STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


JOHN C. SCARVACI, Complainant

KOHL'S FOOD STORES, Respondent

PUBLIC ACCOMMODATION DECISION
ERD Case No. 199801051


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed: July 20, 1998
scarvaj.rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Mr. Scarvaci's complaint alleged that Kohl's Food Stores was engaged in unlawful discrimination in that it was offering price discounts on certain items to customers who presented certain coupons for those items, coupons which could be obtained only in certain editions of the Milwaukee Journal Sentinel newspaper. An investigator issued a Preliminary Determination that the complaint alleged conduct that was not prohibited under the law. Scarvaci appealed, and an Administrative Law Judge issued a decision affirming the Preliminary Determination.

Scarvaci has alluded to "discriminat[ion]...under the provisions of Wisconsin State Statute 942.04." He has also alluded to various other laws, including the Clayton Act, the Robinson-Patman Act, and Wis. Stat. 133.04, "Price Discrimination; intent to destroy competition."

By his reference to Wis. Stat. 942.04, Scarvaci was clearly attempting to invoke the Wisconsin law against discrimination in public places of accommodation or amusement. See, Wis. Stat. 106.04(9). (1) The ERD and the commission have the power to make determinations under that law. However, the other laws mentioned by Scarvaci are not relevant because the ERD and the commission have no authority to enforce them.

Kohl's Food Stores are public places of accommodation within the meaning of the law. Wisconsin Statutes 106.04(9)(a) prohibits public places of accommodation from (among other things) charging a person a higher price than the regular rate for the full and equal enjoyment of any public place of accommodation because of sex, race, color, creed, disability, sexual orientation, national origin or ancestry. This would clearly extend to treating customers differently with respect to the prices charged for items sold.

However, what the law prohibits is treating customers differently because of their sex, race, color, creed, disability, sexual orientation, national origin or ancestry. Mr. Scarvaci is not claiming that this occurred. Rather, he is claiming that Kohl's Food Stores is treating customers differently based on whether or not they have certain coupons. Even if that is true, it would not be a violation of the law prohibiting discrimination in public accommodations because of sex, race, color, creed, disability, sexual orientation, national origin or ancestry. Therefore, dismissal of the complaint was appropriate.


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Footnotes:

(1)( Back ) That law was previously found in section 942.04; it was renumbered to sec. 101.22(1m)(bp) by 1989 Wis. Act 47, and was again renumbered to sec. 106.04 (9), by 1995 Wis. Act 27.