSE ACTION IN PUBLIC
ACCOMMODATIONS?
A dress code for customers.
 Being charged for services when other
customers are also charged similar prices.
WHAT IS A PROTECTED CLASS?
A protected class refers to a group of
people defined by the law who share common
characteristics and are protected from
discrimination and harassment by federal,
state and/or local laws.
PROTECTED CLASSES
Age
Family Status
Arrest Record
Less Than Honorable
Color
Discharge
Conviction Record
Marital Status
Disability/Handicap
National Origin or
Domestic Partnership
MGO 39.03
Ancestry
PROTECTED CLASSES
Physical Appearance
Sex
Political Beliefs
Sexual Orientation
Race
Social Security
Religion
Retaliation
Number
Source of Income
Student Status
PROTECTED CLASSES
The updated protected classes are:
• Domestic Partners (formerly Public
Accommodations only)
• Family Status (formerly Housing only)
• Sexual Orientation (new definition)
• Social Security (formerly Housing and Public
Accommodations only)
PROTECTED CLASSES
The new protected classes are:
• Citizenship Status
• Credit History (Employment Only)
• Gender Identity
• Genetic Identity (Employment and Housing
Only)
• Victim of Domestic Abuse, Sexual Assault, or
Stalking (Housing Only)
CITIZENSHIP STATUS
The immigration status and/or
citizenship of any person.
MGO 39.03(2)(D)
FREQUENTLY ASKED QUESTIONS
Why is Citizenship Status needed?
There are many instances where individuals
who are not US Citizens, but are in this
country legally, are refused employment,
housing, and/or services.
FREQUENTLY ASKED QUESTIONS
May a person’s Citizenship Status be
considered by an employer, housing
provider, or public accommodation?
No, unless they are required to by State or
Federal law.
FREQUENTLY ASKED QUESTIONS
Does an employer have to hire someone
who is here illegally?
No, because this would generally be a
violation of Federal law.
CASE EXAMPLE
Teju is here legally but not permanently. He
has a temporary work visa. He applies for a
cashier position and the employer decides not
to hire him because of his visa.
CASE EXAMPLE
An employer chooses to only hire permanent
residents and refuses to hire individuals who
they perceive are not in this country legally or
permanently.
CASE EXAMPLE
Pedro and his family are refused service
because the restaurant does not want to feed
“illegals”.
CASE EXAMPLE
An apartment complex refuses to rent to
Samer, who is only here temporarily on a
Student Visa at UW.
CREDIT HISTORY
Any information by a consumer
reporting agency bearing on a
consumer’s credit worthiness, credit
standing, credit capacity, character,
general reputation or personal
characteristics.
(See 15 USC 1681a(d))
MGO 39.03(2)(i) & 39.03(8)(i)(7)
FREQUENTLY ASKED QUESTIONS
Can an employer use my credit history
to make an employment decision?
Generally, no. A person’s credit history may
only be used if:
•The circumstances of the credit history
substantially relate to the job, or
•The position must be bonded and a person
cannot be bonded because of their history.
FREQUENTLY ASKED QUESTIONS
How does an employer determine
substantial relationship?
An employer should make a good faith
determination by considering the specific
position and its duties as related to the
specific circumstances resulting in the
individual’s credit history.
An employer has to make this determination
prior to making an employment decision.
FREQUENTLY ASKED QUESTIONS
Are there some industries that are
exempt from this requirement?
The Ordinance does not list specific
industries that are exempt. However, if there
are Federal or State requirements for
checking credit, that would supersede the
Ordinance.
CASE EXAMPLE
Dewayne recently graduated from college and
owes a lot of money to creditors and has a 780
credit score, which is excellent. When
applying for a job, the employer conducts a
credit check and denies him the job because
the employer does not believe the job pays
enough for the Dewayne to support himself.
CASE EXAMPLE
During a recent recruiting effort, a major
financial institution had a vacancy for a Chief
Financial Officer. After selecting Mary as the
best candidate, the company ran a credit
check and had concerns. The company spoke
with Mary and gave her a short period of time
to resolve these concerns. Mary was able to
resolve the issues and was hired. If the credit
check items were not resolved Mary would not
have been hired.
CASE EXAMPLE
Maria has bad credit and applies for a job
stocking shelves overnight in a department
store, which she is qualified to do. The
company believes that a bad credit score
shows that a person is generally not
responsible. They decide not to hire Maria
because the position does not have constant
supervision and the company believes she will
not work as hard as others because she is not
a responsible person.
