123.12 Perceived disability

The Complainant did not establish a perceived disability where she told her supervisor she had MS but had no work restrictions and did not provide any information that would have led the supervisor to believe she was limited in her ability to engage in major life activities. A statement in the discharge paperwork that the Complainant was unable fulfill on-call needs did not on its own establish that the Respondent believed the Complainant had a disability. Towns v. Holistic Home and Hospice (LIRC, 02/08/23).

The fact that the Respondent granted the Complainant’s accommodation requests did not indicate that the Respondent perceived the Complainant to be disabled. The requests were granted because they were minimal. Gruss v. Cnty. of Dane (LIRC, 08/13/2019).

The fact that the Complainant had an emotional meltdown in the presence of the Respondent on one occasion three years prior to her discharge does not warrant a conclusion that the Respondent perceived the Complainant as having a mental disability. Berton-Train v. Woodman’s (LIRC, 05/31/2017).

Medical documentation that spoke of the Complainant’s recovery from an illness and return to work did not provide a sufficient basis to conclude that the employer perceived the Complainant as disabled. Mueller v. Chart Energy & Chemicals, Inc. (LIRC, 01/15/15).

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. 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).

There being absolutely no medical evidence of any kind in the record, the Complainant failed to show she actually had a disability; thus, her case rested on showing she was perceived as having one. The Complainant rested her claim on her having been injured in an accident. But even where a Respondent is aware an employee had injuries for which she sought treatment, there must still be evidence that the Respondent believed the Complainant had an impairment that would be permanent. The record here tends to affirmatively suggest that the Complainant’s injuries were perceived as being subject to healing and that eventual recovery, without permanent restrictions, was still a possibility. Thus, she failed to establish that she was perceived as having a permanent disability. Tohl v. CUSA ES, LLC (Express Shuttle) (LIRC, 11/21/13).

Even crediting the Complainant’s testimony that she told the owner of the Respondent that she suffered from panic attacks for which she took medication, this was insufficient to establish that the Respondent perceived the Complainant as being an individual with a disability. The only manifestations of this condition of which the Respondent had reason to be aware were two days when the Complainant was absent from work. This could not reasonably communicate to the employer that the Complainant suffered from a permanent condition which limited her capacity to work in any significant way. Further, the Complainant downplayed the impact of her condition on her life or work activities to the Respondent’s owner, and she never presented any work restrictions to the Respondent based upon her panic attack disorder. The fact that the Respondent was aware that the Complainant was under a physician’s care and taking prescription medications did not establish that the Respondent necessarily would have perceived the Complainant to be disabled since medical treatment is sought and medications are prescribed for conditions which are disabling as well as those for which are not. Rybicki v. DJ Convenience (LIRC, 08/20/10).

A Complainant demonstrated probable cause to believe that the Respondent perceived him as being disabled where he testified that he told the Respondent when he was hired that he had diabetes, that his supervisor was aware of his diabetes, and that he had provided the Respondent with notes from his doctors indicating that he should work on the day shift because of his diabetes. Cappelletti v. OceanSpray Cranberries, Inc. (LIRC, 02/15/08).

It was not appropriate for an Administrative Law Judge to conclude in his decision that “the Complainant does not have a perceived disability.” The language in the Wisconsin Fair Employment Act used to define “individual with a disability” contemplates an individual as being perceived by another person as having an impairment which makes achievement unusually difficult or limits the capacity to work. Sec. 111.32(8)(c), Stats. This statute does not contemplate a classification or status independent of another person’s perception of the individual. Berg (Riegler) v. Franciscan Woods (LIRC, 12/19/06).

The fact that the Respondent was aware that the Complainant was seeking medical treatment and taking prescription medications did not establish that the Respondent necessarily or reasonably would have perceived the Complainant to be disabled. Medical treatment is sought, and medications are prescribed, for conditions which are not disabling as well as for conditions which are disabling. In addition, the fact that the Complainant in this case never presented any medical restrictions to the Respondent supported a conclusion that she would not have been perceived as being disabled. Wucherpfennig v. Personal Dev. Ctr. (LIRC, 06/29/06).

