Vol. 77, No. 10, October 2004

The Scope of Disability Law in Wisconsin

Sidebars:

• ADA and WFEA: Differing Disability Protections

by Meg Vergeront & Drew J. Cochrane

n what has been called both a "major court victory" for disabled workers¹ and a development that "threatens Wisconsin's economy,"² the Wisconsin Supreme Court recently decided two cases that significantly affect the rights of disabled workers in Wisconsin. In Crystal Lake Cheese Factory v. LIRC,³ the court held that the Wisconsin Fair Employment Act (WFEA) may require an employer to reassign the job duties that a disabled employee is unable to perform because of her disability.⁴ In Hutchinson Technology Inc. v. LIRC,⁵ the court held that the WFEA may require an employer to alter an employee's work schedule by permanently shortening her work shift in order to accommodate her disability.⁶

Importantly, the court did not limit an employer's obligation to accommodate a disabled employee only to situations in which the employee's nonessential job functions were being affected.⁷ As a result, employers may now be obligated to reassign even those duties that make up the essence of the job the disabled employee holds.⁸

This article first examines the court's holdings in Crystal Lake and Hutchinson. It then discusses some of the significant practical effects of the decisions. For example, the decisions make it clear that Wisconsin employees now have much greater rights under the WFEA than they typically do under the federal Americans with Disabilities Act (ADA). The ADA has long provided that employers need not reassign essential job functions or alter an employee's work schedule if an employee's disability leaves the employee unable to perform the "essential duties" of a job either with or without a reasonable accommodation.⁹

Wisconsin law will almost certainly dictate a different result. Under Crystal Lake and Hutchinson, employees who are unable to perform the essential functions of the job will not be immediately excluded from the WFEA's protections. As a result, the decisions will probably increase the ability of disabled persons to bring an effective cause of action under the WFEA.

In Wisconsin, the pertinent legal analysis will now focus on whether the proposed accommodation is reasonable and, if so, whether it creates a hardship on the employer. The relative dearth of case law defining these terms will create difficulties for employees, employers, and the courts alike. As a result, the decisions will undoubtedly increase the uncertainty of litigation as administrative tribunals and courts try to determine when the proposed accommodation is reasonable and, if so, whether it nonetheless imposes a hardship on the employer.

Crystal Lake: Facts and Background

Susan Catlin worked in Crystal Lake Cheese Factory's wholesale department.¹⁰ The wholesale department consisted of four positions: department head, cheese cutter, cryovacer, and labeler.¹¹ The company required all department employees to be trained to perform all four positions.¹² Catlin was hired initially as the cheese cutter but was later promoted to department head.¹³

Fifteen months after Catlin was hired, she was involved in a car accident that left her a quadriplegic.¹⁴ She eventually regained partial use of both of her arms, but she still needed to use a wheelchair.¹⁵ Ten months after the accident, she asked to be returned to her position as department head.¹⁶

Crystal Lake hired an expert to determine what types of reasonable accommodations might be provided to permit a person confined to a wheelchair to perform the duties of Catlin's position.¹⁷ The company did not give the expert any information about Catlin other than that she was confined to a wheelchair, nor did the expert ever talk to Catlin about her limitations. The expert ultimately concluded that no reasonable accommodation existed, because Catlin would be unable to perform all of the job duties within the department. That is, she would not be able to perform all duties required of all department employees.¹⁸

Catlin's own expert agreed that she would be unable to perform some of the duties of the position.¹⁹ Her expert, however, found that she would be able to perform most of the required duties and that one way to accommodate Catlin would be to make her job more clerical and eliminate some of the physical duties she could not perform.²⁰

Crystal Lake relied on the conclusions of its expert and ultimately denied Catlin's request to return to work. Catlin filed a disability discrimination claim with the Wisconsin Equal Rights Division.²¹ An administrative law judge determined that Crystal Lake did not discriminate against Catlin, because there was no reasonable accommodation that Crystal Lake could have made without imposing a hardship on the company.²² The Labor and Industry Review Commission (LIRC) reversed.²³ LIRC determined that Catlin was able to perform some or most of the jobs in the department and that Crystal Lake failed to reasonably accommodate Catlin when it refused to modify Catlin's job duties to exempt her from performing the duties she could no longer perform.²⁴ The circuit court and the Wisconsin Court of Appeals affirmed LIRC's determination.²⁵

