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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 123-123.22     

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123 Disability (Handicap) Discrimination  

[Ed. note: The Wisconsin Fair Employment Act was amended in 1998 to substitute the term "disability" for the term "handicap"].

123.1 Disability discrimination; Coverage

Discrimination against an individual "because of" disability may involve an employer acting on the basis of actual discriminatory animus against an employee because that employee was an individual with a disability; it may also involve the employer acting on the basis of dissatisfaction with an employee's behavior or performance problem which is caused by the employee's disability.  If an employee is discharged because of bad behavior which was caused by a disability, the discharge is, in legal effect, because of that disability.  Maeder v. UW-Madison, UW Police (LIRC, 06/28/13).

A driver need not seek a determination of medical qualification from the Department of Transportation (DOT) prior to filling a disability discrimination claim under the Wisconsin Fair Employment Act. When a person’s medical and physical qualifications to be an interstate commercial driver are material to a claim under the Wisconsin Fair Employment Act, and a dispute arises concerning those qualifications that cannot be resolved by facial application of the DOT regulations, such a dispute shall be resolved by the DOT under its dispute resolution procedure. The carrier, not the driver, is the party that must seek a determination of medical and physical qualification from the DOT if the carrier intends to offer a defense that the driver was not qualified for medical reasons. Szleszinski v. LIRC, Midwest Coast & Transhield, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

The Respondent violated its own no-fault attendance policy in terminating the Complainant. The Respondent’s policy allowed its employees 15 days from the date of receipt of a form letter (which indicated that the employee would need to submit a completed FMLA form to ensure that his absences were not counted as an occurrence) to submit FMLA documentation to ensure that a medically-related absence would not be counted as an “occurrence” under the Respondent’s no-fault attendance policy. In this case, the Respondent gave the Complainant only two days from the date it provided him with the form letter to submit the FMLA form to ensure that the absence was not counted as an “occurrence” before terminating him. Because the Respondent did not follow the requirements of its own no-fault attendance policy in terminating the Complainant, it could not claim the protection that might be available to it under the policy. The Complainant had not accrued the requisite number of “occurrences” necessary for termination. The Respondent was aware that the Complainant was receiving medical treatment for migraine headaches when it terminated him. Based on these unique circumstances, the Complainant was terminated “because of” his disability. Stoughton Trailers v. LIRC & Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

The Supreme Court declined to address the issue of whether a termination for exceeding the maximum number of absences permitted under a no-fault attendance policy is because of disability under the Wisconsin Fair Employment Act when some of the absences were caused by disability and others were not, since it was not necessary to decide this legal issue in this particular case. Stoughton Trailers v. LIRC & Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

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123.11 Disability discrimination; Coverage; Definition of Disability, generally

 

An impairment that requires little accommodation and does not interfere with the employee's ability to perform the job is not one which can be said to limit the capacity to work.  Tschida v. UW-River Falls (LIRC, 12/30/08).

Missing work occasionally is not sufficient to demonstrate that an impairment limits the capacity to work.  Tschida v. UW-River Falls (LIRC, 12/30/08).

The Complainant suggested that the Respondent regarded him as being disabled by virtue of his narcotic drug use.  However, narcotic drug use does not constitute an impairment in its own right.  The Complainant neither alleged nor established that he has a substance addiction which might be covered under the statute.  Tschida v. UW-River Falls (LIRC, 12/30/08).

To find that the Complainant’s condition was not permanent because there was surgery available that could correct it was wrong as a matter of law. It was also unreasonable where the only evidence in the record on this point indicated that the Complainant was given no assurances that the surgery would work, and that he was told that his condition might have been made worse by the surgery. Reiter v. Waukesha Engine Div. (LIRC, 11/30/07).

There are many types of impairments for which treatments are available. The mere fact that a potential treatment exists is not reason enough to conclude that the impairment is only a temporary one, thus denying the individual the coverage of the Wisconsin Fair Employment Act. It was inappropriate for the Administrative Law Judge to find that the Complainant was not disabled because he could correct his shoulder problem with surgery. Reiter v. Waukesha Engine Div. (LIRC, 11/30/07).

Not every impairment is a disability. The Complainant has the burden of proving that an impairment satisfies the stated requirements of sec. 111.32(8), Stats. The Complainant must establish that the claimed disability made achievement unusually difficult or limited her capacity to work. Wucherpfennig v. Personal Dev. Center (LIRC 06/29/06).

It is not enough for a Complainant to state a diagnosis or to list symptoms in order to establish that he has a disability. The Complainant must explain through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult. The Complainant argued that a diagnosis of asthma alone, supported a conclusion that he was disabled, consistent with the ruling in Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443 (1974). Even if such a diagnosis had been established at hearing, a conclusion of disability was not required. The Supreme Court did not hold in the cited decision that every diagnosis of asthma would result in a conclusion of disability. Instead, it held that conditions such as asthma (which, unlike physical disorders such as paraplegia, do not result in incapacity from normal renumerative occupations or require rehabilitative training) may constitute disabilities under the Wisconsin Fair Employment Act. It would be inconsistent with both the language and the policy underpinnings of the Act for the continuum of asthma conditions to be held to be disabilities even if some did not make achievement unusually difficult or limit the capacity to work. Doерkе-Κlinе v. Ameritech/SBC (LIRC, 05/25/04), aff'd sub nom. Doерkе-Κlinе v. LIRC and SBC Communications, 2005 WI App 209, 287 Wis. 2d 337, 704 N.W.2d 605.

The term "limited capacity to work" refers to the particular job in question. A Complainant is not required to show that an impairment limits his or her capacity to perform a wide variety of jobs. Roytek v. Hutchinson Technology (LIRC, 01/28/02), aff'd sub nom. Hutchinson Technology Inc. v. LIRC and Roytek, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343.

The "limits the capacity to work" test in sec. 111.32(8), Stats. refers to the ability to perform the particular job in question, and does not require that an individual be precluded from performing an entire category of jobs. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

The Complainant testified that she had medical restrictions, but that she did not claim to be disabled. However, the Complainant’s perception of herself is not controlling in this matter. The critical question is whether she satisfies the conditions to be considered an individual with a disability, as that term is defined in the statute. Where the Complainant’s doctors have diagnosed her with a condition which constitutes an impairment under the Act, and where the Complainant’s ability to perform her job was adversely affected as a result, the Complainant is considered to be an individual with a disability without regard to her own characterization of her status. Jones v. United Stationers (LIRC, 01/25/01).

Adverse action taken by an employer because of conduct attributable to the Complainant’s handicap is in legal effect because of the individual’s handicap. Staats v. County of Sawyer (LIRC, 10/27/97), aff'd sub. nom. Staats v. LIRC (La Crosse Co. Cir.Ct., 08/21/98).

Even when the symptoms of a condition can be controlled by medication, the condition may constitute a disability. Salzer v. Briggs & Stratton (LIRC, 7/26/96).

Sec. 111.32(8), Stats., provides the definition of the term "handicapped individual." "Impairment" for purposes of the Act is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. The test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether it is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. Further, the inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. In this case, the Complainant did not establish that his impairment (cataracts and diabetes) made achievement unusually difficult for him or limited his capacity to work. The Complainant's physician testified that the Complainant had no physical limitations. The only problem associated with his cataracts was difficulty driving at night or reading with insufficient light, and his only symptom from diabetes was occasional dryness of the mouth. These amounted to very minor limitations which cannot be said to substantially limit life's normal functions or to make achievement unusually difficult. Flores v. Amcast Corp. (LIRC, 10/13/94).

