By Ruder Ware Alumni
July 13, 2004
On June 30, 2004, the Wisconsin Supreme Court upheld a decision issued by the Labor and Industry Review Commission, holding an employer violated the Wisconsin Fair Employment Act (WFEA) by failing to reasonably accommodate a disabled employee or showing that doing so would impose a hardship on the employer. Hutchinson Technology, Inc. v. Labor and Industry Review Commission, (“HTI”).
The complainant worked as a production employee for HTI. To improve the company’s productivity and meet employee preferences, HTI utilized twelve-hour work shifts, with alternating three- and four-day work weeks. The complainant worked these hours until she developed a back condition which restricted her to working no more than eight hours each day. HTI initially allowed the complainant to work eight-hour shifts assuming that her back condition would improve and she would eventually resume working twelve-hour shifts. Upon being informed that the complainant’s back condition would not improve and that she would need to work eight-hour shifts permanently, HTI fired the complainant.
The court first addressed the issue of whether the complainant was in fact disabled under the meaning of the WFEA. Hutchinson argued that she was not because her condition did not limit her ability to work broad category jobs. The Supreme Court rejected this argument reaffirming that in Wisconsin in order to qualify as disabled, all the complainant needed to show was that her condition limited her ability to perform her particular job. Because the complainant’s condition prevented her from working a full shift of her particular job, she was disabled under the WFEA.
Next, the court addressed whether HTI violated the WFEA by not allowing the complainant to continue working eight-hour shifts. Relying heavily on its recent decision in Crystal Lake Cheese Factory, the court held that once the complainant established she was disabled, she must then show a reasonable accommodation existed that would have allowed her to continue working. The complainant claimed that allowing her to work an eight-hour shift was a reasonable accommodation. Satisfied with her articulation of an available accommodation, the court required HTI to prove that accommodating the complainant in this way would create a hardship on the company or its employees. HTI argued that permitting her to continue working shorter shifts would result in lost profits, production losses, and morale problems. However, since the complainant had already worked shortened shifts for eight months and HTI failed to present proof to support their “hardship” arguments, the court held that HTI’s examples of hardship were hypothetical and not based on credible evidence.
CONCLUSIONS AND GUIDANCE FOR WISCONSIN EMPLOYERS.
Like it’s recent decision in the Crystal Lake Cheese Factory case, the Supreme Court in HTI gives employers relatively little guidance regarding the rules governing reasonable accommodation and hardship under the WFEA. However, some general guidance may be emerging from these decisions.
Light Duty Assignments. First, if a company has a formal “light duty” program, either for employees with work related injuries and/or injuries sustained outside of work, it is important to have a clear policy that these are temporary short-term work assignments and not newly created permanent positions established to accommodate a worker’s long-term disability.
If the “light duty” consists of the individual performing only parts of their regular job, it is also important to evaluate and document on a regular basis any problems, such as lower production levels or quality standards, or hardships or morale problems that may be created for co-workers, that result from such light duty assignments.
Accommodating Job Applicants. Where a job applicant indicates that they believe that they may otherwise qualify for a job, but are unable to perform certain functions or are unable to work an entire standard shift, these cases present Wisconsin employers with new challenges. If the employee has a work history in a similar position, the employer should explore with them how they or their coworkers accomplished the necessary tasks in the previous employment. If the applicant indicates there is a health-related reason that they cannot work a full shift, of whatever duration, it appears the employer must engage in an interactive exchange to determine if the applicant can meet their initial burden to prove that there is an effective accommodation available. If the applicant meets that initial threshold, the burden appears to shift to the employer to show that the proposed accommodations would be a “hardship” to the business. Clearly, based upon these cases, an employer cannot automatically disqualify an applicant based solely upon a disability that is related to an inability to work a standard work shift or perform all of the job duties.
Defending a WFEA Claim Post Crystal Lake and HTI. While the Court continues to insist that a distinction exists under the WFEA between an employer’s burden to “reasonably accommodate” and costs of “hardship,” the analysis in both Crystal Lake and HTI do not provide any examples of where one concept ends and the other begins. However, both cases demonstrate that in defending against WFEA disability claims in the future, it will be important not to “under try” the employer’s defense. Clearly, the LIRC and the courts seem to be saying just about any accommodation is reasonable and that the employer must establish the accommodation creates hardship to a business. The focus is going to be on presenting credible evidence on the specific quantifiable monetary costs or the specific negative impact on other workers in the workplace.
The Supreme Court’s decision is significant for a few reasons. It reaffirmed that in order to be considered disabled under the WFEA, a complainant’s injuries do not have to limit his or her ability to perform a broad category of jobs, just his or her particular job. The decision also illustrates the need for employers to definitively prove that the accommodation an employee seeks will cause it hardship. The main problem the court had with HTI’s proof was that it was hypothetical and asserted damages the company believed it would sustain if the complainant continued working eight-hour shifts, not damages the company had already sustained as a result of the shortened shifts she had already worked. Unfortunately for employers, although the court insists that employees have the burden to show a reasonable accommodation exists, it appears that any accommodation will be found to be reasonable, thereby shifting the burden to the employer to prove hardship. For this reason, the issue of hardship will likely have to be addressed in all WFEA disability claims. Companies should be prepared to present evidence illustrating how the proposed accommodation will affect monetary costs or the specific negative impact it will have on other workers in the workplace. From the court’s decision it appears that in some cases, such evidence may have to be obtained by permitting the requested accommodation for a short period of time. Otherwise, companies will have to conduct a detailed analysis of their production system demonstrating why a certain accommodation would result in lower production levels or lost profits or proof that the accommodation would lower the morale of fellow employees.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.
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