123.42 Inability to perform job-related responsibilities

The Complainant was blind and diabetic. Based on its expert’s recommendation, the Respondent refused to allow the Complainant to work for a year and a half while it gathered medical information. The Respondent eventually allowed the Complainant to return to work. However, medical evidence showed that the Complainant could have safely worked during the entire time period she was suspended. While the Respondent may have acted in good faith, there is no “good faith” exception where discrimination has occurred; if an employer decides an employee cannot work safely because of a disability, the responsibility for having been incorrect lies with the employer. Lehr v. The Salvation Army (LIRC, 04/16/13).

In this case, the Respondent made its decision not to allow the Complainant to return to work based entirely on the opinion of a doctor on whom it relied. However, the fact that an employer has acted 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. Here, the Commission found the opinion of the Complainant’s doctor that the Complainant could adequately and safely return to work, to be more persuasive than the opinion of the Respondent’s doctor that she could not. Thus, the Respondent failed to carry its burden of establishing an “[in]ability to adequately undertake job-related responsibilities” defense. Shea v. Chrysler Group LLC (LIRC, 02/28/13), aff’d, Chrysler Group v. LIRC (Kenosha Co. Cir. Ct., 11/26/13); aff’d, Ct. App., Dist. II, 02/25/15 (not recommended for publication).

The evaluation of whether a worker can work safely is to be made on a case-by-case basis. The Respondent in this case had a reasonable basis for concern that the Complainant’s disability was related to his ability to perform the job safely. It was therefore not unlawful for the Respondent to temporarily suspend the Complainant’s employment in order to conduct an individualized evaluation of that question. It was not an act of discrimination for the Respondent to require the Complainant to take a leave of absence without pay pending his examination by an independent medical examiner. Tschida v. UW-River Falls (LIRC, 12/30/08).

The Complainant suffered a transient ischemic attack (which presents the same symptoms as a stroke but causes no permanent damage). His physician had released him to return to work without restrictions. However, the Respondent established that the Complainant’s physician had an incomplete understanding of the Complainant’s strenuous job duties as a groundskeeper, and that the Complainant had complained of dizziness and headaches and seemed to have some memory and speech problems. The Respondent established that the Complainant was not capable of performing his job-related responsibilities. Purnell v. Wilderness Walk (LIRC, 09/20/95).

It is not unlawful to apply minimum uniform attendance requirements to persons whose handicaps may cause them to miss work. However, it is unlawful for an employer to assume that an employee's handicap will cause him to fail to meet certain attendance standards in the future, and to preemptively terminate the employee on that basis. An employer who did this would have to be prepared to prove to a reasonable probability that the employee would in the future be unable to efficiently (i.e., to minimum attendance standards) perform his job. Mere speculation that this could happen would not suffice to meet that burden. Gee v. ASAA Technology (LIRC, 01/15/93).

A Respondent reasonably suspended a Complainant until the State Department of Motor Vehicles could determine if her diabetes condition should disqualify her from driving a school bus. Since it is the Department of Motor Vehicles, through its licensing requirement, rather than the employer who determines whether an individual is qualified to operate a school bus safely, an employer fulfills its duty of individual evaluation by suspending the individual driver until the State can make its determination. In essence, the Complainant’s diabetes condition was reasonably related to her ability to adequately undertake the job-related responsibilities of a school bus driver during the period of her suspension. Haynes v. Nat’l Sch. Bus Serv. (LIRC, 01/31/92).

An employer has a right to know if an employee has a handicap (except to the extent that the Americans with Disabilities Act may provide otherwise) so that the employer can determine whether the handicap is reasonably related to the ability to undertake the job responsibilities. Accordingly, an employer can lawfully refuse to hire or can discharge an individual who falsifies an employment application with respect to a handicap. Haynes v. Nat’l Sch. Bus Serv. (LIRC, 01/31/92).

The Respondent did not discriminate because of handicap when it discharged an executive who had Parkinson’s Disease where the executive was unable to perform his job-related responsibilities. Whether the medication the Complainant took for his condition caused his inability to perform was unclear. The Complainant’s own physician did not believe the medication caused significant mental impairment. Kellow v. Regal Ware (LIRC, 05/10/89), aff’d sub nom. Kellow v. LIRC (Washington Co. Cir. Ct., 04/18/90).

In a hearing on the issue of probable cause, the Respondent failed to establish that the Complainant’s handicap was reasonably related to the Complainant’s ability to undertake the duties of a new position where there was little evidence supporting a doctor's establishment of lifting, bending, stooping and twisting restrictions; where the doctor's conclusion was based on the Complainant's notations of his medical history and an examination limited to five minutes which did not include questions regarding the meaning of those notations; and where the doctor was not shown to be aware of how the duties of the Complainant’s current position compared to the duties of the position the Complainant desired. Lauri v. DHSS (Wis. Pers. Comm'n, 11/03/88).

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).

Where the evidence showed that all of the Respondent’s available work required lifting in excess of 50 pounds and the Complainant had a restriction against lifting 50 pounds or more, the Complainant was not able to adequately undertake the job-related responsibilities of his employment within the meaning of sec. 111.34(2)(a), Stats. Ellison v. Pomps Tire Service (LIRC, 08/08/86).

An employer has not met its burden of proving that an employee could not carry out the required job duties by offering only its subjective judgment that the employee was incapable of doing so. Hennekens v. River Falls Police Dep’t (LIRC, 01/29/85).

An employer could not justify a discharge by showing the possibility that an employee might be moved into a more strenuous job that he could not perform. Mercury Marine v. LIRC (Poeschl) (Ct. App., Dist. IV, unpublished opinion, 10/04/83).

An executive order establishing a work assistance program for alcoholic employees does not prohibit termination where alcoholism renders the employee unable to do the job. Squires v. LIRC, 97 Wis. 2d 648, 294 N.W.2d 48 (Ct. App. 1980).

The burden is on the employer to establish to a reasonable probability that a handicapped individual is physically or medically unable to efficiently perform the required duties. Dairy Equipment v. DILHR, 95 Wis. 2d 319, 290 N.W.2d 330 (1980); Bucyrus-Erie v. DILHR, 90 Wis. 2d 408, 280 N.W.2d 142 (1979). The Act does not require that an employer keep a job open until such time as an employee may be able to perform. The test is whether the employee is presently able to perform. Colovic v. Wis. Elec. (LIRC, 08/30/78).

Where the employer had no medical evidence indicating that its employee was not presently able to perform, it was unlawful to suspend him until the employer received the evidence, even where the purpose of the suspension was to obtain the evidence. Adams v. Soo Line R.R. (LIRC, 06/23/77).

Where an employee was able to perform his job duties at the time of hearing but was unable to do so at the time of his discharge, the discharge was lawful since the Act contemplates present ability to perform. J.C. Penney v. DILHR (Mitchell) (Dane Co. Cir. Ct., 03/22/76).