CASE EXAMPLE
John has bad credit and low credit rating. He
applies for a job as a cashier at a fast food
restaurant. The company believes that people
who have a bad credit rating are more likely to
steal money from their employer. They decide
to not hire John because they do not want him
to steal money from them. John has never
been convicted of a crime.
CASE EXAMPLE
Alice applies for a job with a credit union to
provide debt reduction counseling and
services to customers. After reviewing her
credit report, it is clear she has issues making
her credit card payments on time and has
maxed out several credit cards.
CASE EXAMPLE
Anthony has a poor credit history due to
medical expenses after having surgery and
being unable to pay timely. He applies to work
in a doctor’s office as a receptionist. The office
denies him employment.
DOMESTIC PARTNERSHIP
Two adults and their dependents who
are in a relationship of mutual support
and are living together.
DEFINITION
What is Domestic Partnership?
Domestic partnership means two adults and their
dependents, if any, which satisfy the following
requirements:
1.
2.
Both are 18 years of age; and
They are in a relationship of mutual support,
caring and committed, and intend to remain
in such a relationship in the immediate
future; and
DEFINITION
Requirements:
3.
They are not married (unless they are married
to each other) or legally separated, and if
either party has been a party to an action or
proceeding for divorce or annulment, at least
six months have elapsed since the date of the
judgment terminating the marriage; and
4.
Both are competent to contract; and
DEFINITION
Requirements:
5.
They are occupying the same dwelling unit as
a single, nonprofit housekeeping unit, whose
relationship is of permanent and distinct
domestic character; and
6.
They are not in a relationship that is merely
temporary, social, political, commercial, or
economic in nature; and
DEFINITION
Requirements:
7.
Neither domestic partner is currently
registered in a domestic partnership with a
different partner;
o If either partner has previously been
registered in a domestic partnership, at
least six months have elapsed since the
effective date of termination of that
registration.
MGO 39.03(2)(o) & 39.03(11)
FREQUENTLY ASKED QUESTIONS
Does domestic partnership apply to
only same sex couples?
The Madison General Ordinance states “two
adults.” Therefore, this protected class would
protect either same sex or opposite sex
couples who have a recognized registered
domestic partnership.
FREQUENTLY ASKED QUESTIONS
When can I file under the domestic
partnership protected class?
You may only file under this protected class
when you have filed for and received
certification from the Clerk’s Office that you
are in a domestic partnership.
FAMILY STATUS
Living with or having custody of
children, stepchildren and/or foster
children less than 18 years of age. It
also applies to expectant mothers.
DEFINITION
What is Family Status?
Familial Status means one or more
individuals (who have not attained the age of
18 years) living with:
1. A parent or another person having sole or
joint legal custody or physical placement,
or
DEFINITION
2. The designee of such parent or other
person having such custody or physical
placement, with the written permission of
such parent or other person; or
3. A foster parent or other person with whom
a person under the age of 18 years is placed
by court order.
MGO 39.03(2)(s)
FREQUENTLY ASKED QUESTIONS
Who is protected?
These protections apply to any person who is
pregnant or is in the process of securing sole
or joint legal custody or physical placement of
any individual under the age of 18.
CASE EXAMPLE
A family with children is told there are no
apartments available because the landlord
only has second floor units left and requires
that children are only able to live on the first
floor of his apartments.
CASE EXAMPLE
George is denied a promotion to a manager
position because he has children and the
employer thinks he will not work as hard or
have as much open availability as a person
without children.
CASE EXAMPLE
A restaurant denies service to a couple who
brings their children along because children
are usually very noisy and other customers
have complained in the past.
GENDER IDENTITY
Identifying with or presenting oneself
as the sex other than one’s biological or
legal sex at birth.
DEFINITION
What is Gender Identity?
It is the actual or perceived condition, status, or acts
of:
1. identifying emotionally or psychologically with the
sex other than one’s biological or legal sex at birth,
whether or not there has been a physical change of
sex organs.
2. presenting and/or holding oneself out to the public
as a member of the biological sex that was not one’s
biological or legal sex at birth;
DEFINITION
3. lawfully displaying physical characteristics and/or
behavioral characteristics and/or expressions which
are widely perceived as being more appropriate to
the biological or legal sex that was not one’s
biological or legal sex at birth, as when a male is
perceived as feminine or a female is perceived as
masculine; and/or
4. being physically and/or behaviorally androgynous.
