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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 123.23-123.44     

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123.23 Disability discrimination; Particular disabilities; Back problems, lifting restrictions 

The Complainant established that she had a disability where she proved that she had damage to a normal bodily condition (i.e., back pain related to degenerative disc problems) and she was limited in her capacity to work in her job (i.e., she was limited in the amount of static standing and sitting she could endure before experiencing pain, she could not work the employer's standard 12-hour shifts, and she could no longer perform some job functions). The Respondent failed to establish that no reasonable accommodations could be made to enable the Complainant to perform her job, or that it would experience hardship in making such accommodations. Clearly, a reasonable accommodation was available, since the Respondent had accommodated the Complainant working 8-hour shifts (rather than the 12-shifts required of other employees) for several months without any problems. Although the Respondent hypothesized that certain problems could arise in the future, it presented no evidence that any ever did. The Respondent did not establish that accommodating the Complainant's disability would have been a hardship. Hutchinson Technology v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343.

The Respondent's claim that the Complainant, who had a back ailment, was transferred to another department because he was the least qualified employe in the department was a pretext for handicap discrimination. Roberson v. Cudahy Canning (LIRC, 05/30/90).

In a hearing on the issue of probable cause, Complainant met his burden of establishing that he had a real or perceived handicap by showing that Respondent had concluded that the Complainant's back condition necessitated a 15-20 pound lifting restriction, that he would be unable to perform the responsibilities assigned to the position for which he applied because of that restriction, and that the Respondent, as a result, decided not to employ the Complainant in the position he desired. Lauri v. DHSS (Wis. Personnel Commission, 11/03/88).

It was discrimination to refuse to rehire an employe with a hernia who had a weight lifting condition restriction of twenty pounds at the time of his termination, and a restriction of sixty pounds after his surgery, when the position he wanted to be rehired to did not involve lifting more than sixty pounds. Kappel v. Consolidated Papers (LIRC, 12/18/84).

The employer failed to show that a thirty-five pound weight lifting restriction, imposed by its physician on a job applicant who had had a laminectomy (back surgery), was justified as necessary to avoid future risk or reinjury to the back. Janz v. Joseph Schlitz Brewing (LIRC, 09/10/81).

There was no discrimination in discharging a truck laborer who had spondylitis and spondylolisthesis of the lumbar spine, where the only medical evidence presented showed that performance of the duties of a truck laborer would be hazardous to the employe's future health. Nadolski v. Chicago and N.W. Transport Co. (LIRC, 08/29/80).

It was discrimination to refuse to hire an applicant with a 10 percent permanent disability to his right shoulder and a 100 pound lifting restriction, where the refusal was based on conjecture and not reasonable probability. Department of Health and Social Services v. LIRC (Johns) (Dane Co. Cir. Ct., 11/28/79).

It was not discrimination to discharge an employe where he sustained a back injury and was unable to perform a job that required lifting 100 pound bags. Kropiwka v. DILHR (Olin) (Dane Co. Cir. Ct., 11/15/76).

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123.24 Disability discrimination; Particular disabilities; Epilepsy, seizure disorders

There was reason to believe that the Respondent violated the Wisconsin Fair Employment Act by placing the Complainant, an epileptic, on an involuntary disability leave of absence where the Respondent could not establish that there was a reasonable probability that the Complainant's seizures posed a risk of injury to herself or others. Although the Respondent demonstrated that the Complainant, a food service worker, worked near hot equipment, it did not present reliable evidence to establish to any reasonable probability that the Complainant could potentially sustain a burn during the course of a seizure. Moreover, the fact that the Complainant had performed the same job duties for fourteen years without sustaining any significant injury, in spite of the fact she experienced numerous seizures during this time, suggested that the Respondent's concerns were not legitimate. Alt v. Meriter Hosp. (LIRC, 03/27/96).

LIRC correctly concluded that the Complainant's epileptic condition, which had involved four grand mal seizures while on the job, sometimes causing injury, was reasonably related to his ability to adequately perform the duties of his job so that it was not discrimination for the Respondent to transfer the Complainant to a different position. Reddick v. LIRC (Kenosha Co. Cir. Ct., 03/12/86).

An employer did not discriminate in dismissing an employe from a position as traveling sales manager after the employe suffered a seizure and was ordered by his physician to refrain from driving for nine months. Kirch v. LIRC (Germania Dairy Automation), (Ct. App., Dist. IV, unpublished decision, 08/28/84).

An employe with grand mal epilepsy whose medication had not totally controlled his seizures and who had been at work during a seizure could be transferred away from the employer's drill press operation. A doctor's recommendation that the employe could safely continue in his job was not conclusive because the doctor had no knowledge of the operation of a drill press and had never visited the employer's plant. Reddick v. Snap-On-Tools (LIRC, 09/02/82).

The employer could not prove that its rule against hiring epileptics for welder positions was justified, where it failed to show that it was reasonably probable that the particular applicant would suffer a future seizure. Chicago and N.W. R.R. v. LIRC (Pritzl), 98 Wis. 2d 592, 297 N.W.2d 819 (1980).

It was not discriminatory to discharge an arborist after he suffered several epileptic seizures, injuring himself and city property. Nordstrom v. LIRC (City of West Allis) (Milwaukee Co. Cir. Ct., 09/24/80).

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123.25 Disability discrimination; Particular disabilities; Mental impairment

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.  Whether an individual's bad behavior is caused by a mental disorder from which the individual suffers, though, is a question of medical/scientific fact on which expert testimony is required.  It cannot simply be presumed that every act of bad behavior engaged in by a person who has a mental disorder, is caused by that mental disorder. It may or may not have been; the question is to be resolved by weighing the expert evidence in the record on that question. Maeder v. UW-Madison, UW Police (LIRC, 06/28/13).  

Medical documentation of complainant’s panic and anxiety disorder did not show that it caused the degree of limitation necessary to establish a disability under the WFEA.  The medical opinion offered in evidence was that the complainant maintained the ability to perform her job.  Lay testimony concerning the complainant’s functioning on the job did not serve to prove disability; laypersons are not competent to connect observations of a complainant’s conduct to a particular mental health condition.  Wal-Mart Stores v. LIRC, 2000 WI App 272, 249 Wis.2d 209, 621 N.W.2d 633.  Even so, lay opinion, consistent with medical opinion, was that the complainant maintained the ability to perform her job.  Rybak v. Wisconsin Physicians Service (LIRC, 05/31/13).

The Complainant did not establish that the Respondent perceived him to be mentally impaired. The record simply showed that the Respondent was concerned about whether the Complainant posed a safety threat to others or himself, and referred the Complainant to its employee assistance program because the Complainant had made inquiries about serial killers and had commented about “going postal,” and because it had received a call from the sheriff’s office relating the Complainant’s parents’ concern about his well-being. The evidence failed to show that the Respondent perceived the Complainant as having a mental impairment of chronic or indefinite duration that substantially limited a major life activity or limited his capacity to work. An EAP referral alone is not evidence that the Respondent perceived that the Complainant had a mental disability. Mork v. Archer Daniels Midland (LIRC, 03/31/10).

The Complainant was an individual with a disability within the meaning of the Wisconsin Fair Employment Act. The Complainant's bipolar II disorder placed a substantial limitation on life's normal functions of sleeping, getting out of bed in the morning, thinking and even caring for himself. The disorder also limited his capacity to work as a sales associate since at times it limited his ability to even get to work. 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).

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).

