DANITA JACKSON, Complainant

STATE OF WISCONSIN
DEPARTMENT OF HEALTH AND FAMILY SERVICES, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The last two sentences in paragraph 4 of the administrative law judge's FINDINGS OF FACT are deleted.

2. Paragraphs 27 through 47 of the administrative law judge's FINDINGS OF FACT are deleted and the following substituted therefor:

27. The technology needed to make the WiSACWIS operating system accessible by Window-Eyes was not introduced until the spring of 2002, after which time a detailed customization would be required in order to make the programs compatible.

28. The complainant's disability, blindness, was reasonably related to her ability to adequately undertake the job-related responsibilities of the Intake and Initial Assessment Social Worker position. Among other things, the complainant's disability rendered her unable to use the WiSACWIS case management system.

29. The respondent made good faith and reasonable efforts to provide accommodations for the complainant's disability that would allow her to be hired for the Intake and Initial Assessment Social Worker position in 2001. However, no reasonable accommodation was available.

3. The administrative law judge's Conclusions of Law are deleted and the following Conclusions of Law are substituted therefor:

1. That the complainant is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act").

2. That the respondent did not violate the Act when it failed to hire the complainant as an Intake and Initial Assessment Social Worker in 2000.

3. That the respondent did not violate the Act when it failed to hire the complainant as an Intake and Initial Assessment Social Worker in 2001.

4. That the respondent did not refuse to provide the complainant with a reasonable accommodation that would have enabled her to work as an Intake and Initial Assessment Social Worker in 2001.

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

Dated and mailed August 24, 2004
jacksda . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Prior to the hearing the parties agreed on the following statement of the issues:  1) Whether the respondent discriminated against the complainant based on disability by failing to hire her as an Initial Intake Social Worker in 2000;  2) Whether the respondent discriminated against the complainant based on disability by failing to hire her as an Initial Intake Social Worker in 2001; and  3) If respondent did hire the complainant, whether respondent failed to accommodate her disability. Notwithstanding the parties' agreement as to the framing of the issues, however, the hearing record extended well beyond the respondent's efforts to hire and provide accommodations for the complainant in the years 2000 and 2001, and included factual assertions and allegations which continued practically to the date of the hearing. For the sake of clarity, the commission has modified the administrative law judge's decision to include only those findings that relate to the issues being litigated in this case. Where the arguments raised in the complainant's petition concern the accuracy of the deleted factual findings, the commission declines to address those arguments.

In her petition for commission review the complainant argues that, although she made the respondent aware of the accommodations she needed as early as December 2000, it took it until the end of January 2003 to determine that it was indeed in a position to use the screen reader Window-Eyes with the respondent's system. The complainant characterizes this as an undue delay. She contends that Joyce Rose, a project director at the respondent's Bureau of Information Systems, was hostile to the whole idea of accommodating her and felt it was not her responsibility to make the system accessible. The complainant essentially maintains that the respondent failed in its obligations under the Fair Employment Act.

The commission does not find the complainant's arguments persuasive. To begin with, it is noteworthy that what the complainant needed was not a straightforward accommodation that the respondent could simply agree to provide or not. Rather, the accommodation which the complainant required was something that was not readily available and had yet to be developed. The complainant focuses on the respondent's delay in conducting a test, along with Ms. Rose's attitude, and suggests that this is evidence of bad faith on the respondent's part. However, at the time the complainant filed her complaint on January 8, 2002, the respondent had been making efforts to resolve the issue, including holding meetings and undergoing testing, in spite of the fact that an assessment performed by Zerrecon, Inc. -- a company which was brought in by the complainant -- indicated that an accommodation would take months and require the purchase of significant devices, and ultimately recommended that the complainant consider other employment. While the complainant would undoubtedly have liked the respondent to act more quickly and definitively on her behalf, the respondent's efforts were not negligible, nor were they undertaken in bad faith. Based on this record, the commission sees no reason to believe that, if the respondent could have found a reasonable way to accommodate the complainant so that she could begin working, it would not have done so.

Indeed, the evidence suggests that it was not until the spring of 2002 that a compatible version of Window-Eyes even existed, and nothing was presented to indicate that any other workable system was available that the respondent was aware of and rejected. Even if it could be found that the respondent did not make a reasonable, good faith attempt to find and provide an accommodation, it cannot be held liable for refusing to provide an accommodation that apparently did not yet exist and which it lacked the means to develop on its own. While subsequent advances in technology after the complaint was filed may have rendered reasonable accommodations feasible, the respondent's efforts to provide accommodations so that the complainant could be hired for social worker positions arising in subsequent years are not at issue in this case. Where the respondent attempted to accommodate the complainant so that it could hire her for the position at issue in 2001, but was unable to do so, the commission sees no basis to conclude that the respondent discriminated against the complainant in the manner alleged.

In her petition the complainant also challenges the respondent's assertions that she is a "maltreater."  However, the issue of whether or not the complainant is a "substantiated maltreater" and, if so, whether this would have barred her from employment with the respondent, only arises if a finding of discrimination is made, and then is relevant only with respect to the potential limitation it may place on the remedy available to the complainant. Because the commission agrees with the administrative law judge that the respondent did not discriminate against the complainant as alleged, the commission considers it unnecessary to address the question of whether or not the complainant could be considered a "substantiated maltreater" or whether or not such classification would have precluded her from being hired by the respondent.

cc:
Attorney Monica Murphy
Attorney Paul Harris

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uploaded 2004/09/15