LIRC - ER Digest Ch 123.45--->

The Wisconsin Equal Rights (ER) Decision Digest -- Sections 123.45-123.9

123.45 Disability discrimination; Employer's burden of proof, affirmative defenses; Requirement of case-by-case evaluation

The Complainant was denied medical certification as a truck driver. This led to his discharge. The Respondent failed to establish that the Complainant could not safely undertake the responsibilities of the job because it did not meet the statutory requirements that such an evaluation shall be made on an individual case-by-case basis. Instead, the Respondent relied primarily upon a U.S. Department of Transportation conference report that indicated that individuals with Wilson’s Disease should, without exception, be disqualified from interstate truck driving. This conference report was never adopted as a rule. There are federal regulations which list some diseases and conditions that will, in fact, result in blanket disqualification. However, Wilson’s Disease is not one of the conditions listed in those regulations. 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.

The Complainant indicated at the time she was hired by the Respondent as a registered nurse that she had been diagnosed with epilepsy. In order to make a case by case determination as to whether the Complainant's condition posed a risk to the safety of employees or residents, the Respondent requested additional medical information regarding the Complainant's treatment history. The Complainant refused to provide specific, written information about her condition from a treating doctor. When the Complainant hindered the Respondent's ability to evaluate her ability to undertake the job-related responsibilities of the job as a registered nurse, the Respondent did not violate the Wisconsin Fair Employment Act by discharging the Complainant. Garlie v. St. Francis Home in the Park (LIRC, 06/29/98).

The Respondent decided not to hire the Complainant as a full-time firefighter based upon its discovery that the Complainant had asthma, and based upon the Respondent's perception of that class of persons as being ill-suited for the occupation of a firefighter. The Respondent did not satisfy the requirement of the Wisconsin Fair Employment Act to evaluate the Complainant as an individual, as opposed to simply being a member of a class of persons who suffer from asthma. However, since the Respondent was able to prove at the hearing that it did not unlawfully discriminate against the Complainant on the basis of handicap (because it established that there was a reasonable probability that the Complainant would have an asthma attack at some time while working as a firefighter and, therefore, would pose a hazard to himself and to others) the Complainant was not entitled to any affirmative remedy because of the Respondent's failure to individually evaluate him at the time he was denied employment. Leach v. Town of Pleasant Prairie Fire Dept. (LIRC, 04/23/91).

The 1982 amendments to the Wisconsin Fair Employment Act specified the distinction between those employers having a special duty of care and those employers who do not have such a duty. At the same time, the legislature overruled previous cases insofar as they had failed to require employers to conduct a case-by-case evaluation of the relationship between an individual's handicap and the responsibilities of the particular job. Leach v. Town of Pleasant Prairie Fire Dept. (LIRC, 04/23/91).

Sec. 111.34(2), Stats., requires that any evaluation of a handicapped person's ability to undertake the job-related responsibilities of his employment shall be made on an individual case-by-case basis. Where the employer had a blanket rule prohibiting the employment of individuals with AIDS, the court would not be inclined to consider the employer's affirmative defense that its policy was justified under the "job- relatedness" exception found in sec. 111.34, Wis. Stats. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

The Respondent's failure to hire the Complainants was based on a general rule requiring applicants to meet certain minimum uncorrected vision standards. The individual eye examinations given to Complainants did not constitute an individual case-by- case evaluation of the candidates. The eye examinations accomplished nothing more than to verify that the Complainants' vision did not meet its general rule requiring 20/40 uncorrected vision. Brown County v. LIRC (Phillips & Grinkey) (Ct. App., Dist. III, unpublished decision, 02/27/90).

The statute makes no exceptions to the requirement that the evaluation of whether an individual can perform the job related responsibilities of a position be done on a case-by-case basis. Racine Educ. Ass'n. v. Racine Unified School Dist. (LIRC, 07/17/89), aff'd., Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

The Respondent had a general rule that it would not employ epileptics as intrastate drivers based on federal regulations prohibiting epileptics from driving in interstate commerce. The Wisconsin Fair Employment Act requires an individual evaluation of the applicant's abilities. The Respondent failed to produce any evidence that: (1) the Complainant could not work due to his epilepsy, (2) the Complainant's physical condition would constitute a hazard to himself or others, or (3) the Complainant was not competent to work as an intrastate truck driver or yard man. Dushek & Watkins v. LIRC (Radloff) (Brown Co. Cir. Ct., 05/18/89)

Where an individual was denied licensing as a school bus driver because he was a diabetic and was required to use a hypoglycemic agent to control his diabetes, he could not be denied a license without an individual evaluation of whether his particular handicap would prevent him from safely working as a school bus driver. The Department of Transportation was empowered to establish physical standards for the licensing of school bus drivers so long as those standards did not constitute a general rule prohibiting licensure of handicapped individuals in general or a particular class of handicapped individuals within the meaning of sec. 111.32(2)(b), Stats. Botham v. Department of Transp., 134 Wis. 2d 378, 396 N.W.2d 785 (Ct. App. 1986).

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123.5 Disability discrimination; Employer's duty to accommodate

Alternative accommodations offered by the employer that were not requested by the complainant or recommended by his doctor were not shown to be reasonable accommodations, and the complainant was not obligated to try them. The respondent never checked with the complainant's doctor to find out if any of its proposed accommodations would be helpful, and at the hearing the complainant and his doctor agreed they would not have been effective. The respondent may not substitute its own judgment for the complainant's doctor with respect to the type of accommodation needed. Satorius v. State of Wisconsin Dept. of Corrections (LIRC, 01/31/17).

An accommodation that required the complainant to use up all of his accrued sick leave, which he wanted to be able to use to purchase health insurance in his retirement, was not reasonable, particularly where other accommodations were available. Satorius v. State of Wisconsin Dept. of Corrections (LIRC, 01/31/17).

Employer did not show that it would have suffered a hardship to accommodate the complainant's request to work four ten-hour days (which he had done in the past), where it asserted but did not prove that not scheduling the complainant on Fridays or Mondays would adversely affect staffing in any significant way. Satorius v. State of Wisconsin Dept. of Corrections (LIRC, 01/31/17).

If the employer is contending that a requested accommodation is too expensive, it must present evidence of its revenue and costs that would give the decision-maker a context to consider whether the expenditure would create a hardship. Gilbertson v. Redi-Mix, Inc. (LIRC, 01/20/17).

The employer was aware that the truck the employee was driving was causing him pain, that his condition was getting worse, that it was affecting his ability to perform the job safely, and that the employee wanted to be transferred to a different truck. The employee was not specifically required to notify the employer that he had a disability in order for the employer to understand that he was requesting a disability accommodation. While the employer would have been within its rights to request that the employee present medication documentation establishing a disability and supporting the need for an accommodation, it was not justified in completely ignoring the employee's request. Gilbertson v. Redi-Mix, Inc. (LIRC, 01/20/17).

The complainant's failure to do everything possible to obtain alternate employment does not relieve the respondent of its obligation to provide her with reasonable accommodations that it is able to offer without hardship. Wilson v. County of Milwaukee (LIRC, 9/16/16).

While an employer is generally permitted to reserve light duty assignments for injured workers and is not required to permanently assign a disabled employee to such position, it is not unreasonable that a disabled employee would be allowed to remain in a light duty position when doing so does not adversely affect the employer's ability to provide temporary accommodations for other workers. Wilson v. County of Milwaukee (LIRC, 9/16/16).

Agoraphobia left a truck driver unable to do his job, and no accommodation would have allowed him to do so. Respondent did not deny a reasonable accommodation by ending a temporary inside position that was not an existing position but was cobbled together from tasks within the responsibilities of other employees. A temporary leave can be a reasonable accommodation, but a lengthy and indefinite leave of absence is not required. Under the circumstances, where the employer maintained complainant's employment for 15 months, continuing him on layoff status was not a denial of a reasonable accommodation. The employer met its requirement to engage in an interactive process. Schultz v. V & H Trucks, Inc. (LIRC, 04/30/2015).

The Complainant's request for part-time work was merely a recommendation and not a medically necessary accommodation. However, the Commission noted that if medical necessity of part-time work had been shown, the Respondent would have been required to do more than simply assert that part-time work was not available. It would have had to show that creating a part-time position for the Complainant would have been a hardship. Cave v. County of Milwaukee (LIRC, 1/30/14).

The requirement of reasonable accommodation does not apply to situations in which a complainant is determined to be an individual with a disability based solely on being "perceived as having ... an impairment" under Wis. Stat. § 111.32 (8)(c). Hendon v. Wisconsin Bell, Inc. d/b/a AT&T (LIRC, 11/13/14), Aff'd, Hendon v. LIRC, Milwaukee Co. Cir Ct.., 08/12/2015.

The Respondent unreasonably delayed, because of a failure to engage in an interactive process, to conduct an ergonomic assessment in connection with accommodating the Complainant's disability. This failure by itself is not a violation of the WFEA, but it raises the question of whether an accommodation could have been identified if the Respondent had engaged in an interactive process. The Complainant did not show evidence of an accommodation that would have been identified as a result of the assessment, so there was no failure to reasonably accommodate on this issue. With respect to the Complainant's request to have a cart to help him perform his job, the Respondent's delay of about three months in providing it, which was in part attributable to the Complainant, was not significant enough to be considered a refusal to reasonably accommodate. Vosen v. State of Wisconsin, Dept. of Revenue (LIRC, 04/25/14).

While an unreasonable delay in providing an accommodation could conceivably constitute a violation of the Act, the four-month delay in this case was not found to constitute a violation given the circumstances. Gallagher v. Blain Supply Inc. (LIRC, 3/28/14).

While transfer to a new job can be a reasonable accommodation for an employee with a disability, the Respondent is not required to place the Complainant in a job for which he lacked qualifications to adequately perform.� Further, the Respondent need not place an employee with permanent restrictions in a temporary �light duty� assignment.�� Nesberg v. County of Marinette (LIRC 6/14/13).

The question of whether reasonable accommodation was refused or would have posed a hardship becomes important only if it appears that an employment decision was made because of a disability and that the disability was reasonably related to the complainant's ability to do the job. Where the respondent fails to establish that the complainant's disability was reasonably related to ability to do the job, the question of whether an accommodation was refused or would have posed a hardship does not come into play.�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).

A complainant cannot prevail on a claim of disability discrimination by demonstrating that he was treated less favorably in the accommodation process than another employee with a different disability. Valyo v. St. Mary's Dean Ventures (LIRC, 12/28/12).