One purpose of the "unusually difficult/limits the capacity to work" language is to exclude from coverage those physical impairments that are so insubstantial that it makes no sense to afford them special status as handicaps. In this case, the Complainant's condition of chronic peptic syndrome is in effect a condition of excess stomach acid. This is a prevalent condition which does not rise to the same level as impairments which make achievement unusually difficult or limit the capacity to work-- particularly where the condition causes no work restrictions and does not appear to generate unusual absenteeism. Murphy v. Roundy's (LIRC, 10/21/93).

It is not an act of handicap discrimination under the Wisconsin Fair Employment Act to discharge an employe in order to avoid payment for medical expenses of that employe's child. Heinritz v. Lawrence Univ. (LIRC, 09/30/93), aff'd. sub nom. Heinritz v. LIRC, Outagamie Co. Cir. Ct., 05/11/94.

Persons with diseases may be deemed handicapped under the Wisconsin Fair Employment Act, even if the disease is in remission or the person is not otherwise actively suffering from the effects of the disease. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

The fact that the Complainant was hospitalized does not necessarily mean that he was handicapped. Since the Respondent indicated that the Complainant did "fine work", there was no basis for the Complainant's claim that he had an impairment which hindered his capacity to work; therefore, he was not handicapped within the meaning of the Wisconsin Fair Employment Act. Dealer's Office Equip. v. LIRC (Herling) (Waukesha Co. Cir. Ct., 04/09/90).

An impairment may constitute a handicap under the Wisconsin Fair Employment Act even if the condition causing the impairment is contagious or communicable to others. Racine Educ. Ass'n. v. Racine Unified School Dist. (LIRC, 07/17/89).

There is a two-step process of analysis in determining whether an individual has established a handicap within the meaning of the Act. The first step is determining whether or not there is a real or perceived impairment. An impairment for purposes of the Act is a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or condition. The second step is determining whether or not the impairment makes, or is it perceived to make, achievement unusually difficult or whether it limits the capacity to work. Either the claimant must show that the real or perceived impairment makes achievement unusually difficult, or the claimant must show that the real or perceived impairment limits the capacity to work. An employer's perception of either satisfies this element as well. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987).

The test to determine whether a condition makes achievement unusually difficult is concerned not with the specific job but with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. The inquiry concerning the effect of an impairment on achievement is not about mere difficulty, but unusual difficulty. AMC v. LIRC (Basile), 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

A handicap is a mental or physical disability or impairment that a person has in addition to his or her normal limitations that makes achievement not merely difficult, but unusually difficult, or that limits the capacity to work. AMC v. LIRC (Basile), 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

In determining whether a condition is a handicap, weight is given to the fact that it is medically diagnosable and is nonvolitional. Connecticut General Life v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979).

If an employe's illness or defect makes it harder to find work, then it certainly operates to make achievement unusually difficult and it is a handicap. Chrysler Outboard v. DILHR (Ninke) (Dane Co. Cir. Ct., 11/01/76).

The term handicap does not mean that one must be disabled to the extent that one is barred from all remunerative occupation. Rather, a handicapped person is one who, despite being different from the average employe in one or more ways, might nevertheless function efficiently on the particular job. Chicago, Milwaukee, St. Paul and Pacific R.R. v. Department of Industry, Labor and Human Relations (Goodwin), 62 Wis. 2d 392, 215 N.W.2d 443 (1974).

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123.12 Disability discrimination; Coverage; Perceived disability

There being absolutely no medical evidence of any kind in the record, the complainant failed to show she actually had a disability; thus her case rested on showing she was perceived as having one.  The complainant rested her claim on her having been injured in an accident.  But even where a respondent is aware an employee had injuries for which she sought treatment, there must still be evidence that the respondent believed the complainant had an impairment that would be permanent.   The record here tends to affirmatively suggest that Tohl's injuries were perceived as being subject to healing and that eventual recovery, without permanent restrictions, was still a possibility.  Thus she failed to establish that she was perceived as having a permanent disability.  Tohl v. CUSA ES, LLC ( Express Shuttle) (LIRC, 11/21/13).

Even crediting the Complainant's testimony that she told the owner of the Respondent that she suffered from panic attacks for which she took medication, this was insufficient to establish that the Respondent perceived the Complainant as being an individual with a disability. The only manifestations of this condition of which the Respondent had reason to be aware were two days when the Complainant was absent from work. This could not reasonably communicate to the employer that the Complainant suffered from a permanent condition which limited her capacity to work in any significant way. Further, the Complainant downplayed the impact of her condition on her life or work activities to the Respondent's owner, and she never presented any work restrictions to the Respondent based upon her panic attack disorder. The fact that the Respondent was aware that the Complainant was under a physician's care and taking prescription medications did not establish that the Respondent necessarily would have perceived the Complainant to be disabled since medical treatment is sought and medications are prescribed for conditions which are disabling as well as those for which are not. Rybicki v. DJ Convenience (LIRC, 08/20/10).

A Complainant demonstrated probable cause to believe that the Respondent perceived him as being disabled where he testified that he told the Respondent when he was hired that he had diabetes, that his supervisor was aware of his diabetes, and that he had provided the Respondent with notes from his doctors indicating that he should work on the day shift because of his diabetes.  Cappelletti v. OceanSpray Cranberries, Inc. (LIRC, 02/15/08).

It was not appropriate for an Administrative Law Judge to conclude in his decision that "the Complainant does not have a perceived disability." The language in the Wisconsin Fair Employment Act used to define "individual with a disability" contemplates an individual as being perceived by another person as having an impairment which makes achievement unusually difficult or limits the capacity to work. Sec. 111.32(8)(c), Stats. This statute does not contemplate a classification or status independent of another person's perception of the individual. Berg (Riegler) v. Franciscan Woods (LIRC 12/19/06).

The fact that the Respondent was aware that the Complainant was seeking medical treatment and taking prescription medications did not establish that the Respondent necessarily or reasonably would have perceived the Complainant to be disabled. Medical treatment is sought, and medications are prescribed, for conditions which are not disabling as well as for conditions which are disabling. In addition, the fact that the Complainant in this case never presented any medical restrictions to the Respondent supported a conclusion that she would not have been perceived as being disabled. Wucherpfennig v. Personal Dev. Center (LIRC 06/29/06).

The fact that the Respondent's managers were aware that the Complainant was seeing a psychiatrist and taking prescription medications did not establish that the Respondent perceived the Complainant to be disabled. Medical treatment is sought, and medications are prescribed, for conditions which are not disabling as well as for conditions which are disabling. Schultz v. CNH Capital Corp. (LIRC 05/08/06).

