Vol. 77, No. 10, October
ADA and WFEA: Differing Disability Protections
While the ADA offers more expansive remedies, the WFEA provides
broader rights and protections to workers with disabilities. Both acts
warrant careful consideration in assessing the rights and
responsibilities of employers and employees.
by Bradden C. Backer & Michael Mishlove
While Crystal Lake Cheese Factory and Hutchinson
Technology Inc.1 highlight the more
expansive "reasonable accommodation" obligations imposed on employers
under the Wisconsin Fair Employment Act (WFEA) in comparison to the
Americans with Disabilities Act (ADA), this is only one of several ways
in which Wisconsin law provides broader rights and protections to
workers with disabilities. Indeed, practitioners may lose sight of the
broader and possibly expanding scope of the WFEA's disability
protections if their perspectives have been principally shaped by the
attention paid by the legal and popular press to recent U.S. Supreme
Court decisions narrowing the protections afforded under the ADA.2 The WFEA, however, is a critical strand in the web
of legal protections provided to workers with disabilities, and its
provisions should not be overlooked.
Statutory Sources of the WFEA's Broader Scope
The roots of the broader reach of the WFEA - in comparison to the ADA
- lie in the two acts' respective statutory language. At the outset, the
WFEA's disability provisions apply to anyone "employing at least one
individual,"3 while the ADA only covers
persons "engaged in an industry affecting commerce who [have] 15 or more
The WFEA also includes a broader universe of workers within its
umbrella of disability protections. Symbolic of this is the absence of
any per se exclusions from the WFEA's statutory definition of
"individual with a disability."5 The ADA, in
contrast, explicitly, and automatically, excludes from its definition a
variety of conditions: current use of controlled substances unless under
the supervision of a licensed health care professional; transvestitism;
transsexualism; pedophilia; exhibitionism; voyeurism; gender identity
disorders not resulting from a physical impairment, or other sexual
behavior disorders; compulsive gambling, kleptomania, and pyromania; and
psychoactive substance use disorders resulting from current illegal use
of drugs.6 While the WFEA provides a general
exception to its prohibition of disability discrimination when an
individual's disability "is reasonably related to the individual's
ability to adequately undertake the job-related responsibilities of that
individual's employment, membership or licensure,"7 it also mandates that this determination "shall be
made on a case-by-case basis and may not be made by a general rule which
prohibits the employment or licensure of individuals with disabilities
in general or a particular class of individuals."8
More significant is the relative expansiveness of the language used
by the Wisconsin Legislature, compared to Congress, in defining
"disability." The ADA's principal definition requires a plaintiff to
have a "physical or mental impairment that substantially limits one or
more major life activities."9 Although
similar, the WFEA's principal definition contains critical differences
that underlie its comparatively broader reach. Under the WFEA, an
individual has a disability when he or she "has a physical or mental
impairment which makes achievement unusually difficult or
limits the capacity to work."10 The WFEA's
"achievement" definitional prong has been likened to the ADA's "major
life activity" concept,11 while its
"capacity to work" definitional prong finds no statutory counterpart in
the ADA. Only the regulations promulgated by the Equal Employment
Opportunity Commission (EEOC) refer to the issue of work in determining
whether an individual has a disability under the ADA. Among the "major
life activities" enumerated in the EEOC regulations are "functions such
as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning and working."12
The WFEA's Embrace of "Working" in Assessing Disability
The validity of the ADA's consideration of "working" in determining
whether an individual has a disability has been repeatedly questioned by
the U.S. Supreme Court and other courts. The Court first expressed its
skepticism in Sutton v. United Airlines13 when Justice Sandra Day O'Connor observed that
there appeared to be a circularity of reasoning inherent in defining an
impairment in terms of the impact of that impairment on working.
Following this lead, many federal courts have not readily embraced the
EEOC's regulations, generally, and its disability definition, in
particular. For example, the Fifth Circuit observed that "[w]e have
never given the EEOC regulations [defining disability] Chevron
deference and recent decisions of the Supreme Court strongly suggest
that the regulations are not entitled to such deference."14
In contrast, the WFEA's statutory language leaves no doubt that an
individual's limited capacity to work because of a disability is
sufficient to bring the individual within the WFEA's protections.