The fact that the Respondent’s managers were aware that the Complainant was seeing a psychiatrist and taking prescription medications did not establish that the Respondent perceived the Complainant to be disabled. Medical treatment is sought, and medications are prescribed, for conditions which are not disabling as well as for conditions which are disabling. Schultz v. CNH Capital Corp. (LIRC, 05/08/06).

While the Respondent was aware that the Complainant had been diagnosed with multiple sclerosis (MS), not every health condition constitutes a disability within the meaning of the Wisconsin Fair Employment Act. Here, the record contained nothing to indicate to what extent, if at all, the Complainant’s MS would affect her major life activities or limit her capacity to work. Further, the record contained no evidence as to the Respondent’s owner’s personal beliefs or perceptions on this subject. Absent such evidence, one cannot speculate that the Respondent perceived the Complainant’s MS as a disability. Prior to the time that she was diagnosed with MS, the Complainant suffered a variety of health conditions, including the loss of vision in her left eye. At that time, she explained to the Respondent’s owner that her eye problem might be a precursor to MS. However, there was no reason to find that the Respondent’s owner perceived the Complainant as having a disability prior to the time that the Complainant received her diagnosis. Draeger v. Kliss Quick Serv. (LIRC, 09/30/05).

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); aff’d sub nom. Grell v. LIRC (Dane Co. Cir. Ct., 02/22/06).

The Respondent had no reason to perceive that the Complainant was disabled where he had been released to return to work without restriction by his physician. Cramer v. Woodman’s Food Mkt. (LIRC, 01/14/05).

Although the Complainant did not present medical documentation about breast cancer, or about her particular condition so as to establish that she had an actual impairment, the evidence supported a credible inference that the Respondent perceived the Complainant’s breast cancer as an impairment that limited her ability to perform the job in question, and that the Respondent rejected her employment application because of this perception. Huber v. The Meat Mkt. (LIRC, 07/16/04) (unavailable online).

The Respondent received contradictory information from the Complainant’s doctor regarding the Complainant’s restrictions and the extent and nature of his back problem. It is difficult to argue that the Respondent perceived the Complainant as being disabled where it received extremely contradictory information about his condition, and where its own physician advised that the Complainant was not disabled. Although the Respondent’s witnesses evidently believed the Complainant had some sort of back condition, based on his repeated insistence that he had work restrictions and had difficulty performing the job, there was nothing to indicate that they considered this condition to constitute an impairment within the meaning of the Wisconsin Fair Employment Act. To the contrary, the evidence suggested that the Respondent believed that the Complainant suffered from a temporary back injury which had not yet healed. Erickson v. QuadGraphics (LIRC, 05/25/04); aff’d sub nom. Erickson v. LIRC, Washington Co. Cir. Ct., 10/27/04; aff’d, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398.

The record did not support a conclusion that the Respondent had reason to be aware that the Complainant had a prosthetic eye or suffered from glaucoma or cataracts, but only that the Respondent was aware that the Complainant wore glasses. This fact alone would not be sufficient to support a conclusion that the Respondent perceived the Complainant to be disabled. Aman v. Kindred Nursing Centers East (LIRC, 12/16/03).

Even though the Complainant did not establish that he had a disability, he was perceived as having a mental disability by the employer. The Complainant’s supervisor knew, at a minimum, that the Complainant was in therapy, that the Complainant was taking what was referred to in the workplace as his “nut pills,” and that the Complainant required a leave of absence from work in order to adjust his medications. Schneider v. Wal-Mart Stores (LIRC, 01/12/99).