The Respondent unlawfully discriminated against the Complainant because of her disability (migraine headaches) when it discharged her for poor customer service in her job as a loan officer. The Complainant's failures in customer service were directly caused by her disability, which prevented her from being at work and receiving and/or responding to contacts from customers. Her discharge for poor customer service was, thus, in legal effect, because of her handicap. The Respondent had failed to provide the Complainant with a reasonable accommodation that would have enabled her to remain employed. The Complainant needed assistance in establishing a system for communicating with clients during her absences and for directing those clients to other bank employees if they required immediate assistance. Further, the Complainant needed an understanding that she would not be able to perform her duties on days she was absent to work due to her disability, and that she should not be discharged as a result of her absences. The Respondent failed to demonstrate that accommodating the Complainant's disability by assisting her to better help her customers and by refraining from discharging her for her absences would have caused a hardship for its business. On the contrary, the evidence in the record suggested that the Respondent was not interested in providing the Complainant with an accommodation. The fact that the Complainant's supervisor issued her an attendance warning even though he was aware that her absences were because of her migraines and were covered by FMLA leave, combined with the fact that he had already obtained legal advice on how to deal with the Complainant's absences, suggests that the Respondent was not genuinely interested in accommodating the Complainant's disability but was paving the way for her discharge. Stelloh v. Wauwatosa Savings Bank (LIRC, 06/19/12).

A Complainant with MS argued that she could do light duty tasks, including those currently performed by two other custodians, and that in this way she could fill her work day. However, the evidence did not establish that there were eight hours of light duty work available for the Complainant to perform. Further, to structure the job in this manner would result in operational inefficiencies and would, in all likelihood, only increase the already poor morale of the other custodians who had been filling in for her. Schulz v. Wausau School Dist. (LIRC, 04/30/12).

An employer has an obligation to engage in an "interactive process" aimed at determining the precise job-related limitations imposed by a disability and how those limitations could be overcome with a reasonable accommodation. However, the failure to engage in an interactive process does not, on its own, constitute a violation of the law. The question is whether the Complainant has shown that, if the Respondent had engaged in the process, together they could have identified a reasonable accommodation. Schulz v. Wausau School Dist. (LIRC, 04/30/12).

In this case, the Respondent presented significant evidence establishing that the accommodation it had granted the Complainant for an extended period of time was not working. The Complainant was performing far less than eight hours of productive work, even with the accommodation. Moreover, without regard to how many hours of work the Complainant was performing each day, the evidence showed that permitting the Complainant to perform only those duties she was capable of performing resulted in operational inefficiencies and extra expenses for the Respondent. For example, the Complainant was unable to fill in for absent co-Worker's. In addition, accommodating the Complainant resulted in morale problems for her fellow custodians who were required to cover for her, sometimes at the expense of completing their own job duties. Where accommodations actually result in significant burdens for other Worker's, considerations of morale are appropriate. Schulz v. Wausau School Dist. (LIRC, 04/30/12).

An employer has some obligation to engage in an interactive process aimed at determining the precise job-related limitations imposed by a disability and how those limitations could be overcome with a reasonable accommodation. While the failure to engage in an interactive process does not, on its own, constitute a violation of the law, the question is whether the Complainant has shown that, if the Respondent had engaged in the process, together they could have identified a reasonable accommodation. Smith v. Wisconsin Bell (LIRC, 04/19/12).

An accommodation designed to make it easier for an employee with a disability to commute to and from work (and, in this case, to thereby work with a lesser degree of pain) might be a reasonable accommodation. However, it is not clear that the accommodation the Complainant requested in this case was either medically necessary or that it would have effectively resolved the problem with his knee pain. The Complainant's testimony regarding his need for an accommodation was not supported by any medical evidence. Further, the Complainant failed to attempt simpler means of resolving the problem with his knee. Young v. Wisconsin Dept. of Corrections (LIRC, 11/30/11).

The Respondent had temporary positions which it designated as light duty positions. It reserved those positions for employees who had suffered a worker's compensation injury. The Respondent was not required to convert one of these positions into a permanent position for the Complainant in order to meet the reasonable accommodation requirements of the Wisconsin Fair Employment Act. To do so would make that position unavailable for the purpose for which it was created. Rousseau v. Appleton Papers (LIRC, 12/03/10).

Wisconsin law has consistently held that it is inappropriate to conclude, as a matter of law, that any particular kind of action is not required as an accommodation under the Wisconsin Fair Employment Act. It cannot be said that a job-related responsibility (even an 'essential' one) need never be restructured or removed by way of reasonable accommodation. On the contrary, the Wisconsin Fair Employment Act should be broadly construed such that even the transfer of a worker who can no longer perform his job to another position might be a reasonable accommodation. Englebert v. Humana (LIRC, 09/28/10).

The Respondent was not required to modify an assembler position to such an extent that it effectively created a new position in order to reasonably accommodate the disability of the Complainant, who was a new hire. Willis v. Stoughton Trailers (LIRC, 09/04/09).

There are two elements to the question of whether there was a refusal to reasonably accommodate an individual?s disability within the meaning of the Wisconsin Fair Employment Act: (1) did a reasonable accommodation exist, and (2) if so, would providing such an accommodation have worked a hardship on the employer. The initial burden is on the Complainant to prove that a reasonable accommodation is available. A reasonable accommodation is one which would enable the Complainant to perform the duties of his position. Geller v. Heartland Lakeside Joint #3 School Dist. (LIRC, 03/27/09).

Where a job applicant notified the employer that he has medical restrictions which make 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. Schmidt v. Lunda Construction (LIRC, 12/26/08).

Although an employee cannot always expect to receive the accommodation of his or her choice, transfer to a different position paying substantially less than what the Complainant had been making at his regular job cannot be considered a reasonable accommodation, particularly in light of the availability of an alternative accommodation which would have enabled the Complainant to continue working at his previous position at the same rate of pay. Cappelletti v. OceanSpray Cranberries, Inc. (LIRC, 02/15/08).

The Respondent failed to reasonably accommodate the Complainant by failing to allow him sufficient time to submit documentation to avoid being assessed as having an “occurrence” under the Respondent’s no-fault attendance policy. The Respondent also informed the Complainant that he had only three days to submit adequate documentation to excuse his absence, even though the Complainant informed the Respondent that he would be unable to get such documentation from his doctor for at least a week. The Respondent thus failed to reasonably accommodate the Complainant by failing to give him sufficient time to submit documentation to avoid being assessed an “occurrence” under its no-fault attendance policy. Stoughton Trailers v. LIRC & Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

The Respondent failed to reasonably accommodate the Complainant by failing to extend to him “clemency and forbearance” in the form of temporarily tolerating his absences while the medical intervention that was already under way for his migraine headaches had a chance to resolve the problem of his disability-related absences. “Clemency and forbearance” is not an open-ended requirement mandating that an employer indefinitely suspend its attendance requirements for a disabled employee. Such a mandate would not be a reasonable accommodation within the meaning of the Wisconsin Fair Employment Act. Rather, “clemency and forbearance” requires that an employer “forbear” by temporarily tolerating an employee’s disability-related absences under circumstances similar to those presented in this case (i.e., a temporary accommodation was required to permit medical treatment which, if successful, would remove the difficulty in the Complainant performing his job-related responsibilities). Stoughton Trailers v. LIRC & Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

Although a temporary leave to permit medical treatment over a relatively short period of time may be a reasonable accommodation, a period of indefinite medical leave would not. In this case, the Complainant’s inability to work extended over a period of nearly 18 months. King v. City of Madison (LIRC, 12/21/07).

The Complainant contended that the Respondent should have accommodated her disability by permitting her to displace a worker in another bargaining unit. However, the displacement of another worker is not a reasonable accommodation under the Wisconsin Fair Employment Act. King v. City of Madison (LIRC, 12/21/07).

The Complainant contended that the Respondent’s failure to appoint her to vacant positions without requiring her to compete for those positions violated the reasonable accommodation requirement of the Wisconsin Fair Employment Act. Although transfer to a vacant position might constitute a reasonable accommodation, this form of accommodation is not an unlimited one. The positions in question must have more in common than the fact that they are with the same employer. In this case, the Complainant’s position as a transit operator was essentially unrelated to any of the vacant administrative/clerical positions for which she applied. Moreover, the Respondent was not required to disregard the merit-based recruitment and selection system mandated by its ordinances and included in its collective bargaining agreement with the union by appointing the Complainant to a vacant position for which she was not the most qualified candidate as a means of accommodating her disability. King v. City of Madison (LIRC, 12/21/07).

The Respondent was not required to permanently assign the Complainant to light duty when she was released to return to work with permanent restrictions. Although the Respondent had certain temporary positions designated as light duty positions, it reserved those positions for employees on Worker's’ compensation. The Respondent was not required to convert one of these temporary positions to a permanent position for the Complainant in order to meet the reasonable accommodation requirements of the Wisconsin Fair Employment Act. To do so would have made the positions unavailable for the purpose for which they were created. This would, in essence, have resulted in the creation of a new position for the Complainant. An employer is not compelled to create new positions in order to accommodate its disabled employees. King v. City of Madison (LIRC, 12/21/07).

An employer does not have the duty to create a position for a disabled employee as a means of accommodating a disability. Rutherford v. Trienda Corp. (LIRC, 07/27/07).

A Complainant has the initial burden of proving that a reasonable accommodation is available. Where the record was insufficient on the question of whether a computer and a scanner would have been a reasonable accommodation for the Complainant in this case, the consequences must fall on the Complainant, in the form of a decision that he did not meet his initial burden to prove that a reasonable accommodation was available. Gamroth v. Dept. of Corrections (LIRC 10/20/06).

The Respondent failed to establish that it would be a hardship to accommodate the Complainant's absences from work. The Respondent did not provide factual information or specific evidence to show that the Complainant's absences from the workplace actually affected its sales. Further, while other commissioned sales associates would be forced to take care of customers instead of carrying on with their normal duties if the Complainant was not there, some of those people would be happy with the Complainant's absence because it increased their opportunity to make more commissions. Goldsmith v. Sears Roebuck & Co. (LIRC 06/29/06).

The Respondent should have accommodated the Complainant by exempting him from its no-fault attendance policy for a few months while he was having his medications adjusted to control his bipolar II disorder. Goldsmith v. Sears Roebuck & Co. (LIRC 06/29/06).

The Respondent unsuccessfully contended that it would not be a reasonable accommodation to allow the Complainant to be excluded from the application of its no-fault attendance policy because he had also incurred absences for reasons that were not disability-related. The fact that an individual with a disability incurs absences not related to that individual's disability does not permit an employer to ignore its obligation to reasonably accommodate that individual with respect to disability-related absences over which the individual has no control. The Complainant would not have been discharged if the Respondent had not counted his absences which were caused by his disability. Goldsmith v. Sears Roebuck & Co. (LIRC 06/29/06).

It is axiomatic that where a complainant has failed to sustain her burden to prove that she was an individual with a disability within the meaning of the Wisconsin Fair Employment Act, no duty of reasonable accommodation would arise. Schultz v. CNH Capital Corp. (LIRC 05/08/06).

