123.31 Generally

Also see sec. 123.6 re: Proof of medical facts

Complainant’s testimony that she was diagnosed with MS was insufficient to establish a disability without competent medical evidence. Where the alleged disability is one that would not be apparent to a layperson, expert opinion must be presented on the existence, nature, extent, and permanence of the impairment. Towns v. Holistic Home and Hospice (LIRC, 02/08/23).

Proof of disability is not meant to be onerous. The Complainant need not establish what caused the condition, and the fact that doctors disagree about causation does not change the fact that she suffers from long term dizziness and poor balance. Staudinger v. Cnty. of Manitowoc (LIRC, 12/11/18).

A Complainant can establish that she had a disability during her employment with the Respondent, regardless of whether there was a definitive diagnosis made at the time. Dahl v. Kewaunee Care Ctr, LLC and Riche Health Care (LIRC 10/22/18).

While the Complainant may be required to submit medical records showing the existence of an impairment, she is not required to submit medical evidence establishing that the impairment makes achievement unusually difficult or limits her capacity to work. An individual is generally competent to testify about how an impairment affects her ability to perform major life activities or limits the capacity to perform the job. Berton-Train v. Woodman’s (LIRC, 05/31/2017).

Even in a hearing where the Complainant’s burden is only to show probable cause, the Complainant still bears the burden to show that she was an individual with a disability, to the degree necessary to support a determination of probable cause. Mueller v. Chart Energy & Chemicals, Inc. (LIRC, 01/15/15).

Discrimination against an individual “because of” disability may involve an employer acting on the basis of actual discriminatory animus against an employee because that employee was an individual with a disability; it may also involve the employer acting on the basis of dissatisfaction with an employee’s behavior or performance problem which is caused by the employee’s disability. 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. Maeder v. UW-Madison, UW Police (LIRC, 06/28/13).

The fact that the Complainant received Social Security Disability Benefits did not by itself establish that she was disabled for purposes of the WFEA. Even granting that one’s eligibility for Social Security Disability may help to establish disability under the WFEA, the Complainant offered no medical records showing how her condition was disabling for purposes of social security disability, thus she presented no basis for inferring disability under the WFEA based on her qualification for Social Security Disability. Alamilla v. City of Milwaukee (LIRC, 06/28/13).

The Complainant’s diagnosis of diabetes by itself does not establish a disability. Diabetes may be a disability, depending on an individualized showing of how it makes achievement unusually difficult or limits the capacity to work. The Complainant’s own listing of symptoms is not a competent showing that those symptoms were related to her impairment. Competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. Alamilla v. City of Milwaukee (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’s doctor’s notes indicated that she had a permanent five-pound lifting restriction. This is a significant restriction that would render an individual unable to perform many of life’s normal functions, such as lifting a bag of groceries or taking out the trash. Similarly, while the record was silent with regard to how or whether the Complainant’s ankle injury affected a major life activity, it can be presumed that a person who must walk with a cane is limited in the performance of major life activities. The evidence was sufficient to warrant a finding of probable cause to believe that the Complainant had a disability. Rutherford v. Wackenhut Corp (LIRC, 05/13/11).

The Complainant contended that wearing a hearing aid should be enough evidence that a person has a hearing disability. While the use of a hearing aid may be indicative of a hearing impairment, in order to establish that an impairment constitutes a disability under the Wisconsin Fair Employment Act, the Complainant must demonstrate that it makes achievement unusually difficult for her or limits her capacity to work. Gouge v. Randy’s Family Rest. (LIRC, 06/27/08).

The fact that the Veterans Administration had classified the Complainant’s foot condition as a forty percent disability did not establish the existence of a disability under the Wisconsin Fair Employment Act since the record did not show that the criteria utilized by the Veterans Administration for identifying disabilities was essentially identical to those set forth in the Wisconsin Fair Employment Act. Smith v. Actuant Corp. (LIRC, 07/27/07).

There are two distinct ways in which disability discrimination may occur. The first would be if the employer took an adverse action against an employee due to a discriminatory animus against the employee because the employee was an employee with a disability. The second would be if the employer took an adverse action against an employee because of a performance deficiency caused by the employee’s disability. Fields v. UW Hospitals & Clinics Auth. (LIRC, 02/12/07).

Competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if whether the Complainant has a disability is disputed. It is not enough to state a diagnosis or to list symptoms. The Complainant must establish through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult or limited his capacity to work. As a result, the fact that a physician rendered a diagnosis of panic disorder was insufficient alone to establish that the Complainant had a disability within the meaning of the law. Schultz v. CNH Capital Corp. (LIRC, 05/08/06).

The Complainant’s argument that a diagnosis of asthma alone was sufficient to establish that she had a disability under the Wisconsin Fair Employment Act was rejected. The Complainant relied on a sentence in a Supreme Court decision that stated that “handicapped. . .must be defined as including such diseases as asthma which make achievement unusually difficult.” (Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. DILHR, 62 Wis. 2d 392, 398, 215 N.W.2d 443 (1974)). However, the analytical framework for determining whether an individual has a disability has been clarified in the years since that decision was issued. A Complainant must now establish that there is a real or perceived impairment, and that the impairment actually makes (or is perceived as making) achievement unusually difficult or limits the capacity to work. The proper reading of the relevant case law establishes that asthma can be a disability under the Wisconsin Fair Employment Act if the Complainant establishes the elements articulated in City of La Crosse Police & Fire Comm'n v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). Doepke-Kline v. LIRC, 2005 WI App 209, 287 Wis. 2d 337, 704 N.W.2d 605.

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 Railroad 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 proximity in time between the Complainant’s termination and her notice to the Respondent that she had been diagnosed with fibromyalgia and that this condition interfered with her ability to work did not necessarily establish pretext. Although proximity in time may be a relevant factor, it is not necessarily a dispositive one. Ford v. Lynn’s Hallmark (LIRC, 06/27/05).

The Complainant presented no medical evidence on his behalf, either in the form of physician testimony or competent medical records upon which a fact finder could base a conclusion about the nature of his back condition. Even if it was determined that the Complainant was competent to testify about his own medical condition and that no additional medical evidence was necessary, the Complainant’s testimony would not be sufficient to meet his initial burden where it was limited to a description of his symptoms and an explanation of the difficulties these symptoms posed with regard to his ability to perform the job. Such testimony, even if offered by a physician, would not establish an impairment within the meaning of the Wisconsin Fair Employment Act, where there was no indication as to: (1) what, if any diagnosis was made, (2) what the nature and extent of the condition was, or (3) whether the condition was a permanent one. 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.

As an initial matter, an employee must show that he or she is an individual with a disability under Wis. Stat. §111.32(8) and that his or her employer took one of the several actions listed in Wis. Stat. §111.322. Once the employee meets the initial burden, then the employer has the burden of proving a defense under Wis. Stat. §111.34. Crystal Lake Cheese Factory v. LIRC 2003 WI 106, ¶42, 264 Wis. 2d 200, 664 N.W.2d 651.

The Complainant’s initial burden in a disability discrimination case is to establish that he is an individual with a disability within the meaning of the Wisconsin Fair Employment Act. It is not enough to merely state a diagnosis or to list symptoms. The Complainant must explain, through credible and competent evidence, how or to what degree these symptoms made achievement unusually difficult. Gramza v. Kwik Trip, Inc. (LIRC, 02/20/03).

The fact that the Complainant qualified for a disabled parking permit was insufficient to establish a disability under the Wisconsin Fair Employment Act where it was not shown that the requirements for the parking permit were identical to the requirements for establishing a disability under the Act. Kirk v. Neenah-Menasha YMCA (LIRC, 02/14/03).

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).

Where the Complainant had recovered from Graves’ disease sufficiently to have been released to return to work by his physician, he did not have a physical impairment making achievement unusually difficult or limiting his capacity to work. Further, 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. Therefore, the Complainant was not handicapped under the Wisconsin Fair Employment Act. Stanford v. Time Ins. (LIRC, 06/27/95).

In a handicap discrimination case, the burden is on the individual to prove that he was refused employment, terminated or otherwise discriminated against because of his handicap. The question of an employer's motivation presents a question of ultimate fact. Haynes v. Nat'l School Bus Serv. (LIRC, 01/31/92).