While the Respondent was aware that the Complainant had been diagnosed with multiple sclerosis (MS), not every health condition constitutes a disability within the meaning of the Wisconsin Fair Employment Act.  Here, the record contained nothing to indicate to what extent, if at all, the Complainant’s MS would affect her major life activities or limit her capacity to work.  Further, the record contained no evidence as to the Respondent’s owner’s personal beliefs or perceptions on this subject.  Absent such evidence, one cannot speculate that the Respondent perceived the Complainant’s MS as a disability.  Prior to the time that she was diagnosed with MS, the Complainant suffered a variety of health conditions, including the loss of vision in her left eye.  At that time she explained to the Respondent’s owner that her eye problem might be a precursor to MS.  However, there was no reason to find that the Respondent’s owner perceived the Complainant as having a disability prior to the time that the Complainant received her diagnosis.  Draeger v. Kliss Quick Serv. (LIRC, 09/30/05)

In her statements on the hearing record, the Administrative Law Judge appeared to be under the impression that no duty of reasonable accommodation arises as a result of a perceived disability.  However, given the unsettled nature of the law in this regard, it was inappropriate for the ALJ to grant the motion to dismiss the complaint on this basis.  Grell v. Bachmann Constr. (LIRC, 07/15/05)

The Respondent had no reason to perceive that the Complainant was disabled where he had been released to return to work without restriction by his physician.  Cramer v. Woodman’s Food Mkt. (LIRC, 01/14/05).

Although the Complainant did not present medical documentation about breast cancer, or about her particular condition so as to establish that she had an actual impairment, the evidence supported a credible inference that the Respondent perceived the Complainant's breast cancer as an impairment that limited her ability to perform the job in question, and that the Respondent rejected her employment application because of this perception. Huber v. The Meat Market (LIRC, 07/16/04).

The Respondent received contradictory information from the Complainant's doctor regarding the Complainant's restrictions and the extent and nature of his back problem. It is difficult to argue that the Respondent perceived the Complainant as being disabled where it received extremely contradictory information about his condition, and where its own physician advised that the Complainant was not disabled. Although the Respondent's witnesses evidently believed the Complainant had some sort of back condition, based on his repeated insistence that he had work restrictions and had difficulty performing the job, there was nothing to indicate that they considered this condition to constitute an impairment within the meaning of the Wisconsin Fair Employment Act. To the contrary, the evidence suggested that the Respondent believed that the Complainant suffered from a temporary back injury which had not yet healed. Erickson v. Quad Graphics   (LIRC, 05/25/04); aff'd. sub nom. Erickson v. LIRC and Quad Graphics (Washington Co. Cir. Ct., Oct. 27, 2004); aff'd. , Erickson v. LIRC and Quad Graphics , 2005 WI App 208, 704 N.W.2d 398.

The record did not support a conclusion that the Respondent had reason to be aware that the Complainant had a prosthetic eye or suffered from glaucoma or cataracts, but only that the Respondent was aware that the Complainant wore glasses. This fact alone would not be sufficient to support a conclusion that the Respondent perceived the Complainant to be disabled. Aman v. Kindred Nursing Centers East (LIRC, 12/16/03).

Even though the Complainant did not establish that he had a disability, he was perceived as having a mental disability by the employer. The Complainant’s supervisor knew, at a minimum, that the Complainant was in therapy, that the Complainant was taking what was referred to in the workplace as his "nut pills," and that the Complainant required a leave of absence from work in order to adjust his medications. Schneider v. Wal-Mart Stores (LIRC, 01/12/99).

The Complainant failed to establish that he was discriminated against on the basis of "perceived communication disability." The Complainant did not suffer from any speech, communication or personality disorder. The Complainant produced no authority for his assertion that the Respondent’s calling him "goofy" or "screwed up" or comparing him to a fictional character on a television show meant that the person making those comments perceived him as disabled. The Complainant’s discomfort with the Respondent’s comments does not transform those remarks into a perception of disability. Kriegl v. Sauk Co. (LIRC, 08/26/98).

The Respondent's aggressiveness in seeking to get the Complainant back to work meant that the Respondent did not perceive the Complainant as having an impairment. Stanford v. Time Ins. (LIRC, 06/27/95).

Where the Complainant failed to offer any competent expert evidence that he actually suffers or suffered from a handicapping condition he could only prevail if he showed that the employer acted on the basis of a belief that he suffered from such a condition. This would allow invocation of the "perceived as having such an impairment" branch of the definition of "handicapped individual" in sec. 111.32(8)(c), Stats. Roncaglione v. Peterson Builders (LIRC, 08/11/93), aff'd. sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., 05/06/94).

A person who has problematical personality characteristics, but whose psychiatric diagnosis is "well within the normal range," does not appear to fit within the concept of a handicapped individual within the meaning of the Wisconsin Fair Employment Act. Since the Complainant's personality characteristics do not fall within the meaning of the term "impairment," there can be neither an actual nor a perceived handicap. The Complainant's condition consisted of certain personality characteristics that were part of his psychological makeup that was within normal limits. From a factual standpoint, the Respondent's perception of this condition was not different from his actual condition. The employer did not perceive a nonexistent condition that would have constituted an impairment if it did exist, but rather perceived that a condition that did not constitute an impairment was interfering with the Complainant's capacity to function appropriately in the workplace. This did not constitute unlawful handicap discrimination. Jacobsen v. DHSS (Wis. Personnel Comm., 10/16/92).

An employer's knowledge that an employe was engaging in outrageous conduct does not necessarily mean that the employer perceived that the employe was mentally ill. Boldt v. General Motors (LIRC, 10/19/90), aff'd. sub nom. Boldt v. LIRC (Rock Co. Cir. Ct. 09/18/91).

Neither the Respondent's statement that the Complainant might benefit from the services of a psychiatrist, nor the Respondent's inquiry whether the Complainant had seen a psychiatrist were sufficient to establish that the Respondent perceived the Complainant to be handicapped with a mental illness. Boldt v. General Motors (LIRC, 10/19/90).

In order to find that an individual is handicapped within the meaning of the Act, it is not necessary to find that the individual has an actual impairment. It is sufficient to find that the employer perceived that the individual was handicapped. For purposes of the statute, the element of impairment can be satisfied by showing that the condition perceived by the employer would constitute an actual impairment if it did exist. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987).

Where there is an actual impairment which is regarded by the prospective employer as limiting the ability to work, it is a perceived handicap and is to be treated as a handicap which makes achievement unusually difficult or limits the capacity to work, even if, in fact, it does neither. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985).

Just because an employer concludes that a job applicant is unqualified (e.g., too short or too slight) for a particular job does not mean that the applicant is perceived as having a physical or mental disability that makes achievement unusually difficult. AMC v. LIRC (Basile), 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

A rejected job applicant for a drill press operator position was handicapped because the employer believed the applicant's eczema would be aggravated by exposure to oils and solvents. Mercury Marine v. LIRC (Ct. App., Dist. IV, unpublished decision, 10/04/83).

A job applicant who was not an epileptic was nevertheless discriminated against on the basis of handicap within the meaning of th Act where the employer believed him to be so and refused to hire him as an assistant foreman and trackman, a position which he was otherwise qualified to perform. Wooldridge v. Chicago and N.W. Transport (LIRC, 12/17/82), aff'd. sub nom. Chicago and N.W. Transport v. LIRC (Dane Co. Cir. Ct., 09/28/83).

Where a job applicant was rejected because of a physical impairment and the employer perceived that impairment as limiting the capacity to work, the applicant was a "handicapped individual." City of Madison Fire and Police Comm. v. LIRC (Scott) (Dane Co. Cir. Ct., 10/22/69).