A Complainant has the initial burden of proving that a reasonable accommodation is available. The employer then has the burden of establishing that no reasonable accommodations could be made to enable the Complainant to perform his job, or that it would experience hardship in making such accommodations. In this case, the Complainants met their initial burden of proving that reasonable accommodations for their disabilities were available (e.g., send them home when there was not enough work for them to do in their department, or excuse them from working in other departments they could not work in because of their disabilities.). The Respondent contended that the accommodations requested by the Complainants were not reasonable and that the Complainants were scheduled for lay off because it had to retain employees who were "versatile" and able to go to other departments within the Respondent's warehouse. However, the evidence established that the Complainants had performed jobs in a number of different departments despite their disabilities. Furthermore, the evidence indicated that the Complainants were never afforded the opportunity to discuss or review reasonable accommodation alternatives with the Respondent before the Respondent chose them for layoff. The evidence thus failed to show that no reasonable accommodations could have been made to enable the Complainants to perform their jobs. The Respondent further failed to establish that it would have experienced a financial hardship in making necessary accommodations for the Complainants. Bartle v. Jack Links Beef Jerky (LIRC 02/09/06).

Sec. 111.34(1)(b), Stats., makes it unlawful for employers to refuse reasonable accommodations that could be provided without hardship. The Respondent in this case was not the Complainant’s employer, but was a union hiring hall providing job referrals. It is hard to envision any accommodation which a union hiring hall would be able to provide that would enable a disabled worker to perform a job. While the Complainant suggested that the Respondent could disregard its referral procedures and call him for jobs off a different list (a preference which might result in a broader list of jobs for which the Complainant could be considered), this is not the type of accommodation contemplated by the statute, as it is not a measure designed to enable the Complainant to perform a job notwithstanding his disability. Neitzer v. Laborers Local No. 931 (LIRC, 10/31/05)

Any doubts as to the workability of a proposed accommodation should be resolved against the Complainant where, as here, it was not readily apparent that any accommodation would have been available. The Respondent told the Complainant that it did not believe she could be accommodated, and the Complainant never disputed this or offered suggestions as to ways in which she could perform the job. Rauls-Hepp v. J.L. French Corp. (LIRC, 09/30/05)

The employee has the initial burden of proving that a reasonable accommodation is available. In this case, the Respondent discharged the Complainant after it received a note from her doctor indicating that it was medically necessary that she be permitted to sit down or to rest her foot for twenty minutes out of every hour because of degenerative arthritis of her ankle joint. The record failed to establish that some of the accommodations proposed by the Complainant would have allowed her to perform the jobs in question, given her medical restrictions. The Complainant contended that the Respondent could have accommodated her by reorganizing her work area to reduce the amount of movement and increase the amount of time she could rest her foot. However, the Complainant did not explain how such an reorganization could be accomplished, and there was no reason to believe that any such accommodation would have been available. Finally, the Complainant contended that the Respondent could have transferred her to a light duty job, as it does for employees with worker’s compensation injuries. While the Respondent might be obligated to modify the Complainant’s existing job or to transfer her to another position it has available (provided it could do so without hardship), it is not obligated to create a job for the Complainant. The fact that it has done so for people injured on the job (whose salaries it must pay whether or not they are at work) does not alter this. Rauls-Hepp v. J.L. French Corp. (LIRC, 09/30/05)

An employer is generally not required to indefinitely suspend the application of a reasonable attendance policy in order to accommodate a disability. Seil v. Dairy Farmers of America (LIRC, 08/26/05)

The Complainant was unable to work a twelve-hour shift because of chronic migraine headaches with associated chronic neck pain. The Respondent unlawfully refused to provide the Complainant with a reasonable accommodation when it discharged her rather than permitting her to continue working eight-hour shifts (either five days a week, or on her regular schedule of seven days every two weeks) or to share one full-time twelve-hour shift with another worker. The record did not establish that an accommodation would have resulted in additional personnel expenses for the Respondent. There was no evidence to suggest that the Respondent actually incurred any additional payroll expense during the eight-month time period in which it temporarily accommodated the Complainant by permitting her to work an eight-hour shift. Nor was it established that the Respondent’s productivity suffered as a result of allowing the Complainant to work only eight hours. The Respondent failed to consider the possibility of permitting two employees to share one job, and failed to engage in any analysis of whether this proposed accommodation could have been effective. (Implementing the job-sharing possibility might actually have reduced the Respondent’s personnel expenses, since a job-sharing arrangement would have reduced both employees to part-time status, thereby rendering them ineligible to receive health insurance or other benefits.) The Respondent’s arguments about morale problems were equally unpersuasive. Even if the Respondent had demonstrated that other Worker's complained about the Complainant working a shorter shift, the mere fact that some co-Worker's might think accommodations are unfair does not release an employer from its duty of assisting Worker's with disabilities to remain employed. Wickstrom v. Hutchinson Technology (LIRC, 08/26/05)

The Complainant was effectively discharged by the Respondent because of her disabilities, which were asthma and allergic rhinitis. The Respondent did not permit the Complainant to continue work because of information it had received from her physicians that she could not work around cats and dogs and would probably not be able to do so for a period of several years, even with appropriate use of medications and immunotherapy. The presence of pets was an integral part of the Respondent’s project to provide a more cheerful and home-like environment for residents of its long-term healthcare facility. Given the therapeutic goals of this project and the positive results it had achieved, it would have been a hardship for the Respondent, and for the population it served, to be unable to implement its program of allowing pets in its facilities. An accommodation’s impact on the ability of an employer to achieve legitimate program goals is an appropriate consideration in determining whether the accommodation would impose a hardship. Wodack v. Evangelical Lutheran Good Samaritan Soc. (LIRC, 08/05/05); aff'd. sub nom. Wodack v. LIRC (Door Cty. Cir. Ct., 03/07/06).

In her statements on the hearing record, the Administrative Law Judge appeared to be under the impression that no duty of reasonable accommodation arises as a result of a perceived disability. However, given the unsettled nature of the law in this regard, it was inappropriate for the ALJ to grant the motion to dismiss the complaint on this basis. Grell v. Bachmann Constr. (LIRC, 07/15/05); aff'd. sub nom. Grell v. LIRC (Dane Cty. Cir. Ct., 02/22/06).

There are two separate steps to analyzing reasonable accommodation issues: First, it must be determined whether the accommodation is a reasonable one (i.e., whether it effectively enables the disabled individual to perform the job-related responsibilities of her employment). Secondly, it must be determined whether the accommodation imposes a hardship on the employer. However, before those steps can be undertaken, evidence must exist that a request for an accommodation was made, or a need for an accommodation was apparent. Ford v. Lynn’s Hallmark (LIRC, 06/27/05).

It is unlikely that the Complainant in this case would have required any special accommodation for his disability, which was left ulnar neuropathy. Assuming, however, that this matter could be considered one in which an accommodation was required, the Respondent failed to demonstrate it could not have provided such an accommodation without hardship. The Respondent argued that it expected that there would be union grievances and that there would be a negative effect on employee morale if the Complainant were permanently provided preferential treatment. However, there was absolutely no evidence to suggest that accommodating the Complainant would adversely affect employee morale. To the contrary, the testimony established that the employees in the bargaining unit were willing to help out if someone needed an accommodation. If the Respondent was concerned about anticipated union grievances, it should have waited until the union contract and the Complainant’s need to be accommodated clashed. The Complainant should have been permitted to continue performing his job until such time as his disability rendered him unable to do so and the need for a specific accommodation arose. Clearly, that point would not be reached until such time as the Complainant was required (by virtue of his seniority) to accept work which he was physically unable to perform, and there was no more senior worker willing to voluntary trade jobs with the Complainant in order to enable him to continue working. At that time, it would become necessary to make a determination as to whether discharge was warranted or whether an accommodation might be available that would enable the Complainant to preserve his employment. Van Den Elsen v. County of Brown (LIRC, 06/14/05).

The Respondent did not fail to reasonably accommodate the Complainant's disability where the only potentially applicable accommodation would have been the extension of the Complainant's medical leave for an indefinite period of time. The Respondent had already provided the Complainant with a period of medical leave twice as long as it had ever provided any other employee. The Respondent had no assurance that the Complainant, who had already been on medical leave for four months, would return to work in the near future, if at all. Although a temporary leave to permit medical treatment over a relatively short period of time may be a reasonable accommodation, the period of indefinite leave suggested here would not. Greenwood v. Ross Furniture (LIRC, 12/30/04).

Although the Complainant established that he was discharged because of his disability, the record did not establish that the Respondent failed in its duty of reasonable accommodation. The Complainant, an accountant, is visually impaired. It would have been reasonable for the Respondent to employ another employee to do data entry for the Complainant (i.e., this would have effectively enabled the Complainant to carry out his assigned tasks). However, the record established that the delegation of the Complainant's tasks to another employee would pose a hardship for the Respondent. The Respondent had already provided this accommodation to the Complainant for a significant period of time and it had not enabled him to achieve the level of productivity of other staff members. It was undisputed that the Respondent's financial situation required that it reduce its workforce. Further, given the Respondent's tenuous financial situation, it would be a hardship for the Respondent to continue to employ the Complainant (who was its highest paid, yet least productive, staff accountant) and to terminate one of its lower paid more productive employees. Walsh v. Tom A. Rothe, SC (LIRC, 11/19/04).

Hypothetical difficulties associated with accommodating the Complainant were too speculative to meet the Respondent's burden of proof on the issue of accommodation. Hutchinson Technology v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343.

The Complainant established that she was an individual with a disability. She was diagnosed with degenerative disc disease. This was an impairment within the meaning of the Wisconsin Fair Employment Act. The Complainant was limited in her capacity to work in her job as a production worker at a manufacturing plant that operated 12-hour shifts. She had back pain that restricted her ability to work a 12-hour shift and to engage in prolonged static standing or sitting. When the Complainant was unable to work 12-hour shifts, the Respondent initially accommodated her for several months by allowing her to work 8-hour shifts. The Respondent's assertions that prolonged continuation of this 8-hour shift schedule for the Complainant would create a hardship were unpersuasive. Although the Respondent hypothesized that certain problems could arise in the future, it presented no evidence that any ever did. For example, it did not submit any evidence that other employees sought to work reduced shifts, that morale problems had arisen among its other employees, or that production had decreased as a result of the Complainant's arrangement. Reasonable accommodation and hardship are two distinct concepts that involve separate inquiries, since an accommodation may be reasonable, but nevertheless work a hardship upon a specific employer. The Respondent in this case failed both tests. It did not establish that it could not reasonably accommodate the Complainant's disability, nor did it introduce any evidence that allowing the Complainant to work 8-hour shifts would cause a hardship to its business. Hutchinson Technology v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343.

The Respondent did not fail to accommodate the Complainant, who is visually impaired, because he did not alert it to new software applications that might have allowed him to continue his work as an accountant. The Respondent had relied upon the Complainant for recommendations for new technology for the visually impaired in the past. Walsh v. Tom A. Rothe, SC (LIRC, 11/19/04).

The Complainant's disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment, as it caused him to be absent from work for extended periods of time. At the hearing, the Complainant testified that he believed that the Respondent should have paid half of his benefits while he was going through his medical problems, then resume paying full benefits when he was able to work again. However, a reasonable accommodation is an accommodation which is designed to enable the individual to perform the job-related responsibilities of his employment. The payment of the Complainant's fringe benefits bears no relationship to his ability to maintain the employment or to perform the job. Therefore, those benefits did not have to be paid by way of reasonable accommodation. Stroik v. Worzalla Publishing (LIRC, 07/16/04).