Crystal Lake: Supreme Court Decision

Affirming LIRC's decision, the supreme court began its analysis with a brief overview of the WFEA disability discrimination provisions. The court first noted that to prove discrimination under the WFEA, an employee must show that she is an individual with a disability and that she has suffered an adverse employment action because of her disability.²⁶ If a complainant does so, the burden shifts to the employer to prove either that 1) the complainant is, because of her disability, unable to "adequately undertake the job-related responsibilities" of the job she holds, even with a reasonable accommodation,²⁷ or 2) any reasonable accommodation that might exist creates a hardship for the employer.²⁸

In Crystal Lake, the employer conceded that Catlin was disabled and that it refused to rehire her based on her disability.²⁹ The case therefore turned on the job relatedness and hardship questions: whether Catlin was able to undertake the job-related responsibilities of her job with a reasonable accommodation and, if so, whether the accommodation constituted a hardship.³⁰ Crystal Lake argued that it was unreasonable to require an employer to excuse an employee from any and all of the duties she could no longer perform - essentially creating a new job - as a means of accommodating a disability.³¹

The court disagreed, ruling that reasonable accommodations are not limited to those accommodations that would permit the employee to perform all of his or her job responsibilities.³² In so ruling, the court gave no consideration to whether the duties at issue were essential or nonessential to the position for which the complainant had been hired. As a result, in situations in which an employee can perform some or most of the duties of her job, reassignment of even key job duties may well be a reasonable accommodation. The court then held that reassignment was in fact reasonable in Catlin's case because the duties she could not perform could be divided among the three other employees, permitting Catlin to focus on those duties she could perform.

Hutchinson Technology: Facts and Background

Hutchinson operated a manufacturing plant in Eau Claire, Wis.³³ The plant was open 24 hours a day, seven days a week.³⁴ Hutchinson had four crews that worked rotating 12-hour shifts.³⁵ Using this schedule, each Hutchinson employee worked a total of 84 hours every two weeks.³⁶

The plaintiff, Susan Roytek, began her employment with Hutchinson in June 1998.³⁷ Roytek's position required her to work a 12-hour shift, rotating through four types of work: inspection, shearing, book work, and work in the bay.³⁸ Roytek worked the 12-hour shift for approximately three months until mid-September 1998, when she was diagnosed with lower back pain and took a medical leave of absence.³⁹

When Roytek returned to work in November 1998, she gave Hutchinson a note from her treating physician indicating that she could only work six hours a day and that she could not lift anything weighing more than 20 pounds.⁴⁰ In January 1999, Roytek's work restrictions were amended to allow her to work an eight-hour shift, although she was still limited to performing only one of her original four job functions.⁴¹

Hutchinson allowed Roytek to work a modified shift on a temporary basis but terminated her in September 1999 when it learned that her eight-hour-per-shift work restriction was permanent.⁴² Roytek then brought suit, claiming that her termination constituted disability discrimination under the WFEA.⁴³

LIRC sided with Roytek, determining that reducing the employee's shifts from 12 to eight hours was a reasonable accommodation that did not create a hardship for the employer. Quoting Crystal Lake, the Wisconsin Court of Appeals upheld LIRC's determination in an unpublished decision, saying succinctly that "[a] change in job duties may be a reasonable accommodation in a given circumstance."⁴⁴

Hutchinson Technology: Supreme Court Decision

The Wisconsin Supreme Court affirmed the court of appeals. The supreme court first held that Roytek was "disabled" under the WFEA, because she had an actual or perceived impairment that made, or was perceived as making, achievement unusually difficult or that limited her capacity to work.⁴⁵ Accordingly, she was considered an "individual with a disability" under the WFEA.

The court then considered whether the accommodation suggested by Roytek - that she be allowed to work eight-hour instead of 12-hour shifts - was reasonable and whether it imposed a hardship on Hutchinson.⁴⁶ Because Roytek's disability allowed her to perform only one of the four positions required by her job, Hutchinson maintained that the proposed accommodation required it to create an entirely new job for her.⁴⁷ This, Hutchinson argued, posed a significant hardship that employers should not be required to bear.⁴⁸ Roytek countered that she had been working eight-hour shifts for a significant period with no apparent complications and, thus, Hutchinson could not meet its burden of showing that the accommodation was unreasonable or posed a hardship.⁴⁹

The court sided with Roytek, holding that she met her initial burden of establishing the reasonableness of her proposed accommodation and that Hutchinson did not establish that it could not reasonably accommodate Roytek's disability without any significant difficulties or hardship to its business.⁵⁰

Significance of the Supreme Court's Decisions

Vergeront

Cochrane

Meg Vergeront, U.W. 1993, is a partner at Stafford Rosenbaum LLP, Madison. Her practice focuses on helping employers find common-sense solutions to day-to-day workplace problems they face, from hiring to firing and everything in between. She can be reached at mvergeront@staffordlaw.com.