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123.13 Disability discrimination; Coverage; Permanent versus temporary conditions

An injury, by its very nature, is generally regarded as a temporary condition that will heal over time. However, in this case, the Complainant presented persuasive evidence to indicate that her injury was not going to fully heal and that the damage sustained was permanent. In addition to information supplied by her doctor, the Complainant was ultimately determined to have a permanent partial disability under the Worker's Compensation Law and she was determined to qualify for Social Security Disability benefits. It was error for the Administrative Law Judge to find that only those facts known by the Respondent at the time it discharged the Complainant were relevant. To base a decision on whether an impairment is permanent strictly on the information that was available at the time of discharge would effectively allow an employer to discharge an injured or sick employee with impunity, provided that the employer did so prior to any assessment of the permanency of the injury or illness. Rutherford v. Wackenhut Corp. (LIRC, 05/13/11).

The Complainant's heart surgery and her recovery from heart surgery were temporary conditions.  The Complainant's cardiologist considered her to have fully recovered from her heart surgery.  The Administrative Law Judge properly found that the Complainant's heart surgery did not constitute a disability (although the Respondent did perceive that the Complainant had a disability because of her heart disease and diabetes).  Lundstad v. Management Computer Support (LIRC, 12/26/08).

The Complainant’s impairment in this case resulted from a work-related injury to his shoulder. An injury, by its very nature, is generally regarded as a temporary condition that will heal over time. The Complainant’s medical records, in which his doctor described the condition as a “shoulder strain,” contained nothing to suggest that the condition was likely to be permanent. To the contrary, the Complainant testified that his doctor had told him that if he resumed performing all of his former job duties he would risk permanent damage in the future. This suggests that the injury was not thought to be a permanent one. Thus, the Complainant did not meet his burden of demonstrating that he had a permanent impairment. Reiter v. Waukesha Engine Div. (LIRC, 11/30/07).

There are many types of impairments for which treatments are available. The mere fact that a potential treatment exists is not reason enough to conclude that the impairment is only a temporary one, thus denying the individual the coverage of the Wisconsin Fair Employment Act. It was inappropriate for the Administrative Law Judge to find that the Complainant was not disabled because he could correct his shoulder problem with surgery. Reiter v. Waukesha Engine Div. (LIRC, 11/30/07).

The Complainant's condition could not be considered a temporary condition. The Complainant was first diagnosed with depression and anxiety several years before the complaint in this matter. The Complainant's physician testified that the Complainant continued to have these symptoms at the time of hearing. The only thing temporary about the Complainant's condition was that there was a period of a few months when he needed to adjust his medication to remedy the side effects that medication was having on him. Goldsmith v. Sears Roebuck & Co. (LIRC 06/29/06).

A physical impairment must be permanent in order to constitute a disability under the Wisconsin Fair Employment Act.  There is nothing in the decision in Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998) which suggests, either implicitly or explicitly, that temporary impairments may be covered disabilities.  The Complainant in the Target Stores case had sleep apnea.  Although she was exploring treatments that may have resolved some of her symptoms, the fact that her symptoms might be treated did not render her medical condition a temporary one.  There was no indication that the Complainant’s sleep apnea would ever go away.  Hermann v. Cellu Tissue Holdings (LIRC, 11/14/05)

Disabilities which are merely temporary do not fall within what is intended to be covered by the prohibition on discrimination because of disability.  In this case, the Complainant had degenerative arthritis of the left ankle joint, which was a permanent impairment.  However, there was no limitation on her capacity to work as a direct result of that impairment.  The Complainant had a temporary restriction related to her recent ankle surgery; however, this would no longer be in effect after she completed her recovery from the surgical procedure.  Therefore, her impairment did not make achievement unusually difficult for her or limit her capacity to work.  Rauls-Hepp v. J.L. French Corp. (LIRC, 09/30/05)

A disability must be permanent in order to be actionable under the Wisconsin Fair Employment Act.  Erickson v. LIRC (Ct. App., Dist. II, unpublished decision, 08/03/05).

No evidence was presented regarding the permanency of the condition, and the commission is unable to make any conclusions as to whether the complainant's back problem was a permanent condition or a temporary one which could be expected to heal over time. The commission has consistently held that disabilities which are merely temporary do not fall within what is intended to be covered by the Act's prohibition on discrimination because of disability.  Erickson v. Quad Graphics   (LIRC, 05/25/04); aff'd. sub nom. Erickson v. LIRC and Quad Graphics (Washington Co. Cir. Ct., Oct. 27, 2004); aff'd. sub nom. Erickson v. LIRC and Quad Graphics , 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398.

The Complainant’s alleged disability was "a back impairment due to slow recovery from surgery." This does not constitute a disability within the meaning of the Wisconsin Fair Employment Act. The Complainant’s alleged impairment, by its very terms, indicates that it was a temporary condition. Disabilities which are merely temporary do not fall within what is intended to be covered by the Act’s prohibition on discrimination because of disability. Falk v. WIPC (LIRC, 12/18/03).

Employee's condition was held not to be a disability within the meaning of the Fair Employment Act where it arose as a result of the fact that she fell and experienced a musculoskeletal strain or sprain and there was no evidence the employee had a herniated disc, or any other back problem.  The commission has long held, that disabilities which are merely temporary do not fall within what is intended to be covered by the Act's prohibition on discrimination because of disability.  Reinke v. Pick ‘n Save Mega Food Centers (LIRC, 01/28/00).

The Complainant failed to establish that he had a handicap, which he alleged was an eye problem, because the only evidence which he presented at the hearing was his own description of the symptoms he suffered when working around chemicals in the Respondent's workplace. This does not constitute competent medical evidence of a handicap. The Complainant established that he has suffered temporary eye irritation when exposed to certain chemicals, but he did not establish that this irritation constituted some "lessening or deterioration or damaging to a normal bodily function or bodily condition or the absence of such bodily function or condition." Further, the Complainant failed to establish that the employer perceived him to have a handicap. The evidence merely supported a finding that the employer perceived the Complainant to be suffering from eye irritation and that this was a temporary condition. Wollenberg v. Webex, Inc. (LIRC, 11/08/91).

There was no evidence that employee's condition, work-related tendinitis, was anything other than temporary.  This is not considered a handicap. Lockington v. La Crosse Rubber Mills (LIRC, 04/08/81).  See also Pizl v. Waukesha Bearing (LIRC, 03/09/83).

A short-term illness, such as (in this case) bronchitis, is not considered a handicap. Terrell v. Pabst Brewing Co. (LIRC, 03/04/81).  See also Keith v. AFK Corp. (LIRC, 08/14/81).

Under some circumstances, a temporary disability may constitute a handicap. Goldberg v. Department of Personnel (Wis. Personnel Comm., 10/17/80).

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123.14 Disability discrimination; Coverage; Conditions found to be disabilities

[Ed. Note: The Complainants in the following cases were found to be individuals with disabilities. That does not mean that every individual who has one of these conditions meets the legal definition of an individual with a disability. A Complainant must establish through credible and competent evidence how or to what degree their symptoms make achievement unusually difficult in order to establish that they have a disability. Sections 123.3 & 123.11 of this Digest summarize cases regarding the requirements for establishing that an individual has a disability within the meaning of the Wisconsin Fair Employment Act.]

ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS)
Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

ALCOHOLISM
Squires v. LIRC, 97 Wis. 2d 648, 294 N.W.2d 48 (Ct. App. 1980).
Bachand v. Connecticut Gen. Life, 101 Wis. 2d 617, 305 N.W.2d 149 (Ct. App. 1981)
Connecticut Gen. Life v. DILHR, 86 Wis. 2d 392, 273 N.W.2d 206 (1979).