The Complainant failed to establish that he was discriminated against on the basis of “perceived communication disability.” The Complainant did not suffer from any speech, communication, or personality disorder. The Complainant produced no authority for his assertion that the Respondent’s calling him “goofy” or “screwed up” or comparing him to a fictional character on a television show meant that the person making those comments perceived him as disabled. The Complainant’s discomfort with the Respondent’s comments does not transform those remarks into a perception of disability. Kriegl v. Sauk Co. (LIRC, 08/26/98).

The Respondent's aggressiveness in seeking to get the Complainant back to work meant that the Respondent did not perceive the Complainant as having an impairment. Stanford v. Time Ins. (LIRC, 06/27/95).

Where the Complainant failed to offer any competent expert evidence that he actually suffers or suffered from a handicapping condition he could only prevail if he showed that the employer acted on the basis of a belief that he suffered from such a condition. This would allow invocation of the “perceived as having such an impairment” branch of the definition of “handicapped individual” in sec. 111.32(8)(c), Stats. Roncaglione v. Peterson Builders (LIRC, 08/11/93), aff’d sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., 05/06/94).

A person who has problematical personality characteristics, but whose psychiatric diagnosis is “well within the normal range,” does not appear to fit within the concept of a handicapped individual within the meaning of the Wisconsin Fair Employment Act. Since the Complainant’s personality characteristics do not fall within the meaning of the term “impairment,” there can be neither an actual nor a perceived handicap. The Complainant’s condition consisted of certain personality characteristics that were part of his psychological makeup that was within normal limits. From a factual standpoint, the Respondent’s perception of this condition was not different from his actual condition. The employer did not perceive a nonexistent condition that would have constituted an impairment if it did exist, but rather perceived that a condition that did not constitute an impairment was interfering with the Complainant’s capacity to function appropriately in the workplace. This did not constitute unlawful handicap discrimination. Jacobsen v. DHSS (Wis. Pers. Comm’n, 10/16/92).

An employer’s knowledge that an employee was engaging in outrageous conduct does not necessarily mean that the employer perceived that the employee was mentally ill. Boldt v. Gen. Motors (LIRC, 10/19/90), aff’d sub nom. Boldt v. LIRC (Rock Co. Cir. Ct., 09/18/91).

In order to find that an individual is handicapped within the meaning of the Act, it is not necessary to find that the individual has an actual impairment. It is sufficient to find that the employer perceived that the individual was handicapped. For purposes of the statute, the element of impairment can be satisfied by showing that the condition perceived by the employer would constitute an actual impairment if it did exist. City of La Crosse Police & Fire Comm'n v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987).

Where there is an actual impairment which is regarded by the prospective employer as limiting the ability to work, it is a perceived handicap and is to be treated as a handicap which makes achievement unusually difficult or limits the capacity to work, even if, in fact, it does neither. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985).

Just because an employer concludes that a job applicant is unqualified (e.g., too short or too slight) for a particular job does not mean that the applicant is perceived as having a physical or mental disability that makes achievement unusually difficult. AMC v. LIRC (Basile), 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

A rejected job applicant for a drill press operator position was handicapped because the employer believed the applicant's eczema would be aggravated by exposure to oils and solvents. Mercury Marine v. LIRC (Ct. App., Dist. IV, unpublished opinion, 10/04/83).

A job applicant who was not an epileptic was nevertheless discriminated against on the basis of handicap within the meaning of the Act where the employer believed him to be so and refused to hire him as an assistant foreman and trackman, a position which he was otherwise qualified to perform. Wooldridge v. Chicago & N.W. Transport (LIRC, 12/17/82), aff’d sub nom. Chicago & N.W. Transport v. LIRC (Dane Co. Cir. Ct., 09/28/83).

Where a job applicant was rejected because of a physical impairment and the employer perceived that impairment as limiting the capacity to work, the applicant was a “handicapped individual.” City of Madison Fire & Police Comm'n v. LIRC (Scott) (Dane Co. Cir. Ct., 10/22/69).