The potential significance of the WFEA's express statutory reference
to the impact of a disability on the major life activity of working has
been magnified by expansive interpretation of this language by state
courts and tribunals. Under the WFEA, the analysis of an impairment's
effect on an individual's ability to work focuses on her particular
job.15 In contrast, beginning with
Sutton, the U.S. Supreme Court stressed that an ADA plaintiff
must demonstrate that she is substantially limited in performing a range
or class of jobs in order to establish a substantial limitation on the
major life activity of working.16
Moreover, in ADA litigation, many courts have stressed the importance
of relying on a vocational expert's analysis in demonstrating an
impairment's impact on a broad range of employment opportunities to
establish proof of a limitation on working sufficient to constitute a
disability under the ADA.17 Although the
Seventh Circuit Court of Appeals has ruled that there is no per se rule
requiring plaintiffs to produce such statistical evidence to establish a
substantial limitation in the major life activity of working,18 the irrelevance of this issue under the WFEA
obviates any need to consider this evidentiary problem.
The WFEA's More Expansive Consideration of Nonwork Activities
Bradden C. Backer, U.W.
1981, heads the five-person Employment Law Practice Group at Friebert,
Finerty & St. John S.C., Milwaukee, and provides counsel to
management. He is a coauthor of the State Bar's three-volume Wisconsin
Employment Law treatise and Hiring and Firing in Wisconsin and author of
prior Wisconsin Lawyer articles on restrictive covenant agreements and
privacy issues in the employment context.
Michael Mishlove, Michigan 1992 cum laude, is a
civil litigator and member of the Employment Law Practice Group at
Friebert, Finerty & St. John S.C., where he counsels both employees
The WFEA's express focus on the effect of an impairment on working
does not on its own account for the larger universe of individuals
protected by its disability provisions than that protected under the
ADA. Both the relative scope of nonwork-related life activities and the
degree of limitation required before an impairment rises to the level of
a disability differ under federal and Wisconsin law and contribute to
the WFEA's greater reach. Although the EEOC's definition of "major life
activities" is open-ended - "major life activities" includes
"functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning and
working"19 - federal courts have rejected
such an expansive reading. For example, in Toyota Motor
Manufacturing of Kentucky Inc. v. Williams, the Supreme Court
concluded that only "activities that are of central importance to most
people's daily lives" fall within the ambit of "major life
activities."20 Even prior to this
pronouncement, many federal courts had embraced a narrow interpretation
of what constitutes a "major life activity." For example, the Seventh
Circuit Court of Appeals has narrowly construed major life activities to
exclude getting to and from work, getting along in interactions with
others, and even impaired liver function.21
The WFEA, in contrast, has been interpreted to treat "major life
activities" and "life's normal functions" as
alternative concepts in considering an impairment's impact on
an individual's ability to achieve.22
Moreover, regardless of how the WFEA's "achievement" prong is
defined, Wisconsin arguably imposes a lower materiality threshold in
determining whether the impact of a physical or mental impairment is
sufficient to bring an individual within the scope of the WFEA's
disability provision. A comparison of the respective statutory
definitions makes obvious this potential difference. The ADA requires a
plaintiff to establish that he is "substantially limit[ed]" in a major
life activity, while the WFEA requires that the impairment "make[s]
achievement [of a major life activity] unusually difficult." Similarly,
the ADA requires a plaintiff seeking to establish a disability by
focusing on the major life activity of working to show a "substantial
limit[ation]," in contrast to the WFEA complainant who, under the
literal language of the WFEA, need show only any "limit[ation]
[on] the capacity to work."23
The courts' interpretations of these standards appears to reflect
these language differences. In applying the ADA's standard, the Supreme
Court has emphasized that, while not requiring "utter
inabilit[y],"24 the impairment must impose
a "considerable" limitation,25 and the
Court has stressed that "[t]he impairment's impact must also be
permanent or long-term."26 While the Labor
