123.25 Mental impairments

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, 05/31/17).

At hearing, the Complainant established that he was an individual with a disability. The Complainant presented competent medical evidence from his psychiatrist and psychologist identifying mental disorders, their chronic nature, and the ways in which the disorders affected the Complainant over the years. Those effects included, among other things, debilitating sadness, lack of energy, excessive sleeping, failure to perform certain basic self-care tasks, concentration difficulties, and the resultant inability to work. In addition, on several occasions, the Complainant had to take weeks of medical leave because of his impairment. He also intermittently experienced substantial limitations in his ability to carry on major life activities of thinking, sleeping, self-care and maintaining personal relationships. Carlson v. Wis. Bell, Inc. d/b/a AT&T (LIRC, 02/19/15), remanded sub nom. Carlson v. LIRC (Milwaukee Co. Cir. Ct. 01/08/16), reversed and remanded with instructions, Wis. Bell, Inc. v. LIRC, 2017 WI App 24, 375 Wis. 2d 293, 895 N.W.2d 57, reversed Wis. Bell v. LIRC, 2018 WI 76, 382 Wis. 2d 624, 914 N.W.2d 1.

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 the 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. Ryback v. Wis. Physicians Serv. (LIRC, 05/31/13).

The Complainant did not establish that the Respondent perceived him to be mentally impaired. The record simply showed that the Respondent was concerned about whether the Complainant posed a safety threat to others or himself and referred the Complainant to its employee assistance program because the Complainant had made inquiries about serial killers and had commented about “going postal,” and because it had received a call from the sheriff’s office relating the Complainant’s parents’ concern about his well-being. The evidence failed to show that the Respondent perceived the Complainant as having a mental impairment of chronic or indefinite duration that substantially limited a major life activity or limited his capacity to work. An EAP referral alone is not evidence that the Respondent perceived that the Complainant had a mental disability. Mork v. Archer Daniels Midland (LIRC, 03/31/10) (unavailable online).

The Complainant was an individual with a disability within the meaning of the Wisconsin Fair Employment Act. The Complainant’s bipolar II disorder placed a substantial limitation on life’s normal functions of sleeping, getting out of bed in the morning, thinking and even caring for himself. The disorder also limited his capacity to work as a sales associate since at times it limited his ability to even get to work. The Complainant’s condition could not be considered a temporary condition. The Complainant was first diagnosed with depression and anxiety several years before the complaint in this matter. The Complainant’s physician testified that the Complainant continued to have these symptoms at the time of hearing. The only thing temporary about the Complainant’s condition was that there was a period of a few months when he needed to adjust his medication to remedy the side effects that medication was having on him. Goldsmith v. Sears Roebuck & Co. (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).

The Complainant contended that her comment to her supervisor that she was going to take a “mental health day” should have put him on notice that she had a mental disability. However, given that this is a phrase used in common vernacular by both disabled and non-disabled employees to refer to a day free from the universal stressors of work, her statement did not establish that her employer would have had reason to be aware that she was disabled. Wester v. Charter Media/Communications (LIRC, 10/15/04).

The Complainant failed to show that her request to have a new supervisor would have been a reasonable accommodation for her disability, which was borderline personality disorder. The record established that the condition from which the Complainant suffers would prevent her from working effectively with any of the Respondent’s supervisors. A doctor testified that once the Complainant developed a negative view of a supervisor, this view would not change, and she was unlikely to have a positive relationship with that supervisor in the future. Wester v. Charter Media/Communications (LIRC, 10/15/04).

The Complainant was required to present expert testimony to establish that his vociferous reaction to the announcement that another employee was being promoted to the position he sought was caused by his obsessive-compulsive disorder. In situations where the factual question of causation is complex or technical so that a lay fact finder would be speculating without the assistance of expert testimony, the absence of expert testimony constitutes an insufficiency of proof. OCD is a complex and baffling medical illness. There is nothing in the record from which one might conclude that the symptoms and manifestations of OCD are within the realm of the ordinary experience of mankind. Thus, the question of whether the Complainant’s OCD caused him to react angrily and vociferously to the news that he had been passed over for promotion, and thereby to commit the alleged insubordination for which he was fired, is sufficiently complex or technical that a lay fact finder would be speculating on the matter without the assistance of expert testimony. Wal-Mart Stores v. LIRC, 2000 WI App 272, 249 Wis. 2d 209, 621 N.W.2d 633.

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 Acad. (LIRC, 09/27/00).