MGO 39.03(2)(t)
FREQUENTLY ASKED QUESTIONS
Does an employer have to believe what
someone indicates their gender to be?
Yes, under the Ordinance a person is the
gender that they psychologically identify with,
even if they do not physically identify with
that gender.
FREQUENTLY ASKED QUESTIONS
Who is covered under this definition?
Everyone, including cisgender, transgender,
and any other gender identity.
FREQUENTLY ASKED QUESTIONS
What is cisgender?
This term refers to a person whose gender
identity matches the behavior or role
considered appropriate for one's sex when
that person identifies with the gender they
were assigned at birth.
FREQUENTLY ASKED QUESTIONS
What is transgender?
This is the state of one's gender identity. A
person may identify as a woman, man, neither
or both, which does not match one's sex as
assigned at birth.
The word “transgender" does not imply any
specific form of sexual orientation.
FREQUENTLY ASKED QUESTIONS
What bathroom does a person have to
use?
A person may legally use the bathroom
associated with the gender they present.
CASE EXAMPLE
Mario interviews for a job. When calling
Mario’s references, the employer finds out
that his former name is Maria. The employer
believes that Mario is lying and calls him in
for a second interview where Mario is asked
questions about the change. Mario is later
denied the job.
CASE EXAMPLE
Erin identifies as female and presents as
female although she has not had any medical
procedures to change her body characteristics.
One day Erin begins coughing up blood and is
rushed to the emergency room. The staff refer
to her as "he-she," "transvestite" and "it."
Erin waits 2 hours and then is refused
treatment.
GENETIC IDENTITY
Genetic information about a person
that reveals what information they
have coded in their DNA.
DEFINITION
What is Genetic Identity?
This protection covers employment and housing
only. The genetic information unique to the
individual, including information regarding:
1. Such individual’s genetic tests,
2. The genetic tests of family members of such
individual,
3. The manifestation of a disease or disorder in
family members of such individual, and
DEFINITION
What is Genetic Identity?
4. any request for, or receipt of, genetic services,
or participation in clinical research which
includes genetic services, by such individual
or any family member of such individual.
5. The term ‘genetic identity’ shall not include
information about the sex or age of any
individual.
MGO 39.03(2)(tt)
GENETIC TESTS






DNA testing to detect information about
ancestry
DNA that reveals relationships like paternity
BRCA1 or BRCA2 detects Breast cancer
Sickle cell anemia
Cystic fibrosis
Evaluations to test genetic abnormalities in
a fetus
NOT GENETIC TESTS
• Complete blood counts
• Cholesterol tests
• Liver-function tests
• Alcohol tests*
• Drug tests
• Fitness tests
• HIV tests
• H1N1 tests
FREQUENTLY ASKED QUESTIONS
How would an employer obtain my
genetic information?
• If you request leave under the FMLA
• Share information of a family member’s
condition with a co-worker or supervisor
• Publicly available information, such as a
newspaper, news or internet
FREQUENTLY ASKED QUESTIONS
Is this not protected under Disability?
• Under the Ordinance, Disability covers
conditions and symptoms that have already
appeared, or conditions that a person
actually has.
• Genetic Identity covers discrimination for
only genetic information.
FREQUENTLY ASKED QUESTIONS
Is this not protected under Disability?
Robert has taken a genetic test and it shows that
he has the genetic predisposition for
Huntington’s Disease.
• Until he has Huntington’s Disease, Genetic
Identity will protect him from discrimination.
• When he has Huntington’s Disease, Disability
will protect him from discrimination.
CASE EXAMPLE
Kelly wears her breast cancer awareness pin
and bracelet every day. Her supervisor notices
the pin and bracelet and inquires about why
she wears them. Kelly explains her mother
passed away from breast cancer. The week
after she reveals this information, her
employment is terminated.
CASE EXAMPLE
Alex is a supervisor hiring a clerk typist for
the front desk. He has heard that African
Americans are more likely to have sickle cell
disease. Although he interviews a few African
Americans, he ends up hiring a Caucasian. He
believes this way the company will save on
insurance costs and sick leave pay.