The Complainant failed to show that her request to have a new supervisor would have been a reasonable accommodation for her disability, which was borderline personality disorder. The record established that the condition from which the Complainant suffers would prevent her from working effectively with any of the Respondent's supervisors. A doctor testified that once the Complainant developed a negative view of a supervisor, this view would not change, and she was unlikely to have a positive relationship with that supervisor in the future.WWester v. Charter Media/Communications (LIRC, 10/15/04).

The Complainant contended that her comment to her supervisor that she was going to take a "mental health day" should have put him on notice that she had a mental disability. However, given that this is a phrase used in common vernacular by both disabled and non-disabled employees to refer to a day free from the universal stressors of work, her statement did not establish that her employer would have had reason to be aware that she was disabled.WWester v. Charter Media/Communications (LIRC, 10/15/04).

The Complainant was required to present expert testimony to establish that his vociferous reaction to the announcement that another employee was being promoted to the position he sought was caused by his obsessive-compulsive disorder. In situations where the factual question of causation is complex or technical so that a lay fact finder would be speculating without the assistance of expert testimony, the absence of expert testimony constitutes an insufficiency of proof. OCD is a complex and baffling medical illness. There is nothing in the record from which one might conclude that the symptoms and manifestations of OCD are within the realm of the ordinary experience of mankind. Thus, the question of whether the Complainant’s OCD caused him to react angrily and vociferously to the news that he had been passed over for promotion, and thereby to commit the alleged insubordination for which he was fired, is sufficiently complex or technical that a lay fact finder would be speculating on the matter without the assistance of expert testimony. Wal-Mart Stores v. LIRC, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633.

The Respondent inquired whether the Complainant’s bipolar disorder was under control by medication, and the Complainant responded that it was. The Respondent also contacted some of the Complainant’s references prior to hiring him and was advised that the Complainant was a "capable employee." Thus the Respondent had no reason to suspect that there was anything about the Complainant’s condition that warranted any particular accommodation. Further, there was nothing about the Complainant’s work performance that should have alerted it to the fact that the Complainant required some form of accommodation because he was bipolar. Chaffee v. Wyalusing Academy (LIRC, 09/27/00).

The Complainant had a diagnosed mental impairment. As a result of her mental impairment, the Complainant experienced symptoms including tearfulness, negative thoughts, difficulty concentrating and relating to people, racing heartbeat and difficulty sleeping. However, the Complainant did not present sufficient evidence to warrant a conclusion that she was substantially restricted in her ability to function or that achievement was unusually difficult for her. Further, there was no reason to conclude that her mental impairment limited her capacity to perform her job. The Complainant’s therapist/social worker testified that the Complainant could work for the Respondent so long as she did not have frequent contact with an individual who had sexually harassed her in the past. Yet this individual was located in a different building, so his contact with the Complainant was limited to occasional meetings. Smith v. Aurora Health Care (LIRC, 08/25/00).

The Complainant’s depression caused him to react violently towards his managers and coworkers, screaming, swearing and hurling clipboards at them, and ultimately threatening to kill himself and others. A disability which causes such conduct is reasonably related to the Complainant’s ability to adequately undertake the job-related responsibilities of his job. Sampson v. S&S Distrib. (LIRC, 11/19/99).

A Complainant’s suggestion that his employer should have helped him stay in treatment and on medication for depression was rejected. An employer is not require to assume responsibility for a worker’s psychiatric treatment by way of reasonable accommodation, even if it were feasible for it to do so. Sampson v. S&S Distrib. (LIRC, 11/19/99).

The Complainant’s mental illness tolls the statute of limitations only if the illness in fact prevents the sufferer from managing his affairs and, thus, from understanding his legal rights and acting upon them. Osegard v. Wisconsin Physicians Serv. (LIRC, 08/13/98).

The Complainant was not "adequately undertaking the job-related responsibilities of [her] employment" when she spent most of the day engaging in bothersome, disruptive and sometimes threatening interactions with coworkers. The employer repeatedly tolerated unsatisfactory behavior because of a concern that it might be a remediable product of a mental illness. The Respondent attempted to accommodate the Complainant; however for the accommodations to be successful, the Complainant’s participation in treatment was essential. Once the Complainant decided that she would not cooperate in treatment recommendations, there was no further accommodation the employer could make that would eliminate the problem which interfered with her ability to do her job. Walk v. Ansul Fire Protection (LIRC, 07/20/98).

Even if the Complainant’s mental disorders caused her to engage in unsatisfactory behaviors which prompted the Respondent to discharge the Complainant, there was no unlawful discrimination because the Complainant’s handicap was reasonably related to her ability to adequately undertake the job-related responsibilities of her employment and because the Respondent fully discharged its duty to attempt to accommodate the Complainant’s handicap. Walk v. Ansul Fire Protection (LIRC, 07/20/98).

The Complainant’s discharge from his employment as a driver’s license examiner was in connection with his acting out in the presence of members of the public certain behavior related to what was diagnosed as an "immature personality disorder in association with a sexual paraphilia," but which was not diagnosed as a psychiatric illness or impairment, but rather a personality disorder which did not limit his capacity to work. The Complainant was not a handicapped individual within the meaning of the WFEA since his sexual impulses were not uncontrollable and his behavior did not result from an uncontrollable or irresistible urge or impulse. Miller v. DOT (Wis. Personnel Comm., 11/23/93).

The Complainant failed to show that his employer knew or should have known that he was mentally handicapped at the time he was terminated from employment. The Complainant's mother and other individuals spoke to the employer about the Complainant being a "slow learner." However, no mention was made of any mental handicap or the type of mental impairment which makes achievement of basic life activities unusually difficult. Further, the Complainant's poor job performance could have been explained by any number of factors other than mental handicap (e.g., lack of interest, lack of motivation, distraction, ineptitude, or boredom). Jacobus v. Wisconsin Personnel Comm. (Dane Co. Cir. Ct., 01/11/93).

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).

The Complainant exhibited symptoms characteristic of a psychotic-manic episode at work. The Complainant's position involved reprocessing and decontaminating surgical implements for a health care facility. The Complainant would pose a danger to himself and others in his work setting if he suffered another manic episode. Therefore, the Respondent's actions fell under the exception to prohibited discrimination set forth in sec. 111.34(2)(a), Stats. Schilling v. UW-Madison (Wis. Personnel Comm., 11/06/91).

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).

Where the Complainant was terminated for misconduct, including improper work performance and threatening statements and gestures to co-workers and non-employes, and where that behavior may have been related to his organic mental disorder, the termination was "tied to" the Complainant's handicap. However, there was no discrimination based on handicap since that handicap is reasonably related to the Complainant's ability to adequately undertake his job related responsibilities. Brummond v. UW- Madison (Wis. Personnel Comm., 04/01/87).

It is not enough for the Complainant to show that his co-workers and supervisors had doubts about his judgment and that some co-workers knew he was seeing a psychiatrist, where the employer was otherwise unaware of his mental handicap. Buller v. University of Wisconsin (Wis. Personnel Comm., 10/14/82).

 

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123.26 Disability discrimination; Particular disabilities; Visual, hearing impairments

Although the Complainant demonstrated the existence of a hearing impairment, he did not show that that impairment made achievement unusually difficult for him or limited his capacity to work. Wearing a hearing aid does not, by itself, establish the existence of a hearing disability. The Complainant never complained that his hearing impairment was interfering with his ability to do his job. The Complainant was able to position himself so that he could hear those who were speaking to him. In fact, he asserted that he performed his job well, and that he received a raise for doing good work during his employment. Esau v. Interconnect Communications (LIRC, 04/30/12).