The Complainant was discharged for continuing absences related to his disability. Although the Complainant did not make a specific request for an accommodation, it is apparent that the accommodation required was an extended leave of absence so that the Complainant could retain his employment. In this case, the record indicated that the Complainant had been off work for over four months when he told the Respondent that he was going to undergo surgery, which would be followed by eight to twelve weeks of recovery. The Complainant did not tell the Respondent that the operation, if successful, would enable him to return to work, and did not give the Respondent any reason to believe that he would be able to work anytime in the foreseeable future. If, in fact, the Complainant believed that he would be able to return to work in the future, it was his responsibility to put the Respondent on notice of this fact so that it could determine the appropriateness of extending his leave of absence. There was no reason to believe that permitting the Complainant to continue his medical leave of absence would have been a reasonable accommodation, or that the Respondent's decision to terminate the employment relationship was in violation of the Wisconsin Fair Employment Act. Stroik v. Worzalla Publishing (LIRC, 07/16/04).

The Complainant worked as the head of a four-person department in the Respondent’s cheese factory before she was left a quadriplegic following a non-work related accident. The Complainant eventually regained partial use of her arms. She is required to use a wheelchair to move around. The Complainant could no longer perform some of the duties of her position that required climbing, lifting, or performance in a standing position. The Complainant’s disability was reasonably related to her ability to adequately perform her job responsibilities, unless accommodations were made. The Respondent did not establish that it would be a hardship to accommodate the Complainant’s disability. A reasonable accommodation is not limited to that which would allow the employee to perform adequately all of his or her job duties. A change in job duties may be a reasonable accommodation in a given circumstance. In determining whether an employer is required to accommodate a disabled employee, the questions of reasonableness of the accommodation and hardship to the employer, while overlapping, are two distinct considerations that are to be addressed independently. In this case, there were reasonable accommodations that the Respondent could have taken in order to keep the Complainant as an employee. The Respondent could have modified the job site to allow the Complainant full access and let her continue to perform those tasks she was still able to perform. Among the accommodations that should have been considered were: a ramp installed at the entrance which would allow wheelchair access; lowering of tables and other fixtures; the modification of the bathroom; and the widening of aisles where necessary. Another way the Respondent could have accommodated the Complainant’s disability was by modifying her responsibilities. Everyone in the Complainant’s department was cross-trained, and at least two of the three other team members indicated that they could make up for the Complainant’s restricted duties. The other employees could divide among themselves those physical tasks that the Complainant was no longer able to do, and she could focus just on the many job responsibilities that she could do. The Respondent failed to establish that it would have been a hardship to make these physical and job modifications. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651.

The "essential functions of the job" analysis, which may be appropriate under the federal Americans with Disabilities Act (ADA), is not employed in reviewing a disability accommodation issue under the Wisconsin Fair Employment Act. Parker v. Dane County (LIRC, 11/10/03), aff'd., sub nom. Dane Co. v. LIRC (Dane Co. Cir. Ct., 07/20/04).

The Complainant, who was deaf, was entitled to "bump" into the position of marriage license clerk pursuant to the terms of the applicable collective bargaining agreement in order to avoid a lay-off. The Respondent contended that a reasonable accommodation was not required because the Complainant had not worked in that position before, except as a back-up worker. This argument was rejected. The Complainant had worked for the Respondent for many years. The Complainant’s status was significantly stronger in this regard than that of a new hire or a transfer hire, and was more similar to that of a position incumbent. Further, the need to accommodate the Complainant arose not because of a change in her personal circumstances, but because of a change in the responsibilities assigned to the office. Parker v. Dane County (LIRC, 11/10/03), aff'd., sub nom. Dane Co. v. LIRC (Dane Co. Cir. Ct., 07/20/04).

The Respondent contended that reassigning all or most of the phone duties of the marriage license clerk position to two other support staff members as a means of accommodating the Complainant, who was profoundly hearing impaired, would create a hardship. This argument was rejected. The other support staff members would not have to handle many more telephone calls. The Respondent did not prove that assigning the phone duties to other support staff members would cause a morale problem. Testimony of management employees to this effect was hearsay. Finally, although office harmony is a laudable management goal and a legitimate consideration here, the goals of the Wisconsin Fair Employment Act would not be served if disgruntled coWorker's could block reasonable accommodations simply by expressing objection or threatening to file contract grievances. Parker v. Dane County (LIRC, 11/10/03), aff'd., sub nom. Dane Co. v. LIRC (Dane Co. Cir. Ct., 07/20/04).

The Respondent’s arguments that it would be a hardship to assign the phone duties of the marriage license clerk position to the remaining two support staff because it could jeopardize the classification of their positions was rejected. The Respondent failed to show that comparable level duties of these other positions which did not involve the use of the phone could not have been assigned to the marriage license clerk position in order to maintain the classification strength of each of these positions. Parker v. Dane County (LIRC, 11/10/03), aff'd., sub nom. Dane Co. v. LIRC (Dane Co. Cir. Ct., 07/20/04).

The Respondent did not establish that it would have been a hardship to modify its business practices through the addition of office technology because it would reduce its responsiveness to the public. Although the use of VCO technology for the Complainant, who was profoundly deaf, would require that the caller be placed on hold or leave a message for a return call, the office already placed callers on hold and returned phone messages. Moreover, the Respondent did not prove that using options such as e-mail would have been less responsive to the public. Many of the Respondent’s representations in this regard depend upon speculation. Speculation or theoretical difficulties are insufficient to sustain the Respondent’s burden to show hardship. Parker v. Dane County (LIRC, 11/10/03), aff'd., sub nom. Dane Co. v. LIRC (Dane Co. Cir. Ct., 07/20/04).

There are two separate steps to the "reasonable accommodation" analysis. The first step is to determine whether the accommodation is a reasonable one (i.e., whether it effectively enables the disabled individual to perform the job-related responsibilities of his employment). The second step is to determine whether the proposed accommodation imposes a hardship on the employer. Kinion v. Portage Community Schools (LIRC, 09/19/03).

Although a temporary leave to permit medical treatment over a relatively short period of time may be reasonable accommodation, the indefinite leave suggested in this case would not, particularly given the fact that the employer had already granted the Complainant a series of medical leave requests spanning nearly a year’s time period, none of which have had enabled the Complainant to return to work. The Respondent established that it would have been a hardship to place the Complainant on a period of indefinite leave to wait until a suitable transfer vacancy occurred. Vacancies and positions to which the Complainant would have been eligible to transfer occurred relatively infrequently. Kinion v. Portage Community Schools (LIRC, 09/19/03).

The Respondent failed to reasonably accommodate the Complainant’s disability when it discharged him only two days after requesting him to provide medical certification for a disability-related absence. The Respondent argued that it had offered the Complainant a reasonable accommodation by providing him with an opportunity to seek to have his absences qualified as leave covered under the federal Family and Medical Leave Act (FMLA), which would have had the result under its "no fault" attendance plan of having them not count as "occurrences." However, the Respondent failed to properly comply with procedures specified under the FMLA. The FMLA allows an employer to make a request that an employee seeking FMLA leave provide medical certification of the need for the leave. The rule provides that the employer must give the employee at least 15 calendar days after the employer makes the request for medical certification, and, if the employee provides inadequate certification, the employer must give the employee a "reasonable opportunity to cure" the deficiency. Courts have held that termination is not an appropriate response for an inadequate certification. Because the Respondent did not comply with the provisions of the federal FMLA, it refused to reasonably accommodate the Complainant’s disability within the meaning of sec. 111.34(1)(a), Stats. Further, whether or not the Complainant was properly offered the opportunity to establish that his absences should be treated as covered under the federal FMLA, the employer should have extended to him the reasonable accommodation of temporarily tolerating the absences which were being caused by the Complainant’s disability. Geen v. Stoughton Trailers (LIRC, 09/11/03, decision on remand from Geen v. LIRC and Stoughton Trailers, 2002 WI App 269, 654 N.W.2d ); aff'd. sub nom. Stoughton Trailers v. LIRC (Dane Co.Cir. Ct., 05/13/04); aff'd., Stoughton Trailers v. LIRC & Geen, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102; aff'd, Stoughton Trailers, Inc. v. LIRC and Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W. 2d 477 .

The Complainant’s migraine condition was sometimes causing him to miss work. However, this problem had only recently been diagnosed, and the Complainant was still at a fairly early stage of treating his disorder. He was working with physicians to determine effective medications and to adjust them. It was entirely possible that development of an appropriate treatment regimen would significantly reduce or even eliminate the problem of periodic absences due to migraine attacks. The Respondent should have extended to the Complainant the reasonable accommodation of "clemency and forbearance," temporarily tolerating the absences which were being caused by his disability while the medical intervention which had already begun was allowed to take its course and to potentially resolve the problem of those absences. Geen v. Stoughton Trailers (LIRC, 09/11/03, decision on remand from Geen v. LIRC and Stoughton Trailers, 2002 WI App 269, 654 N.W.2d ), aff'd sub nom. Stoughton Trailers Inc. v. LIRC and Douglas Geen (Dane Co. Cir. Ct., May 13, 2004); aff'd., Stoughton Trailers v. LIRC & Geen, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102; aff'd, Stoughton Trailers, Inc. v. LIRC and Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W. 2d 477.

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).

The Wisconsin Fair Employment Act differs from the Americans with Disabilities Act in many significant respects. Under the WFEA there is no limit to the type of accommodation an employer may be expected to provide, so long as the accommodation requested is a reasonable one that can be provided without hardship to the employer’s business. What is reasonable will depend on the specific facts in each individual case. Waldera v. Cooperative Educ. Service Agency #11 (LIRC, 10/31/02).

The Complainant, who is visually impaired, applied for a job which required driving between school districts to teach orientation and mobility to visually impaired students. The Respondent established that accommodating the Complainant would pose a hardship for it where the accommodation requested by the Complainant (hiring a driver) would have required the Respondent to hire an additional full-time employee on a permanent basis exclusively for the purpose of assisting the Complainant. This accommodation would have cost the Respondent approximately $20,000 a year, a cost which would have ultimately been passed on to the school districts served by the Respondent. The client school districts, which had the freedom to contract from other sources or pool their resources to provide their own special services, were already complaining of the high costs of services for the visually impaired, and had talked to the Respondent about ways in which to keep expenses down. Waldera v. Cooperative Educ. Service Agency #11 (LIRC, 10/31/02).

The question of whether a particular accommodation is reasonable is resolved on a case-by-case basis. Roytek v. Hutchinson Technology (LIRC, 01/28/02), aff'd sub nom. Hutchinson Technology Inc. v. LIRC and Roytek, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343.

The Wisconsin Fair Employment Act has been broadly construed so as not to rule out any particular type of accommodation as a matter of law. To the contrary, if an accommodation is reasonable and can be provided by the employer without creating a hardship for its business, the Act contemplates that it do so. Roytek v. Hutchinson Technology (LIRC, 01/28/02), aff'd sub nom. Hutchinson Technology Inc. v. LIRC and Roytek, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343.

