123.23 Back problems, lifting restrictions

[Also see sec. 123.13 re: Permanent vs temporary conditions]

The Complainant established that she had a disability where she proved that she had damage to a normal bodily condition (i.e., back pain related to degenerative disc problems) and she was limited in her capacity to work in her job (i.e., she was limited in the amount of static standing and sitting she could endure before experiencing pain, she could not work the employer’s standard 12-hour shifts, and she could no longer perform some job functions). The Respondent failed to establish that no reasonable accommodations could be made to enable the Complainant to perform her job, or that it would experience hardship in making such accommodations. Clearly, a reasonable accommodation was available, since the Respondent had accommodated the Complainant working 8-hour shifts (rather than the 12-shifts required of other employees) for several months without any problems. Although the Respondent hypothesized that certain problems could arise in the future, it presented no evidence that any ever did. The Respondent did not establish that accommodating the Complainant’s disability would have been a hardship. Hutchinson Technology v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343.

The Respondent's claim that the Complainant, who had a back ailment, was transferred to another department because he was the least qualified employee in the department was a pretext for handicap discrimination. Roberson v. Cudahy Canning (LIRC, 05/30/90).

In a hearing on the issue of probable cause, Complainant met his burden of establishing that he had a real or perceived handicap by showing that Respondent had concluded that the Complainant's back condition necessitated a 15-20 pound lifting restriction, that he would be unable to perform the responsibilities assigned to the position for which he applied because of that restriction, and that the Respondent, as a result, decided not to employ the Complainant in the position he desired. Lauri v. DHSS (Wis. Pers. Comm'n, 11/03/88).

It was discrimination to refuse to rehire an employee with a hernia who had a weight lifting condition restriction of twenty pounds at the time of his termination, and a restriction of sixty pounds after his surgery, when the position he wanted to be rehired to did not involve lifting more than sixty pounds. Kappel v. Consolidated Papers (LIRC, 12/18/84).

The employer failed to show that a thirty-five-pound lifting restriction, imposed by its physician on a job applicant who had had a laminectomy (back surgery), was justified as necessary to avoid future risk or re-injury to the back. Janz v. Joseph Schlitz Brewing (LIRC, 09/10/81).

There was no discrimination in discharging a truck laborer who had spondylitis and spondylolisthesis of the lumbar spine, where the only medical evidence presented showed that performance of the duties of a truck laborer would be hazardous to the employee's future health. Nadolski v. Chicago & N.W. Transport Co. (LIRC, 08/29/80).

It was discrimination to refuse to hire an applicant with a 10 percent permanent disability to his right shoulder and a 100-pound lifting restriction, where the refusal was based on conjecture and not reasonable probability. DHSS v. LIRC (Johns) (Dane Co. Cir. Ct., 11/28/79).

It was not discrimination to discharge an employee where he sustained a back injury and was unable to perform a job that required lifting 100-pound bags. Kropiwka v. DILHR (Olin) (Dane Co. Cir. Ct., 11/15/76).