CASE EXAMPLE
• Burlington Northern Santa Fe Railroad
secretly tested employees for rare genetic
condition (hereditary neuropathy with
liability to pressure palsies –HNPP), which
causes carpal tunnel as one of its many
symptoms.
• Railroad used this information to avoid
paying worker’s compensation claims.
SEXUAL ORIENTATION
Emotional, romantic, or attraction to
men, women, both genders, neither
gender, or another gender. Includes
homosexual, heterosexual, bisexual,
pansexual, polysexual, asexual, etc.
DEFINITION
What is Sexual Orientation?
It is the sexual or loving attraction to another
person or the complete absence thereof to any
other person. This attraction can span a nonstatic continuum from same-sex attraction at
one end to opposite-sex attraction to an
absolute lack of attraction to any gender.
MGO 39.03(2)(hh)
FREQUENTLY ASKED QUESTIONS
Who is protected under this definition?
Everyone. This includes individuals who
identify as: heterosexual, homosexual,
bisexual, pansexual, polysexual, or asexual
and those who do not use conventional labels
because they feel that they are inadequate or
inapplicable to them.
FREQUENTLY ASKED QUESTIONS
What is heterosexual?
This is sexual behavior, practices, and identity
where there is a primary or exclusive desire
for the opposite sex.
FREQUENTLY ASKED QUESTIONS
What is homosexual?
This is sexual behavior, practices, and identity
where there is a primary or exclusive desire
for the same sex.
FREQUENTLY ASKED QUESTIONS
What is bisexual?
This is sexual behavior, practices, and identity
where there is a primary or exclusive desire
for both males and females.
FREQUENTLY ASKED QUESTIONS
What is pansexual?
This is sexual behavior, practices, and identity
where there is a primary or exclusive desire
towards people, regardless of their gender
identity or biological sex.
Also referred to as omnisexual.
FREQUENTLY ASKED QUESTIONS
What is polysexual?
This is sexual behavior, practices, and identity
where someone is attracted to more than one
gender but does not use the term bisexual
because that implies there are only two
genders.
FREQUENTLY ASKED QUESTIONS
What is asexual?
This is the lack of sexual interest or desire.
Sometimes referred to as nonsexual.
This is distinct from abstention from sexual
activity which is behavioral.
FREQUENTLY ASKED QUESTIONS
Is a person protected if someone does not
hire them because they are perceived as
having a particular sexual orientation?
Yes, it is illegal for an employer to discriminate
against someone based on perceived sexual
orientation, even if the perception is wrong.
 For example, it would be a violation of the law if an
employer assumes a man is homosexual because
he is effeminate and discharges him because of
that perception.
CASE EXAMPLE
When Dan and Tom first applied for a single
housing unit, the landlord assumed they were
roommates and gave them the apartment. A
year passes and their lease is up for renewal.
They never caused a problem and always paid
their rent on time. However, the landlord
found out they were a couple and not just
roommates, so he refuses to renew their lease.
CASE EXAMPLE
A supervisor makes anti-gay remarks during
staff meetings and in the office in casual
conversation with workers. Ruth asks her to
stop and complains to Human Resources, but
the behavior continues. Ruth is later
disciplined for being a trouble-maker.
CASE EXAMPLE
Nancy, woman with short hair, is asked by a
co-worker, John, if she is a lesbian. John
makes negative comments about bisexuals
and lesbians daily and threatens her safety.
SOCIAL SECURITY NUMBER
When a person is asked to give
their social security number
and declines to give it.
DEFINITION
What is the Social Security Number
protection under the Ordinance?
This protection applies if a person declines to
disclose their Social Security Number when
such disclosure is not compelled by state or
federal law. So when a person is asked to give
their social security number and then declines
to give it, they can’t be refused housing or
some sort of service.
DEFINITION
What is the Social Security Number
protection under the Employment
section of the Ordinance?
It is prohibited for an employer to request on
an application or otherwise that an applicant
or employee provide his/her Social Security
Number, when such disclosure is not
compelled by state or federal law.
FEDERAL HISTORY OF SSN
• 1935 – Social Security Act enacted
• 1961 – Civil Service Commission adopted
SSNs as identifiers
• 1962 – IRS adopted SSN as official identifier
• 1962 – 1970 – other entities began using
SSN as official identifier
FEDERAL HISTORY OF SSN
• 1971 - SSA task force report proposed taking
a "cautious and conservative" position
toward SSN use and do nothing to promote
the use of the SSN as an identifier.
