STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


KRISTIN ANNE DESHON, Complainant

STATE OF WISCONSIN DEPARTMENT OF REGULATION AND LICENSING
     and
MEDICAL EXAMINING BOARD, Respondents

FAIR EMPLOYMENT DECISION
ERD Case No. 9202641


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, except that it makes the following modifications:

Delete paragraph 10 of the Findings of Fact and substitute the following therefor:

"The Occupational Therapy Examining Council required Deshon to take the oral examination both because she answered `yes' to question 10.  on her application for state certification (indicating that she had a number of convictions), and because she answered `yes' to question 11.  on that application (indicating that she had received inpatient or outpatient care for mental illness or drug or alcohol abuse). Deshon would have been required to take the oral examination as a result of her answer to question 10.   on the application even if there had been no oral examination requirement for persons with histories of inpatient or outpatient care for mental illness or drug or alcohol abuse."

Delete all but the first sentence of paragraph 13 of the Findings of Fact.

Delete paragraph 14 of the Findings of Fact and substitute the following therefor:

"Deshon has been convicted twice for giving a worthless check, once for transporting an open container, once for prostitution, and once for delivery (two counts) and possession (one count) of marijuana."

Delete paragraphs 15, 19, 20, 23 and 24 of the Findings of Fact.

Based on the Findings of Fact made by the Administrative Law Judge and adopted, as modified above, by the commission, the commission now makes the following:

CONCLUSIONS OF LAW

1. The Department of Regulation and Licensing and the Medical Examining Board are licensing agencies within the meaning of the Wisconsin Fair Employment Act.

2. Deshon is a handicapped individual within the meaning of sec. 111.32(8), Stats.

3. Deshon's convictions are substantially related to the licensed activity of being an Occupational Therapy assistant, within the meaning of sec. 111.335, Stats.

4. The Department of Regulation and Licensing and the Medical Examining Board did not violate sec. 111.335, Stats.  by requiring Deshon to submit to an oral examination not required of all other applicants because of her conviction record.

5. The Department of Regulation and Licensing and the Medical Examining Board violated sec. 111.34, Stats.  by requiring Deshon to submit to an oral examination not required of all other applicants because of her history of having received mental health treatment.

6. Deshon is not entitled to make-whole relief for any losses she suffered as a result of the requirement that she submit to an oral examination not required of all other applicants based on her history of having received mental health treatment, because even if that requirement had not been imposed on her for that reason, it would have been imposed on her by reason of her conviction record.

7. There is no authority to grant Deshon an award of attorneys' fees and costs against the Department of Regulation and Licensing and the Medical Examining Board in connection with their violation of sec. 111.34, Stats.

Based on the above, the commission makes the following:

ORDER

That the Department of Regulation and Licensing and the Medical Examining Board cease and desist from discrimination against Deshon in regard to licensing based on her history of having received mental health treatment.

Dated and mailed January 12, 1996
deshokr.rmd : 110 :

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION

This case arises out of the application of a rule of the Medical Examining Board, Wis. Admin. Code Ch. Med 19.04(3), which provides in relevant part that an applicant for licensure as an occupational therapist or occupational therapist assistant must (in addition to taking a written examination, required of all applicants) complete an oral examination if the applicant has, among other things, received inpatient or outpatient care for drug or alcohol abuse or inpatient or outpatient care for mental illness, or been adjudged guilty of a misdemeanor or felony.

That rule provides, in relevant part, that

(2) An applicant shall complete an oral examination if the applicant:

(a) Has received inpatient or outpatient care for drug or alcohol abuse;
(b) Has received inpatient or outpatient care for mental illness;
. . .
(d) Has been convicted of a crime the circumstances of which substantially relate to the practice of occupational therapy.

Because Deshon disclosed on her application for licensure as an occupational therapist assistant that she had criminal convictions and had received outpatient mental health treatment as well as AODA treatment, she was required to take the oral examination as part of her application for a license. The examination consisted in part of questions specifically about Deshon's conviction record and past treatment, and it also included a 20-question portion which, the commission agrees with the Administrative Law Judge, was designed primarily to test Deshon's competence as an occupational therapy assistant. Deshon was denied a license after her March, 1992 oral examination, because the examination board determined that she had answered 6 of the 20 general knowledge questions incorrectly. She repeated the oral examination in July, 1992, passed it, and was granted her license.

The issue presented in this case is whether the Department of Regulation and Licensing and the Medical Examining Board discriminated against Deshon because of conviction record and handicap.