The Complainant was profoundly deaf. The Complainant proposed several accommodations that he believed would have allowed him to perform successfully as an assembler in a plant that assembles truck trailers. The Respondent considered the following proposed accommodations but rejected them as ineffective: (1) tapping the Complainant on the shoulder, (2) the addition of flashing lights on moving equipments, (3) hand signals, (4) flashlights/laser pointers, (5) written notes and (6) reliance upon vibrations. The Complainant cited no authority for his argument that the Respondent was required to either conduct further research on the accommodation of deaf workers, to have hired a vocational expert, or to have contacted the Job Accommodation Network as part of its duty to engage in an interactive process. Even if the Respondent had been required to consider other possible accommodations raised later on appeal by the Complainant, the Complainant did not prove that any of them would have enabled him to safely and effectively perform the duties of the assembler position. Willis v. Stoughton Trailers (LIRC, 09/04/09).

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).

The Complainant has severe/profound hearing loss. The Respondent denied her the opportunity to "bump" into the marriage license clerk position, as well as related positions on her bumping list because of her disability. The record showed that the Complainant could perform without accommodation those duties of the marriage license clerk position which did not involve the use of the telephone, and that, with the addition of certain office technology, the Complainant could perform certain of the position’s phone-related duties. Removing the phone-related responsibilities of this position, or removing certain of these responsibilities and modifying the remainder in concert with the addition of certain office technology would enable the Complainant to perform sufficient job-related functions of the marriage license clerk position to support a conclusion that these accommodations would have been reasonable ones. Parker v. Dane County (LIRC, 11/10/03).

There was probable cause to believe that the Respondent had discharged the Complainant because of handicap where the Respondent was aware that the Complainant was deaf and that the deafness was causing some problems, and where the Complainant was discharged based on a claim that there was not enough work, while at the same time the Respondent sought new employes. Buska v. Central Bldg. Maintenance (LIRC, 09/28/95).

The Respondent discriminated against the Complainant on the basis of handicap when it prohibited him from driving scooters and tuggers in the plant because he was deaf. Willett v. Delco Electronics (LIRC, 01/17/90).

The Respondent failed to demonstrate that there was a reasonable probability that a person with uncorrected 20/200 vision, correctable with lenses to 20/20 vision, would be unable safely to perform the duties of a traffic officer in the Sheriff's Department. The Respondent's general standard precluding employment of persons with certain vision deficiencies failed to meet the individual evaluation requirement of the statute. The standard was not entitled to automatic deference merely because it was based upon a Law Enforcement Standards Board administrative rule or because it was established with the help of a medical consultant. Grinkey v. Brown County Sheriff's Dept. (LIRC, 02/08/88).

An employer discriminated in laying off an employe who was legally blind, and who was safely and adequately performing his job duties, without requiring an examination to determine the extent of the employe's visual abilities. Heisel v. Manufacturer's Box Co. (LIRC, 10/04/84).

The Complainant was handicapped within the meaning of the Wisconsin Fair Employment Act where he was perceived as being handicapped because he had visual impairment of 96.7% diminution of visual acuity correctable to 20/20 vision which Respondent believed would limit his ability to perform the duties of a traffic patrol officer. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985).

It was handicap discrimination to refuse to rehire a yardman who had a corrective lens which allowed him to meet the visual acuity standards of the small switchyard where he worked because the railroad was applying standards applicable to larger rail yards and did not periodically test the vision of its other employes. Chicago and Northwestern R.R. v. LIRC (Roessler) (Eau Claire Co. Cir. Ct., 09/08/82).

Where an employe met the employer's standards for safely and efficiently driving trucks on intrastate runs, it was discrimination to discharge him because of an eye condition because he did not meet federal standards for interstate trucking. Frito-Lay v. LIRC, 95 Wis. 2d 395 (Ct. App. 1980), aff'd., 101 Wis. 2d 169, 303 N.W.2d 668 (1981).

It was not discrimination for an employer to refuse to hire an applicant with less than 20/40 uncorrected vision for the position of firefighter where the employer showed that the applicant's use of contact lenses would keep him from getting up and dressed within thirty seconds of an alarm. However, it was discrimination to refuse to process the same person's application for police officer where the applicant met the minimum vision requirements with the aid of those lenses. City of Madison v. LIRC (Scott) (Dane Co. Cir. Ct., 10/22/79).

An employe who was denied consideration for a job transfer because he failed a hearing exam was discriminated against where his employer could not explain the need for the exam and the employe had normal hearing with a hearing aide. Martin v. Consolidated Papers (LIRC, 02/22/79).

An employer could not justify the vision standards it used to discharge a probationary employe where it did not introduce any statistical or medical study to validate its use of a less stringent standard for current employes. Chicago and N.W. Transport v. DILHR (Doetze) (Dane Co. Cir. Ct., 05/12/78).

An employer's testing procedure did not adequately evaluate a welder applicant's visual impairment. A.O. Smith v. LIRC (Perry) (Milwaukee Co. Cir. Ct., 12/13/79); also, Graf v. Babcock and Wilcox (DILHR, 12/12/76).

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123.27  Disability discrimination; Particular disabilities; Other conditions

An overweight condition cannot be considered a disability where there was no indication of a glandular or other physiological disorder, and the Complainant’s weight was totally within the Complainant’s control.  Elmhorst v. School Dist. of Neillsville (LIRC, 10/31/05)

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123.3 Disability discrimination; Complainant's burden of proof

123.31 Disability discrimination; Complainant's burden of proof; Generally       [See also, 123.6 Proof of medical facts]

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).

The complainant’s diagnosis of diabetes by itself does not establish a disability.  Diabetes may be a disability, depending on an individualized showing of how it makes achievement unusually difficult or limits the capacity to work.  The complainant’s own listing of symptoms is not a competent showing that those symptoms were related to her impairment.  Competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact.  Alamilla v. City of Milwaukee (LIRC, 06/28/13).

The fact that the complainant received social security disability benefits did not by itself establish that she was disabled for purposes of the WFEA.  Even granting that one’s eligibility for social security disability may help to establish disability under the WFEA, the complainant offered no medical records showing how her condition was disabling for purposes of social security disability, thus she presented no basis for inferring disability under the WFEA based on her qualification for social security disability.  Alamilla v. City of Milwaukee (LIRC, 06/28/13).

Medical documentation of complainant’s panic and anxiety disorder did not show that it caused the degree of limitation necessary to establish a disability under the WFEA.  The medical opinion offered in evidence was that the complainant maintained the ability to perform her job.  Lay testimony concerning the complainant’s functioning on the job did not serve to prove disability; laypersons are not competent to connect observations of a complainant’s conduct to a particular mental health condition.  Wal-Mart Stores v. LIRC, 2000 WI App 272, 249 Wis.2d 209, 621 N.W.2d 633.  Even so, lay opinion, consistent with medical opinion, was that the complainant maintained the ability to perform her job.  Rybak v. Wisconsin Physicians Service (LIRC, 05/31/13).

The Complainant's doctor's notes indicated that she had a permanent five-pound lifting restriction. This is a significant restriction that would render an individual unable to perform many of life's normal functions, such as lifting a bag of groceries or taking out the trash. Similarly, while the record was silent with regard to how or whether the Complainant's ankle injury affected a major life activity, it can be presumed that a person who must walk with a cane is limited in the performance of major life activities. The evidence was sufficient to warrant a finding of probable cause to believe that the Complainant had a disability. Rutherford v. Wackenhut Corp. (LIRC, 05/13/11).