The Complainant established a prima facie case of handicap discrimination by testifying that when he furnished the Respondent with a doctor's statement indicating that wearing an athletic shoe would help his back, the Respondent told him such shoes had to be black and steel-toed, while other workers had previously been allowed to wear athletic shoes to work. Ninabuck v. Consol. Freightways (LIRC, 01/31/92).

The Complainant failed to establish that he had a handicap, which he alleged was an eye problem, because the only evidence which he presented at the hearing was his own description of the symptoms he suffered when working around chemicals in the Respondent’s workplace. This does not constitute competent medical evidence of a handicap. The Complainant established that he has suffered temporary eye irritation when exposed to certain chemicals, but he did not establish that this irritation constituted some “lessening or deterioration or damaging to a normal bodily function or bodily condition or the absence of such bodily function or condition.” Further, the Complainant failed to establish that the employer perceived him to have a handicap. The evidence merely supported a finding that the employer perceived the Complainant to be suffering from eye irritation and that this was a temporary condition. Wollenberg v. Webex, Inc. (LIRC, 11/08/91).

There are three essential elements in a handicap discrimination claim. First, the Complainant must establish that the condition at issue is a handicap within the meaning of the Wisconsin Fair Employment Act. Second, the Complainant must show that the employer's discrimination was on the basis of handicap. Third, it must appear that the employer cannot justify its alleged discrimination under the exception set forth in sec. 111.34(2), Wis. Stats. Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991); Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980).

Where the Respondent decided, based on the Complainant’s statement that she was physically handicapped and could not read the menu, that the Complainant could not do the job because reading was a vital part of the job, the Complainant established that she was discriminated against because of her handicap. Betlach-Odegaard v. UW-Madison (Wis. Pers. Comm’n, 12/07/90).

The elements of proof of handicap discrimination require that the Complainant prove that he is handicapped within the meaning of the Act and that the adverse employment action was based upon that handicap. The burden of proof then shifts to the Respondent to prove that the Complainant's handicap is reasonably related to the Complainant's ability to adequately under-take the job-related responsibilities of the employment. If this is proven, in order to avoid liability, the Respondent must still show that accommodation of the employee's handicap would pose a hardship on the employer's business. Copus v. Village of Viola (LIRC, 12/10/87).

Although the Complainant testified that he had gone to a rehabilitation hospital for treatment and had been diagnosed as an alcoholic, the hearing examiner was entitled to give no weight to this testimony, since no expert testimony was received on the subject. Alcoholism is a disease, the diagnosis of which is matter of expert medical opinion proved by a physician and not a layman. Schaafs v. Schultz Sav-O-Stores (LIRC, 11/06/86).

A police officer met his initial burden of proof by showing that the restrictions placed upon his job duties and classification were prompted by his supervisor's belief that he could not carry out his job responsibilities as a result of his narcolepsy. Hennekens v. River Falls Police Dep't (LIRC, 01/29/85).

An employee met his initial burden of proof by offering evidence that the employer failed to hire him for a position of truck driver/groundman because of his epilepsy. Samens v. LIRC, 117 Wis. 2d 646, 345 N.W.2d 432 (1984).

A Complainant’s initial burden of proof does not include proving that he was able to do the work at the time of his application for the job. Janz v. Joseph Schlitz Brewing (LIRC, 09/10/81).

The initial burden of proof for the employee is to show that he was handicapped and was refused employment because of that handicap. Boynton Cab v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980).

The applicant has the burden of showing that the employer’s refusal to hire him was due to his past medical history. He met that burden where he was notified by letter from his employer that he would not be hired as a result of a physical exam. The “legitimate” reasons offered by the employer at the hearing to explain the refusal to hire the Complainant were a pretext where the only reason given at the time of the refusal was the Complainant's physical exam. Dept. of Agric. v. LIRC (Anderson) (Dane Co. Cir. Ct., 05/25/78).

The state of being handicapped under the Act is a conclusion of law not amenable to lay testimony. A layperson’s belief that he was not handicapped is entitled to no weight whatsoever. Bauman v. Specialties (DILHR, 10/03/75).