123.9 Miscellaneous

The employer’s decision to discharge the employee the day after receiving a letter from him requesting disability accommodations raises a suspicion that it acted out of discriminatory animus. Oldenburg v. Triangle Tool Corp. (LIRC 02/20/2018), aff’d sub nom. Triangle Tool Corp. v. LIRC and Oldenburg (Milwaukee Co. Cir. Ct., 02/18/19).

Although the ADA contains a provision expressly prohibiting discrimination against an individual with a disability based on his or her relationship with a disabled person ("association discrimination"), the WFEA contains no analogous provision. The Complainant's claim of disability discrimination because of her association with a disabled individual does not state a cause of action under the WFEA. Bach v. Easter Seals Sw. Wis. (LIRC, 10/09/14).

An independent medical examiner characterized his opinion that the Complainant was discharged for “medical reasons” as a medical one. However, in the absence of any evidence that the Complainant had an impairment which caused him to be involved in accidents, the IME’s opinion was a personal judgment that the Complainant was an unsafe, accident-prone worker. That the Respondent adopted the IME’s language and characterized the discharge as being for “medical reasons” did not alter the fact that the discharge was due to reasons not directly related to a medical problem. Tschida v. UW-River Falls (LIRC, 12/30/08).

A driver need not seek a determination of medical qualification from the Department of Transportation (DOT) prior to filling a disability discrimination claim under the Wisconsin Fair Employment Act. When a person’s medical and physical qualifications to be an interstate commercial driver are material to a claim under the Wisconsin Fair Employment Act, and a dispute arises concerning those qualifications that cannot be resolved by facial application of the DOT regulations, such a dispute shall be resolved by the DOT under its dispute resolution procedure. The carrier, not the driver, is the party that must seek a determination of medical and physical qualification from the DOT if the carrier intends to offer a defense that the driver was not qualified for medical reasons. Szleszinski v. LIRC, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

The Respondent violated its own no-fault attendance policy in terminating the Complainant. The Respondent’s policy allowed its employees 15 days from the date of receipt of a form letter (which indicated that the employee would need to submit a completed FMLA form to ensure that his absences were not counted as an occurrence) to submit FMLA documentation to ensure that a medically-related absence would not be counted as an “occurrence” under the Respondent’s no-fault attendance policy. In this case, the Respondent gave the Complainant only two days from the date it provided him with the form letter to submit the FMLA form to ensure that the absence was not counted as an “occurrence” before terminating him. Because the Respondent did not follow the requirements of its own no-fault attendance policy in terminating the Complainant, it could not claim the protection that might be available to it under the policy. The Complainant had not accrued the requisite number of “occurrences” necessary for termination. The Respondent was aware that the Complainant was receiving medical treatment for migraine headaches when it terminated him. Based on these unique circumstances, the Complainant was terminated “because of” his disability. Stoughton Trailers v. LIRC, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

The Supreme Court declined to address the issue of whether a termination for exceeding the maximum number of absences permitted under a no-fault attendance policy is because of disability under the Wisconsin Fair Employment Act when some of the absences were caused by disability and others were not, since it was not necessary to decide this legal issue in this particular case. Stoughton Trailers v. LIRC, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

Use of the mixed motive test in analyzing a claim of discrimination does not prevent an employer from applying its “no fault” attendance policy to an employee who is absent for reasons not related to a disability. Not all absences are related to a person’s disability. Not every illness is a disability within the meaning of the statute. Similarly, just because a disabled person is absent does not mean that the absence is necessarily due to the person’s disability, thereby triggering reasonable accommodation requirements. An employer may continue to apply its “no fault” attendance policy as long as the policy does not result in an adverse employment action taken because of an employee’s disability, and as long as the policy is otherwise compliant with the law. In this case, the Complainant was discharged, in part, because of absences caused by his disability and, in part, because of absences not caused by his disability. His discharge would not have occurred but for his last two absences, which were caused by his disability. Stoughton Trailers v. LIRC, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102. [Note: See decision on appeal, above].

At some point the application of a “no-fault” attendance policy to a person who is experiencing absences caused by a disability will constitute taking action against that person “because of” a disability. However, in some cases the mere presence of some disability-caused absences in an overall, accumulated record of absences will not be significant enough to justify the conclusion that adverse action pursuant to a “no-fault” attendance policy is taken “because of” disability. There is no bright-line rule as to where these different points fall. Geen v. Stoughton Trailers (LIRC, 08/31/00), rev. sub nom. Stoughton Trailers v. LIRC (Dane Co. Cir. Ct., 08/09/01), modified and remanded sub nom. Geen v. LIRC, 2002 WI App 269, 258 Wis. 2d 498, 654 N.W.2d 1. Decision on remand, Geen v. Stoughton Trailers (LIRC, 09/11/03); aff’d sub nom. Stoughton Trailers v. LIRC (Dane Co. Cir. Ct., 05/13/04); aff’d 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102. [Note: See decision on appeal, above].

The discharge of an employee because of disability after a potential business partner of the employer demanded it as a condition of entering into partnership with the employer was discriminatory. Swanson v. State St. Stylists (LIRC, 11/26/97).

The Complainant, who was employed as an interstate truck driver for the Respondent, has diabetes mellitus. When the Complainant underwent a physical examination to obtain certification required by the Department of Transportation, a physician indicated that he had an unacceptable level of glucose in his urine. Under sec. 391.41 of the Federal Motor Carrier Safety Regulations, indications of uncontrolled diabetes disqualify an individual from operating a motor vehicle. Consequently, the Respondent would not permit the Complainant to drive until he got this blood sugar level under control. The Complainant subsequently saw another doctor, who considered his blood sugar level to be acceptable and certified him as qualified to drive. The Respondent refused to accept this certification. Sec 381.47 of the Federal Motor Carrier Safety Regulations provides a resolution mechanism for disputes regarding medical evaluations. The Respondent should not be held to have acted in violation of the Wisconsin Fair Employment Act unless and until there has been a determination under the federal safety regulations that the Complainant is qualified to drive, and the Respondent refuses to permit him to drive. Hermann v. Ort Trucking Co. (LIRC, 12/13/94).

The Complainant was not unlawfully discharged because of poor eyesight; she was discharged because the Respondent reasonably believed that she had not been honest when responding to questions about her medical condition. A Respondent need not be correct in its assessment that a Complainant falsified her medical statement; it need only have acted upon a good faith belief that she had. Plears v. Perlick Corp. (LIRC, 02/12/93).

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 Complainant filed a complaint of handicap discrimination based upon the Respondent’s removal of its uncorrected vision standard, under which the Complainant had qualified for certification to the list of people to be considered for a conservation warden position. The complaint did not constitute a claim under the Wisconsin Fair Employment Act, but the Complainant was given thirty days to amend the complaint to allege that the Respondent’s deletion of the uncorrected vision standard was motivated by an intent to discriminate. Wood v. DNR (Wis. Pers. Comm’n, 05/18/89).