The Complainant contended that wearing a hearing aid should be enough evidence that a person has a hearing disability.  While the use of a hearing aid may be indicative of a hearing impairment, in order to establish that an impairment constitutes a disability under the Wisconsin Fair Employment Act, the Complainant must demonstrate that it makes achievement unusually difficult for her or limits her capacity to work.  Gouge v. Randy's Family Restaurant (LIRC, 06/27/08).

The fact that the Veterans Administration had classified the Complainant’s foot condition as a forty percent disability did not establish the existence of a disability under the Wisconsin Fair Employment Act since the record did not show that the criteria utilized by the Veterans Administration for identifying disabilities was essentially identical to those set forth in the Wisconsin Fair Employment Act. Smith v. Actuant Corp. (LIRC, 07/27/07).

There are two distinct ways in which disability discrimination may occur. The first would be if the employer took an adverse action against an employee due to a discriminatory animus against the employee because the employee was an employee with a disability. The second would be if the employer took an adverse action against an employee because of a performance deficiency caused by the employee’s disability. Fields v. UW Hospitals & Clinics Authority (LIRC, 02/12/07).

Competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if whether the Complainant has a disability is disputed. It is not enough to state a diagnosis or to list symptoms. The Complainant must establish through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult or limited his capacity to work. As a result, the fact that a physician rendered a diagnosis of panic disorder was insufficient alone to establish that the Complainant had a disability within the meaning of the law. Schultz v. CNH Capital Corp. (LIRC 05/08/06).

The Complainant’s argument that a diagnosis of asthma alone was sufficient to establish that she had a disability under the Wisconsin Fair Employment Act was rejected.  The Complainant relied on a sentence in a Supreme Court decision that stated that “handicapped. . .must be defined as including such diseases as asthma which make achievement unusually difficult.”  (Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. DILHR, 62 Wis. 2d 392, 398, 215 N.W.2d 443 (1974)).  However, the analytical framework for determining whether an individual has a disability has been clarified in the years since that decision was issued.  A complainant must now establish that there is a real or perceived impairment, and that the impairment actually makes (or is perceived as making) achievement unusually difficult or limits the capacity to work.  The proper reading of the relevant case law establishes that asthma can be a disability under the Wisconsin Fair Employment Act if the complainant establishes the elements articulated in City of La Crosse Police & Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987).  Doерkе-Κlinе v. LIRC and SBC Communications, 2005 WI App 209, 287 Wis. 2d 337, 704 N.W.2d 605.

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 proximity in time between the Complainant's termination and her notice to the Respondent that she had been diagnosed with fibromyalgia and that this condition interfered with her ability to work did not necessarily establish pretext.  Although proximity in time may be a relevant factor, it is not necessarily a dispositive one.  Ford v. Lynn's Hallmark (LIRC, 06/27/05).

The Complainant presented no medical evidence on his behalf, either in the form of physician testimony or competent medical records upon which a fact finder could base a conclusion about the nature of his back condition. Even if it was determined that the Complainant was competent to testify about his own medical condition and that no additional medical evidence was necessary, the Complainant's testimony would not be sufficient to meet his initial burden where it was limited to a description of his symptoms and an explanation of the difficulties these symptoms posed with regard to his ability to perform the job. Such testimony, even if offered by a physician, would not establish an impairment within the meaning of the Wisconsin Fair Employment Act, where there was no indication as to: (1) what, if any diagnosis was made, (2) what the nature and extent of the condition was, or (3) whether the condition was a permanent one. 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 initial burden in a disability discrimination case is to establish that he is an individual with a disability within the meaning of the Wisconsin Fair Employment Act. It is not enough to merely state a diagnosis or to list symptoms. The Complainant must explain, through credible and competent evidence, how or to what degree these symptoms made achievement unusually difficult. Gramza v. Kwik Trip, Inc. (LIRC, 02/20/03).

The fact that the Complainant qualified for a disabled parking permit was insufficient to establish a disability under the Wisconsin Fair Employment Act where it was not shown that the requirements for the parking permit were identical to the requirements for establishing a disability under the Act. Kirk v. Neenah-Menasha YMCA (LIRC, 02/14/03).

The Complainant had a diagnosed mental impairment. As a result of her mental impairment, the Complainant experienced symptoms including tearfulness, negative thoughts, difficulty concentrating and relating to people, racing heartbeat and difficulty sleeping. However, the Complainant did not present sufficient evidence to warrant a conclusion that she was substantially restricted in her ability to function or that achievement was unusually difficult for her. Further, there was no reason to conclude that her mental impairment limited her capacity to perform her job. The Complainant’s therapist/social worker testified that the Complainant could work for the Respondent so long as she did not have frequent contact with an individual who had sexually harassed her in the past. Yet this individual was located in a different building, so his contact with the Complainant was limited to occasional meetings. Smith v. Aurora Health Care (LIRC, 08/25/00).

Where the Complainant had recovered from Graves' disease sufficiently to have been released to return to work by his physician, he did not have a physical impairment making achievement unusually difficult or limiting his capacity to work. Further, 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. Therefore, the Complainant was not handicapped under the Wisconsin Fair Employment Act. Stanford v. Time Ins. (LIRC, 06/27/95). In a handicap discrimination case, the burden is on the individual to prove that he was refused employment, terminated or otherwise discriminated against because of his handicap. The question of an employer's motivation presents a question of ultimate fact. Haynes v. National School Bus Service (LIRC, 01/31/92).

The Complainant established a prima facie case of handicap discrimination by testifying that when he furnished the Respondent with a doctor's statement indicating that wearing an athletic shoe would help his back, the Respondent told him such shoes had to be black and steel-toed, while other workers had previously been allowed to wear athletic shoes to work. Ninabuck v. Consolidated Freightways (LIRC, 01/31/92).

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 are three essential elements in a handicap discrimination claim. First, the Complainant must establish that the condition at issue is a handicap within the meaning of the Wisconsin Fair Employment Act. Second, the Complainant must show that the employer's discrimination was on the basis of handicap. Third, it must appear that the employer cannot justify its alleged discrimination under the exception set forth in sec. 111.34(2), Wis. Stats. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991); Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980).

Where the Respondent decided, based on the Complainant's statement that she was physically handicapped and could not read the menu, that the Complainant could not do the job because reading was a vital part of the job, the Complainant established that she was discriminated against because of her handicap. Betlach-Odegaard v. UW-Madison (Wis. Personnel Comm., 12/07/90).

The elements of proof of handicap discrimination require that the Complainant prove that he is handicapped within the meaning of the Act and that the adverse employment action was based upon that handicap. The burden of proof then shifts to the Respondent to prove that the Complainant's handicap is reasonably related to the Complainant's ability to adequately undertake the job-related responsibilities of the employment. If this is proven, in order to avoid liability, the Respondent must still show that accommodation of the employe's handicap would pose a hardship on the employer's business. Copus v. Village of Viola (LIRC, 12/10/87).

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. Schaafs v. Schultz Sav O Stores (LIRC, 11/06/86).

A police officer met his initial burden of proof by showing that the restrictions placed upon his job duties and classification were prompted by his supervisor's belief that he could not carry out his job responsibilities as a result of his narcolepsy. Hennekens v. River Falls Police Dept. (LIRC, 01/29/85).

An employe met his initial burden of proof by offering evidence that the employer failed to hire him for a position of truck driver/groundman because of his epilepsy. Samens v. LIRC, 117 Wis. 2d 646, 345 N.W.2d 432 (1984).