Conviction record; substantial relation -- The Fair Employment Act's prohibition on discrimination because of conviction record provides that it is not employment discrimination to refuse to employ or license, or to bar or terminate from employment or licensing, any individual who has been convicted of a felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity. Sec. 111.335(1)(c), Stats. Respondents' argue that they cannot be found to have violated the prohibition on conviction record discrimination because Deshon's felony convictions were "substantially related" to the licensed activity.

Anticipating an argument that it "waived" the "substantially related" defense by eventually licensing Deshon, Respondents rely on a line of decisions of the Commission in which it has held that the availability of the "substantially related" defense does not depend on whether the respondent relied on it, or even considered it, at the time the challenged decision was made. Rather, the commission has held, "it is an affirmative defense and if it is demonstrated at hearing to have been applicable as a matter of law to a challenged decision, it operates as a bar to any finding of liability whether or not, at the time of the challenged decision, the employer had the conscious intention or belief that it was acting because of a `substantial relationship' between certain offenses and the job'. Berry v. Johnson and Gerber Motors, Inc. (LIRC, January 21, 1993). See also Black v. Warner Cable Communications (LIRC, July 10, 1989), Collins v. Milwaukee County Civil Service Commission (LIRC, March 8, 1991).

The commission agrees that the "substantially related" defense was available to Respondents. In fact, the Berry-Black-Collins line of cases is inapplicable here, because the Respondents did rely, explicitly, on the "substantially related" defense as a reason for the challenged action (the imposition of an oral examination requirement). They did so in their rule and in its application in this case. The rule itself expressly provides that an oral examination may be required when an applicant "[h]as been convicted of a crime the circumstances of which substantially relate to the practice of occupational therapy". When a licensing agency )or an employer) that has such a policy learns that an applicant has a conviction record, and then imposes the oral examination requirement, it is not accurate to say that it has not relied on the "substantially related" defense.

The commission therefore turns to the question of whether Deshon's convictions were substantially related to the practice of Occupational Therapy assistantship. Deshon had two separate convictions for passing a bad check, one for transporting an open container of alcohol in a motor vehicle, one for prostitution, and a conviction on two counts of delivery of marijuana and one count of delivery of marijuana. These all occurred within the 10 years preceding her application for licensure.

The commission agrees with the Respondents, that the Administrative Law Judge appears to have misapplied the law. First, it is clear that the particular factual context of the offenses are not determinative in the analysis. This kind of analysis was expressly rejected by the Wisconsin Supreme Court in County of Milwaukee v. LIRC and Serebin, 139 Wis.2d 805, 407 N.W.2d 908 (1987). The court held therein that the "circumstances" of the offense are not the factual details of the offense, but the circumstances which foster criminal activity, i.e., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person.

Second, past interpretations and applications of the "substantially related" defense, both by the commission and in court, strongly support the conclusion that a "substantial relation" has to be found here. Particularly given the facts of this case -- involving drug and alcohol (and morals) offenses and their relationship to a job in the health care industry -- the cases have been virtually uniform. Serebin involved an allied occupation (mental health crisis intervention), and the court seemed to be particularly affected by that fact, invoking as it did the dependent status of the persons potentially affected by the occupation. In more recent decisions, the commission has found a substantial relationship between the offense of maintaining a dwelling which was used for controlled substances and the occupation of being a home health aide, Thayer v. Home Health United (LIRC, April 8, 1993), and between the offense of felony delivery of controlled substances and the occupation of caring for dependent adults in a residential care facility, Delapast v. Northwoods Beach Home Caring Homes, Inc. (LIRC, February 17, 1993).

The analysis of the Administrative Law Judge --  that it was improper of Respondents to make Deshon submit to the 20-question general knowledge portion of the oral examination because that section of the examination did not address itself narrowly to developing information about the relationship between Deshon's convictions and the licensed activity -- misses the point. Where the substantially related defense applies, it allows a licensing agency to treat an applicant differently from others in any respect it wishes to, and that would include application procedures. In other words, if an applicant has a record of convictions that are substantially related to the practice of Occupational Therapy, it is not prohibited discrimination for the employer to treat the applicant differently from other applicants in precisely the way the Administrative Law Judge found objectionable (i.e., testing general knowledge more rigorously).

Because Deshon's convictions were substantially related to the licensed activity, the distinction between differential application procedures designed to get more information about the offenses and differential application procedures which merely test general knowledge, was unimportant. Imposition of different application procedures because of the conviction record was simply not unlawful.