ALLERGIES
Fellie v. Cent. Colony (LIRC. 12/06/77), aff'd. sub nom. Fellie v. LIRC (Dane Co. Cir. Ct., 10/20/78).

ATTENTION DEFICIT DISORDER (ADD) 
Stone v. UW System
, (Wis. Personnel Comm., 03/12/03).

ARM CONDITION
Nord v. City of Milwaukee (LIRC,10/06/83).

ASTHMA
Chicago, Milw., St. Paul & Pac. R.R. v. DILHR (Goodwin), 62 Wis. 2d 392, 215 N.W.2d 443 (1974).

ATTENTION DEFICIT DISORDER
 Geller v. Heartland Lakeside Joint #3 School Dist. (LIRC, 03/27/09).

BACK CONDITION
Hutchinson Technology Inc. v. LIRC and Roytek, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343.
Janz v. Jos. Schlitz Brewing
(LIRC, 09/10/81)
Broesch v. Fall River Foundry (LIRC, 05/19/81)
Marathon Elec. Mfg. v. LIRC (Thompson) (Marathon Co. Cir. Ct., 07/01/80)
Nesovanovic v. A.C. Spark Plug (LIRC, 04/17/80)
See v. Vollrath (LIRC, 09/11/79)
City of Appleton v. LIRC (Parker) (Dane Co. Cir. Ct., 07/09/79)
Kram v. Milwaukee County (LIRC, 02/23/79)
Bucyrus-Erie v. DILHR, 90 Wis. 2d 408, 280 N.W.2d 142 (1979)
Kropiwka v. Olin (DILHR, 10/23/75), aff'd. on other grounds sub nom. Kropiwka v. DILHR, 87 Wis. 2d 709, 275 N.W.2d 881 (1979)
Wippert v. Jaeger Baking (LIRC, 12/09/77)
Coates v. High Ridge Hosp. (LIRC, 11/04/77)
Hoadley v. Olin (DILHR, 10/23/75), aff'd.sub nom. Olin v. DILHR (Dane Co. Cir. Ct., 07/11/77)
Ham v. Int'l. Harvester (LIRC, 06/14/77)
Mears v. Western Weighing (DILHR, 09/04/75), aff'd. sub nom. Western Weighing v. DILHR (Dane Co. Cir. Ct., 05/09/77)
Karcheski v. Jim's Arctic Locker (DILHR, 10/05/76)
Gill v. Wetzel Bros. (DILHR, 09/20/76). Stanke v. Int'l. Wire (DILHR, 08/18/76)
Johnson v. Milwaukee Police & Fire Comm. (DILHR, 10/23/75).

BIPOLAR II DISORDER Goldsmith v. Sears Roebuck & Co.(LIRC 06/29/06)

BLINDNESS (see "Vision Impairments")

CANCER
Ninke v. Chrysler Outboard (DILHR, 12/30/75), aff'd. sub nom. Chrysler Outboard v. DILHR (Dane Co. Cir. Ct., 11/01/76)
Esch v. Milwaukee County (DILHR, 09/06/74).

CEREBRAL PALSY
Tews v. Public Service Commission (Wis. Personnel Comm., 06/29/90).

DEAFNESS (see "Hearing Impairments")

DIABETES
Tofte v. Department of Transportation (LIRC, 10/03/77)
Carter v. Wisconsin Elec. (LIRC, 12/20/76)
Seim and Hammer v. Fraser Shipyards (DILHR, 12/18/75), aff'd.sub nom. Fraser Shipyards v. DILHR, (Dane Co. Cir. Ct., 11/29/76)

DYSLEXIA
Horner v. Village Square Apts. (LIRC, 05/21/91).

ECZEMA
(see "Skin Conditions")

EPILEPSY
Samens v. LIRC, 117 Wis. 2d 646, 345 N.W.2d 432 (1984)
Reddick v. Snap-On-Tools (LIRC, 09/02/82)
Nordstrom v. LIRC (City of W. Allis) (Milwaukee Co. Cir. Ct., 09/24/80)
Alt v. Wisconsin Dept. of Administration (LIRC, 05/23/80)
Chicago & N.W. R.R. v. LIRC (Pritzl),
98 Wis. 2d 592, 297 N.W.2d 819 (1980).

EYE SIGHT
(see "Vision Impairments")

FIBROMYALGIA
Ford v. Lynn’s Hallmark (LIRC, 06/27/05).

HAND CONDITION
Boynton Cab v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980)
Duesterbeck v. Pinkerton's (DILHR, 06/14/77), aff'd. sub nom. Pinkerton's v. DILHR (Dane Co. Cir. Ct., 08/14/78).

HEADACHES
Chicago, Milw., St. Paul & Pac. R.R. v. DILHR(Goodwin), 62 Wis. 2d 392, 215 N.W.2d 443 (1974).

HEARING IMPAIRMENTS
Willett v. Delco Electronics (LIRC, 01/17/90)
Loy v. Copps Dept. Store (LIRC, 10/15/82)
Martin v. Consolidated Papers (LIRC, 02/22/79)
Buyatt v. C.S. Transport (LIRC, 07/25/77)
Karcheski v. Jim's Arctic Locker (DILHR, 10/05/76).

HERNIATED DISC  
Fields v. Cardinal TG Co.
(LIRC, 02/16/01).

HEART CONDITIONS
Pokrass v. LIRC (Applied Power) (Waukesha Co. Cir. Ct., 08/20/81)
Colovic v. Wisconsin Elec. (LIRC, 08/30/78)
Chunat v. Olin (LIRC, 11/04/77)
Adams v. Soo Line R.R. (LIRC, 06/23/77)
Eggers v. Soo Line R.R. (DILHR, 12/19/75), rev'd on other grounds sub nom. Soo Line R.R. v. DILHR (Dane Co. Cir. Ct., 02/25/77)
Berndt v. City of Wis. Rapids (DILHR, 07/03/76), aff'd.sub nom. City of Wis. Rapids v. DILHR (Wood Co. Cir. Ct., 07/08/76)
Lienhardt v. Pacon (DILHR, 01/21/76).

HERNIAS
Stevens v. National Cash Register (LIRC, 08/30/77).

HYPERTENSION (high blood pressure)
Green v. Bucyrus-Erie (LIRC, 11/23/83)
Lade v. Milwaukee County (LIRC, 10/05/77), aff'd. sub nom. Milwaukee County v. LIRC (Dane Co. Cir. Ct., 09/07/78)
Janssen v. Milwaukee County (DILHR, 10/12/76), aff'd. sub nom. Milwaukee County v. DILHR (Dane Co. Cir. Ct., 10/20/77)
Carter v. Wisconsin Elec. (DILHR, 12/20/76).

KIDNEY CONDITIONS
Lowenberg v. LIRC (U.W.-Parkside) (Ct. App., Dist. II, unpublished decision, 08/26/83)
Dairy Equipment v. DILHR, 95 Wis. 2d 319, 240 N.W.2d 330 (1980)
Von Haden v. University Meats (LIRC, 10/23/78).

KNEE CONDITIONS
Novotny v. Wisconsin Dept. of Transportation (LIRC, 7/30/80), dismissed on other grounds sub nom. Novotny v. LIRC, (Waukesha Co. Cir. Ct., 01/28/82)
Chicago & N.W. R.R. v. LIRC (Fish), (Ct. App., Dist. I, unpublished decision, 02/13/81)
Burgner v. LIRC (Fraser Shipyards), (Ct. App., Dist. III, unpublished decision, 08/26/80).