The Complainant had a diagnosed mental impairment. As a result of her mental impairment, the Complainant experienced symptoms including tearfulness, negative thoughts, difficulty concentrating and relating to people, racing heartbeat and difficulty sleeping. However, the Complainant did not present sufficient evidence to warrant a conclusion that she was substantially restricted in her ability to function or that achievement was unusually difficult for her. Further, there was no reason to conclude that her mental impairment limited her capacity to perform her job. The Complainant’s therapist/social worker testified that the Complainant could work for the Respondent so long as she did not have frequent contact with an individual who had sexually harassed her in the past. Yet this individual was located in a different building, so his contact with the Complainant was limited to occasional meetings. Smith v. Aurora Health Care (LIRC, 08/25/00).

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 required 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).

The Complainant’s depression caused him to react violently towards his managers and coworkers, screaming, swearing, and hurling clipboards at them, and ultimately threatening to kill himself and others. A disability which causes such conduct is reasonably related to the Complainant’s ability to adequately undertake the job-related responsibilities of his job. Sampson v. S & S Distrib. (LIRC, 11/19/99).

The Complainant’s mental illness tolls the statute of limitations only if the illness in fact prevents the sufferer from managing his affairs and, thus, from understanding his legal rights and acting upon them. Osegard v. Wis. Physicians Serv. (LIRC, 08/13/98).

Even if the Complainant’s mental disorders caused her to engage in unsatisfactory behaviors which prompted the Respondent to discharge the Complainant, there was no unlawful discrimination because the Complainant’s handicap was reasonably related to her ability to adequately undertake the job-related responsibilities of her employment and because the Respondent fully discharged its duty to attempt to accommodate the Complainant’s handicap. Walk v. Ansul Fire Protection (LIRC, 07/20/98).

The Complainant was not “adequately undertaking the job-related responsibilities of [her] employment” when she spent most of the day engaging in bothersome, disruptive and sometimes threatening interactions with coworkers. The employer repeatedly tolerated unsatisfactory behavior because of a concern that it might be a remediable product of a mental illness. The Respondent attempted to accommodate the Complainant; however, for the accommodations to be successful, the Complainant’s participation in treatment was essential. Once the Complainant decided that she would not cooperate in treatment recommendations, there was no further accommodation the employer could make that would eliminate the problem which interfered with her ability to do her job. Walk v. Ansul Fire Protection (LIRC, 07/20/98).

The Complainant’s discharge from his employment as a driver’s license examiner was in connection with his acting out in the presence of members of the public certain behavior related to what was diagnosed as an “immature personality disorder in association with a sexual paraphilia,” but which was not diagnosed as a psychiatric illness or impairment, but rather a personality disorder which did not limit his capacity to work. The Complainant was not a handicapped individual within the meaning of the WFEA since his sexual impulses were not uncontrollable and his behavior did not result from an uncontrollable or irresistible urge or impulse. Miller v. DOT (Wis. Pers. Comm'n, 11/23/93).

The Complainant failed to show that his employer knew or should have known that he was mentally handicapped at the time he was terminated from employment. The Complainant's mother and other individuals spoke to the employer about the Complainant being a "slow learner." However, no mention was made of any mental handicap or the type of mental impairment which makes achievement of basic life activities unusually difficult. Further, the Complainant's poor job performance could have been explained by any number of factors other than mental handicap (e.g., lack of interest, lack of motivation, distraction, ineptitude, or boredom). Jacobus v. Wis. Pers. Comm'n (Dane Co. Cir. Ct., 01/11/93).

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).

The Complainant exhibited symptoms characteristic of a psychotic-manic episode at work. The Complainant’s position involved reprocessing and decontaminating surgical implements for a health care facility. The Complainant would pose a danger to himself and others in his work setting if he suffered another manic episode. Therefore, the Respondent's actions fell under the exception to prohibited discrimination set forth in sec. 111.34(2)(a), Stats. Schilling v. UW-Madison (Wis. Pers. Comm’n, 11/06/91).

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. General Motors (LIRC, 10/19/90), aff’d sub nom. Boldt v. LIRC (Rock Co. Cir. Ct. 09/18/91).

Where the Complainant was terminated for misconduct, including improper work performance and threatening statements and gestures to co-workers and non-employees, and where that behavior may have been related to his organic mental disorder, the termination was “tied to” the Complainant’s handicap. However, there was no discrimination based on handicap since that handicap is reasonably related to the Complainant’s ability to adequately undertake his job-related responsibilities. Brummond v. UW-Madison (Wis. Pers. Comm’n, 04/01/87).

It is not enough for the Complainant to show that his co-workers and supervisors had doubts about his judgment and that some co-workers knew he was seeing a psychiatrist, where the employer was otherwise unaware of his mental handicap. Buller v. Univ. of Wis. (Wis. Pers. Comm’n, 10/14/82).