Homelessness as a protected class . . .

Posted February 19th, 2015 @ 10:37 AM by

While the Economic Development Commission waivered between being confused about why this issue was before them and just not understanding in general, it is revealed quite clearly why landlords and employers can’t discriminate against the homeless, but the coffee shops and motels (and other businesses) can.

Here’s the audio

Spoiler alert:  The main issue here seems to be the sponsor, Alder Weier, on all counts.  And John Stasser has a peculiar argument – he got his, he doesn’t want his rights diluted.

Anita Weier explains that she introduced this ordinance after discussions at the Equal Opportunities Commission where they heard from police, Porchlight, Chamber of Commerce and others.  She chose to protect the homeless for employment and housing, but not public accommodations or city facilities.  She says since to end homelessness you need a job and housing, and she is trying to protect the 1,000 homeless kids in our schools.  However a small portion of the population has behavioral problems and so she did not include public accommodations.  She talks about excrement being rubbed on city-county building walls and a man masturbating during a cycling event on the square.  They were both homeless and that is why she didn’t include public accommodations. (A friend of mine is offering to get me a helmet so I don’t bang my head bloody during some of these meetings, neither of those two things would be protected if public accommodations were included in the protected class.  That behavior would not in any way be protected!)

Mark Clear asks how this change might affect people, how would it be used.  Weier stumbles and points out staff is here.  She says people would be able to file a complaint with the Equal Rights Commission, the complaint would be investigated and there would be a hearing and it can be appealed to a committee of the Equal Opportunities Commission.

They also point out Bill Fetty from the Equal Opportunities Commission, the chair, is also available to answer questions.

Eric Streege or Craig Stanley asks why this is at the Economic Development Commission at well, what is the economic impact, how does this relate to a building owner, a landlord, general citizens, where does this intersect with economics.

Weier says the main reason is because we had complaints from this commission and alders when they proposed to add unemployment as a protected class, they wanted to make sure that they are included.  She is also adding Housing Strategy Committee and CDBG as referrals.

Lucia Nunez from the Department of Civil Rights that hears issues of Equal Opportunities explains that they hear complaints on housing, employment and public accommodations, she says it is important to get input from employers and housing providers and what impact it might have on them.  Streege says that was his point, where do they “sit on this stuff”, what is the general opinion on how this impacts the city’s ability to grow and prosper?  Nunez says this is the process to get to that, it is at the employment subcommittee that will be discussing this next month.

Ed Clarke says that in respect to employment this would not allow you to be denied because you are homeless, but would this give you any advantage?   Nunez say no.  He asks if employers could be mandated to hire a homeless person or would they be given preference.  This is just that you can’t discriminate, right?   Nunez says that you just can’t use the protected class to discriminate in employment or terms of employment.  Gives example of two equal employees and one is Latina, they can’t be not hired only because they are Latina.  She tells them they can get more info from commissioners Bill Fetty and Susan Schmidt who are in the room.  (Note, Schmitz, from Downtown Madison Inc. doesn’t speak for or against this issue.)

John Strasser asks what the true reality has been for the other protected classes, how often do people file a complaint.  Make the case to him that the benefit outweighs the potential negatives this might bring in giving Madison the anti-business . . . .Nunez says that in 2013 and 2014 they had 106 – 107 cases.  The majority are employment cases, 86 in 2014, in 2013 87.  Housing and public accommodations is pretty low.  Of the protected classes, color, conviction, race, retaliation and gender are the top ones.  The next highest is disability.  Those are the strongest ones.  These laws have been in the books since 1963 and they offer strong protections that make for good employment practices.  There are people who say it will cost employers, that might be true if they don’t have their own legal council, they look at the cases and every single time you don’t get probable cause.  They make that determination that the facts are or are not there.  60% cases there is not.  Some people come and don’t have attorneys, it is an administrative process that is cheaper than going to court.  It is a good process that doesn’t have a lot of cost.  This is good for all sides – advocates, employers and lawyers.