and Industry Review Commission (LIRC) also requires that the impairment
not be short-term,27 the WFEA's materiality
threshold has been variously articulated as "a substantial
difficult,"29 or not "merely
Whether these latter language differences are materially different is
debatable. However, the WFEA's language appears to have led to a more
expansive view of who may state a disability-related claim. For example,
a 15-pound lifting restriction was found sufficient to render a back
condition a disability under the WFEA.31
The Fourth Circuit Court of Appeals, in contrast, has concluded that
under the ADA "as a matter of law, [ ], a twenty-five pound lifting
restriction ... does not constitute a significant restriction on one's
ability" sufficient to deem an impairment a disability.32 Similarly, attention deficit disorder has
repeatedly been found to constitute a disability under the WFEA, while
federal courts have been reluctant to reach that conclusion under the
ADA.33 And in its most recent pronouncement
on the subject, the Wisconsin Supreme Court concluded that a
"limit[ation] in the amount of static standing and sitting [the
plaintiff] can endure before experiencing pain" sufficiently impaired
the employee's ability to work so as to constitute a disability under
the WFEA, notwithstanding the employee's ability to work eight hours a
It also is significant that the LIRC has viewed adverse employment
action based on inappropriate worker conduct that is attributable to a
disability as "in legal effect" disability discrimination under the
WFEA.35 In contrast, federal court
decisions interpreting the ADA distinguish between adverse employment
action based on disability and adverse action taken because of conduct
caused by a disability, finding the former but not the latter
unlawful.36 Thus, terminating an employee
who, because of a mental impairment, engaged in threatening behavior was
held to be lawful under the ADA,37 while
firing an employee because of an outburst allegedly caused by his mental
illness was found to violate the WFEA.38
Finally, there is no doubt about the different approaches taken under
the ADA and the WFEA concerning remedial measures when considering the
impact of an impairment on work and other major life activities. In
Sutton, Albertson's, and Murphy v. United Parcel
Service,39 the Supreme Court rejected
the EEOC's contrary regulation and concluded that the impact of remedial
measures such as glasses, and spontaneous mental adjustments to
monocular vision and blood pressure medication, foreclosed a finding of
substantial impairment. In contrast, LIRC has concluded that the ability
of a plaintiff to control medical symptoms with medication should not be
considered in determining the existence of a disability.40
Undoubtedly, much of the ADA's relative appeal to plaintiffs is its
more generous remedies; unlike the WFEA, the ADA provides plaintiffs
with the potential of recovering both compensatory and punitive
damages.41 Given the broader universe of
individuals brought within its disability-related protections and other
lower barriers to recovery, however, the WFEA warrants careful
consideration by both employees and employers in assessing their rights
1Crystal Lake Cheese Factory v.
LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651; Hutchinson
Technology Inc. v. LIRC, 2004 WI 90, 267 Wis. 2d 961, 671 N.W.2d
717. From a supporter's perspective, these decisions are the logical
outcome of the absence in the WFEA of the "essential function" concept;
because the WFEA, unlike the ADA, does not distinguish between a job's
marginal and essential functions, the Wisconsin Legislature presumably
did not intend to remove from the universe of possible reasonable
accommodations the possibility of relieving a worker from job
responsibilities. Critics, however, believe that these decisions
effectively nullify Wis. Stat. section 111.34(2)(a), which permits an
employment decision to be based on a disability "if the disability is
reasonably related to the individual's ability to adequately undertake
the job-related responsibilities of that individual's employment...."
Critics also argue that, more fundamentally, these decisions reflect a
policy unsupported in the WFEA's legislative history; rather than
focusing on the removal of unfounded stereotype-based barriers to the
entry of disabled individuals into the workforce, Crystal Lake
and Hutchinson require employers both to overlook real and
substantial limitations on the ability of some disabled workers to
perform a job and to refashion a job into a substantially different
2See infra notes
20 and 39 and accompanying text.