Handicap discrimination; substantial relation -- Respondents argue that Deshon did not prove that she was handicapped. This argument ignores the very evident conclusion of the Administrative Law Judge, that the challenged action here (the imposition of a requirement that Deshon submit to an oral examination) was motivated by the Respondents' having learned through Deshon's application materials that Deshon had a history of having received mental health treatment. There is ample evidence in the record that this (as well as the history of arrest and conviction for drug and alcohol abuse) was one of the reasons Deshon was required to submit to an oral examination. The statute clearly provides that the definition of a handicapped individual includes not only a person who has a physical or mental disability which makes achievement unusually difficult or limits the capacity to work, but also one who has a record of having such an impairment, as well as one who is perceived as having an impairment which would be a handicap if they had it. Sec. 111.323(8)(b), (c), Stats. In a case in which a respondent has taken an action solely because an applicant disclosed having a history of mental health treatment, it is very difficult to see how any other conclusion could be arrived at.

Respondents argue that even if it is concluded that the handicap discrimination provisions are applicable here, the imposition of requirement of an oral examination was permissible because the Fair Employment Act provides:

(2)(a) Notwithstanding s. 111.322, it is not employment discrimination because of handicap to refuse to hire, employ, admit or license any individual, to bar or terminate from employment, membership or licensure any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment if the handicap is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment, membership or licensure.

(b) In evaluating whether an individual with a handicapped individual can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity, the present and future safety of the individual, of the individual's coWorker's and, if applicable, of the general public may be considered. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of handicapped individuals in general or a particular class of handicapped individuals.

(c) If the employment, membership or licensure involves a special duty of care for the safety of the general public, including but not limited to employment with a common carrier, this special duty of care may be considered in evaluating whether the employe or applicant can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of handicapped individuals in general or a particular class of handicapped individuals.

Respondents argue that the activity of engaging in occupational therapy entails a special duty of care to the public. It then asserts that, given this special duty of care, it was permissible for it to require Deshon to submit to an oral examination, including the 20-question test on occupational therapy practice, because the test is intended to determine if the person knows enough about the practice of occupational therapy to practice it safely and without risk to the public.

Assuming for the sake of argument that the activity of occupational therapy entails a special duty of care to the public, the commission concludes that the next part of Respondents' argument nevertheless fails. The Respondents' theory is that imposition of the oral examination requirement is part of the "individual case-by- case" assessment which the statute requires it to conduct in carrying out the evaluation of whether the individual can undertake the responsibilities of the licensure consistent with the assumed special duty of care to the public -- but the point relied on by the Administrative Law Judge, which the commission found persuasive, is that there was actually nothing individualized or "case-by-case" about the portion of the oral examination that consists of questions about occupational therapy practice. The questions elicit no information about the specific mental health or treatment history of the individual.

Respondents rely on an assertion by one of their witnesses, Wayne Winistorfer, that the occupational therapy questions in the oral examination in effect allowed the examiners an opportunity to evaluate the mental illness issue under the guise of evaluating substantive knowledge about occupational therapy. The commission was not persuaded by this testimony. When disclosure of a history of treatment for mental illness gives cause for concern about whether an individual can perform licensed functions safely, taking into account the special duty of care to the public that may obtain, it is clearly permissible for Respondents to carry out as detailed an inquiry into the specifics of the case as they care to -- to, as Winistorfer put it, ". . . question the individual directly about their illness, their current treatment, their compliance with treatment". The question, however, is whether it is reasonable to accept the Respondents' claim, that even this virtually unlimited right to engage in direct personal inquiry of the person about their mental health and treatment history is somehow inadequate, and that what it really needs is the right to supplement the inquiry with questions having no direct relationship to what is really being inquired about (i.e., general competence questions concerning the practice of occupational therapy). The commission does not believe that this claim is reasonable. The Respondents have the right to obtain all the mental health records, treatment history data, etc., they feel they need; they have the right to examine the applicant directly and question them directly about their mental health and treatment history in as much detail as they care to; in the proper case, they may have the right to require drug testing to measure current use. The idea that the non-specific general knowledge questions are necessary is as unpersuasive as the theory that they represent an individualized inquiry. On its face, what is involved here is precisely what the statute proscribes: a general standard created by rule (i.e., a requirement that that certain general knowledge questions be satisfactorily answered) and made applicable not based on an individual assessment, but based on membership in the general category of persons who have had mental health treatment.