The Respondent temporarily accommodated the Complainant by allowing her to work an eight-hour day, rather than the twelve-hour shifts that other employees worked. This accommodation was successful for an extended period of time. There was no evidence to establish that the Respondent would have suffered a hardship had this accommodation been continued. The Respondent failed to establish that the Complainant’s shorter work shift caused production or profit losses, or that morale or other problems were created during the ten-month period that the Respondent accommodated the Complainant. The fact that an employer made a temporary accommodation of a Complainant’s disability does not shield it from liability when its willingness to provide a reasonable accommodation ceases. Roytek v. Hutchinson Technology (LIRC, 01/28/02), aff'd sub nom. Hutchinson Technology Inc. v. LIRC and Roytek, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343.

Where the employer discharged the Complainant two days after giving him a letter requesting that he provide medical certification of his need for a disability-related absence, the employer may not have fully complied with the Federal Family and Medical Leave Act, which provides that an employer must give an employee at least fifteen calendar days after the employer’s request to provide such certification. The Labor and Industry Review Commission determined that the employer had reasonably accommodated the Complainant’s disability by giving him the opportunity to have his disability-related absences declared medical leave under the FMLA. However, this determination may be unreasonable because it appears to conflict with the legislative intent underlying the Federal FMLA and the provisions of the Wisconsin Fair Employment Act requiring the employer to accommodate an individual’s disability. Accordingly, the case was remanded to the Commission to address the possible violation of the federal FMLA. Geen v. LIRC, 2002 WI App 269, 258 Wis. 2d 498, 654 N.W.2d 1 (decision on remand, Geen v. Stoughton Trailers (LIRC, 09/11/03)).

There is no rule under the Wisconsin Fair Employment Act which requires a face-to-face encounter between the employer and the employee prior to an employer making an accommodation decision. Lane v. DOC (Wis. Personnel Comm., 06/07/01).

The Wisconsin Fair Employment Act contains no reference to "essential job functions" and no injunction against reallocating any specific job functions (unlike EEOC regulations relating to disability cases under the Americans with Disabilities Act). It is inappropriate to conclude as a matter of law that any particular kind of action is not required as an accommodation. The resolution of any case depends upon on whether the facts show that the accommodation would be reasonable and would not work a hardship on the employer. It cannot be said that a job-related responsibility, even an "essential" one, need never be restructured or removed by way of reasonable accommodation. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

A legitimate nondiscriminatory policy does not justify failing to provide a reasonable accommodation where such accommodation can be provided without hardship. Indeed, the Wisconsin Fair Employment Act contemplates that employers may sometimes need to make exceptions to their usual policies in order to provide accommodations to disabled Worker's. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

It is reasonable to require an employer to restructure the physical demands of the job in order to accommodate a disabled employee, provided this can be achieved without hardship to the employer. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

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 Respondent did offer the Complainant a reasonable accommodation prior to discharging him for violating its "no-fault" attendance policy, which prescribes discharge for a certain level of "occurrences" of absence from work. First, the Respondent gave the Complainant the opportunity to avoid incurring an "occurrence" at all in situations in which he was on the job and became unable to work due to migraine problems, by allowing him to stop working or to go to the nurse’s station. Secondly, the Respondent gave the Complainant the opportunity to avoid incurring an "occurrence" for all situations in which he was absent from work for periods of time attributable to his migraine condition by taking leave under the Family and Medical Leave Act. Geen v. Stoughton Trailers (LIRC, 08/31/00), rev'd. sub nom. Geen v. LIRC et al. (Dane Co. Cir. Ct., 08/09/01) modified and remanded sub nom. Geen v. LIRC and Stoughton Trailers, 2002 WI App 269, 258 Wis. 2d 498, 654 N.W.2d 1. (decision on remand, Geen v. Stoughton Trailers (LIRC, 09/11/03)).

The obligation to engage in reasonable accommodation arises only when the employee has a disability within the meaning of the Wisconsin Fair Employment Act. The fact that an employer may have attempted at times to "accommodate" a Complainant’s condition which does not constitute a disability, does not serve to prove that the Complainant has a disability within the meaning of the Act. Reinke v. Pick ‘n Save Mega Food Centers (LIRC, 01/28/00).

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).

A Complainant was discharged when his disability caused him to behave in a violent and threatening manner in the workplace. The Complainant argued that the Respondent should have sought a second opinion concerning his depression and whether it posed a risk to himself or others. Such an action by the Respondent would have been directed at determining whether the Complainant, in fact, posed a safety risk in the workplace, rather than at finding an accommodation that would permit him to perform his job despite his disability. Determining whether an employee has a disability which is reasonably related to his ability to perform the job is not, in and of itself, a form of reasonable accommodation, nor does an employer necessarily have to consult with an employee’s physician by way of providing a reasonable accommodation. Sampson v. S&S Distrib. (LIRC, 11/19/99).

Although, depending upon the circumstances, a reasonable accommodation might entail holding a job open for a disabled employee who is away from the workplace on a medical leave of absence, an employer cannot reasonably be expected to hold a job open indefinitely when there is no indication that the employee will ever be able to return to work. Lewandowski v. Galland Henning Nopak, Inc. (LIRC, 01/28/99).

The employer did not fail to reasonably accommodate a disability when it refused to allow the Complainant to miss regularly scheduled meetings since the Complainant refused to provide the Respondent with medical information establishing that she had a disabling condition that absolutely required that she attend therapy sessions at the times these meetings were scheduled. Carter v. Milwaukee Bd. of School Directors (LIRC, 08/16/99).

The purpose of the reasonable accommodation requirement is to enable employes to adequately undertake the job-related responsibilities. Target Stores v. LIRC and Crivello, 217 Wis.2d 1, 576 N.W. 2d 545 (Ct. App. 1998).

In cases where the employer is aware of the employe’s handicap and knows what type of accommodation the employe requires, it is reasonable to expect the employer to offer the accommodation even in the absence of a specific request from the employe. Target Stores v. LIRC and Crivello, 217 Wis.2d 1, 576 N.W. 2d 545 (Ct. App. 1998).

The employer’s obligation to accommodate an employe’s handicap is not a static one, but is affected by the information the employer has, which may change over time. Target Stores v. LIRC and Crivello, 217 Wis.2d 1, 576 N.W. 2d 545 (Ct. App. 1998).

The Respondent knew that the Complainant dozed off on the job as a direct result of her sleep apnea. Where the Respondent also knew that the Complainant was undergoing medical treatment to prevent her from dozing off, the accommodation which the Complainant required was clemency and forbearance. Given the Respondent's awareness that the Complainant had other treatment options if the first treatment was not effective, it should have refrained from firing her for "loafing" the next time it spotted her dozing. Target Stores v. LIRC and Crivello, 217 Wis.2d 1, 576 N.W. 2d 545 (Ct. App. 1998).

An employer need not accommodate an employee with respect to limiting hours of work. The Complainant’s job as county personnel director was inherently stressful and required him to work more than forty hours a week. The Respondent did not refuse to provide a reasonable accommodation for the Complainant’s disability (which required him to limit his stress level and to work no more than a forty hour week) where the job could not feasibly be modified to accomplish those goals. There was no reasonable accommodation available that would enable the Complainant to perform the job of personnel director despite his disability. Staats v. County of Sawyer (LIRC, 10/27/97), aff’d. sub nom. Staats v. LIRC (La Crosse Co. Cir. Ct., 08/21/98).

Where the Complainant requested and received a transfer to the position of booking clerk because he could not perform the responsibilities of his correctional officer position due to handicap, the Respondent had every reason to believe that it had arrived upon an accommodation that was satisfactory to the Complainant. The Complainant never told the Respondent that he was only interested in the booking clerk position on a temporary basis. Further, the Respondent's action in placing the Complainant on probation when he was transferred to the booking clerk position was non-discriminatory because the collective bargaining agreement plainly indicated that an employe transferring to a position which did not involve a pay increase was subject to a probationary period. Wall v. Outagamie County Sheriff's Dept. (LIRC, 01/26/95).

The Respondent demonstrated that the Complainant's handicap (kidney transplant) was reasonably related to the job-related responsibilities of his employment since, at least in the short term, it prevented him from performing any work. However, the Respondent failed in its burden of establishing that it could not have provided the Complainant with a reasonable accommodation for his handicap, which in this case would have been a continuation of a leave of absence for the Complainant. The question of whether a leave of absence is a reasonable accommodation will depend upon the specific facts in each case. A medical leave of absence might be considered a reasonable accommodation where there is some reason to believe that the leave of absence will assist the employe in achieving recovery and will ultimately result in the employe's ability to return to work. In this case, the Respondent did not establish any reason to believe that the Complainant's physical difficulties were permanent or that he would not be able to return to work in the foreseeable future. Janocik v. Heiser Chevrolet (LIRC, 11/21/94).

The law contains no requirement that an employe specifically request an accom-modation. In this case, there was no doubt that the Respondent was aware of the type of accommodation the Complainant required (an extension of his leave of absence). Janocik v. Heiser Chevrolet (LIRC, 11/21/94).

The question of whether a particular accommodation works a hardship on a specific employer is a factual determination that must be addressed on a case-by-case basis. In this case, the Respondent argued that accommodating the Complainant's handicap by allowing him to take a prolonged leave of absence would pose a hardship because his absence as a service advisor adversely affected its sales and its ability to provide customer service. However, the Respondent discharged the Complainant without attempting to ascertain if or when he would be able to return to work. It is possible that the Respondent could have absorbed the Complainant's absence or provided temporary coverage for the Complainant's position without hardship, particularly if it had known that the Complainant would be able to return to work in only two weeks' time. An employer cannot avoid liability under the Act merely by explaining that being short-staffed adversely affects its business, a proposition which generally goes without saying. The Wisconsin Fair Employment Act is to be liberally construed in order to achieve the broad goal of fostering to the fullest extent practicable the employment of properly qualified individuals, without regard to handicap. Janocik v. Heiser Chevrolet (LIRC, 11/21/94).

The issue of accommodation in a handicap case cannot be addressed unless the Complainant first establishes that he is handicapped within the meaning of the Wisconsin Fair Employment Act and that the employer was motivated by the Complainant's handicap in making the employment decision. In this case, the Complainant established that he was handicapped within the meaning of law, but he did not establish that the Respondent discharged him because of his handicap. Madaus v. International Stamping Co. (LIRC, 09/22/94).

If an employer offers an accommodation which effectively eliminates the conflict between the handicapped employe's abilities and the job requirements, and which reasonably preserves the affected employe's employment status, the accommodation requirement has been satisfied. In this case, the Complainant may have preferred a different kind of accommodation; however, the Respondent's actual treatment of the Complainant served to accommodate his handicap in a way that reasonably preserved his employment status. Norton v. City of Kenosha (LIRC, 03/16/94).

Where an employer failed to consider at the time a job applicant was rejected whether the job applicant's handicap could be accommodated, the employer may still avoid a finding of handicap discrimination if it can demonstrate at the hearing that it could not accommodate the applicant's handicap without an undue hardship. Charles v. Milwaukee Bd. of School Directors (LIRC, 06/23/93).