Strasser asks what brought this about, why at this time and by doing this will there be a tangible benefit to this class of people.  Nunez says it came from commission members and you should ask them, there were a lot of issues going on when this came up.  Bill Fetty says that they have been working on this for two years, they have gotten a lot of feedback and this is how Susan Schmitz ended up on the commission (that noise on the tape is steam from the radiator, but it could just as well be steam coming out of my ears at several points in this meeting)  Fetty says he isn’t hear just to defend this, but to hear your opinions, they asked lots of difficult questions and got asked lots of difficult questions.  The change they expect, given the economy and the 1,000 kids in the schools without homes, a lot of those folks are trying to get out of being doubled, tripled or quadrupled up, they need to know that they won’t be discriminated against because they don’t have another address, they have no landlord history because they have been living with family – or they could lie about it.  That is one example of what is going on out there.  Why now?  Why not before?  Why be reactionary?

Mark Green, the chair, asks if someone feels they are discriminated against and sue, what is the difference between my suit if I am not part of a protected vs. if I am.  Would they not have a claim today?  Nunez says that when someone brings a complaint they have to figure out – is it within Madison jurisdiction (not Mt. Horeb), is it housing, employment or public accommodations, is it a protected class and is it connected to that protected class.   The burden of proof is on the complainant to show why they were discriminated against, there is an investigator, they interview both sides and decide if there are facts.  Green says if the person isn’t a part of a protected class, they can discriminate, but that’s ok.  Nunez says physical appearance is a protected class – she uses a public accommodation example of trying to use the bathroom without buying coffee, she might get in, but someone who looks homeless can’t.  That might be a physical appearance claim, but they have to show that an adverse action occurred.  Short Cuban women aren’t a protected class, so she can’t file.  Green asks if a person is found to have discriminated against, then there are remedies.  Nunez says the investigator determines probable cause, then it goes to the hearing examiner, some people might want their job back, some might want damages, some might want the employer to get training.

Clear says currently if the protected class is homelessness, they wouldn’t have a case, they might in other venues, but this is adding that class as something the city would investigate.

Scott Resnick asks why public accommodations wasn’t included other than it being more controversial and a longer conversation?  He sees the example used, someone masturbating in public, that isn’t acceptable to any extent compared to someone using the bathroom that might be.  He says maybe the chair should answer that question.  Weier tries to jump in.  Fetty says that “They had to have a sponsor”.  Ooops, I laughed out loud.  Weier says that she thought about this a long time, before she even joined the committee and she was leery of this, because of behavior issues, probably the example she used wasn’t good because it was outdoors and a business entrance.  (Note, she doesn’t realize that it wouldn’t be protected no matter what!)  She could see that it could be a problem, she knew there were issues in the City-County building and it could be in businesses and she just didn’t want to get into that.

Craig Stanley asks if what they are trying to accomplish is to help families get jobs and housing because they are living with others and might be discriminated against?  Weier says they may be on the street.  Stanley says this is to help that labor force get out of the cycle and grow our labor force?  (this is all kinda awkward for him)  Fetty says yes.

Streege asks if other cities have done this.  Nunez says no.  She says that their research shows they have added Bill of Rights, the council passed a statement of principles, but no one has added it as a protected class.  He asks why that is?  She says she is not sure, Madison is on the forefront of adding a lot of protected classes before other cities, it is not surprising that this started here, there are other municipalities are looking into this, Weier says states have too.

Clear asks about the restroom example, if this passes as is, nothing changes in your example.  If it was in there, then if the facility owner says that something terrible was done in the restroom so we decided not to let them use it again, they could still deny them use of the restroom, then the examples Weier used . . . I guess I’m not getting why it is excluded.  He understands Weier’s concerns, but . .. Weier says they can make amendments.  Clear says he wants to understand it.  Nunez says that they can have rules (no shoes, no shirt, no service), if the rules apply equally, there is no problem.  If one person gets to go in barefoot and the other doesn’t, and it is because of the protected class, then it is a problem.  Protected classes don’t exempt me from following the rules.  Being a member of a protected class doesn’t mean that I can violate rules, and if I have violated rules in the past, I can’t say that you have to allow me because of my protected class, it is the equal enforcement of the rules that is important.  Clear says if the rule is “customers only” then all non-customers can be denied.  Nunez says only when the rules are applied unequally is there a problem

