Disability

Overview

State law prohibits discrimination against individuals with disabilities who are qualified and can perform the essential functions of the job, with or without accommodation. An individual with a disability is a person who has a physical or mental impairment that makes achievement unusually difficult or limits the capacity to work, has a record of such an impairment, or is perceived as having such an impairment.

An impairment "makes achievement unusually difficult" when it limits a person's major life activities such as seeing, hearing, walking, learning, and working. An impairment "limits the capacity to work" when the restrictions imposed by the impairment limit the individual's ability to perform the particular job in question.

The statute of limitations for filing a complaint is 300 days from the date the action was taken or the individual was made aware the action was taken.

What actions are covered?

When an individual's disability motivates the adverse decision, it becomes unlawful discrimination.

Specifically, the law prohibits discrimination in recruitment and hiring, job assignments, pay, leave or benefits, promotion, licensing or union membership, training, layoff and firing, harassment and other employment related actions.

What is reasonable accomodation?

A reasonable accommodation is a modification to a job, the work environment, or how things are done that allows an otherwise qualified individual to apply for or complete the duties of the job. An individual with a disability is generally expected to request an accommodation, unless the need for one is obvious.

An employer is required to grant a reasonable accommodation unless the accommodation would result in a hardship to the business. Whether a particular accommodation poses a hardship varies based on the circumstances of each case, but generally a hardship may exist if the accommodation is difficult to achieve or expensive relative to the size and resources of the business. An accommodation may also be a hardship if it is overly disruptive to business operations.

There is no prescribed list of reasonable accommodations. Each request for an accommodation must be evaluated on a case by case basis. Note that while an individual with a disability may be entitled to an accommodation, they are not entitled to the accommodation of their choice. The employer may select any accommodation that will allow the individual to apply or complete the duties of the job.

May an employer ask about a disabilty?

Inquiries about a person's disability, health or worker's compensation history is unlawful if they imply or express a limitation based on disability. Under the federal Americans with Disabilities Act (ADA), any inquiry at the pre-employment stage, which would likely require an applicant to disclose a disability, is unlawful. Employers are advised to avoid such inquiries or medical examinations before making a bona fide job offer.

However, an employer may inquire about an applicant's ability to perform essential job functions and, within certain limits, may conduct tests of all applicants to determine if they can perform such functions, with or without an accommodation.

Frequently Asked Questions

How does the law apply to alcoholism and drug addiction?

Alcoholism and drug addictions are disabilities under state law and a person may not be discriminated against for either reason. Under the ADA, a "current" user of illegal drugs is not protected although one who is recovering or who is in a supervised drug rehabilitation program is covered under both state and federal laws.

Employers may require employees who use alcohol or have abused drugs to meet the same standards of performance and conduct set for other employees and may prohibit the use of illegal drugs and alcohol in the workplace.

Can an employer refuse to hire a person because of a disability?

A person with a disability may be passed over if the disability is reasonably related to the person's ability to adequately and safely perform job-related duties. An employer may consider if a person's disability would constitute a hazard to the safety of the person, coworkers or the public. However, an employer may not assume a hazard exists because of a person's disability and must typically establish through objective or medically supported evidence that a significant risk of substantial harm would occur.

An employer has a legitimate interest in maintaining a safe workplace, but may not generalize rejection of persons with disabilities. If a hazard does exist, an employer has a further duty to determine if a reasonable accommodation can be made to reduce the hazard to an acceptable level.

Must an employer hire a qualified person with a disability over other qualified applicants without a disability?

An employer is not required to hire a qualified applicant with a disability over other qualified applicants. However, an employer may not refuse to hire a person with a disability because of the disability or because a reasonable accommodation is required to make it possible for the person to perform essential job functions.

Can an employer discriminate against a person who has an association with a person with a disability?

Under state law, disability "by association" is not covered. This refers to discrimination against an individual because a spouse, child or friend has a disability. However, the federal ADA does protect individuals against discrimination on this basis and a complaint may be filed with the US. Equal Employment Opportunity Commission (EEOC). See the disability resources section for contact information.

How do the worker's compensation and fair employment laws apply for persons who sustain a work-related injury?

An employee injured on the job and covered by the worker’s compensation law is not precluded from seeking remedies under state or federal fair employment laws. If the injury results in a disability as defined under the fair employment law, and the employee is not returned to work, not reasonably accommodated or faces another adverse action because of the disability, the employee may file a discrimination complaint under the fair employment law. An employee may also seek any rights separately available under the worker’s compensation law.

Disability Resources

A number of important resources are available to assist employers and persons with disabilities. A few key agency resources are:

ADA Technical Assistance

Job Accommodations Network (JAN) - Technical Assistants making reasonable accommodations

Great Lakes Disability & Business Tech Center - Technical Assistants and ADA compliance in general

Easter Seal Society of Wisconsin, Inc - Technical Assistants/Accessibility in buildings

Governor's Committee for People with Disabilities

Wisconsin Division of Vocational Rehabilitation

Wisconsin Coalition for Advocacy - Information on Mental Illnesses

National Alliance on Mental Illness (NAMI) Wisconsin

US Equal Employment Opportunity Commission(EEOC) - Information about federal employment protections under the ADA

Architectural & Transporation Barriers

Architectural & Trans Barriers Complaince Board - Title II accessibility issues

State of Wisconsin Department of Commerce Safety and Buildings Division - Accessibility under state building codes

Public Accommodations & Government Services

U. S. Department of Justice - Title II & III accessibilty in government and private entity run public accommodations

Transportation

U. S. Department of Transportation - Title II & III on Government and Private Transportation

Telecommunications

Federal Communications Commission - Title IV relating to telecommunications

Resources

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