A Complainant's initial burden of proof does not include proving that he was able to do the work at the time of his application for the job. Janz v. Joseph Schlitz Brewing (LIRC, 09/10/81).

The initial burden of proof for the employe is to show that he was handicapped and was refused employment because of that handicap. Boynton Cab v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980).

The applicant has the burden of showing that the employer's refusal to hire him was due to his past medical history. He met that burden where he was notified by letter from his employer that he would not be hired as a result of a physical exam. The "legitimate" reasons offered by the employer at the hearing to explain the refusal to hire the Complainant were a pretext where the only reason given at the time of the refusal was the Complainant's physical exam. Wisconsin Dept. of Agriculture v. LIRC (Anderson) (Dane Co. Cir. Ct., 05/25/78).

The state of being handicapped under the Act is a conclusion of law not amenable to lay testimony. A layperson's belief that he was not handicapped is entitled to no weight whatsoever. Bauman v. Specialties (DILHR, 10/03/75).

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123.32 Disability discrimination; Complainant's burden of proof; Employer's knowledge of disability

The Complainant contended that her comment to her supervisor that she was going to take a "mental health day" should have put him on notice that she had a mental disability. However, given that this is a phrase used in common vernacular by both disabled and non-disabled employees to refer to a day free from the universal stressors of work, her statement did not establish that her employer would have had reason to be aware that she was disabled. WWester v. Charter Media/Communications (LIRC, 10/15/04).

An employer does not discriminate because of handicap, even where it takes an action with respect to an employee because of some physical or mental inability of that employee, where the inability is one that can result from conditions or causes which are not disabilities within the meaning of the Wisconsin Fair Employment Act, and the employer does not know that the inability results from a condition which is a disability. In this case, the Complainant was not diagnosed as having dyslexia with a learning disability until several months after leaving his employment with the Respondent. There was no evidence that the Respondent believed that the Complainant had a condition which would constitute an actual impairment. Although the Respondent was aware that the Complainant could not read and write at normal levels, it had no reason to suspect that the cause was anything other than lack of education. Some adults are unable to read and write at normal levels. This does not mean that all of these individuals are handicapped within the meaning of the Wisconsin Fair Employment Act. Horner v. Village Square Apartments (LIRC, 05/21/91), aff'd. sub nom. Horner v. LIRC (Dane Co. Cir. Ct. 10/01/92).

If an employer's decision is based on certain limitations or inabilities of an employee that could be the result of something other than a disability, and the employer is not shown to have been aware that they were in fact the result of a disability, the employer cannot be found to have made its decision because of disability. In this case, there was no prohibited discrimination in view of the fact that the Complainant had no diagnosed permanent disability at the time of the challenged actions by the employer. The employer believed that the Complainant's physical problems were temporary consequences of an injury. This was thus a situation where the problems affecting the ability to work were things that could be caused by something other than a "disability" within the meaning of the Wisconsin Fair Employment Act. Greco v. Snap-On Tools (LIRC, 05/27/04).

While a conclusion of liability normally requires that the employer be aware of the employee’s disability, when the employee’s supervisors are aware of the obvious physical manifestations of an actual disability subsequently established at hearing, there is no requirement that they be aware of the employee’s actual diagnosis, or have reached a subjective conclusion that the employee was disabled under the Wisconsin Fair Employment Act, at the time of the alleged discriminatory act. Stone v. UW System (Wis. Personnel Comm., 03/12/03).

Not every medical condition rises to the level of a disability protected under the Wisconsin Fair Employment Act. Therefore, an employer’s knowledge of the Complainant’s medical condition does not necessarily mean that the Respondent knew that the Complainant was disabled. Lane v. DOC (Wis. Personnel Comm., 06/07/01).

During the latter years of his employment, complainant had problems remembering events and figures;  much later, well after termination, he was diagnosed as having a developmental reading disorder diability.  At the time of his termination, though, neither he nor his employer knew of any disability.  Complainant argued that although no one knew of his handicap he was fired because of the result of it and was thus fired for discriminatory reasons.  However, the court believes that it is impossible to conclude that handicap had any bearing upon the termination decision since neither the employer or any of its employees (even the complainant) had any knowledge a handicap existed. Polesky v. LIRC (Washington Co. Cir. Ct., March 31, 1998).

The Respondent did not violate the Act when it discharged the Complainant because she refused to provide it with information from a medical doctor regarding her symptoms and treatment. The Respondent needed this information to evaluate the Complainant’s ability to undertake the job-related responsibilities of her position. Garlie v. St. Francis Home (LIRC, 06/29/98).

The Complainant failed to show that his employer knew or should have known that he was mentally handicapped at the time he was terminated from employment. The Complainant's mother and other individuals spoke to the employer about the Complainant being a "slow learner." However, no mention was made of any mental handicap or the type of mental impairment which makes achievement of basic life activities unusually difficult. Further, the Complainant's poor job performance could have been explained by any number of factors other than mental handicap (e.g., lack of interest, lack of motivation, distraction, ineptitude, or boredom). Jacobus v. Wisconsin Personnel Comm. (Dane Co. Cir. Ct., 01/11/93).

It was undisputed that the Complainant had dyslexia;  however, it was not until 9 months after his resignation that he was diagnosed with this condition.  The question is thus whether, at the time of his employment, he was perceived by the employer as having a condition that would constitute a handicap under the statute. The record reveals no facts from which to conclude that the employer believed the Complainant had a condition which, if it in fact existed, would constitute a handicap.  While the employer was aware the Complainant could not read or write, it had no reason to suspect the cause of this was anything other than a lack of education.  Some adults are unable to read and write at normal levels;  this does not mean they are handicapped within the meaning of the Act. Horner v. LIRC (Dane Co. Cir. Ct., Oct. 1, 1992), affirming  Horner v. Village Square Apartments (LIRC, 05/21/91).

The Complainant was handicapped by alcoholism, but she was not fired because of her handicap when the employer did not know about it at the time the decision was made.   It is not handicap discrimination to discharge an employe for deficiencies in work performance where the employer is unaware that the employe has a handicap that is allegedly the cause of those deficiencies. Menzner v. LIRC (Family Service Association of Fox River Valley) (Calumet Co. Cir. Ct., 02/05/85)

An employer cannot be penalized with a finding that it discriminated against an employee on the basis of handicap when it in fact had no knowledge of the employee's handicap. To do so would penalize it for violating a law without first giving it the opportunity to comply with the law, and would also require it to delve into each potential employee's medical records to the extent that invasion of privacy problems would be generated. The decision here to terminate the Complainant's employment was made before the decisionmakers were aware of Complainant's handicap.  Therefore, it cannot be said that the decision was made on the basis of that handicap.  Lowenberg v. LIRC (U.W. Parkside) (Ct. App., Dist. II, unpublished decision, 08/26/83).

It is not enough for the Complainant to show that his co-workers and supervisors had doubts about his judgment and that some co-workers knew he was seeing a psychiatrist, where the employer was otherwise unaware of his mental handicap. Buller v. University of Wisconsin (Wis. Personnel Comm., 10/14/82).

Where Complainant failed to prove that the committee making the decision  to terminate the Complainant's tenure-track status knew of his handicap at the time of the decision, he failed to show that the basis for the Respondent's adverse decision was his handicap.  Lowenberg v. Secretary of the Board of Regents (LIRC, June 17, 1982). 