• 1971 – 2004 – use of SSN as an identifier
grew
• 2004 – Social Security Protection Act
IDENTITY THEFT
• 11.1 MILLION US victims in 2009
• The total fraud amount in 2009 reached 54
BILLION dollars
• Social Security Number thefts remain the
top breached data and one of the most
difficult frauds to detect.
FREQUENTLY ASKED QUESTIONS
Can an employer ask for my social
security number?
No, unless a State and/or Federal law requires
it.
CASE EXAMPLE
Alex is here on a temporary student visa
needs housing. She is not issued a Social
Security Number with her visa. In her housing
search, a landlord asks her for her Social
Security Number, and she does not provide
one. The landlord refuses to process her
housing application.
CASE EXAMPLE
Yvonne is applying for a job and notices that
the application requires her to include her
social security number, which she provides.
The employer likes to collect this number,
though it is not required, because it is easier
to conduct background checks on people with
it. The employer later denies Yvonne a job.
CASE EXAMPLE
John applied for a position with ABC Inc.
ABC Inc. conducted a background check and 3
different John’s came back. ABC asked John
for more identifying information, not his
SSN, and was not able to determine which
John of the three was applying for the job.
John did not get the job.
SOURCE OF INCOME
Source of income is money received
from public assistance, pension, or
supplementary security income (SSI).
Source of income shall be limited to
legally derived income.
MGO 39.03(2)(II)
FREQUENTLY ASKED QUESTIONS
Is Section 8 covered under this
protected class?
Yes, Section 8 is covered under this protected
class as it is from a public assistance program
(HUD).
CASE EXAMPLE
Jane, who was just hired, approaches Leon,
her supervisor, and asks Leon to complete a
form that helps determine Jane’s ability to
receive public benefits such as W2, FoodShare
and BadgerCarePlus. Jane is terminated the
next day.
CASE EXAMPLE
Fred works for McDilly’s and applies for
housing from Wilma. McDilly’s food makes
Wilma sick and she always prefers Burger
Prince’s burgers. Wilma denies Fred’s
application for housing because she does not
like McDilly’s.
CASE EXAMPLE
José obtains Section 8 for housing and is
contacting landlords to find a place to rent.
While on the phone with a landlord, the
landlord informs him that he does not accept
Section 8.
VICTIM OF DOMESTIC ABUSE,
SEXUAL ASSAULT OR STALKING
Someone who is treated adversely in
housing because they are/were a victim
of domestic abuse, sexual assault, or
stalking.
FREQUENTLY ASKED QUESTIONS
What is protected by victim of domestic abuse,
sexual assault, or stalking?
The status of a person who is seeking to rent or
purchase housing or of a member or prospective
member of the person’s household having been, or
being believed by the lessor or seller of housing to be, a
victim of domestic abuse, as defined in Wis. Stat. §
813.12(1)(am); sexual assault as defined in Wis. Stat. §
940.225, 948.02, or 948.015; or stalking as defined in
Wis. Stat. § 940.32 or of a crime prohibited by Wis.
Stat. ch. 948 (crimes against children).
MGO 39.03(2)(mm)
FREQUENTLY ASKED QUESTIONS
Does this protection apply to
employment and public
accommodations?
No, under the Ordinance it only applies to
Housing.
FREQUENTLY ASKED QUESTIONS
Why is this protection necessary?
Some housing providers have denied a person
housing because fear for the safety of the
landlord or tenant property, or for the safety
of other residents or employees. A landlord
cannot deny a victim of domestic abuse,
sexual assault, or stalking housing because of
the fact the person is a victim.
FREQUENTLY ASKED QUESTIONS
Why is this protection necessary?
In one instance, a day after a female tenant
told a judge that her live-in boyfriend had
brandished a gun and promised to end both of
their lives, her landlord served her with
eviction papers.
The landlord indicated that the tenant
violated her lease with the criminal activity
reported to the police.
CASE EXAMPLE
Ralph and Alice dated for a long time and
ended up breaking up because Alice was
abusive towards Ralph. Ralph had to get a
restraining order against Alice. Ralph applies
for a new apartment but the Landlord is
concerned that if Ralph lives in his apartment
that Alice may come by and cause trouble for
Ralph or other tenants. The Landlord denies
Ralph the apartment.
THANK
YOU