P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARK J SCHMIDT, Complainant


ERD Case No. 200602537, EEOC Case No. 26G2006-01486C

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

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


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

Dated and mailed December 26, 2008
schmima . rsd : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The complainant argues that the respondent perceived him as disabled and that he is entitled to a finding of discrimination where he can show that his handicap was one of the reasons he was not hired, regardless of how legitimate the other reasons were. This argument fails. It is undisputed that the respondent perceived the complainant as disabled and that the disability was the reason why he was not hired. However, notwithstanding the complainant's assertions, he is not entitled to a finding of discrimination on that basis alone. To the contrary, the statute specifically provides that it is not discrimination based on disability to refuse to hire an individual with a disability where the disability is reasonably related to the ability to adequately perform the job and where there is no reasonable accommodation that can be provided without hardship. Here, the complainant's disability was directly related to his ability to perform the job, as it limited his ability to lift and climb. The complainant did not identify any reasonable accommodation that would have enabled him to do the job, and chose not to avail himself of an opportunity to meet with the respondent and a representative from his union to discuss accommodations. Under those circumstances, discrimination was not established.

In his petition the complainant makes two inconsistent sets of arguments: he contends both that he did not need an accommodation and that the respondent failed to provide him with a reasonable accommodation. First, the complainant maintains that he did not request an accommodation and that it was the respondent who asked about accommodations. He contends that his statement on the job application that he could use a crane to place materials within close position to the work area or ask for less physical scheduling did not amount to a request for an accommodation because he was responding to the question, "If an accommodation is needed, how would you perform the requirements, and with what accommodation?" This argument is without merit. There is no way to construe the complainant's statement that he could use a crane or ask for less physical scheduling as being anything other than a request for accommodation--if the complainant did not need an accommodation he would have left that section blank. Moreover, in his recorded telephone conversations with the respondent, the complainant informed the respondent that he had filled out an accommodation form and insisted that he was entitled to an accommodation. The complainant's current contention that he never asked for an accommodation and did not need one is wholly without merit.

The complainant also contends that the respondent has not met its burden of proving he could not carry out the required job duties by offering only its subjective judgment that he was incapable of doing so. He maintains that the respondent never proved he could not do the work, as he was not hired. The complainant also contends that the respondent never asked him for further medical documentation. These arguments are also without merit. The job would have required the complainant to lift and carry in excess of 75 pounds on a regular basis, a task which exceeded his written restrictions and which the complainant acknowledged he was unable to do without assistance. The job also would have required the complainant to climb abutments and to climb up muddy creek banks. While the complainant indicated that climbing was not a problem for him, the list of restrictions he provided the respondent specified that he could not engage in any unprotected climbing and would need railings or handholds. It is apparent that the respondent's conclusions about the complainant's abilities were not simply subjective judgments about the complainant, but were grounded in a reasonable reading of the work restrictions which the complainant himself provided to the respondent.

Moving away from assertions that he could have performed the job but was prejudged by the respondent, the complainant argues that he should have been provided with an accommodation. He contends that his case is like the case of Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651 (2003), because the respondent never considered what work he could do with accommodations. He argues that he has the right under the law to ask for an accommodation when he perceives the need for one while working and that he does not need to have a total understanding of the job duties before being hired. The complainant also argues that the respondent directs its non-disabled employees to get help when lifting over 50 pounds, yet it refused to accommodate his lifting restriction, and maintains that he observed carpenters at work performing work he could do if sent to the jobsite.

These arguments fail. Unlike Crystal Lake Cheese Factory, supra, the respondent was justified in its conclusion that the complainant could not perform the job because it was not simply relying on its assumptions about the complainant's abilities, but on a set of physical restrictions submitted by the complainant that were clearly inconsistent with performance of the job duties. While the complainant speculates that he could have done work for the respondent with accommodations, he failed to demonstrate that this was the case. The respondent's witnesses testified that the job required lifting and carrying sheets of plywood and sand jacks weighing more than 75 pounds on a regular basis, and that workers did this unassisted. The complainant had never performed bridge construction work before and was not aware of what the job entailed. His suggested accommodation of using a crane or forklift would have been unworkable for a variety of reasons, including the steep and muddy terrain on the job site, and the fact that the complainant could not operate that equipment. While the complainant also suggested that the respondent accommodate him by allowing him to perform easier work, the respondent did not need a worker to perform the type of light carpentry the complainant contends he saw other workers performing.

Finally, the commission notes that, in distinct contrast to the employer in Crystal Lake Cheese Factory, which refused to talk to the disabled employee about possible accommodations, the respondent in this case offered to meet with the complainant to discuss his restrictions and possible accommodations, but the complainant declined to do so. (1)   Where the employee has not availed himself of an offer to meet with the prospective employer to discuss accommodations, he cannot credibly argue that it refused to consider reasonable accommodations that might have enabled him to perform the job.

Overall, the complainant's arguments demonstrate a fundamental misunderstanding of an employer's burden with respect to a disabled job applicant. The employer is not required to disregard the applicant's work restrictions and hire him anyway, when it appears that, on their face, those restrictions would prevent him from doing the job. The employer is, further, not required to seek out additional medical documentation where the information it has received from the prospective employee clearly indicates an inability to do the job. Finally, the employer is not required to offer the complainant a different job than the one for which it was advertising. The employer has a right to fill the job at issue by hiring an individual who can meet the physical requirements of the job without accommodation or with a reasonable accommodation that can be provided without hardship to the employer. Where, as here, the applicant has notified the employer that he has medical restrictions which render him unable to perform the job in question, and where there is no reasonable accommodation available which will enable him to do so, the employer may lawfully decline to hire that individual.


NOTE: In his petition the complainant asks to amend the original complaint to include several additional allegations. However, it is too late to amend a complaint once the evidence has been presented at hearing and the decision issued. Hosey v. West Allis Memorial Hospital (LIRC July 8, 1998); Wis. Admin. Code § DWD 218.03(6)(complaint may not be amended less than 45 days before the hearing unless good cause is shown).

The complainant also contends that the administrative law judge ignored the collective bargaining agreement and federal tort laws that apply to contract standards. The complainant alleged a violation of the Wisconsin Fair Employment Act. Neither the administrative law judge nor the commission have jurisdiction over issues relating to the collective bargaining agreement or federal tort laws.

cc: Attorney Mark A. Johnson

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


(1)( Back ) Although the complainant now maintains that has no recollection of an offer to meet with the respondent to discuss accommodations, as he was under emotional stress from having had his labor rejected because of a perceived disability, this assertion defies credulity. The digital recordings made by the complainant of his telephone conversations with the respondent clearly establish that such an offer was made, and at the hearing the complainant acknowledged that the respondent extended such an offer. ?? ?? ?? ??


uploaded 2009/01/20