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123.4 Disability discrimination; Employer's burden of proof; affirmative defenses

123.41 Disability discrimination; Employer's burden of proof; generally

When a dispute exists between the physician for a truck driver and the physician for a trucking company regarding the driver’s physical and medical qualifications, it is the company, not the driver, that bears the burden of seeking a determination under the Department of Transportation (DOT) dispute resolution procedure (49 CFR 391.47) if the company intends to offer a qualification-based defense against the driver’s claim of disability discrimination under the Wisconsin Fair Employment Act. A requirement that the driver seek a DOT determination before filing a state discrimination claim would be contrary to the burden-shifting scheme of the Wisconsin Fair Employment Act. Further, such a requirement would prevent some drivers from filing legitimate claims under the Act before the statute of limitations had run. In some cases it may be unnecessary to obtain a determination regarding the driver’s medical qualifications from the DOT if the issue is easily resolved by facial application of the DOT regulations. However, where a dispute over a driver’s medical qualifications cannot be resolved by facial application of the DOT regulations, the Administrative Law Judge must either give the company the opportunity to seek a determination from the DOT regarding the driver’s medical qualifications, or seek sua sponte a determination from the DOT regarding the driver’s medical qualifications. Szleszinski v. LIRC, Midwest Coast & Transhield, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

In order to establish a claim of disability discrimination, a Complainant must establish that he is an individual with a disability, and that a challenged employment action was made because of that disability. If those things are established, the question then becomes whether the employer can justify its actions under the exception set forth in sec. 111.34(2), Stats., for situations in which a disability is reasonably related to an employee’s ability to adequately undertake the job-related responsibilities of his employment. If the applicability of that exception is established, the question then becomes whether the employer can establish that it did not refuse to reasonably accommodate the Complainant’s disability, or that any accommodation which might have been made would have posed a hardship on the employer’s business within the meaning of sec. 111.34(1)(b). The question of whether a reasonable accommodation was refused, or whether it would have posed a hardship, comes into play only if it appears that a challenged employment decision was made because of a disability, and that the disability which was the reason for the challenged employment action was reasonably related to the Complainant’s ability to do the job. Cook v. Community Care Resources (LIRC, 01/13/03).

A Respondent was not required to ignore evidence of a Complainant’s violent and threatening behavior. It could conclude that continued employment of the Complainant would pose a safety risk in the workplace, even though the Complainant’s psychologist and a police officer held an opinion to the contrary. Sampson v. S&S Distrib. (LIRC, 11/19/99).

Where a Complainant has established that the Respondent has refused to hire him for a janitorial position because of his lifting restrictions, the burden shifts to the Respondent to prove that the Complainant's handicap is reasonably related to his ability to adequately undertake the job-related responsibilities of the job. If the Respondent meets its burden, it must further demonstrate that accommodating the Complainant would pose a hardship on the Respondent's business in order to avoid liability. Charles v. Milwaukee Bd. of School Directors (LIRC, 06/23/93).

An employer's decision that a handicapped employe is unable to effectively perform and that no accommodation is feasible is measured by an objective standard. Evidence which postdates the personnel transaction in question (including such things as medical evaluations) may have no relevance to the issue of the employer's intent at the time of the transaction, yet it may have some relevance to issues such as the employe's capacity to perform and accommodation. Although an employer must gather substantial facts to support a decision that it cannot accommodate an employe, the determination of whether the employer violated the Act is made by the trier of fact. A good faith belief on behalf of the employer will not be a sufficient defense to an act of discrimination. Keller v. UW-Milwaukee (Wis. Personnel Comm., 03/19/93)

The mere fact that the employer has made its employment decision in reliance upon the opinion of a doctor does not protect the employer from a finding of discrimination. Where there is conflicting medical evidence, the trier of fact conclusively determines which view of the evidence it will accept. Leach v. Town of Pleasant Prairie Fire Dept. (LIRC, 04/23/91).

Employers are required to evaluate handicapped applicants without initially considering their handicap. Betlach-Odegaard v. UW- Madison (Wis. Personnel Comm., 12/07/90).

When an employer reaches the conclusion that a handicapped job applicant who is otherwise in line to be hired faces a problem in performing a job because of handicap, the employer has a duty to consider accommodation options. Betlach-Odegaard v. UW-Madison (Wis. Personnel Comm., 12/07/90).

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123.42 Disability discrimination; Employer's burden of proof; Inability to perform job-related responsibilities

Complainant was blind and diabetic.  Based on its expert’s recommendation the Respondent refused to allow the complainant to work for a year and a half while it gathered medical information.  The Respondent eventually allowed the complainant to return to work.  However, medical evidence showed that the complainant could have safely worked during the entire time period she was suspended.  While the Respondent may have acted in good faith, there is no “good faith” exception where discrimination has occurred; if an employer decides an employee can’t work safely because of a disability, the responsibility for having been incorrect lies with the employer.  Lehr v. The Salvation Army (LIRC, 4/16/13).

In this case, the respondent made its decision not to allow the complainant to return to work based entirely on the opinion of a doctor on whom it relied.  However, the fact that an employer has acted in reliance upon the opinion of a doctor does not protect the employer from a finding of discrimination.  Where there is conflicting medical evidence, the trier of fact conclusively determines which view of the evidence it will accept. Here, the commission found the opinion of complainant’s doctor that the complainant could adequately and safely return to work, to be more persuasive than the opinion of the respondent’s doctor that she could not.  Thus the respondent failed to carry its burden of establishing an "[in]ability to adequately undertake job-related responsibilities" defense. Shea v. Chrysler Group LLC (LIRC, 02/28/13), aff’d, Chrysler Group v. LIRC, November 26, 2013 (Kenosha Co. No. 13CV540) (appealed to court of appeals).

The evaluation of whether a worker can work safely is to be made on a case-by-case basis.  The Respondent in this case had a reasonable basis for concern that the Complainant's disability was related to his ability to perform the job safely.  It was therefore not unlawful for the Respondent to temporarily suspend the Complainant's employment in order to conduct an individualized evaluation of that question.  It was not an act of discrimination for the Respondent to require the Complainant to take a leave of absence without pay pending his examination by an independent medical examiner.  Tschida v. UW-River Falls (LIRC, 12/30/08).

The Complainant suffered a transient ischemic attack (which presents the same symptoms as a stroke, but causes no permanent damage). His physician had released him to return to work without restrictions. However, the Respondent established that the Complainant's physician had an incomplete understanding of the Complainant's strenuous job duties as a groundskeeper, and that the Complainant had complained of dizziness and headaches and seemed to have some memory and speech problems. The Respondent established that the Complainant was not capable of performing his job-related responsibilities. Purnell v. Wilderness Walk, (LIRC, 09/20/95).

It is not unlawful to apply minimum uniform attendance requirements to persons whose handicaps may cause them to miss work. However, it is unlawful for an employer to assume that an employe's handicap will cause him to fail to meet certain attendance standards in the future, and to preemptively terminate the employe on that basis. An employer who did this would have to be prepared to prove to a reasonable probability that the employe would in the future be unable to efficiently (i.e., to minimum attendance standards) perform his job. Mere speculation that this could happen would not suffice to meet that burden. Gee v. ASAA Technology (LIRC, 01/15/93).

A Respondent reasonably suspended a Complainant until the State Department of Motor Vehicles could determine if her diabetes condition should disqualify her from driving a school bus. Since it is the Department of Motor Vehicles, through its licensing requirement, rather than the employer who determines whether an individual is qualified to operate a school bus safely, an employer fulfills its duty of individual evaluation by suspending the individual driver until the State can make its determination. In essence, the Complainant's diabetes condition was reasonably related to her ability to adequately undertake the job-related responsibilities of a school bus driver during the period of her suspension. Haynes v. National School Bus Service (LIRC, 01/31/92).