Megin Blake-Horst asks if a property owner could say that everyone who applies has to have an address would that work.  Nunez says that housing is separate, they have other laws that apply to housing that we as a city can’t  . . . Clear says there are state statutes . ..  she says there may have other rules about first months rent or whatever and those rules still apply.  (Hmmmm, this doesn’t sound quite right to me.  That would be disparate impact if they create a rule designed to discriminate against a protected class)

Strasser says that the definition is too broad, 20 years ago he slept in the guest bedroom of a friend, was I homeless.  I never considered myself homeless.  When talking about the 1000s of homeless kids are couch surfing and not on the streets.  Weier asks if he knows that.  He says yes, he has seen the statistics.  He says the definition of homelessness has always been at the heart of dealing of with homelessness (ARGHHHH!!!!!  Get. me. helmet.)  Everyone has a different definition, this definition is so broad, I was homeless now.  Something I would have never considered myself.  Weier says that doesn’t fit the definition.  He says if you are only applying this to people who do not have shelter in their own name, that is what he is getting at, this is a broad definition.  He also wants to quantify the scope of the problem we are trying to solve and the benefit we will get from doing it.  As someone who has been a member of a protected class and has been for a long time, as a gay man, every time we add another category to this, it kinda dilutes.  How soon is it before anyone can find some way of getting on the protected class list?  (Ok, now the steam is coming out of my ears!  How selfish.  I got mine and I’m special and you can’t have equal rights too?) He says that as someone with a district on the edge of the city, he says employers tell him that Madison is not business friendly and if someone has a choice to go on the other side of the beltline, if that mind set is in the community, they can just go elsewhere.  What is the benefit weighed against the potential loss and are we really truly accomplishing something here.  He wants someone to address that.  Make me comfortable with this.

Weier says that a child sleeping in a car with their parents should be protected and could be in regard to housing under this.  Strasser says that we are mostly dealing with employers and what this does to economic development in our future.  (Um, so landlords have nothing to do with the economy?)  This is about our efforts to bring jobs and businesses to the city, not just the Madison market.  Yes a family living in a car needs all the help and support they can get, but from the employment side, are we causing more problems in the long run than the quantity of the solution we are coming up with.  (I want Bruer back.  Yeah, I said it.)  He wants them to make him comfortable with this.

The chair asks for a motion.  Clear moves adoption, Resnick seconds.

Clarke says that this issue doesn’t raise problems for employers because what is being protected is a status, not behavior, if they can’t do the job, if they don’t maintain the standards that the employer has for all other employees, if they can’t meet the goals of the job, then they don’t have to be employed or be let go, but you can’t just say that you’re homeless and therefore I’m going to fire you.  And I agree with that, I don’t see that that is a good thing to do.

Mark Green says that he agrees to a point, but we don’t have data or a way to quantify what the impact is.  (Steam appropriately timed!) He says it is a novel thin for a city to do, so he says that maybe they will open up businesses to law suite, good or bad, frivolous or not, that could be impacted.  He says if people are being fired or discriminated against, how many people does this affect.  They should consider that and be cautious of if we are doing something that no one else is doing. He thinks they are responsible to discuss that.

Strasser says that this, standing on its own isn’t an onerous burden on employers, he remembers the days when 4 or 5 things were protected and now its a whole paragraph.  But its all en masse and the impression it gives, every six months we are adding another protected class and what message does that say to people who are doing investment and development in the city when they have a choice to be in Madison or not and still be in the market.  Its not that what is on the books is onerous, its just that they are afraid of what is coming.  He has heard that quite a lot.  He thinks if they tighten up the definition, if you can define it in a way that would make him never be homeless, he’s ok.  They are living in adequate shelter with an address, they might not be paying rent, they might be sleeping on a sofa, its just one of life’s challenges they have to get through, but we shouldn’t call them homeless for the employment section, for housing he agrees that people are looking to skim off the cream of the renters and not having a rental history or a break in rental history, that should not be held against you.  He says on the employment side they have to tighten it up.