Remedy -- The commission has concluded that the Respondents' actions in imposing an additional general knowledge examination on Deshon because of her conviction record was not contrary to the Fair Employment Act, but that imposition of that examination because of her history of mental health treatment did run afoul of the prohibition on discrimination because of handicap. The question then becomes, what remedy, if any, is appropriate for Respondents' imposition of an oral examination requirement on Deshon in violation of the prohibition on handicap discrimination, given that the Respondents' were legally entitled to do exactly what they did (i.e. impose an additional requirement of an oral examination) because of Deshon's conviction record? This is, in effect, a "mixed-motive"-type question: the Respondents did something which they might have done for a legal reason, and although they were in fact partly motivated by lawful reasons (a record of "substantially related" convictions), they were also partly motivated to do so by impermissible reasons (handicap discrimination).

The commission has held that if an employe is terminated solely because of an impermissible motivating factor, the employe normally should be awarded a cease and desist order, reinstatement, back pay, interest and attorney's fees. Also, if an employe is terminated in part because of other motivating factors, but the termination would not have occurred in the absence of the impermissible motivating factor, the Department has the discretion to award some or all of the remedies ordinarily awarded. Finally, if an employe is terminated in part because of an impermissible motivating factor and in part because of other motivating factors and the termination would have taken place in the absence of the impermissible motivating factor, the employe should be awarded only a cease and desist order and attorney's fees. Hoell v. Narada Productions, Inc. (LIRC, 12/18/92), aff'd., Waukesha Co. Cir. Ct., 05/27/93.

This case falls into the third category. It is clear that even of it had not been for the matter of Deshon's history of treatment, she would have been required to undergo the same process of oral examination, including the same general knowledge examination, because of her conviction record. Therefore, the remedy must be limited as described in Hoell. For this reason, the commission does not address the issues argued by the parties concerning the extent of financial make-whole relief Deshon might be entitled to.

Attorneys fees -- Respondents argue that, notwithstanding the general principle enunciated in Watkins v. LIRC, 117 Wis.2d 753, 345 N.W.2d 482 (1984), no attorneys fees (or associated costs) may be awarded against them because they are state agencies, citing Wisconsin Dept. of Transportation v. Wisconsin Personnel Commission, 176 Wis. 2d 731, 500 N.W.2d 664 (1993). That case was one under the Fair Employment Act in which the complainant, employed by the Wisconsin Department of Transportation (DOT), was awarded costs and attorneys' fees against DOT not as a result of winning a discrimination claim, but only in connection with an interlocutory ruling on a discovery matter. Following the statutes governing the resolution of discovery disputes in court, the Personnel Commission awarded the costs and fees to complainant after he prevailed on a motion to compel discovery. The DOT appealed, and after the circuit court affirmed the order, the Court of Appeals held, in Wisconsin Dept. of Transportation v. Wisconsin Personnel Commission, 169 Wis. 2d 629; 486 N.W.2d 545 (1992), that the Personnel Commission did have the right to award attorneys' fees. The Supreme Court's decision reversed the Court of Appeals. The court held that, notwithstanding Watkins, the award of costs in Wisconsin Dept. of Transportation was not authorized.

Wisconsin Dept. of Transportation was limited on its facts to a situation involving an award of costs and fees in connection with a discovery motion, rather than a final decision finding discrimination. Thus, it could be that the decision's interpretation and application of the law was meant to be limited to that fact situation. There are a number of points in the decision in which the court seems to be so suggesting. On the other hand, other language in the decision is quite broad, and suggests no limitation to the narrow facts of the case.

A factor which the commission views as significant is that, despite the very prominent advice given by the court in Wisconsin Dept. of Transportation that the legislature could change the situation by expressly providing for fee awards against the state, 176 Wis.2d at 738, the legislature has not done so. Its failure to act during the almost 2 1/2 years since Wisconsin Dept. of Transportation was decided makes the argument for the possibility of fees against the state a weaker one than it would have been some time ago.

The commission concludes that Wisconsin Dept. of Transportation reflects a rule that is applicable, not just to discovery motions, but to all procedural postures in which a case may find itself when an attempt is made to award attorneys fees against the state. Wisconsin Dept. of Transportation teaches that these fees can not be ordered. For this reason, the commission has no included any such provision in its order.

cc:
Attorney Michael E. Lambert
Attorney William Dusso


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