An employer has a right to know if an employe has a handicap (except to the extent that the Americans with Disabilities Act may provide otherwise) so that the employer can determine whether the handicap is reasonably related to the ability to undertake the job responsibilities. Accordingly, an employer can lawfully refuse to hire or can discharge an individual who falsifies an employment application with respect to a handicap. Haynes v. National School Bus Service (LIRC, 01/31/92).

The Respondent did not discriminate because of handicap when it discharged an executive who had Parkinson's Disease where the executive was unable to perform his job-related responsibilities. Whether the medication the Complainant took for his condition caused his inability to perform was unclear. The Complainant's own physician did not believe the medication caused significant mental impairment. Kellow v. Regal Ware (LIRC, 05/10/89), aff'd. sub nom. Kellow v. LIRC (Washington Co. Cir. Ct., 04/18/90).

In a hearing on the issue of probable cause, the Respondent failed to establish that the Complainant's handicap was reasonably related to the the Complainant's ability to undertake the duties of a new position where there was little evidence supporting a doctor's establishment of lifting, bending, stooping and twisting restrictions; where the doctor's conclusion was based on the Complainant's notations of his medical history and an examination limited to five minutes which did not include questions regarding the meaning of those notations; and where the doctor was not shown to be aware of how the duties of the Complainant's current position compared to the duties of the position the Complainant desired. Lauri v. DHSS (Wis. Personnel Commission, 11/03/88).

Where the Complainant was terminated for misconduct, including improper work performance and threatening statements and gestures to co-workers and non-employes, and where that behavior may have been related to his organic mental disorder, the termination was "tied to" the Complainant's handicap. However, there was no discrimination based on handicap since that handicap is reasonably related to the Complainant's ability to adequately undertake his job related responsibilities. Brummond v. UW- Madison (Wis. Personnel Comm., 04/01/87).

Where the evidence showed that all of the Respondent's available work required lifting in excess of 50 pounds and the Complainant had a restriction against lifting 50 pounds or more, the Complainant was not able to adequately undertake the job related responsibilities of his employment within the meaning of sec. 111.34(2)(a), Stats. Ellison v. Pomps Tire Service (LIRC, 08/08/86).

An employer has not met its burden of proving that an employe could not carry out the required job duties by offering only its subjective judgment that the employe was incapable of doing so. Hennekens v. River Falls Police Dept. (LIRC, 01/29/85).

An employer could not justify a discharge by showing the possibility that an employe might be moved into a more strenuous job that he could not perform. Mercury Marine v. LIRC (Poeschl) (Ct. App., Dist. IV, unpublished decision, 10/04/83).

An executive order establishing a work assistance program for alcoholic employes does not prohibit termination where alcoholism renders the employe unable to do the job. Squires v. LIRC, 97 Wis. 2d 648, 294 N.W.2d 48 (Ct. App., 1980).

The burden is on the employer to establish to a reasonable probability that a handicapped individual is physically or medically unable to efficiently perform the required duties. Dairy Equip. v. DILHR, 95 Wis. 2d 319, 290 N.W.2d 330 (1980); Bucyrus-Erie v. DILHR, 90 Wis. 2d 408, 280 N.W.2d 142 (1979).

The Act does not require that an employer keep a job open until such time as an employe may be able to perform. The test is whether the employe is presently able to perform. Colovic v. Wisconsin Electric (LIRC, 08/30/78).

Where the employer had no medical evidence indicating that its employe was not presently able to perform, it was unlawful to suspend him until the employer received the evidence, even where the purpose of the suspension was to obtain the evidence. Adams v. Soo Line R.R. (LIRC, 06/23/77).

Where an employe was able to perform his job duties at the time of hearing, but was unable to do so at the time of his discharge, the discharge was lawful since the Act contemplates present ability to perform. J.C. Penney v. DILHR (Mitchell) (Dane Co. Cir. Ct., 03/22/76).

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123.43 Disability discrimination; Employer's burden of proof; Risk of injury to employe or others; reasonable "probability" standard

Where the Respondent has established that a Complainant’s disability interfered with his ability to adequately undertake his job-related responsibilities within the meaning of sec. 111.34(2)(a), Wis. Stats., it is unnecessary to determine whether the Complainant also posed a safety risk in the workplace pursuant to sec. 111.34(2)(b), Wis. Stats. Sampson v. S&S Distrib. (LIRC, 11/19/99).

If the evidence shows that the Complainant has a present ability to physically accomplish the tasks which make up the job duties, the Respondent must establish to a reasonable probability that, because of the Complainant's physical condition, employment in the position would be hazardous to the health or safety of the Complainant or others. In arriving at a decision as to whether the employe can perform the job safely, the employer should rely on adequate medical records and on relevant records, such as the employe's work and medical histories. In this case, while the record clearly demonstrated that the Complainant was likely to experience epileptic seizures at work, the evidence did not warrant a conclusion that such seizures would present a risk of harm to the Complainant or others. Alt v. Meriter Hosp. (LIRC, 03/27/96).

It was not unlawful handicap discrimination for an employer to refuse to employ a Complainant with lower back problems where the requirement for the position of youth counselor included physically restraining emotionally disturbed children in order to prevent them from harming themselves. In view of the Complainant's physical condition, the Complainant's attempts to restrain a resident would be hazardous to herself and potentially hazardous to the Respondent's co-workers and residents. Meacham v. Sunburst Youth Homes (LIRC, 02/04/93).

The Complainant exhibited symptoms characteristic of a psychotic- manic episode at work. The Complainant's position involved reprocessing and decontaminating surgical implements for a health care facility. The Complainant would pose a danger to himself and others in his work setting if he suffered another manic episode. Therefore, the Respondent's actions fell under the exception to prohibited discrimination set forth in sec. 111.34(2)(a), Stats. Schilling v. UW-Madison (Wis. Personnel Comm., 11/06/91).

The employer was required to show to a reasonable probability that the Complainants, who were denied hire as traffic officers because they did not meet the employer's uncorrected vision standards, would be a hazard to themselves or others. Expert opinion testimony was not necessary to determine that the Complainants did not pose increased safety risks. Brown County v. LIRC (Phillips & Grinkey) (Ct. App., Dist. III, unpublished decision, 02/27/90).

The reasonable probability standard is applicable for the duties associated with a deaf person driving tuggers and scooters in a manufacturing facility, except for those duties involving transporting toxic waste, for which the reasonably related standard is applicable. Willett v. Delco Electronics (LIRC, 01/17/90).

Where the employment in question was work as a nursing assistant in a nursing home, and where the employe proved by a preponderance of the evidence that the Respondent had terminated her from employment because of a handicap, the burden which thereupon passed to the Respondent to prove by a preponderance of the evidence, that to a reasonable probability and not merely to a reasonable possibility, the Complainant was or would be physically unable to safely or efficiently perform the duties of her job. Warras v. Woodland Health Center (LIRC, 03/14/86).

Where there was no evidence that it was probable that an employe would fall and injure his only kidney, the employer failed to meet its burden of establishing a "future hazard." Dairy Equipment v. DILHR, 95 Wis. 2d 319, 240 N.W.2d 330 (1980).

The burden is on the employer to establish to a reasonable probability that a handicapped individual is physically or medically unable to efficiently perform the required duties. Dairy Equipment v. DILHR, 95 Wis. 2d 319, 290 N.W.2d 330 (1980).