3Wis. Stat. §
4The ADA defines employer as "a
person engaged in an industry affecting commerce who has 15 or more
employees for each working day in each of 20 or more calendar weeks in
the preceding or current calendar year" and any agent of such person. 42
U.S.C. § 12111(5)(A); 29 C.F.R. § 1630.2(e).
5Wis. Stat. § 111.32(8).
642 U.S.C. §§ 12114(a),
7Wis. Stat. § 111.34(2)(a).
The precise meaning of this provision, however, arguably has been
clouded by the Wisconsin Supreme Court's reasoning in Crystal
Lake and Hutchinson. See supra note
8Wis. Stat. §
942 U.S.C. § 12102(2)(A); 29
C.F.R. § 1630.2(g). Both the ADA and the WFEA also extend
protections to those individuals who have a record of or who are
incorrectly perceived to have a disability. 42 U.S.C. § 12102(2);
Wis. Stat. § 111.32(8). The WFEA, unlike the ADA, however, does not
protect those individuals who are "associated with" others with
disabilities. Compare Heinritz v. Lawrence Univ., (LIRC Sept.
30, 1993), aff'd sub nom. Heinritz v. LIRC (Cir. Ct. May 11,
1994), aff'd, 194 Wis. 2d 606, 535 N.W.2d 81 (Ct. App. 1995)
(WFEA not violated if employee is fired to avoid paying medical expenses
for the employee's child) with 42 U.S.C. § 12112(b)(4).
These ADA associational protections, however, arguably are somewhat
limited. See e.g., Larimer v. IBM, 370 F.3d 698 (7th Cir.
10Wis. Stat. § 111.32(8)(a)
11City of LaCrosse Police
& Fire Comm'n v. LIRC, 139 Wis. 2d 740, 761, 407 N.W.2d 510
(1987). In Hutchinson, the court stressed that to satisfy this
"achievement criterion," the focus is on either "life's normal
functions or a ... major life activity." 2004 WI 90, ¶ 18,
267 Wis. 2d 961 (quoting LaCrosse Police & Fire Comm'n, 139
Wis. 2d at 761) (emphasis in original).
1229 C.F.R. § 1630.2(i)
13527 U.S. 471, 492 (1999). The
Sutton majority went further than raising questions about this
particular aspect of the definition; it also questioned the authority of
the EEOC to offer any definition of disability: "Most notably,
no agency has been delegated the authority to interpret the term
'disability.' ... The EEOC has, nonetheless, issued regulations to
provide additional guidance regarding the proper interpretation of this
term." Id. at 479. In contrast, the Supreme Court showed no
hesitation in considering the effect of an impairment on an individual's
ability to work while assessing potential coverage under the ADA's
predecessor legislation, the Rehabilitation Act of 1973. See
Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 283 n.10
14Waldrip v. General Elec.
Co., 325 F.3d 652, 655 n.1 (5th Cir. 2003).
15See Hutchinson, 2004
WI 90, ¶ 17, 267 Wis. 2d 961; Fields v. Cardinal TG Co.
(LIRC Feb. 16, 2001); LaCrosse Police & Fire Comm'n, 139
Wis. 2d at 761-62.
16Sutton, 527 U.S. at
491. The Court's approach is consistent with the EEOC's regulations,
which state that "[t]he inability to perform a single, particular job
does not constitute a substantial limitation in the major life activity
of working." 29 C.F.R. § 1630.2(j)(3)(i). See also DePaoli v.
Abbott Labs. Inc., 140 F.3d 668, 673 (7th Cir. 1998).
17See, e.g., England v. ENBI
Indiana Inc., 102 F. Supp. 2d 1002, 1011 (S.D. Ind. 2000);
Duncan v. Washington Metro. Transit Auth., 240 F.3d 1110, 1115
(D.C. Cir. 2001); Dalton v. Subaru-Isuzu Auto. Inc., 141 F.3d
667, 675-76 (7th Cir. 1998).
18EEOC v. Rockwell Int'l
Corp., 243 F.3d 1012, 1017 (7th Cir. 2001).