MENTAL IMPAIRMENT
Stats v. County of Sawyer (LIRC, 10/27/97)
Jacobus v. Wisconsin Personnel Comm. (Dane Co. Cir. Ct., 01/11/93)
Jacobus v. UW-Madison (Wis. Personnel Comm., 03/19/92)
Norris v. DILHR, 155 Wis. 2d 337, 455 N.W.2d 655 (Ct. App. 1990)
Fruewald v. City of Milwaukee (LIRC, 12/18/81)
Broeske v. American Can (LIRC, 02/16/79).

MIGRAINE HEADACHES 
Stelloh v. Wauwatosa Savings Bank (LIRC, 06/19/12).  
Geen v. Stoughton Trailers
(LIRC, 09/11/03)

NARCOLEPSY
City of River Falls v. LIRC (Pierce Co. Cir. Ct., 01/07/86).

NECK CONDITION
Eberhart v. Pepsi-Cola (DILHR, 11/03/76).

NOSE CONDITION
Milwaukee Web Pressman's Union v. Journal (DILHR, 11/24/75), aff'd.sub nom. Journal v. DILHR (Dane Co. Cir. Ct., 11/01/76).

OBSESSIVE-COMPULSIVE DISORDER
Wal-Mart Stores v. LIRC and Schneider,
2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633

PARAPLEGIA
Crystal Lake Cheese Factory v. LIRC and Catlin,   2003 WI 106, 264 Wis.2d 200,664 N.W.2d 651

PSYCHONEUROSIS WITH DEPRESSION
Colloton v. Prudential (DILHR, 03/31/75).

RHEUMATOID ARTHRITIS
Hammersley v. Packerland Packing (LIRC, 04/14/77)
Stark v. Westmoreland Manor (DILHR, 08/06/76)
Mitchell v. J.C. Penney (DILHR, 08/12/75), aff'd.sub nom. J.C. Penney v. DILHR (Dane Co. Cir. Ct., 03/22/76).

SEIZURES
Kirch v. LIRC (Germania Dairy) (Iowa Co. Cir. Ct., 07/12/83).

SHOULDER CONDITION
Department of Health & Soc. Servs. v. LIRC (Johns) (Dane Co. Cir. Ct., 11/28/79).

SKIN CONDITION
Mercury Marine v. DILHR (Poeschl), (Ct. App., Dist IV, unpublished decision, 10/04/83).

SLEEP APNEA
Target Stores v. LIRC,
217 Wis.2d 1, 576 N.W. 2d 545 (Ct. App. 1998).
Tews v. Public Service Comm.
(Wis. Personnel Comm., 06/29/90).

SPASMS
MacWhyte v. LIRC (Hix) (Kenosha Co. Cir. Ct., 07/03/79).

STUTTERING
Johnson v. Milwaukee Fire & Police Comm. (DILHR, 1/18/76).

TRANSIENT ISCHEMIC ATTACK ("TIA")
Purnell v. Wilderness Walk (LIRC, 09/20/95), aff’d sub nom. Purnell v. LIRC, (Ct. App., Dist. III, unpublished decision, 01/14/97).

TUBERCULOSIS
Anderson v. Wisconsin Dept. of Agr.
(LIRC, 09/29/77), aff'd. sub nom. Wisconsin Dept. of Agr. v. LIRC (Dane Co. Cir. Ct., 05/25/78).

UVEITIS
 Williams v. All Saints Healthcare System
(LIRC, 08/14/09).

VISION IMPAIRMENTS
Grinkey v. Brown County Sheriff's Dept.
(LIRC, 02/08/88)
Brown County v. LIRC,
124 Wis. 2d 560, 369 N.W.2d 735 (1985)
Frito-Lay v. LIRC,
101 Wis. 2d 169, 303 N.W.2d 668 (1981)
Krueger v. A.C. Spark Plug
(LIRC, 10/24/79), dismissed on other grounds, (LIRC, 06/12/80)
Walther v. County of Waukesha
(LIRC, 03/05/80)
City of Madison Police & Fire Comm. v. LIRC (Scott)
(Dane Co. Cir. Ct., 10/22/79)
Fischer v. Alma Center Dist. No. 3
(DILHR, 11/01/76), rev'd on other grounds sub nom. Fischer v. DILHR, (Dane Co. Cir. Ct., 02/14/79)
Teggatz v. Wisconsin Dept. of Health and Soc. Servs.
(LIRC, 10/03/77), rev'd on other grounds sub nom. Teggatz v. LIRC (Dane Co. Cir. Ct., 08/18/78)
Doetze v. Chicago & N.W. Transp.
(DILHR, 12/13/76), aff'd.sub nom. Chicago & N.W. Transp. v. DILHR (Dane Co. Cir. Ct., 05/12/78)
Graf v. Babcock & Wilcox
(DILHR, 12/14/76)
Freiberg v. Wisconsin Elec.
(DILHR, 10/01/76)
Heath v. Briggs & Stratton
(DILHR 04/14/76)
Anderson v. Pinkerton's (DILHR, 07/17/73).

WRIST CONDITION
Bullock v. Milwaukee County (LIRC, 10/15/82).

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123.15 Disability discrimination; Coverage; Conditions found not to be disabilities

[Ed. Note: The Complainants in the following cases failed to establish that they were individuals with disabilities within the meaning of the Wisconsin Fair Employment Act. This does not mean that other individuals with these conditions may not be able to establish that they are persons with a disability within the meaning of the Act. A Complainant must establish through credible and competent evidence how or to what degree their symptoms make achievement unusually difficult in order to establish that they have a disability. Sections 123.3 & 123.11 of this Digest summarize cases regarding the requirements for establishing that an individual has a disability within the meaning of the Wisconsin Fair Employment Act.]

ASTHMA
Doерkе-Κlinе v. LIRC and SBC Communications, 2005 WI App 209, 704 N.W.2d 605

CATARACTS
Flores v. Amcast Corp. (LIRC, 10/13/94).

CERTAIN ARM CONDITIONS
Parrish v. DHSS (Wis. Personnel Comm., 10/23/90).

CONGESTIVE HEART FAILURE  
Kanter v. Ariens Co. (LIRC, 09/23/05)

BROKEN RIBS
Pierson v. A & E Mfg. (LIRC, 05/03/79).

BRONCHITIS
Terrell v. Pabst Brewing (LIRC, 03/04/81).

CHIPPED ELBOW
Pizl v. Waukesha Bearing (LIRC, 03/09/83).

DEGENERATIVE ARTHRITIS OF ANKLE BONE  
Rauls-Hepp v. J.L. French Corp. (LIRC, 09/30/05)

DIABETES/ GESTATIONAL DIABETES
Flores v. Amcast Corp. (LIRC, 10/13/94)
Goodrich v. Duro Paper Bag Mfg. Co. (LIRC, 02/14/92)

HAND INJURY
Lockington v. LaCrosse Rubber Mills (LIRC, 04/08/81).

