123.11 Definition of disability, generally

The fact that the Complainant was not diagnosed with a disabling condition until after his employment relationship with the Respondent ended did not prevent him from establishing that he is an individual with a disability for purposes of the WFEA. The statute does not require a contemporaneous diagnosis in order for the Complainant to establish that he has a disability. Gilbertson v. Wingra Red-Mix, Inc. (LIRC, 12/10/2020), aff'd sub nom. Wingra Redi-Mix v. LIRCM (Dane Co. Cir. Ct., 10/21/21), aff'd Wingra Redi-Mix Inc. v. LIRC and Gilbertson, 2023 Wisc. App. LEXIS 620, 408 Wis. 2d 563, 993 N.W.2d 715, petition for cert. filed July 7, 2023.

The commission questioned the reasonableness of an administrative law judge’s pre-hearing ruling that the Complainant must disclose her expert medical witnesses six months prior to the hearing. However, any error was harmless where the Complainant nonetheless submitted sufficient evidence to establish that she has a disability within the meaning of the statute. Potts v. State of Wis. – Dep't of Health Servs. (LIRC, 05/18/21).

The Complainant failed to show she was an individual with a disability because her medical evidence did not establish, through credible and competent evidence, how or to what degree her symptoms made achievement unusually difficult or limited her capacity to perform the job in question. In addition, her medical evidence did not show that her impairment was permanent. Harris v. Charter Comm., LLC (LIRC, 03/13/2020).

The Complainant’s impairment did not limit his capacity to work within the meaning of the WFEA, nor did the employer perceive the Complainant to be disabled. The Complainant’s impairment involved a very mild restriction in his ability to perform a task that arose about 1-2% of the Complainant’s work time, requiring little accommodation. Schultz v. Cnty. of Manitowoc (LIRC, 10/31/16), aff’d sub nom. Schultz v. LIRC (Manitowoc Co. Cir. Ct. 05/10/17), aff’d 2018 WI App 66, 384 Wis. 2d 414 (per curiam).

The Americans with Disabilities Act’s definition of disability is similar to that in the WFEA, in including a virtually identical “record of such an impairment” clause. The EEOC defines an individual with “a record of such an impairment” as someone who has “a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” Looking at these sources, the Commission believes that the concept of “having a history of” an impairment implies actually having had that impairment in the past. In this case, LIRC found that the Complainant did not actually have the impairment she asserted and did not establish that she had that impairment in the past. It would be anomalous to find a “has a record of” disability here based on a “misclassification” theory, when the Complainant asserted that she was correctly diagnosed with that impairment. Thus, support for a finding of a “has a record of” disability within the meaning of § 111.32(8)(b), is lacking here. Hendon v. Wis. Bell, Inc. d/b/a AT&T (LIRC, 11/13/14), aff’d sub nom. Hendon v. LIRC (Milwaukee Co. Cir. Ct., 08/12/2015).

Where the Complainant presented medical evidence of rheumatoid arthritis and multiple sclerosis, she established an actual disability. Thus, there was no need to decide whether there was a “perceived disability.” Cave v. Cnty. of Milwaukee (LIRC, 1/30/14).

An impairment that requires little accommodation and does not interfere with the employee’s ability to perform the job is not one which can be said to limit the capacity to work. Tschida v. UW-River Falls (LIRC, 12/30/08).

Missing work occasionally is not sufficient to demonstrate that an impairment limits the capacity to work. Tschida v. UW-River Falls (LIRC, 12/30/08).

The Complainant suggested that the Respondent regarded him as being disabled by virtue of his narcotic drug use. However, narcotic drug use does not constitute an impairment in its own right. The Complainant neither alleged nor established that he has a substance addiction which might be covered under the statute. Tschida v. UW-River Falls (LIRC, 12/30/08).