The scope for the accommodation of a handicap is much greater than the accommodation of religion because it is not unlawful to discriminate in favor of the handicapped or against the non- handicapped. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

The duty of accommodation does not require an employer to attempt to ascertain the existence of a handicap. In this case, a single OWI arrest is the only indication the employer had that the employe was alcohol dependent. Holding employers responsible for investigating handicaps that employes fail to disclose would give rise to serious potential problems of placing an undue burden on employers and invading employes' privacy rights. Thomas v. Department of Corrections (Wis. Personnel Comm., 04/30/93).

The Respondent was not required to accommodate the Complainant's handicap of depression by allowing her to take a leave of absence. Even assuming, arguendo, that a leave of absence without pay could be considered conceptually to be an accommodation under certain circumstances, it would not be considered a reasonable accommodation under the circumstances of this case, where the Complainant had a long-standing history of absenteeism, where she had been granted a prior leave of absence that did not resolve her problem, and where all of her absenteeism could not be attributed to her depression. Bell-Merz v. UW System (Wis. Personnel Comm., 03/19/93).

The duty of accommodation must be broadly interpreted to resolve the problem it was designed to address and be liberally construed to effectuate the policy and purposes of the Wisconsin Fair Employment Act. Most importantly, it requires that it is inappropriate to conclude as a matter of law that any particular kind of action is not required as an accommodation. Whether the creation of a part-time job for a full-time employe is a required accommodation depends upon the specific facts as to whether it is reasonable and whether it imposes a hardship for the employer. Communication problems and other inefficiencies associated with job sharing and increased total payroll costs may be hardships which make this accommodation unreasonable. An employer's speculation as to additional payroll costs and inefficiencies are not sufficient to establish a hardship. Gartner v. Hilldale, Inc. (LIRC, 05/12/92).

An employer had no duty to accommodate an employe's medical restrictions by creating a new position or discharging another employe where this would have been unreasonable and posed a hardship for the employer. Macara v. Consumer Co-op of Walworth County (LIRC, 02/14/92).

The Respondent has the burden of proof on the issue of reasonable accommodation. The Respondent failed to meet its burden when the evidence indicated that the Respondent failed to consider the possibility of moving the Complainant to another position. Schilling v. UW-Madison (Wis. Personnel Comm., 11/06/91).

If an employer offers an accommodation which effectively eliminates the conflict between the handicapped employe's abilities and the job requirements, and which reasonably preserves the affected employe's employment status, the accommodation requirement has been satisfied. In this case, the Respondent adequately attempted to accommodate the Complainant's handicap by offering to arrange with a safety shoe manufacturer for the special adaption of a safety shoe for the Complainant. The Complainant refused to cooperate with the Respondent's offer and failed to follow through by furnishing the shoe manufacturer with the orthotic device he wanted to insert into the shoes. Owen v. American Packaging Co. (LIRC, 02/01/91).

The employer has the burden of proving that it has satisfied its duty of accommodation. The Complainant is not required to show that he broached the issue of accommodation. Betlach-Odegaard v. UW-Madison (Wis. Personnel Comm., 12/07/90).

The word "refuse" in sec. 111.34(1)(b), Stats. means to decline to do something that is either requested or required by law. Betlach-Odegaard v. UW-Madison (Wis. Personnel Comm., 12/07/90).

Where a Division of Vocational Rehabilitation counselor testified that the Complainant could perform the job if certain accommodations were made and that such accommodations would be reasonable, and where the Respondent did not present evidence to the contrary, it was concluded that the Respondent failed to reasonably accommodate the Complainant's handicap. Betlach- Odegaard v. UW-Madison (Wis. Personnel Comm., 12/07/90).

An employer was not required to consult with the Complainant's doctor to determine whether there was some way to accommodate the Complainant's handicap prior to discharging the Complainant for poor performance. Kellow v. LIRC (Washington Co. Cir. Ct., 04/18/90).

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. Under the facts of the case, it is doubtful whether any accommodation would have been possible. Kellow v. Regal Ware (LIRC, 05/10/89), aff'd., Kellow v. LIRC, (Wash. Co. Cir. Ct. 04/18/90).

The Complainant, an attorney, failed to establish that he was handicapped. Even if he was handicapped, the accommodations he requested (reduced litigation, no difficult clients. or transfer to another division when no positions were open in the division) were not reasonable. Shevlin v. Office of the Public Defender (Wis. Personnel Comm., 04/17/90).

It is the Respondent's burden to prove it cannot reasonably accommodate the employe's handicap without imposing a hardship on the employer's business. Dushek & Watkins v. LIRC (Radloff) (Brown Co. Cir. Ct., 05/18/89)

The Respondent had attempted to accommodate the Complainant's alcohol problem by, among other things, counseling him and relieving him from some responsibilities. The Respondent would have attempted further accommodation but for the Complainant's denial of having any problem. Nelson v. Massey Ferguson (LIRC, 02/02/89)

The legislative intent and purpose of the reasonable accommodation statute is to encourage and foster, to the greatest extent practicable, the employment of all properly qualified individuals regardless of handicap. The employer's duty of reasonable accommodation may include a transfer of a handicapped employe to another position for which he is qualified, depending on the facts of each individual case. However, such a transfer would have to be reasonable and not pose a hardship on the employer's program, enterprise, or business. McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d. 830 (Ct. App. 1988).

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).

The employer's termination of an employe for excessive absenteeism was not handicap discrimination, even assuming that some of the absences were caused by a heart condition which was a handicap, where the employer uniformly required a certain minimum level of attendance on the job. If the Complainant's handicap actually prevented her from meeting that requirement, her handicap was reasonably related to her ability to adequately undertake the job related responsibilities of her employment. The only accommodation that would have been possible would have been for the employer to have tolerated less than adequate attendance, and the accommodation requirement does not require an employer to tolerate less than adequate performance of job related responsibilities. Gordon v. Good Samaritan Medical Center (LIRC, 04/26/88).

The requirement of accommodation of handicapped employes contained in the Wisconsin Fair Employment Act does not require an employer to reassign job duties or transfer a handicapped employe from their job to another job that they can do. However, where the employer regularly exercises a degree of flexibility in assignment of duties among a pool of employes, and in a particular case can do so without hardship in a way that allows the handicapped employe to avoid the job duties they cannot perform, the accommodation requirement is properly invoked. Harris v. Department of Health and Social Services (Wis. Personnel Comm., 02/11/88).

There was no probable cause to believe that the Complainant was discriminated against because of the handicap of alcoholism when he was terminated by the Respondent, where the evidence established that he was terminated for excessive absenteeism. Assuming for the sake of argument that the absenteeism was caused by his alcoholism and that the discharge was therefore, partially because of the alcoholism, the refusal of the Complainant to admit to the Respondent that he was an alcoholic and the lack of a genuine desire on the part of the Complainant to be successfully treated, meant that offering or requiring participation in the Respondent's Employee Assistance Program in lieu of termination was not a reasonable accommodation for his handicap. Neese v. Kohler Co. (LIRC, 10/21/87).

In 1978-80 the Complainant had a poor work record and frequent absences because of his alcohol abuse. The employer discharged him in mid-1980 after making efforts to accommodate his condition and to assist him with his alcohol problem through its Employee Assistance Program. The Complainant reapplied for employment with the Respondent in the fall of 1983, and was refused hire at that time. Assuming for the sake of argument that the Respondent failed to rehire him in 1983 because he was perceived to be an alcoholic, this did not constitute a violation of the Act. It would be unreasonable to require the Respondent to ignore the unsatisfactory results of its efforts to accommodate the Complainant's handicap and to require it to rehire the Complainant simply because he asserted that he had recovered from alcoholism. Hart v. Kohler Co. (LIRC, 09/04/87).

The issue of accommodation arises only after it has been determined that there was a handicap, that an employment decision was based on that handicap, and that the handicap is reasonably related to the Complainant's ability to do the job. Schaafs v. Schultz Sav O Stores (LIRC, 11/06/86).

Where the Complainant bus driver's physical handicap restricted her to driving buses with power steering, the Respondent adequately accommodated her handicap by allowing her to drive a bus with power steering, there being no change in the Complainant's rate of pay or other conditions of employment. The Respondent was not required to alter its assignment of buses so that the Complainant could also pick the route she drove. If an employer offers an accommodation which effectively eliminates the conflict between the handicapped employe's abilities and the job requirements, and which reasonably preserves the affected employe's employment status, the accommodation requirement has been satisfied. Hubbard v. Taylor Enter. (LIRC, 08/15/86).

Where the Complainant had been off work for more than eight months because of illness and had voluntarily requested an end to the employment relationship prior to his release from restrictions, and where the Respondent did not have a workload sufficient to justify rehiring the Complainant and where it would have had to terminate one of its existing employes, the duty of accommodation did not extend to requiring the Respondent to rehire the Complainant. Ellison v. Pomps Tire Service (LIRC, 08/08/86).

Even where the evidence shows that a Complainant's handicap is reasonably related to his ability to do the job, the employer still must prove that it did not refuse to reasonably accommodate the handicapped. Ward v. Hydrite Chemical Co. (LIRC, 08/08/86).

Where a Respondent refused to rehire an employe because of his handicap, and the handicap was related to the Complainant's ability to perform certain tasks, the Respondent still could have employed the Complainant in the labor pool position which he sought without any disruption of the work assignment process which prevailed for employes in labor pool positions, without a hardship to its business within the meaning of the accommodation requirement of the Act. Consolidated Papers v. LIRC (Kappell) (Ct. App., Dist IV, unpublished decision, 04/17/86).

Where the Complainant was physically unable to perform the full range of duties of his position as an assistant manager, increased labor costs and interference with the Respondent's training program justified the Respondent's discharge of the Complainant and its refusal to continue to allow the Complainant to perform office work outside of his regular duties. Haman v. Witlock Auto Supply (LIRC, 11/22/85).

Prior to the 1982 amendments, the Wisconsin Fair Employment Act imposed no duty on an employer to accommodate the handicaps of its employes or job applicants. Mittlestad v. LIRC (City of Appleton) (Ct. App., Dist. III, unpublished decision 10/08/84); Christianson v. LIRC (City of Eau Claire) (Eau Clare Co. Cir. Ct., 03/02/83); Champion v. City of Milwaukee (LIRC, 10/07/83); Kirch v. LIRC (Germania Dairy) (Ct. App., Dist. IV, unpublished decision, 08/28/84).

[Ed. note: The following cases were decided under the theory, then prevailing, that prior to the 1982 amendments, the Act did impose a duty of accommodation of handicaps.]

The duty to accommodate does not include utilizing other employes to actually perform a job duty for the handicapped individual, or transferring the handicapped individual to a different position. McFayden v. MEOC (University Book Store) (Dane Co. Cir. Ct., 11/15/82).