Green says that any problem that can create a perception would pale in comparison to the problem that the issue actually causes, we don’t know how big this problem is.  Strasser says that they took a lot of testimony of quantifying the problem.  Fetty says they tried really hard to get at some numbers in talking to folks, the numbers are all in reports I’m sure you have seen.  The Race to Equity report might have had it.  Weier says that the counts are done for people on the street (not true!)   Nunez says that they look at numbers, a point in time count.   Clarke asks if that is people in shelters.  Nunez says in shelters and on the streets.  Also heard from the Transitional Education Program in the schools, they got those numbers.  What they were hearing from the school district, its no longer a few weeks between jobs, its getting longer and longer, it used to be a month or two but now its 6 months.  The schools are great at documenting this.  There were various numbers they heard from all the sources and they are all included, she can get them to them.  Nunez also said that 107 in 2013 and 106 in 2014 were the numbers of complaints.  That doesn’t mean that discrimination isn’t happening and people don’t come to them.  100 cases is not a whole lot if you start thinking about it.  The Equal Rights Division also has some Madison specific cases, but that is only about another 100, its not a big number.  There are a lot of people that will not file, it happens daily, but they don’t file.  They  move on.  It takes a lot for people to fill this out and really go through the process, its a public process.  Decisions that are written are public.  It takes a lot of hutzpa to do this.  Might this be a deterrent to employers?  She thinks it is an interesting debate about what is an identity, what is a protected class, are we watering down?  We see the top basis continue to be race, arrest and conviction record, which, lets be honest, is about race.  From her point of view, that is where our focus needs to be internally, that does not mean that homeless individuals are not being discriminated against, but year after year after year the areas she sees is that it continues to be race and arrest and conviction.  That is what we need to work on.  Does that mean that we don’t need to work on homelessness, no, but that is what her priorities are.

Strasser asks what is in the queue, do you have more.  Weier says that they have one more, atheist, but she doesn’t see why it would come to them.  Strasser says that any time it has to deal with employment, it has to do with economic development.  Is there anything else that we should know about. Will we be done for a little while.  Nunez says the history is that the commission came up with changes in 2008, and added some then, it hasn’t been until now that the two protected classes have been proposed.  Another few years.

Clarke says that the fact of homelessness may tumble into other areas.  Can you get a driver’s license if you don’t have an address.  (Sigh.  Yes.  Homeless people drive cars and have valid drivers licenses.)  Nunez says that is a state thing, they have no control over it.  Clarke says that an employer could require a drivers license, and a person could say that I am homeless and because I am homeless and can’t get a driver’s license, you’re discriminating against me because I am homeless.  (Helmet please)  Nunez says if there is requirements of a job, as the city she can’t do anything because that is a state process.  If someone allows someone without a drivers license to get that job and not others, then it becomes a problem.

Streege says to Craig’s point, why is this here?  If its employment and rental history, they are together and they are two different problems and one is messier and not an economic development issue and the other one is an economic development issue and he doesn’t know what to do with that at this point.

Someone says they need more data.  Fetty says that one of the things he sees is that they are adding another vetting process for complaints, as a business owner would you rather have a multi-million dollar lawyer and a lawsuit coming at you or would you rather have it before us and we say it frivilous and its gone.  That is one way to look at it.  This also gives us an opportunity to model it and see if it is something they keep, modify or expand upon, and I know John doesn’t want to see it expanded.  They are looking at streamlining and making it simpler and if you want to work on that contact him.  He thinks this makes it easier and they will be able to collect data.

Resnick says that if another body comes to us, there must be a reason.  Alot of times we try to dive deep into data.  This is a committee referring us something because this is something they are charged with, there are a couple economic issues here and they hit on one.  There are many protected classes and that is part of being in Madison and he would question their intent if they didn’t let any more in, yes this is one more class and we might have questions on data and he thinks they should move forward and if it comes back and there are 10 complaints, we probably won’t have any, we can have that discussion.  If we do have the discussion there are probably a number of issues in Madison.  He urges them to vote on it and move on to the Economic Development strategy.

Strasser, Streege and Stanley abstain, there weren’t any no votes.

A note on John Strasser

Hmmm, he seems to keep putting his foot in his mouth.  Check this out.

On Anne St. he said The problem for the last two years, he has been fighting off undesirable project like soup kitchens, half-way houses, extended stay hotels, things that got this property in trouble in the first place. ”  (See amendment 33)

Just Monday he talked again about “undesireable uses” for Ann St, which he seems to have conveniently forgotten was Veterans Housing, almost as evil as soup kitchens I guess!  Sigh . . .








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