A medical opinion that the employe's working conditions "could" be hazardous is not an adequate defense under the "reasonable probability" standard, since it suggests mere possibility. Western Weighing v. DILHR (Mears) (Dane Co. Cir. Ct., 05/09/77).

Where a job applicant with curvature of the spine has the present ability to perform as a welder, the employer must show that it is reasonably probable that the applicant would not be able to perform that job without risk of future injury to himself or others. Bucyrus-Erie v. DILHR, 90 Wis. 2d 408, 280 N.W.2d 142 (1979); Chicago, Milwaukee, St. Paul and Pacific R.R. v. DILHR (Goodwin), 62 Wis. 2d 392, 215 N.W.2d 443 (1974).

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123.44 Disability discrimination; Employer's burden of proof; Risk of injury to employe or others; lesser "possibility" standard

In the case of common carriers, the profession’s special duty of care may be considered in evaluating whether an employee can adequately undertake the job-related responsibilities of a particular job.  However, this evaluation must be made on an individual case-by-case basis.  The Respondent failed to make such a case-by-case assessment in this case.  The Complainant, a truck driver, was diagnosed with Wilson’s Disease, which can manifest as neurological problems, liver disease, or other symptoms.  After receiving two complaints that the Complainant was driving erratically, the Respondent requested that he be medically re-evaluated.  A neuro-oncologist concluded that the Complainant had some neurological impairment and suggested further testing, including a road test.  However, he indicated that he did not believe that the Complainant’s condition should prevent him from operating a motor vehicle.  The Respondent then sent the Complainant’s medical records, including the physician’s report, to a second physician.  The second physician did not make an individualized determination about the Complainant’s ability to drive, but recommended disqualification simply because of a U.S. Department of Transportation conference report that concluded that all individuals with Wilson’s Disease should be disqualified from driving a commercial motor vehicle.  However, the federal regulations require a physical examination.  Because the second physician did not do a physical examination, his report cannot be considered a valid basis for a determination of the Complainant’s fitness to drive.  The physician stated that test results would be irrelevant to his determination whether to disqualify the Complainant.  The physician’s evaluation was invalid as a matter of law.  Szleszinski v. LIRC, Midwest Coast & Transhield, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345;  aff'd, Szleszinski v. LIRC, Midwest Coast & Transhield, 2007 WI 106, 304 Wis. 2d 258, 736 N.W. 2d 111.

Youth counselors who are responsible for performing security work in a juvenile correctional institution have a "special duty" of care for the safety of the general public. Wille v. Dept. of Corrections (Wis. Personnel Comm., 01/13/99).

Those engaged in interstate trucking are held to stringent safety standards and the Respondent was obligated, as a result, to investigate any potential basis for the Complainant's apparently erratic driving. The Complainant's qualification to drive as an over-the-road truck driver is governed by the Federal Motor Carrier Safety Regulations. These regulations provide for resolution of disputes over conflicting medical evaluations. A Respondent should not be held to have acted in violation of the Wisconsin Fair Employment Act unless and until there has been a determination under the federal safety regulations that the Complainant is qualified to drive, and the Respondent refuses to permit him to drive. Hermann v. ORT Trucking (LIRC 12/14/94).

A Respondent reasonably suspended a Complainant until the State Department of Motor Vehicles could determine if her diabetes condition should disqualify her from driving a school bus. Since it is the Department of Motor Vehicles, through its licensing requirement, rather than the employer who determines whether an individual is qualified to operate a school bus safely, an employer fulfills its duty of individual evaluation by suspending the individual driver until the State can make its determination. In essence, the Complainant's diabetes condition was reasonably related to her ability to adequately undertake the job-related responsibilities of a school bus driver during the period of her suspension. Haynes v. National School Bus Service (LIRC, 01/31/92).

The burden was on the Respondent to prove that there was a reasonable possibility that the Complainant, who suffered from asthma, proposed a hazard to himself, to co-employes or to the public if he worked as a full-time firefighter EMT. Simply because the Complainant has worked as a paid-per-call firefighter without having had an asthma attack or accounting difficulties using a respirator is not proof that he would not have difficulties in the future. The job duties of a paid-per-call firefighter do not constitute a reliable test of the Complainant's ability to perform as a full-time firefighter. The medical evidence established that there was a reasonable possibility that the Complainant would have to withdraw from a fire scene to medicate himself because of his asthma and, consequently, his performance as a firefighter EMT would pose a reasonable possibility of danger to himself or others. Leach v. Town of Pleasant Prairie Fire Dept. (LIRC, 04/23/91).

The stringent "reasonable probability" standard is eased where the employer's line of business is such that a number of persons could potentially be harmed by the handicapped employe. Where the employment involves a "special duty of care for the safety of the general public," the employer need only show that the otherwise discriminatory practice bears a "rational relationship" to its safety obligations to the public and the employe's co- workers. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

The Complainant's position, which involved reprocessing and decontaminating surgical instruments for a health care facility, constitutes employment that involves a special duty of care for the general public. Schilling v. UW-Madison (Wis. Personnel Comm., 11/06/91).

The reasonable probability standard is applicable for the duties associated with a deaf person driving tuggers and scooters in a manufacturing facility, except for those duties involving transporting toxic waste, for which the reasonably related standard is applicable. Willett v. Delco Electronics (LIRC, 01/17/90).

The Respondent, a trucking company, refused to reinstate the Complainant after he was diagnosed as having epilepsy. The Respondent met its burden of proving that the Complainant's handicap was reasonably related to his ability to adequately undertake the job of interstate truck driving, by establishing the applicability of federal regulations prohibiting the epileptics from engaging in such driving. However, the Respondent failed to meet its burden of demonstrating that reasonably accommodating the Complainant by assigning him to driving work not subject to federal regulations, or to yard work not involving driving, would pose a hardship on its program. Federal regulations prohibiting epileptics from driving in interstate commerce were inapplicable to intrastate routes which the Respondent routinely operated. Radloff v. H. F. Dushek Co. (LIRC, 08/18/88).

Work as a prison guard involves a special duty of care for the safety of the general public, and therefore the lesser "rational relationship" standard applies to questions of the handicapped employe's ability to perform the work. Conley v. Department of Health and Social Services (Wis. Personnel Comm., 06/29/87).

The Respondent was an electric power company. The Respondent refused to hire the Complainant for the job of truck driver/ground man because he suffered from epilepsy. Because of the nature of the duties of the position of truck driver/ground man for the Respondent, the nature of the work involving a highly hazardous force (electricity), the team efforts required of the ground men, and the close proximity of the public, it was appropriate to use the common carrier standard when reviewing the Respondent's decision not to hire the Complainant. The Respondent had to demonstrate that its refusal to hire the Complainant bore a rational relationship to its safety obligations to the public and its own employees. The evidence in the record clearly demonstrated that the employment of an individual with epilepsy in this position might jeopardize the safety of the individual, the other crew members, and the public. Therefore, the Respondent demonstrated a rational basis to believe that hiring the Complainant posed an unacceptable risk of hazard. Samens v. LIRC, 117 Wis. 2d 646, 345 N.W.2d 432 (1984).

Where the employer is a common carrier, it has a lesser burden of showing only a rational relationship, (i.e., reasonable possibility) between its employment restriction of handicapped individuals and the safety of the general public. A job applicant with one arm was not wrongfully denied work as a cab driver despite a past record of successful cab driving where the employer, a common carrier, showed, through reliance on federal standards, that there was a reasonable possibility of future accidents. Boynton Cab v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980).

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