123.41 Generally

When a dispute exists between the physician for a truck driver and the physician for a trucking company regarding the driver’s physical and medical qualifications, it is the company, not the driver, that bears the burden of seeking a determination under the Department of Transportation (DOT) dispute resolution procedure (49 CFR 391.47) if the company intends to offer a qualification-based defense against the driver’s claim of disability discrimination under the Wisconsin Fair Employment Act. A requirement that the driver seek a DOT determination before filing a state discrimination claim would be contrary to the burden-shifting scheme of the Wisconsin Fair Employment Act. Further, such a requirement would prevent some drivers from filing legitimate claims under the Act before the statute of limitations had run. In some cases, it may be unnecessary to obtain a determination regarding the driver’s medical qualifications from the DOT if the issue is easily resolved by facial application of the DOT regulations. However, where a dispute over a driver’s medical qualifications cannot be resolved by facial application of the DOT regulations, the Administrative Law Judge must either give the company the opportunity to seek a determination from the DOT regarding the driver’s medical qualifications or seek sua sponte a determination from the DOT regarding the driver’s medical qualifications. Szleszinski v. LIRC, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

In order to establish a claim of disability discrimination, a Complainant must establish that he is an individual with a disability, and that a challenged employment action was made because of that disability. If those things are established, the question then becomes whether the employer can justify its actions under the exception set forth in sec. 111.34(2), Stats., for situations in which a disability is reasonably related to an employee’s ability to adequately undertake the job-related responsibilities of his employment. If the applicability of that exception is established, the question then becomes whether the employer can establish that it did not refuse to reasonably accommodate the Complainant’s disability, or that any accommodation which might have been made would have posed a hardship on the employer’s business within the meaning of sec. 111.34(1)(b). The question of whether a reasonable accommodation was refused, or whether it would have posed a hardship, comes into play only if it appears that a challenged employment decision was made because of a disability, and that the disability which was the reason for the challenged employment action was reasonably related to the Complainant’s ability to do the job. Cook v. Community Care Resources (LIRC, 01/13/03).

A Respondent was not required to ignore evidence of a Complainant’s violent and threatening behavior. It could conclude that continued employment of the Complainant would pose a safety risk in the workplace, even though the Complainant’s psychologist and a police officer held an opinion to the contrary. Sampson v. S & S Distrib. (LIRC, 11/19/99).

The Complainant in a handicap discrimination case must show that: (1) he or she is handicapped within the meaning of the WFEA, and (2) the employer took one of the enumerated actions on the basis of handicap. The employer then has the burden of proving a defense under §111.34, Stats. Under §111.34(2)(a), it is not a violation of the WFEA to take an employment action based on an individual's handicap if the handicap is reasonably related to the individual's ability to adequately undertake the job related responsibilities of that individual's employment. However, if an employer refuses to reasonably accommodate an employee's or prospective employee's handicap and is unable to demonstrate that the accommodation would pose a hardship, then the employer violates the WFEA. Reading the two paragraphs of §111.34 together, once the employee has met the first two showings, the employer must show either that a reasonable accommodation would pose a hardship or that, even with a reasonable accommodation, the employee cannot adequately undertake the job related responsibilities. Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998).

Where a Complainant has established that the Respondent has refused to hire him for a janitorial position because of his lifting restrictions, the burden shifts to the Respondent to prove that the Complainant’s handicap is reasonably related to his ability to adequately undertake the job-related responsibilities of the job. If the Respondent meets its burden, it must further demonstrate that accommodating the Complainant would pose a hardship on the Respondent’s business in order to avoid liability. Charles v. Milwaukee Bd. of Sch. Dir. (LIRC, 06/23/93).

An employer’s decision that a handicapped employee is unable to effectively perform, and that no accommodation is feasible is measured by an objective standard. Evidence which postdates the personnel transaction in question (including such things as medical evaluations) may have no relevance to the issue of the employer’s intent at the time of the transaction, yet it may have some relevance to issues such as the employee's capacity to perform and accommodation. Although an employer must gather substantial facts to support a decision that it cannot accommodate an employee, the determination of whether the employer violated the Act is made by the trier of fact. A good faith belief on behalf of the employer will not be a sufficient defense to an act of discrimination. Keller v. UW-Milwaukee (Wis. Pers. Comm’n, 03/19/93).

The mere fact that the employer has made its employment decision in reliance upon the opinion of a doctor does not protect the employer from a finding of discrimination. Where there is conflicting medical evidence, the trier of fact conclusively determines which view of the evidence it will accept. Leach v. Town of Pleasant Prairie Fire Dep’t (LIRC, 04/23/91).

Employers are required to evaluate handicapped applicants without initially considering their handicap. Betlach-Odegaard v. UW-Madison (Wis. Pers. Comm'n, 12/07/90).

When an employer reaches the conclusion that a handicapped job applicant who is otherwise in line to be hired faces a problem in performing a job because of handicap, the employer has a duty to consider accommodation options. Betlach-Odegaard v. UW-Madison (Wis. Pers. Comm'n, 12/07/90).