To find that the Complainant’s condition was not permanent because there was surgery available that could correct it was wrong as a matter of law. It was also unreasonable where the only evidence in the record on this point indicated that the Complainant was given no assurances that the surgery would work, and that he was told that his condition might have been made worse by the surgery. Reiter v. Waukesha Engine Div. (LIRC, 11/30/07).

There are many types of impairments for which treatments are available. The mere fact that a potential treatment exists is not reason enough to conclude that the impairment is only a temporary one, thus denying the individual the coverage of the Wisconsin Fair Employment Act. It was inappropriate for the Administrative Law Judge to find that the Complainant was not disabled because he could correct his shoulder problem with surgery. Reiter v. Waukesha Engine Div. (LIRC, 11/30/07).

Not every impairment is a disability. The Complainant has the burden of proving that an impairment satisfies the stated requirements of sec. 111.32(8), Stats. The Complainant must establish that the claimed disability made achievement unusually difficult or limited her capacity to work. Wucherpfennig v. Personal Dev. Ctr. (LIRC, 06/29/06).

It is not enough for a Complainant to state a diagnosis or to list symptoms in order to establish that he has a disability. The Complainant must explain through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult. The Complainant argued that a diagnosis of asthma alone, supported a conclusion that he was disabled, consistent with the ruling in Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443 (1974). Even if such a diagnosis had been established at hearing, a conclusion of disability was not required. The Supreme Court did not hold in the cited decision that every diagnosis of asthma would result in a conclusion of disability. Instead, it held that conditions such as asthma (which, unlike physical disorders such as paraplegia, do not result in incapacity from normal remunerative occupations or require rehabilitative training) may constitute disabilities under the Wisconsin Fair Employment Act. It would be inconsistent with both the language and the policy underpinnings of the Act for the continuum of asthma conditions to be held to be disabilities even if some did not make achievement unusually difficult or limit the capacity to work. Doepke-Kline v. Ameritech/SBC (LIRC, 05/25/04); aff’d sub nom. Doepke-Kline v. LIRC, 2005 WI App 209, 287 Wis. 2d 337, 704 N.W.2d 605.

The term “limited capacity to work” refers to the particular job in question. A Complainant is not required to show that an impairment limits his or her capacity to perform a wide variety of jobs. Roytek v. Hutchinson Technology (LIRC, 01/28/02), aff’d sub nom. Hutchinson Technology v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343.

The Complainant testified that she had medical restrictions, but that she did not claim to be disabled. However, the Complainant’s perception of herself is not controlling in this matter. The critical question is whether she satisfies the conditions to be considered an individual with a disability, as that term is defined in the statute. Where the Complainant’s doctors have diagnosed her with a condition which constitutes an impairment under the Act, and where the Complainant’s ability to perform her job was adversely affected as a result, the Complainant is considered to be an individual with a disability without regard to her own characterization of her status. Jones v. United Stationers (LIRC, 01/25/01).

Adverse action taken by an employer because of conduct attributable to the Complainant’s handicap is in legal effect because of the individual’s handicap. Staats v. County of Sawyer (LIRC, 10/27/97), aff’d sub nom. Staats v. LIRC (La Crosse Co. Cir. Ct., 08/21/98).

Even when the symptoms of a condition can be controlled by medication, the condition may constitute a disability. Salzer v. Briggs & Stratton (LIRC, 07/26/96).

The Labor, Industry and Review Commission is aware of no authority which suggests that a Complainant is not considered to have a handicap because his symptoms can be controlled by medication. Salzer v. Briggs & Stratton (LIRC, 07/26/96).

Sec. 111.32(8), Stats., provides the definition of the term “handicapped individual.” “Impairment” for purposes of the Act is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. The test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether it is a substantial limitation on life’s normal functions or on a major life activity. By contrast, the “limits the capacity to work” test refers to the particular job in question. Further, the inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. In this case, the Complainant did not establish that his impairment (cataracts and diabetes) made achievement unusually difficult for him or limited his capacity to work. The Complainant's physician testified that the Complainant had no physical limitations. The only problem associated with his cataracts was difficulty driving at night or reading with insufficient light, and his only symptom from diabetes was occasional dryness of the mouth. These amounted to very minor limitations which cannot be said to substantially limit life’s normal functions or to make achievement unusually difficult. Flores v. Amcast Corp. (LIRC, 10/13/94).