Although the Act does not dictate which reasonable accommodation an employer must make if there are alternatives available, an accommodation which enabled the handicapped employe to perform in a merely passable manner might be unreasonable if a different accommodation which enabled the person to perform on a par with non-handicapped employes was available. Where a Complainant who taught biology, driver's and physical education became blind, his employer could have reasonably accommodated him by hiring adult aides at a de minimus cost ($500 to $700 a term). Fischer v. DILHR (Alma Schools) (Dane Co. Cir. Ct., 02/09/79)

An employer's failure to make a reasonable accommodation can be considered raised by a complaint which charges the employer with handicap discrimination even where the complaint did not specifically allege such a failure. In addition, the investigation of a handicap discrimination complaint by DILHR must include a determination of whether a prudent person might believe that there has been a failure to reasonably accommodate a handicapped individual. Teggatz v. LIRC (DHSS) (Dane Co. Cir. Ct., 08/18/78).

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123.6 Disability discrimination; Proof of medical facts [See also, section 651]

Generally, a complainant lacks the competence to express an opinion about the nature, extent and permanence of a medical condition; the hearsay medical documents in evidence did not add up to a coherent description of the complainant's impairment. Mueller v. Chart Energy & Chemicals, Inc. (LIRC, 01/15/2015).

The Commission has often endorsed the view that competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. However, an administrative law judge should not peremptorily refuse to consider medical records simply because they are not certified or are not strictly competent. The prudent course is to consider and evaluate all relevant and material evidence in view of all of the surrounding facts and circumstances, notwithstanding that it may be technically hearsay. Hendon v. Wisconsin Bell, Inc. d/b/a AT&T (LIRC, 11/13/14); Aff'd, Hendon v. LIRC, Milwaukee Co. Cir Ct.., 08/12/2015.

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).

Uncertified medical records are admissible in proceedings under the Wisconsin Fair Employment Act. However, the letter submitted by the Complainant in this case constituted uncorroborated hearsay evidence. The letter (which the Complainant introduced to establish that she is an individual with a disability) was on the letterhead of a medical provider; however, it was unsigned and unauthenticated. The letter purported to have been created four years prior to the Complainant's employment by the Respondent, so it could not describe the status of the Complainant's medical condition during the time of her employment with the Respondent. Further, the letter did not address the permanence of the Complainant's medical condition. An ultimate or crucial finding of fact may not be based solely on uncorroborated hearsay evidence. Since the finding as to the existence of a disability in this case would be an ultimate or crucial finding, this letter was insufficient to support such a finding. Rybicki v. DJ Convenience (LIRC, 08/20/10).

Although the Court of Appeals in Rutherford v. LIRC, 2008 WI App 66, 309 Wis. 2d 498, 752 N.W.2d 897, held that medical records could not be excluded from Chapter 227 administrative hearings simply because they were not certified, the Court did not deal directly with the issue of the probative value of documents created by a medical provider and received into the hearing record if they were not authenticated either through certification or through the testimony of the provider. Any medical opinion stated in such a document would constitute hearsay evidence. Savaglio v. LeBlanc Inc. (LIRC, 01/30/09).

It was error for an Administrative Law Judge to exclude medical records solely on the basis that they lacked certification. However, in this case, even if the Administrative Law Judge had not excluded medical records because they lacked certification, the disputed records would not have been sufficient to warrant a conclusion that the Complainant had a disability within the meaning of the Wisconsin Fair Employment Act. The medical documents consisted of an X-ray report, a memo from the Complainant?s family practice doctor, an unsigned and difficult-to-read medical report, and general instructions about post-surgical care. These documents suggested that the Complainant was suffering from neck, shoulder and back pain. However, they did not indicate that the Complainant had been diagnosed with any permanent medical condition that would constitute a disability. Thoreen v. Fabco Equipment (LIRC, 11/25/09).

Where the existence of a disability is in dispute, the Complainant must present competent medical evidence establishing the nature, extent, and permanency of an impairment. The only medical evidence the Complainant presented in this case was uncertified memos and reports prepared with respect to his worker's compensation injuries. He provided no non-hearsay medical evidence showing what tests were performed and what diagnosis was reached. The Complainant contended that the expense of bringing a doctor to a discrimination hearing is burdensome to Complainants, who are often with limited means. The Complainant suggested that there should be a standard medical form which could be used for discrimination hearings. However, a Complainant can meet his burden of establishing a disability through presentation of certified medical documents or documents with 'other circumstantial guarantees of trustworthiness.' Tschida v. UW-River Falls (LIRC, 12/30/08).

An Administrative Law Judge improperly refused to admit or consider uncertified copies of medical records which the Complainant wished to introduce at hearing. Chapter 227, Stats., requires very relaxed rules of evidence in administrative proceedings. Further, there is no administrative rule which requires the submission of certified copies of medical records. In excluding the uncertified copies, the Administrative Law Judge made no analysis of the factors governing admissibility of evidence in these hearings, which are provided by statute. The Complainant should have been permitted to introduce her treating doctor’s opinion that she had a permanent disability, where that opinion was stated in his treatment records, even though the Complainant had not been able to get certified copies of the records. Rutherford v. LIRC & Wackenhut, 2008 WI App 66, 309 Wis. 2d 498, 752 N.W.2d 897.

In order to establish that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act, the Complainant must present competent medical evidence to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. 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 for her or limited her capacity to work. As a result, the fact that the Complainant’s treating physician rendered a diagnosis that she suffered from migraine headaches, or suffered the symptoms of tendonitis, would be insufficient alone to establish the existence of a disability. There was no competent medical evidence in the record to establish that the Complainant’s tendonitis was permanent. The medical evidence with respect to migraine headaches indicated that the condition was permanent, but that it did not create any restrictions which would impede the Complainant’s ability to perform her assigned duties. Thus, the Complainant failed to sustain her burden to prove that she qualified as an individual with a disability. Fields v. UW Hospitals & Clinics Authority (LIRC, 02/12/07).

The Complainant asserted that she had various limitations in her ability to work. However, she did not have a physician testify about her alleged limitations, nor did she present any medical documentation to substantiate her alleged limitations. Absent competent medical evidence of the nature, extent, or permanency of her condition, the Complainant could not prove that she had a disability. Kubiak v. Child and Family Consultants of Green Bay (LIRC, 01/19/07).

To demonstrate that a disability exists under the Wisconsin Fair Employment Act, the Complainant must present competent evidence of a medical diagnosis regarding the alleged impairment. Erickson v. LIRC (Ct. App., Dist. II, unpublished decision, 08/03/05)

The medical evidence of record generally consisted of return-to-work slips, FMLA forms completed by the Complainant’s treating physicians, and a letter summarizing the results of an independent medical examination. The physicians who ostensibly authored these documents did not testify at hearing and, as a result, these documents were uncorroborated hearsay evidence. The documents were not certified, and had no other circumstantial guarantees of trustworthiness sufficient to qualify for application of the hearsay exception set forth in sec. 908.03(24), Stats. As a result, the Complainant failed to show by competent medical evidence the existence, nature, extent, or permanence of any impairment. The Complainant’s testimony that she suffered a heart attack from which she had not fully recovered and that she was diagnosed with diabetes was not sufficient, without more, to satisfy this burden. Moreover, even if competent medical evidence establishing the existence of a cognizable impairment were a part of the record, the evidence did not show that the Complainant’s diabetes or heart condition placed a substantial limitation on a major life activity or on her capacity to work. Seil v. Dairy Farmers of America (LIRC, 08/26/05)

The Complainant failed to show by competent medical evidence that she suffered from an actual impairment within the meaning of the Wisconsin Fair Employment Act. The records that the Complainant submitted at hearing were ostensibly prepared by physicians who did not testify at hearing. As a result, these documents were uncorroborated hearsay evidence. The documents were not certified, and they had no other circumstantial guarantees of trustworthiness sufficient to qualify for application of the hearsay exception set forth in sec. 908.03(24), Stats. There was, however, evidence that the Respondent perceived the Complainant as an individual with a disability. Wodack v. Evangelical Lutheran Good Samaritan Soc. (LIRC, 08/05/05); aff'd sub nom. Wodack v. LIRC (Door Co. Cir. Ct., 03/07/06)

Competent medical evidence is required to establish the existence, nature, extent, and permanency of an impairment, if the impairment is disputed as a matter of fact. In this case, the Respondent disputed that the Complainant was an individual with a disability within the meaning of the Wisconsin Fair Employment Act. However, it was not clear whether the Respondent was disputing that the Complainant was diagnosed with osteoarthritis (the claimed disability), or the nature, extent, or permanency of the condition. Moreover, even if the evidence the Complainant could have offered at hearing would have been insufficient to establish the existence of an actual impairment, he may have been able to establish that the Respondent had reason to perceive him as being disabled. In her statements on the hearing record, the Administrative Law Judge appeared to be under the impression that no duty of reasonable accommodation arises as a result of a perceived disability. However, given the unsettled nature of the law in this regard, it was inappropriate for the ALJ to grant the motion to dismiss the complaint on this basis. Grell v. Bachmann Constr. (LIRC, 07/15/05)

Medical treatment is sought for conditions which are disabling as well as for conditions which are not, and the mere fact that an individual sought medical treatment for a condition is insufficient to support a conclusion that this condition necessarily constituted a disability. In this case, the Complainant failed to offer any competent medical evidence establishing that his foot condition placed a substantial limitation on his life functions or activities during the period of his employment for the Respondent. The Complainant also failed to offer competent medical evidence to establish that his foot condition limited his capacity to work. Lester v. Compass Group USA (LIRC, 03/22/05).

Although the Respondent did not dispute that the Complainant had been treated for a neck and back injury and for carpal tunnel syndrome, the Complainant was required to offer competent medical evidence as to the nature, extent, and permanence of these conditions in order to sustain his burden to prove that these conditions constituted impairments within the meaning of the Wisconsin Fair Employment Act. Cramer v. Woodman’s Food Mkt. (LIRC, 01/14/05).

While it may not be necessary to have physician testimony in every instance, a party must present some competent evidence of disability. In this case, there was nothing to suggest that the Complainant attempted to submit a doctor's statement at the hearing, and the only evidence related to his alleged impairment came from the Complainant and his wife. Even assuming that the Complainant had presented competent evidence of a physical impairment, he failed to adequately explain how or whether that impairment made achievement unusually difficult for him or limited his capacity to work. Nor did he demonstrate that the Respondent perceived him as having such an impairment. Snyder v. Copps Foods Center (LIRC, 10/13/04).

The testimony of the Complainant, a layperson, could not suffice as proof that she actually had particular medical conditions. Expert testimony must be adduced concerning matters involving special knowledge, skill or experience on subjects which are not within the realm of the ordinary experience of mankind. An employee will be found to have failed to establish that she actually had an impairment constituting a disability where she fails to introduce sufficient expert medical evidence to establish that point. Green-Brown v. Midwest Express Airlines (LIRC, 09/16/04).

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, 704 N.W.2d 398.

The Complainant failed to sustain his burden of proving that he had been diagnosed with carpal tunnel syndrome or shoulder tendonitis. He offered no competent medical evidence to this effect. The only evidence he offered was his own hearsay testimony that he had obtained this diagnosis from a physician. Moller v. Metavante (LIRC, 11/13/03).