Drew J. Cochrane, U.W. 1999, is a senior associate at the firm, focusing on labor and employment law and litigation. He can be reached at dcochrane@staffordlaw.com.

Under the court's rulings in Crystal Lake and Hutchinson, employers must give consideration to reassigning any duty that a disabled individual cannot perform because of the disability, if the employee can perform even some of the job's other duties. The court's failure to expressly limit this obligation to nonessential duties creates several issues for Wisconsin lawyers.

As an initial matter, the failure to limit the obligation to nonessential duties is a substantial departure from what has typically been considered the law of disability discrimination in this country. Federal courts have routinely held that the ADA's reasonable accommodation requirement does not require an employer to eliminate or reassign essential job duties, create a new job, or hire others to perform the essential functions that a disabled employee cannot perform.⁵¹ Under Crystal Lake and Hutchinson, the ADA's essential functions test has no relevance to cases brought under the WFEA.

While the language of the WFEA does not include the exact essential functions language used in the ADA, the WFEA does state that an accommodation is reasonable only if it allows a disabled individual to "adequately undertake the [person's] job-related responsibilities."⁵² The court apparently has chosen to downplay the significance of this language because, in both cases, the court held to be reasonable accommodations that forced the employers to reassign and excuse the disabled employee from having to undertake what clearly are job-related responsibilities. The court's willingness to downplay the job-related responsibilities test is bound to create confusion as employers and employees - and the attorneys who counsel them - struggle to determine how the court's rulings will apply in practice.

While the majority opinion in Crystal Lake stated that Wisconsin law has never applied an essential functions-type test,⁵³ the case law does not necessarily support the court's position. For example, in McMullen v. LIRC,⁵⁴ LIRC itself argued that "the duty to accommodate an employee's handicap under the WFEA ... does not require an employer to transfer the employee to a different job."⁵⁵ Thus, it seems clear that an employee's ability to perform the position's job-related responsibilities used to merit at least some consideration. After Crystal Lake and Hutchinson, this may no longer be the case.

Accordingly, while the question of how the WFEA's disability provisions have historically been interpreted may be open to debate, Crystal Lake and Hutchinson clearly strengthen the ability of disabled persons to bring causes of action under the WFEA. The law in Wisconsin is now clear that, under the WFEA, disabled persons may pursue discrimination claims even if they are not able to perform the position's key job-related responsibilities.

Another practical effect of the Crystal Lake and Hutchinson decisions is that the litigation of WFEA disability claims will now focus on the vague questions of whether an accommodation is "reasonable" and whether the accommodation would pose a "hardship" to the employer. The WFEA does not define these terms, nor has the case law helped to clarify the amorphous nature of these terms. For example, in Target Stores v. LIRC,⁵⁶ the court of appeals found that it was unreasonable to terminate an employee with sleep apnea before determining if treatment could correct the problem despite the fact that the condition made it impossible for the employee to perform all the job functions. Conversely, in Gordon v. Good Samaritan Medical Center,⁵⁷ LIRC held that the reasonable accommodation requirement does not require the employer to retain the employee and tolerate less than adequate attendance if an employee's disability causes the employee to be absent excessively. The court did not do much to help define these terms in either Crystal Lake or Hutchinson. While the decisions give us two examples of what the court considers reasonable, the court failed to outline any test that can be used in the future to determine reasonableness or hardship.

The inevitable uncertainty about what constitutes a hardship undoubtedly will increase the amount of litigation in this area and will make it difficult for attorneys to advise their clients, whether they be employers or employees. The likelihood of increased litigation is compounded by the fact that whether a particular type of accommodation is reasonable and whether it imposes a hardship are factual issues that must be resolved on a case-by-case basis.⁵⁸ Because the focus of future WFEA litigation now will be on the interpretation of these vague terms, the decisions are bound to increase costs for businesses as litigation becomes more uncertain.

Similarly, the decisions also restrict the ability of employers to configure their workforce in the most efficient manner possible. Rather, employers must be prepared to rewrite job descriptions and otherwise alter the nature of their workforce to accommodate disabled individuals. The Hutchinson court specifically mentioned this concern, stating that it was "mindful that a business must have the right to set its own employment rules to encourage maximum productivity. We caution, however, that such rules do not exist in a vacuum, but must bend to the requirements of the WFEA."⁵⁹

Exactly how much "bending" will be required is, of course, uncertain. For example, as noted by the dissent in Crystal Lake, because the WFEA applies equally to applicants and current employees,⁶⁰ an employer now must be prepared to post job openings in which it ultimately may be required to hire someone who, even with accommodations, would not be able to perform the duties attributed to the position they are seeking to fill.⁶¹ The potentially endless reach of these decisions is yet another question left unanswered by the court.