One purpose of the “unusually difficult/limits the capacity to work” language is to exclude from coverage those physical impairments that are so insubstantial that it makes no sense to afford them special status as handicaps. In this case, the Complainant's condition of chronic peptic syndrome is in effect a condition of excess stomach acid. This is a prevalent condition which does not rise to the same level as impairments which make achievement unusually difficult or limit the capacity to work--particularly where the condition causes no work restrictions and does not appear to generate unusual absenteeism. Murphy v. Roundy’s (LIRC, 10/21/93).

It is not an act of handicap discrimination under the Wisconsin Fair Employment Act to discharge an employee in order to avoid payment for medical expenses of that employee's child. Heinritz v. Lawrence Univ. (LIRC, 09/30/93), aff’d sub nom. Heinritz v. LIRC (Outagamie Co. Cir. Ct., 05/11/94).

Persons with diseases may be deemed handicapped under the Wisconsin Fair Employment Act, even if the disease is in remission or the person is not otherwise actively suffering from the effects of the disease. Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

An impairment may constitute a handicap under the Wisconsin Fair Employment Act even if the condition causing the impairment is contagious or communicable to others. Racine Educ. Ass’n v. Racine Unified Sch. Dist. (LIRC, 08/11/89), aff’d, sub nom. Racine Educ. Ass’n v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

The fact that the Complainant was hospitalized does not necessarily mean that he was handicapped. Since the Respondent indicated that the Complainant did "fine work," there was no basis for the Complainant's claim that he had an impairment which hindered his capacity to work; therefore, he was not handicapped within the meaning of the Wisconsin Fair Employment Act. Dealer's Office Equip. v. LIRC (Herling) (Waukesha Co. Cir. Ct., 04/09/90).

There is a two-step process of analysis in determining whether an individual has established a handicap within the meaning of the Act. The first step is determining whether or not there is a real or perceived impairment. An impairment for purposes of the Act is a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or condition. The second step is determining whether or not the impairment makes, or is it perceived to make, achievement unusually difficult or whether it limits the capacity to work. Either the claimant must show that the real or perceived impairment makes achievement unusually difficult, or the claimant must show that the real or perceived impairment limits the capacity to work. An employer's perception of either satisfies this element as well. City of La Crosse Police & Fire Comm’n v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987).

The test to determine whether a condition makes achievement unusually difficult is concerned not with the specific job but with the question of whether there is a substantial limitation on life’s normal functions or on a major life activity. By contrast, the “limits the capacity to work” test refers to the particular job in question. The inquiry concerning the effect of an impairment on achievement is not about mere difficulty, but unusual difficulty. AMC v. LIRC (Basile), 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

A handicap is a mental or physical disability or impairment that a person has in addition to his or her normal limitations that makes achievement not merely difficult, but unusually difficult, or that limits the capacity to work. AMC v. LIRC (Basile), 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

In determining whether a condition is a handicap, weight is given to the fact that it is medically diagnosable and is non-volitional. Connecticut Gen. Life v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979).

If an employee's illness or defect makes it harder to find work, then it certainly operates to make achievement unusually difficult and it is a handicap. Chrysler Outboard v. DILHR (Ninke) (Dane Co. Cir. Ct., 11/01/76).

The term handicap does not mean that one must be disabled to the extent that one is barred from all remunerative occupation. Rather, a handicapped person is one who, despite being different from the average employee in one or more ways, might nevertheless function efficiently on the particular job. Chicago, Milwaukee, St. Paul & Pacific R.R. v. DILHR (Goodwin), 62 Wis. 2d 392, 215 N.W.2d 443 (1974).