A drinking or alcohol abuse problem may or may not be a disability, depending on whether it has progressed to the state that it is non-volitional. Establishing that such a non-volitional condition exists requires that the Complainant introduce competent, expert medical evidence to this effect. Schleicher v. County of Dodge (LIRC, 10/17/03).

The Complainant failed to show probable cause to believe that he was suffering from a disability in 1999 (a pinched nerve in his kidneys which caused him to have to wait five or six minutes for his urine to flow). The Complainant only offered a hearsay document that purported to show the results of a test concerning urine flow in 1997. He offered no expert interpretation of the 1997 test, no medical evidence of the extent of the injury or its degree of permanence, and no medical evidence regarding his condition in 1999. (Alternatively, even assuming the Complainant was suffering from a disability, he failed to provide reason to believe that the Respondent treated him adversely because of a real or perceived impairment). Thompson v. Ashley Furniture Indus. (LIRC, 07/16/03).

Where there is conflicting medical evidence, the finder of fact determines which view of the evidence it will accept. Gramza v. Kwik Trip, Inc. (LIRC, 02/20/03).

The Complainant submitted sufficient competent evidence to warrant a conclusion that she suffers from carpal tunnel syndrome. She submitted a signed "Physician’s Statement of Disability," in which her attending physician certified that she was hospitalized with bilateral carpal tunnel syndrome. In addition, she submitted two different independent medical evaluations, both showing a diagnosis of carpal tunnel syndrome. These reports, while not certified, had sufficient circumstantial guarantees of trustworthiness so as to fall under the hearsay exception contained in Sec. 908.03(24), Wis. Stats. Jones v. United Stationers (LIRC, 01/25/01).

An Administrative Law Judge concluded that while the Complainant testified about some effects he experienced as a result of bipolar disorder, he failed to present expert medical evidence at the hearing which supported a conclusion that his condition constituted a disability. However, prior to the issuance of the ALJ’s decision in this matter there does not appear to have been any question that the Complainant’s bipolar condition constituted a disability. Also, at the hearing itself it was never contested that the Complainant had a disability. The various features of bipolar disorder as described in a standard medical text indicates that a bipolar disorder could very well substantially limit a major life activity, and/or limit the Complainant’s ability to perform the job in question. Chaffee v. Wyalusing Academy (LIRC, 09/27/00).

Even assuming that a pamphlet describing the disability suffered by the Complainant was accepted as "expert testimony" regarding the nature and manifestations of the condition, the pamphlet did not provide direct evidence as to whether the Complainant’s behavior was influenced by his disability under the fact situation which lead to his discharge. Expert testimony was required to establish that the conduct which formed the basis for the employer’s action in terminating the Complainant’s employment was caused by his disability. Wal-Mart Stores v. LIRC and Schneider, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633 .

Even though the Complainant suffered from the disease of obsessive compulsive disorder (OCD), he was not an "expert" on OCD, since there is no indication in the record that he possessed scientific, technical or other specialized knowledge that would qualify him to give an expert opinion on whether certain behavior was caused by his OCD. Wal-Mart Stores v. LIRC and Schneider, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633 .

Expert testimony should be adduced concerning matters involving special knowledge, skill or experience on subjects which are not within the realm of the ordinary experience of mankind. Expert medical testimony was required to establish that the Complainant’s vociferous reaction to the announcement that another employee was being promoted to a position for which he had sought promotion was caused by his obsessive compulsive disorder (OCD). Without expert medical testimony, the Department would be speculating as to whether a causal link existed between the Complainant’s disability and the conduct which triggered his ultimate discharge. Wal-Mart Stores v. LIRC and Schneider, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633.

In a disability discrimination case, the Complainant can be ordered to execute a medical records release as part of the discovery process. Michalzik v. Time Ins. Co. (LIRC, 01/16/98).

An expert medical witness was not necessary to establish that a Complainant was handicapped where the Complainant had an accident at a previous job and where she had been off of work for about a year. These facts, plus the fact that the Complainant was seeing a doctor and that she was wearing a TENS unit, were things about which the Complainant was competent to testify herself. Swanson v. State Street Stylists (LIRC, 11/26/97).

The evidence at hearing did not establish that the Complainant was an alcoholic and, thus, handicapped within the meaning of the Wisconsin Fair Employment Act since no expert medical opinion by a physician was presented. The only evidence in the record regarding alcoholism was assessment reports from Department of Human Services personnel showing that the Complainant suffered from "alcohol abuse," and suspected alcohol dependency." Hansen v. AKZO (LIRC, 03/23/94).

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. Wollenberg v. Webex, Inc. (LIRC, 11/08/91).

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).

The Respondent's general standard precluding employment of persons with certain vision deficiencies 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. 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).

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

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).

Since alcoholism is a disease, its diagnosis is a matter of expert medical opinion by a physician and not by a layperson. Connecticut Gen. Life v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979).

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).

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).

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).

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, 5/15/75).

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123.9 Disability discrimination; Miscellaneous

123.9 An independent medical examiner characterized his opinion that the Complainant was discharged for 'medical reasons' as a medical one. However, in the absence of any evidence that the Complainant had an impairment which caused him to be involved in accidents, the IME's opinion was a personal judgment that the Complainant was an unsafe, accident-prone worker. That the Respondent adopted the IME's language and characterized the discharge as being for 'medical reasons' did not alter the fact that the discharge was due to reasons not directly related to a medical problem. Tschida v. UW-River Falls (LIRC, 12/30/08).

A driver need not seek a determination of medical qualification from the Department of Transportation (DOT) prior to filling a disability discrimination claim under the Wisconsin Fair Employment Act. When a person's medical and physical qualifications to be an interstate commercial driver are material to a claim under the Wisconsin Fair Employment Act, and a dispute arises concerning those qualifications that cannot be resolved by facial application of the DOT regulations, such a dispute shall be resolved by the DOT under its dispute resolution procedure. The carrier, not the driver, is the party that must seek a determination of medical and physical qualification from the DOT if the carrier intends to offer a defense that the driver was not qualified for medical reasons. Szleszinski v. LIRC, Midwest Coast & Transhield, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

The Respondent violated its own no-fault attendance policy in terminating the Complainant. The Respondent's policy allowed its employees 15 days from the date of receipt of a form letter (which indicated that the employee would need to submit a completed FMLA form to ensure that his absences were not counted as an occurrence) to submit FMLA documentation to ensure that a medically-related absence would not be counted as an 'occurrence' under the Respondent's no-fault attendance policy. In this case, the Respondent gave the Complainant only two days from the date it provided him with the form letter to submit the FMLA form to ensure that the absence was not counted as an 'occurrence' before terminating him. Because the Respondent did not follow the requirements of its own no-fault attendance policy in terminating the Complainant, it could not claim the protection that might be available to it under the policy. The Complainant had not accrued the requisite number of 'occurrences' necessary for termination. The Respondent was aware that the Complainant was receiving medical treatment for migraine headaches when it terminated him. Based on these unique circumstances, the Complainant was terminated 'because of' his disability. Stoughton Trailers v. LIRC & Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

The Supreme Court declined to address the issue of whether a termination for exceeding the maximum number of absences permitted under a no-fault attendance policy is because of disability under the Wisconsin Fair Employment Act when some of the absences were caused by disability and others were not, since it was not necessary to decide this legal issue in this particular case. Stoughton Trailers v. LIRC & Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

Use of the mixed motive test in analyzing a claim of discrimination does not prevent an employer from applying its "no fault" attendance policy to an employee who is absent for reasons not related to a disability. Not all absences are related to a person's disability. Not every illness is a disability within the meaning of the statute. Similarly, just because a disabled person is absent does not mean that the absence is necessarily due to the person's disability, thereby triggering reasonable accommodation requirements. An employer may continue to apply its "no fault" attendance policy as long as the policy does not result in an adverse employment action taken because of an employee's disability, and as long as the policy is otherwise compliant with the law. In this case, the Complainant was discharged, in part, because of absences caused by his disability and, in part, because of absences not caused by his disability. His discharge would not have occurred but for his last two absences, which were caused by his disability. Stoughton Trailers v. LIRC, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102; aff'd, Stoughton Trailers, Inc. v. LIRC and Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W. 2d 477.

At some point the application of a "no-fault" attendance policy to a person who is experiencing absences caused by a disability will constitute taking action against that person "because of" a disability. However, in some cases the mere presence of some disability-caused absences in an overall, accumulated record of absences will not be significant enough to justify the conclusion that adverse action pursuant to a "no-fault" attendance policy is taken "because of" disability. There is no bright-line rule as to where these different points fall. Geen v. Stoughton Trailers (LIRC, 08/31/00), rev'd. sub nom. Geen v. LIRC et al. (Dane Co. Cir. Ct., 08/09/01) modified and remanded sub nom. Geen v. LIRC and Stoughton Trailers, 2002 WI App 269 , 258 Wis. 2d 498, 654 N.W.2d 1. (decision on remand, Geen v. Stoughton Trailers (LIRC, 09/11/03); aff'd sub nom. Stoughton Trailers Inc. v. LIRC and Douglas Geen (Dane Co. Cir. Ct., May 13, 2004); aff'd., Stoughton Trailers v. LIRC & Geen, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102; aff'd, Stoughton Trailers, Inc. v. LIRC and Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W. 2d 477.

The discharge of an employee because of disability after a potential business partner of the employer demanded it as a condition of entering into partnership with the employer was discriminatory. Swanson v. State Street Stylists (LIRC, 11/26/97).

The Complainant, who was employed as an interstate truck driver for the Respondent, has diabetes mellitus. When the Complainant underwent a physical examination to obtain certification required by the Department of Transportation, a physician indicated that he had an unacceptable level of glucose in his urine. Under sec. 391.41 of the Federal Motor Carrier Safety Regulations, indications of uncontrolled diabetes disqualify an individual from operating a motor vehicle. Consequently, the Respondent would not permit the Complainant to drive until he got this blood sugar level under control. The Complainant subsequently saw another doctor, who considered his blood sugar level to be acceptable and certified him as qualified to drive. The Respondent refused to accept this certification. Sec 381.47 of the Federal Motor Carrier Safety Regulations provides a resolution mechanism for disputes regarding medical evaluations. The 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 Co. (LIRC, 12/13/94).

The Complainant was not unlawfully discharged because of poor eyesight; she was discharged because the Respondent reasonably believed that she had not been honest when responding to questions about her medical condition. A Respondent need not be correct in its assessment that a Complainant falsified her medical statement; it need only have acted upon a good faith belief that she had. Plears v. Perlick Corp. (LIRC, 02/12/93).

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 Complainant filed a complaint of handicap discrimination based upon the Respondent's removal of its uncorrected vision standard, under which the Complainant had qualified for certification to the list of people to be considered for a conservation warden position. The complaint did not constitute a claim under the Wisconsin Fair Employment Act, but the Complainant was given thirty days to amend the complaint to allege that the Respondent's deletion of the uncorrected vision standard was motivated by an intent to discriminate. Wood v. DNR (Wis. Personnel Comm., 05/18/89).

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123.9 Disability discrimination; Miscellaneous

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123.9 Disability discrimination; Miscellaneous

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