1929 C.F.R. § 1630.2(i)
20534 U.S. 184, 198 (2002).
21Sinkler v. Midwest Property
Management, 209 F.3d 678 (7th Cir. 2000); Weiler v. Household
Fin. Corp., 101 F.3d 519 (7th Cir. 1996); Furnish v. SVI Sys.
Inc. 270 F.3d 455 (7th Cir. 2001).
23Compare 42 U.S.C.
§ 12111(5)(A) and 29 C.F.R. § 1630.2(i) with Wis.
Stat. § 111.32(8)(a).
24Albertson's Inc. v.
Kirkingburg, 527 U.S. 555, 565 (1999).
25Sutton, 527 U.S. at
26Williams, 534 U.S. at
198. The EEOC's attempt to define "substantial limitation" additionally
emphasizes that the physical impairment must significantly restrict the
plaintiff as compared to an average person in the general population. 29
C.F.R. § 1630.2(j)(1)(i).
27Flores v. Amcast Corp.
(LIRC Oct. 13, 1994).
28Hutchinson, 2004 WI
90, ¶ 17, 267 Wis. 2d 961 (quoting LaCrosse Police & Fire
Comm'n, 139 Wis. 2d at 761).
29American Motors Corp. v.
LIRC, 119 Wis. 2d 706, 714, 350 N.W.2d 120 (1984).
30Falk v. WIPC (LIRC
Dec. 18, 2003); Reinke v. Pick' N Save Mega Food Ctrs. (LIRC
Jan. 28, 2000).
31Lauri v. DHSS (Wis.
Personnel Comm'n Nov. 3, 1985).
32Williams v. Channel Master
Satellite Sys. Inc., 101 F.3d 346, 349 (4th Cir. 1996).
33Compare Stone v.
UW System (Wis. Personnel Comm'n March 12, 2003) with Calef v.
Gillette Co., 322 F.3d 75 (1st Cir. 2003) and Felten v. Eyemart
Express Inc., 241 F. Supp. 2d 935 (E.D. Wis. 2003).
34Hutchinson, 2004 WI
90, ¶ 18, 267 Wis. 2d 961.
35Schneider v. Wal-Mart
Stores (LIRC Jan. 12, 1999), aff'd, Wal-Mart Stores
Inc. v. LIRC (Dane Co. Cir. Ct.), rev'd on other grounds,
2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633; Crivello v. Target
Stores (LIRC Aug. 14, 1996). But see Zeise v. Waukesha Engine
Div., Dresser Indus. (LIRC May 20, 1999) (finding that
even if plaintiff's irritability and intolerance of others were symptoms
of his depression "employers are not required to put up with an employee
threatening coworkers, hollering at supervisors and refusing to follow
the instructions of their supervisors. There is no reasonable
accommodation for such inappropriate matter.")
36See, e.g., Pernice v. City
of Chicago, 237 F.3d 783, 785 (7th Cir. 2001); Palmer v.
Circuit Court of Cook County, Illinois, 117 F.3d 351
(7th Cir. 1996).
37Palmer, 117 F. 3d
38Schneider (LIRC Jan.
39See Sutton, 527 U.S.
471; Albertson's, 534 U.S. 184; Murphy v. United Parcel
Serv., 527 U.S. 516 (1999).
40Salver v. Briggs &
Stratton (LIRC July 26, 1996).
4142 U.S.C. § 12117(a).
There, however, are no material procedural differences between the ADA
and the WFEA in bringing a disability claim.
42Assuming the jurisdictional
requirements are satisfied, an individual can allege disability
discrimination under the ADA by filing a discrimination complaint with
the EEOC and a complaint under the WFEA with the Department of Workforce
Development - Equal Rights Division. In fact, under work sharing
arrangements between these agencies, a complaint filed with one can be
cross-filed with the other. Neither an investigation and conclusion of
"no probable cause" to support discrimination nor rejection of the
complaint for other reasons by either agency will, by itself, foreclose
investigation and further proceedings related to the complaint by the