HEARING IMPAIRMENTS
Esau v. Interconnect Communications (LIRC, 04/30/12)

HEIGHT AND WEIGHT
Elmhorst v. School Dist. of Neillsville (LIRC, 10/31/05)
Alexander v. Aldridge, Inc. (LIRC, 10/21/91)
Rick v. Fore Way Express (LIRC, 07/25/85)
AMC v. LIRC (Basile), 119 Wis. 2d 706, 350 N.W.2d 120 (1984)
Lade v. Milwaukee County (LIRC, 10/05/77), aff'd. on other grounds sub nom. Milwaukee County v. LIRC (Dane Co. Cir. Ct., 09/07/78)
Plizka v. A.O. Smith
(DILHR, 08/19/75)

MIGRAINE HEADACHES
Wucherpfennig v. Personal Dev. Center (LIRC 06/29/06)
Besaw v. Winnebago Co. Landfill (LIRC, 11/30/12).

MULTIPLE SCLEROSIS  
Draeger v. Kliss Quick Serv. (LIRC, 09/30/05)

MUSCULOSKELETAL SPRAIN OR STRAIN
Reinke v. Pick ‘n Save Mega Food Centers (LIRC 01/28/00)
Rick v. Fore Way Express (LIRC, 07/25/85)

OCCASIONAL HEADACHES EARACHES and BREATHING DIFFICULTIES
Rasmussen v. Department of Health & Human Servs. (Wis. Personnel Comm., 12/29/82).

PANIC DISORDERS Schultz v. CNH Capital Corp. (LIRC 05/08/06)

PEPTIC SYNDROME
Murphy v. Roundy's (LIRC, 10/21/93).

PNEUMONIA
Keith v. AFK (LIRC, 08/14/81).

PREGNANCY
Goodrich v. Duro Paper Bag Mfg. Co. (LIRC, 02/14/92)
Kimberly-Clark Corp. v. LIRC, 95 Wis. 2d 558, 291 N.W.2d 584 (Ct. App. 1980).

PROBLEMATICAL PERSONALITY CHARACTERISTICS
Jacobsen v. DHSS (Wis. Personnel Comm., 10/16/92).

VENEREAL DISEASE
Johnson v. Dutchland Dairy (LIRC, 10/11/79).

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123.16 Disability discrimination; Coverage; Preemption by Worker's Compensation Act

(see Section 117.6)

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123.19 Disability discrimination; Coverage; Miscellaneous

The definition of handicap utilized by the Division of Vocational Rehabilitation is not identical to the definition of handicap in the Wisconsin Fair Employment Act. Determinations by the DVR as to whether a person is handicapped are not binding in hearings on complaints brought under the Wisconsin Fair Employment Act. Jacobus v. UW-Madison (Wis. Personnel Comm., 03/19/92).

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123.2 Disability discrimination; Particular disabilities

123.21 Disability discrimination; Particular disabilities; Acquired immune deficiency syndrome (AIDS)

A school district violated sec. 111.322(2), Stats., by publishing a policy barring individuals with Acquired Immune Deficiency Syndrome (AIDS) from attendance at work. AIDS is a handicap within the meaning of the Wisconsin Fair Employment Act. The school district failed to establish that there was a reasonable probability that all individuals with AIDS or ARC would pose a risk of transmission of AIDS in the classroom. The school district also failed to establish that an individual with AIDS in the classroom would pose a risk to the health of that individual. Therefore, the school district was ordered to rescind its policy. Racine Educ. Ass'n. v. Racine Unified School Dist. (LIRC, 07/17/89), aff'd. sub nom. Racine Unified School Dist.v. LIRC, 164 Wis 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

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123.22 Disability discrimination; Particular disabilties; Alcoholism, drug addiction

A positive drug test alone is insufficient to establish that the Respondent perceived the Complainant as being an individual with a disability. A positive drug test indicating a use of drugs by an individual fails to provide the necessary level of diagnosis as to whether the individual’s use of drugs had progressed to the point that such use had become non-volitional. To constitute a disability as defined by the Wisconsin Fair Employment Act, the individual’s drug use must have progressed to the point that such use had become non-volitional. This is a determination which requires the expert medical opinion of a physician. A Complainant cannot prove a “perceived” substance abuse problem adequate to make the statutory test unless there is direct evidence that the agents of the Respondent alleged to have had the “perception” that there was such a problem had actually been provided information that what the person was suffering from was medically assessed as non-volitional and potentially within the legal standard for a disabling substance abuse problem. The absence of evidence that the Respondent had information that the Complainant’s use of drugs had been medically diagnosed as non-volitional precludes any basis for concluding that the Respondent perceived her as having a disability. Ranson v. Milwaukee Center for Independence (LIRC, 01/29/09).

The fact that the Respondent required the Complainant to undergo a drug test fails to establish that it perceived him as having a physical or mental impairment. The Respondent had a substance abuse policy and required the Complainant to undergo a drug test for cocaine after learning of his arrest for possession of cocaine. A Complainant cannot prove a “perceived” substance problem adequate to meet the statutory test of a disability unless there is evidence that the Respondent had actually been provided (and accepted) information that what the person was suffering from was medically assessed as non-volitional and, thus, within the standard for a disabling substance abuse problem. Mork v. Archer Daniels Midland (LIRC, 03/31/10).

A drinking or alcohol abuse problem may or may not be a disability, depending on whether it has progressed to the state that it is non-volitional.  Establishing that such a non-volitional condition exists requires that the Complainant introduce competent, expert medical evidence to that effect.  In this case, the Complainant presented no admissible evidence to establish that he suffered from the disability of alcoholism.  The Administrative Law Judge properly refused to receive medical records relating to an alcohol and drug treatment program the Complainant went through at a hospital.  The certification for those records stated that the records consisted of eighteen pages, while they were actually nineteen pages, thus calling into question the reliability of these records in their entirety because they was no way of knowing which page of those documents was not part of the originally certified documents.  Even had these records been received at the hearing, there was no medical documentation in the records that the Complainant’s drinking problem had progressed to the state that it was non-volitional and that he, thus, suffered from the disability of alcoholism.  The consultation report of the physician who examined the Complainant at the beginning of his treatment listed as his impression, “Alcohol abuse with possible early alcohol dependence.”  The physician’s final diagnosis, listed on the Complainant’s discharge summary, was simply, “alcohol abuse.”  Nothing in those reports in any way indicated that the Complainant’s drinking or alcohol abuse problem had progressed to the state that it was non-volitional.  Hoffman v. City of Fond du Lac (LIRC, 11/21/05)

The Complainant did not establish that the Respondent perceived him as having the disability of alcoholism.  The Complainant never provided the Respondent with a definitive report from a health professional about the nature of his substance abuse problem, for which he had been using sick leave.  The Complainant could not prove a “perceived” substance problem unless there was direct evidence that the Respondent had actually been provided with information that what he was suffering from was medically assessed as non-volitional and thus potentially within the legal standard for a disabling substance abuse problem.  Hoffman v. City of Fond du Lac (LIRC, 11/21/05)

The Complainant did not show that she had an actual disability where her counselor testified that her drug use had never reached the level of addiction or dependency or that her use of an illegal drug had otherwise been non-volitional. Nor did the Complainant present evidence that would create reason to believe that the Respondent terminated her employment because it perceived her as having a disability due to illegal drug use. An outside company had performed a drug test which concluded that the Complainant tested positive for methamphetamines. That company sent a report to the Respondent with the results of its test. Consistent with the express terms of a return to work agreement that the Complainant had with the company that a positive drug test would be considered grounds for immediate termination, the Respondent terminated the Complainant's employment. This did not amount to disability discrimination. Sevals v. Luther Midelfort Clinic (LIRC, 07/16/04).

