123.45 Requirement of case-by-case evaluation

The Complainant was denied medical certification as a truck driver. This led to his discharge. The Respondent failed to establish that the Complainant could not safely undertake the responsibilities of the job because it did not meet the statutory requirements that such an evaluation shall be made on an individual case-by-case basis. Instead, the Respondent relied primarily upon a U.S. Department of Transportation conference report that indicated that individuals with Wilson’s Disease should, without exception, be disqualified from interstate truck driving. This conference report was never adopted as a rule. There are federal regulations which list some diseases and conditions that will, in fact, result in blanket disqualification. However, Wilson’s Disease is not one of the conditions listed in those regulations. Szleszinski v. LIRC, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345.; aff’d, Szleszinski v. LIRC, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

The Complainant indicated at the time she was hired by the Respondent as a registered nurse that she had been diagnosed with epilepsy. In order to make a case-by-case determination as to whether the Complainant’s condition posed a risk to the safety of employees or residents, the Respondent requested additional medical information regarding the Complainant’s treatment history. The Complainant refused to provide specific, written information about her condition from a treating doctor. When the Complainant hindered the Respondent’s ability to evaluate her ability to undertake the job-related responsibilities of the job as a registered nurse, the Respondent did not violate the Wisconsin Fair Employment Act by discharging the Complainant. Garlie v. St. Francis Home in the Park (LIRC, 06/29/98).

Sec. 111.34(2), Stats., requires that any evaluation of a handicapped person's ability to undertake the job-related responsibilities of his employment shall be made on an individual case-by-case basis. Where the employer had a blanket rule prohibiting the employment of individuals with AIDS, the court would not be inclined to consider the employer's affirmative defense that its policy was justified under the "job-relatedness" exception found in sec. 111.34, Wis. Stats. Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

The Respondent decided not to hire the Complainant as a full-time firefighter based upon its discovery that the Complainant had asthma and based upon the Respondent's perception of that class of persons as being ill-suited for the occupation of a firefighter. The Respondent did not satisfy the requirement of the Wisconsin Fair Employment Act to evaluate the Complainant as an individual, as opposed to simply being a member of a class of persons who suffer from asthma. However, since the Respondent was able to prove at the hearing that it did not unlawfully discriminate against the Complainant on the basis of handicap (because it established that there was a reasonable probability that the Complainant would have an asthma attack at some time while working as a firefighter and, therefore, would pose a hazard to himself and to others) the Complainant was not entitled to any affirmative remedy because of the Respondent's failure to individually evaluate him at the time he was denied employment. Leach v. Town of Pleasant Prairie Fire Dep't (LIRC, 04/23/91).

The 1982 amendments to the Wisconsin Fair Employment Act specified the distinction between those employers having a special duty of care and those employers who do not have such a duty. At the same time, the legislature overruled previous cases insofar as they had failed to require employers to conduct a case-by-case evaluation of the relationship between an individual's handicap and the responsibilities of the particular job. Leach v. Town of Pleasant Prairie Fire Dep't (LIRC, 04/23/91).

The Respondent’s failure to hire the Complainants was based on a general rule requiring applicants to meet certain minimum uncorrected vision standards. The individual eye examinations given to Complainants did not constitute an individual case-by-case evaluation of the candidates. The eye examinations accomplished nothing more than to verify that the Complainants’ vision did not meet its general rule requiring 20/40 uncorrected vision. Brown County v. LIRC (Phillips & Grinkey) (Ct. App., Dist. III, unpublished decision, 02/27/90).

The statute makes no exceptions to the requirement that the evaluation of whether an individual can perform the job-related responsibilities of a position be done on a case-by-case basis. Racine Educ. Ass’n v. Racine Unified Sch. Dist. (LIRC, 08/11/89), aff’d, sub nom., Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

The Respondent had a general rule that it would not employ epileptics as intrastate drivers based on federal regulations prohibiting epileptics from driving in interstate commerce. The Wisconsin Fair Employment Act requires an individual evaluation of the applicant’s abilities. The Respondent failed to produce any evidence that: (1) the Complainant could not work due to his epilepsy, (2) the Complainant’s physical condition would constitute a hazard to himself or others, or (3) the Complainant was not competent to work as an intrastate truck driver or yard man. Dushek & Watkins v. LIRC (Radloff) (Brown Co. Cir. Ct., 05/18/89).

Where an individual was denied licensing as a school bus driver because he was a diabetic and was required to use a hypoglycemic agent to control his diabetes, he could not be denied a license without an individual evaluation of whether his particular handicap would prevent him from safely working as a school bus driver. The Department of Transportation was empowered to establish physical standards for the licensing of school bus drivers so long as those standards did not constitute a general rule prohibiting licensure of handicapped individuals in general or a particular class of handicapped individuals within the meaning of sec. 111.32(2)(b), Stats. Botham v. DOT, 134 Wis. 2d 378, 396 N.W.2d 785 (Ct. App. 1986).