Conclusion

Crystal Lake and Hutchinson demonstrate that LIRC and the courts will become increasingly involved when it comes to defining jobs. An employee's inability to perform the position's key job-related responsibilities will not be sufficient justification under the WFEA for denying a requested accommodation. Rather, the employer must justify and prove why a proposed accommodation is unreasonable or creates a hardship. Unfortunately, the decisions ultimately raise many more questions than they answer, leaving lawyers and business owners in a quagmire that will be sorted out only through more litigation.

Endnotes

¹Matt Pommer, Court Rules for Disabled Workers, Capital Times, July 11, 2003, at 7D.

²Supreme Court Disables Business, Wis. State J., Aug. 17, 2003, at B3.

³2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651.

⁴Id. ¶ 19.

⁵2004 WI 90, 267 Wis. 2d 961, 682 N.W.2d 343.

⁶Id. ¶ 2.

⁷Id.

⁸Id.

⁹See, e.g., Peters v. City of Mauston, 311 F.3d 835, 845-46 (7th Cir. 2002); Watson v. Lithonia Lighting, 304 F.3d 749-52 (7th Cir. 2002); Bultmeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1284 (7th Cir. 1996).

¹⁰Crystal Lake, 2003 WI 106, ¶ 6, 264 Wis. 2d 200.

¹¹Id.

¹²Id.

¹³Id.

¹⁴Id. ¶ 9.

¹⁵Id.

¹⁶Id. ¶ 10.

¹⁷ Id.

¹⁸Id.

¹⁹Id. ¶¶ 11-12.

²⁰Id.

²¹Id. ¶ 13.

²²Id. ¶ 14.

²³Id. ¶¶ 15-16.

²⁴Id.

²⁵Crystal Lake Cheese Factory v. LIRC, 2002 WI App 290, 258 Wis. 2d 414, 654 N.W.2d 186.

²⁶Brown County v. LIRC, 124 Wis. 2d 560, 564-65 n.5, 369 N.W.2d 735 (1985).

²⁷Wis. Stat. § 111.34(2)(a).

²⁸Wis. Stat. § 111.34(1)(b).

²⁹Crystal Lake, 2003 WI 106, ¶ 44, 264 Wis. 2d 200.

³⁰Id.

³¹Id. ¶ 45.

³²Id. ¶ 52.

³³Hutchinson, 2004 WI 90, ¶ 3, 267 Wis. 2d 961.

³⁴Id.

³⁵Id.

³⁶Id.

³⁷Id. ¶ 4.

³⁸Id.

³⁹Id. ¶ 5.

⁴⁰Id.

⁴¹Id.

⁴²Id.

⁴³Id. ¶ 6.

⁴⁴No. 02-3328, 2003 WL 22143719 (Wis. Ct. App. Sept. 18, 2003).

⁴⁵Hutchinson, 2004 WI 90, ¶¶ 10-19, 267 Wis. 2d 961.

⁴⁶Id. ¶ 20.

⁴⁷Id. ¶ 26.

⁴⁸Id.

⁴⁹Id. ¶ 27.

⁵⁰Id. ¶ 37.

⁵¹See, e.g., Peters v. City of Mauston, 311 F.3d 835, 845-46 (7th Cir. 2002); Watson v. Lithonia Lighting, 304 F.3d 749-52 (7th Cir. 2002); Bultmeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1284 (7th Cir. 1996).

⁵²Wis. Stat. § 111.34(2)(a).

⁵³Crystal Lake, 2003 WI 106, ¶ 115, 264 Wis. 2d 200.

⁵⁴148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1998).

⁵⁵Crystal Lake, 2003 WI 106, ¶ 115, 264 Wis. 2d 200 (citing Brief of LIRC at 24, McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (emphasis added)).

⁵⁶217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998).

⁵⁷ERD Case No. 8551631 (Apr. 26, 1988).

⁵⁸McMullen, 148 Wis. 2d at 276.

⁵⁹Hutchinson, 2004 WI 90, ¶ 37, 267 Wis. 2d 961.

⁶⁰Wis. Stat. § 111.21(1).

⁶¹Crystal Lake, 2003 WI 106, ¶ 114 n.4, 264 Wis. 2d 200.

Wisconsin Lawyer