The fact that the Respondent was aware that the Complainant had been arrested and convicted of driving under the influence of alcohol, and that he had spent three days undergoing inpatient treatment relating to his use of alcohol is not sufficient to establish either that the Complainant was disabled, or that the Respondent perceived him to be disabled. A drinking or alcohol abuse problem may or may not be a disability, depending on whether it has progressed to the state that it is non-volitional. Establishing that such a non-volitional condition exists requires that the Complainant introduce competent, expert medical evidence to this effect. Schleicher v. County of Dodge (LIRC, 10/17/03).

The Complainant was discharged because of a positive drug test. The Respondent had no reason to believe that the Complainant was under the influence of drugs or that he possessed drugs while on the job. Further, the Respondent’s human resources manager believed the Complainant when he denied engaging in illegal drug use. Nevertheless, the Complainant was discharged. The Respondent’s decision to discharge the Complainant in blind adherence to its drug policy was both unreasonable and counterproductive. However, it did not amount to disability discrimination. The record did not establish that the Respondent regarded the Complainant as having a disabling substance abuse problem. Xiong v. Hoffers, Inc. (LIRC, 05/31/00), aff’d sub nom. Xiong v. LIRC (Marathon Co. Cir. Ct., 12/01/00).

The employer knew that the Complainant had problems with cocaine or alcohol, or both, and that he had received treatment for these problems. However, the Respondent was not provided with a definitive report from a qualified practitioner diagnosing the Complainant with a non-volitional substance abuse problem, or drug addiction. The absence of such a report establishing that the Complainant’s substance abuse problem rose to the level of a disability establishes that the Complainant neither has, nor was perceived by the employer as having, a non-volitional substance abuse problem or a substance addiction, or that the employer perceived him as having a history of such a condition. Bailey v. St. Michael Hosp. (LIRC, 06/30/00).

To label or perceive someone as an alcoholic is a very serious judgment and requires behavior on the individual’s part which reveals that the individual drinks consistently and frequently. The Complainant’s two OWI convictions and the instance in which he called in sick and then appeared at the Respondent’s premises under the influence of alcohol may have led the Respondent to believe that he had a drinking problem. However, there was no evidence to suggest that the Respondent perceived the Complainant as suffering from the disease of alcoholism. The Respondent’s actions in referring the Complainant to counseling and requiring that he abstain from the use of alcohol on or off duty merely established that the Respondent believed the Complainant had a drinking problem. These actions do not warrant a conclusion that the Respondent actually perceived the Complainant as having the disease of alcoholism, such as would render him "an individual with a disability," within the meaning of the Wisconsin Fair Employment Act. Chilikas v. Con-way Central Express (LIRC, 04/19/00).

The evidence at hearing did not establish that the Complainant was an alcoholic and, thus, handicapped within the meaning of the Wisconsin Fair Employment Act since no expert medical opinion by a physician was presented. The only evidence in the record regarding alcoholism was assessment reports from Department of Human Services personnel showing that the Complainant suffered from "alcohol abuse" and "suspected alcohol dependency." Hansen v. AKZO (LIRC, 03/23/94).

A Complainant failed to establish that she suffered from the handicap of alcoholism where she did not provide any direct expert medical evidence that she had been diagnosed as having alcoholism. A letter from a psychiatrist to the Respondent indicating that the Complainant had been involuntarily admitted to inpatient AODA treatment was insufficient. The committment order discloses that the allegations of the petition were stipulated to rather than having been proven by evidence offered in a hearing. The fact that the party prosecuting the committment action was willing to stipulate that the Complainant was an alcoholic is not an adequate substitute for competent expert proof that she was. Geske v. H.C. Prange Co. (LIRC, 12/09/93).

Whether a drinking problem is or is not a handicap depends on whether it has progressed to the stage that it is "non- volitional." This is a subjective point which must be determined by a medical expert. It is difficult to apply the "perceived handicap" theory in substance abuse cases because the nature of the problem as it appears to lay persons witnessing it may be the same whether it is simply a "drinking problem," or "non- volitional alcoholism." A Complainant cannot prove a "perceived" substance abuse problem adequate to meet the statutory test definition of perceived handicap unless there is direct evidence that the agents of the Respondent alleged to have had the "perception" that there was such a problem had actually been provided with (and accepted), information that what the person was suffering from was medically assessed as non-volitional and, thus, potentially within the Connecticut General standard for a handicapping substance abuse problem. Geske v. H.C. Prange Co. (LIRC, 12/09/93).

There was no probable cause to believe that the Complainant was unlawfully discharged because of his alcoholism. The Complainant's drinking had clearly reached the point where it was affecting his work performance and was, thus, substantially related to his ability to adequately undertake his job-related responsibilities. The Respondent had attempted to accommodate the Complainant's condition by, among other things, counseling him on alcohol problems. Nelson v. Massey Ferguson (LIRC, 02/02/89)

The Respondent had attempted to accommodate the Complainant's alcohol problem by, among other things, counseling him and relieving him from some responsibilities. The Respondent would have employed further accommodation but for the Complainant's denial of having any problem. Nelson v. Massey Ferguson (LIRC, 02/02/89)

Although the Complainant testified that he had gone to a rehabilitation hospital for treatment and had been diagnosed as an alcoholic, the hearing examiner was entitled to give no weight to this testimony, since no expert testimony was received on the subject. Alcoholism is a disease, the diagnosis of which is matter of expert medical opinion proved by a physician and not a layman. Where the Complainant additionally failed to prove that the Respondent perceived him as being an alcoholic, or believed he had a record of alcoholism, the Complainant failed to prove that he was handicapped. Schaafs v. Schultz Sav- O- Stores (LIRC, 11/06/86).

Where the Respondent was aware that the Complainant suffered from alcoholism, and that he had past convictions for drunk driving, but never took any kind of disciplinary or other adverse action against him based on this knowledge, the Respondent did not violate the Act when it eventually terminated the Complainant. The evidence showed that the termination was based on the Respondent's belief that the Complainant was under the influence of alcohol while at work on the day of the discharge. Deltour v. Gilbert Paper Co. (LIRC, 06/20/86).

A rule against drunkenness does not have a discriminatory impact on alcoholics because recovering alcoholics are able to refrain from drinking. Even if it did, however, the rule is related to the legitimate business purpose of job performance. Mittlestadt v. LIRC (City of Appleton) (Outagamie Co. Cir. Ct., 11/28/83).

It was not discrimination to discharge an alcoholic employe who failed to report for work on two consecutive days because of his alcoholism. Benson v. Bumper and Auto of Milwaukee (LIRC, 01/06/84), aff'd. sub nom. Benson v. LIRC (Milwaukee Co. Cir. Ct., 09/19/84).

It was not discrimination to discharge an alcoholic employe who came to work under the influence of alcohol and who was unable to perform his duties. Squires v. LIRC, 97 Wis. 2d 648, 294 N.W.2d 48 (Ct. App. 1980).

An employe who might seek treatment for his alcoholism was discriminated against when his employer discharged him after learning of the treatment, and when the employer failed to establish its claims of unsatisfactory performance. Bachand v. Connecticut Gen. Life (LIRC, 06/20/80).

Since alcoholism is a disease, its diagnosis is a matter of expert medical opinion by a physician and not by a layperson. Connecticut Gen. Life v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979).

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