123.32 Employer’s knowledge of disability

In disability cases, an employer does not engage in employment discrimination when it bases an adverse employment action on an employee's problematic conduct allegedly caused by a disability unless the employee proves the employer knew the employee's disability caused the conduct. An employer does not automatically know of a causal connection between an employee's problematic conduct and a disability, even if the employer is generally aware of the disability. Intentional discrimination cannot be inferred based on the sole fact that the employer discharged the employee for conduct proven at hearing to be caused by a disability. Wis. Bell, Inc. v. LIRC, 2018 WI 76, 382 Wis. 2d 624, 914 N.W.2d 1.

For purposes of establishing that the Complainant is an individual with a disability, it does not matter what the Respondent knew or when it knew it. Staudinger v. Cnty. of Manitowoc (LIRC, 12/11/18).

There was no need to decide whether the Complainant was an individual with a disability, since she did not establish that she told the employer she had a disability and there was no reason to believe that the employer understood this to be the case. Where the employer was unaware of the Complainant’s asserted disabilities, it could not have undertaken the discriminatory course of action the Complainant alleged. Volkmann v. Colonial Management Group LP (LIRC, 01/30/15); aff’d sub nom. Volkmann v. LIRC and Colonial Management Group, LP (Chippewa Co. Cir. Ct. 09/09/15).

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).

If an employer’s decision is based on certain limitations or inabilities of an employee that could be the result of something other than a disability, and the employer is not shown to have been aware that they were in fact the result of a disability, the employer cannot be found to have made its decision because of disability. In this case, there was no prohibited discrimination in view of the fact that the Complainant had no diagnosed permanent disability at the time of the challenged actions by the employer. The employer believed that the Complainant’s physical problems were temporary consequences of an injury. This was thus a situation where the problems affecting the ability to work were things that could be caused by something other than a “disability” within the meaning of the Wisconsin Fair Employment Act. Greco v. Snap-On Tools (LIRC, 05/27/04).

While a conclusion of liability normally requires that the employer be aware of the employee’s disability, when the employee’s supervisors are aware of the obvious physical manifestations of an actual disability subsequently established at hearing, there is no requirement that they be aware of the employee’s actual diagnosis or have reached a subjective conclusion that the employee was disabled under the Wisconsin Fair Employment Act, at the time of the alleged discriminatory act. Stone v. UW System (Wis. Pers. Comm’n, 03/12/03).

Not every medical condition rises to the level of a disability protected under the Wisconsin Fair Employment Act. Therefore, an employer’s knowledge of the Complainant’s medical condition does not necessarily mean that the Respondent knew that the Complainant was disabled. Lane v. DOC (Wis. Pers. Comm’n, 06/07/01).

The Respondent did not violate the Act when it discharged the Complainant because she refused to provide it with information from a medical doctor regarding her symptoms and treatment. The Respondent needed this information to evaluate the Complainant’s ability to undertake the job-related responsibilities of her position. Garlie v. St. Francis Home, (LIRC, 06/29/98).

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).

An employer does not discriminate because of handicap, even where it takes an action with respect to an employee because of some physical or mental inability of that employee, where the inability is one that can result from conditions or causes which are not disabilities within the meaning of the Wisconsin Fair Employment Act, and the employer does not know that the inability results from a condition which is a disability. In this case, the Complainant was not diagnosed as having dyslexia with a learning disability until several months after leaving his employment with the Respondent. There was no evidence that the Respondent believed that the Complainant had a condition which would constitute an actual impairment. Although the Respondent was aware that the Complainant could not read and write at normal levels, it had no reason to suspect that the cause was anything other than lack of education. Some adults are unable to read and write at normal levels. This does not mean that all of these individuals are handicapped within the meaning of the Wisconsin Fair Employment Act. Horner v. Village Square Apts. (LIRC, 05/21/91), aff’d sub nom. Horner v. LIRC (Dane Co. Cir. Ct. 10/01/92).

It is not handicap discrimination to discharge an employee for deficiencies in work performance where the employer is unaware that the employee has a handicap that is allegedly the cause of those deficiencies. Menzner v. LIRC (Family Service Ass’n of Fox River Valley) (Calumet Co. Cir. Ct., 02/05/85); Lowenberg v. LIRC (UW-Parkside) (Ct. App., Dist. II, unpublished opinion, 08/26/83).

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).