Vol. 77, No. 10, October
The Scope of Disability Law in Wisconsin
Wisconsin Supreme Court decisions in two recent cases clarify that an
employee's inability to adequately undertake his or her job-related
responsibilities will not be sufficient justification under the WFEA for
denying a requested accommodation. The decisions raise more questions
than they answer - leading the way to more litigation
Meg Vergeront & Drew J. Cochrane
n what has been called both a "major court victory" for
disabled workers1 and a development that
"threatens Wisconsin's economy,"2 the
Wisconsin Supreme Court recently decided two cases that significantly
affect the rights of disabled workers in Wisconsin. In Crystal Lake
Cheese Factory v. LIRC,3 the court held
that the Wisconsin Fair Employment Act (WFEA) may require an employer to
reassign the job duties that a disabled employee is unable to perform
because of her disability.4 In
Hutchinson Technology Inc. v. LIRC,5 the court held that the WFEA may require an
employer to alter an employee's work schedule by permanently shortening
her work shift in order to accommodate her disability.6
Importantly, the court did not limit an employer's obligation to
accommodate a disabled employee only to situations in which the
employee's nonessential job functions were being affected.7 As a result, employers may now be obligated to
reassign even those duties that make up the essence of the job the
disabled employee holds.8
This article first examines the court's holdings in Crystal
Lake and Hutchinson. It then discusses some of the
significant practical effects of the decisions. For example, the
decisions make it clear that Wisconsin employees now have much greater
rights under the WFEA than they typically do under the federal Americans
with Disabilities Act (ADA). The ADA has long provided that employers
need not reassign essential job functions or alter an employee's work
schedule if an employee's disability leaves the employee unable to
perform the "essential duties" of a job either with or without a
Wisconsin law will almost certainly dictate a different result. Under
Crystal Lake and Hutchinson, employees who are unable
to perform the essential functions of the job will not be immediately
excluded from the WFEA's protections. As a result, the decisions will
probably increase the ability of disabled persons to bring an effective
cause of action under the WFEA.
In Wisconsin, the pertinent legal analysis will now focus on whether
the proposed accommodation is reasonable and, if so, whether it creates
a hardship on the employer. The relative dearth of case law defining
these terms will create difficulties for employees, employers, and the
courts alike. As a result, the decisions will undoubtedly increase the
uncertainty of litigation as administrative tribunals and courts try to
determine when the proposed accommodation is reasonable and, if so,
whether it nonetheless imposes a hardship on the employer.
Crystal Lake: Facts and Background
Susan Catlin worked in Crystal Lake Cheese Factory's wholesale
department.10 The wholesale department
consisted of four positions: department head, cheese cutter, cryovacer,
and labeler.11 The company required all
department employees to be trained to perform all four positions.12 Catlin was hired initially as the cheese cutter
but was later promoted to department head.13
Fifteen months after Catlin was hired, she was involved in a car
accident that left her a quadriplegic.14
She eventually regained partial use of both of her arms, but she still
needed to use a wheelchair.15 Ten months
after the accident, she asked to be returned to her position as
Crystal Lake hired an expert to determine what types of reasonable
accommodations might be provided to permit a person confined to a
wheelchair to perform the duties of Catlin's position.17 The company did not give the expert any
information about Catlin other than that she was confined to a
wheelchair, nor did the expert ever talk to Catlin about her
limitations. The expert ultimately concluded that no reasonable
accommodation existed, because Catlin would be unable to perform all of
the job duties within the department. That is, she would not be able to
perform all duties required of all department employees.18
Catlin's own expert agreed that she would be unable to perform some
of the duties of the position.19 Her
expert, however, found that she would be able to perform most of the
required duties and that one way to accommodate Catlin would be to make
her job more clerical and eliminate some of the physical duties she
could not perform.20
Crystal Lake relied on the conclusions of its expert and ultimately
denied Catlin's request to return to work. Catlin filed a disability
discrimination claim with the Wisconsin Equal Rights Division.21 An administrative law judge determined that
Crystal Lake did not discriminate against Catlin, because there was no
reasonable accommodation that Crystal Lake could have made without
imposing a hardship on the company.22 The
Labor and Industry Review Commission (LIRC) reversed.23 LIRC determined that Catlin was able to perform
some or most of the jobs in the department and that Crystal Lake failed
to reasonably accommodate Catlin when it refused to modify Catlin's job
duties to exempt her from performing the duties she could no longer
perform.24 The circuit court and the
Wisconsin Court of Appeals affirmed LIRC's determination.25
Crystal Lake: Supreme Court Decision
Affirming LIRC's decision, the supreme court began its analysis with
a brief overview of the WFEA disability discrimination provisions. The
court first noted that to prove discrimination under the WFEA, an
employee must show that she is an individual with a disability and that
she has suffered an adverse employment action because of her
disability.26 If a complainant does so, the
burden shifts to the employer to prove either that 1) the complainant
is, because of her disability, unable to "adequately undertake the
job-related responsibilities" of the job she holds, even with a
reasonable accommodation,27 or 2) any
reasonable accommodation that might exist creates a hardship for the
In Crystal Lake, the employer conceded that Catlin was
disabled and that it refused to rehire her based on her
disability.29 The case therefore turned on
the job relatedness and hardship questions: whether Catlin was able to
undertake the job-related responsibilities of her job with a reasonable
accommodation and, if so, whether the accommodation constituted a
hardship.30 Crystal Lake argued that it was
unreasonable to require an employer to excuse an employee from any and
all of the duties she could no longer perform - essentially creating a
new job - as a means of accommodating a disability.31
The court disagreed, ruling that reasonable accommodations are not
limited to those accommodations that would permit the employee to
perform all of his or her job responsibilities.32 In so ruling, the court gave no consideration to
whether the duties at issue were essential or nonessential to the
position for which the complainant had been hired. As a result, in
situations in which an employee can perform some or most of the duties
of her job, reassignment of even key job duties may well be a reasonable
accommodation. The court then held that reassignment was in fact
reasonable in Catlin's case because the duties she could not perform
could be divided among the three other employees, permitting Catlin to
focus on those duties she could perform.
Hutchinson Technology: Facts and Background
Hutchinson operated a manufacturing plant in Eau Claire, Wis.33 The plant was open 24 hours a day, seven days a
week.34 Hutchinson had four crews that
worked rotating 12-hour shifts.35 Using
this schedule, each Hutchinson employee worked a total of 84 hours every
The plaintiff, Susan Roytek, began her employment with Hutchinson in
June 1998.37 Roytek's position required her
to work a 12-hour shift, rotating through four types of work:
inspection, shearing, book work, and work in the bay.38 Roytek worked the 12-hour shift for
approximately three months until mid-September 1998, when she was
diagnosed with lower back pain and took a medical leave of
When Roytek returned to work in November 1998, she gave Hutchinson a
note from her treating physician indicating that she could only work six
hours a day and that she could not lift anything weighing more than 20
pounds.40 In January 1999, Roytek's work
restrictions were amended to allow her to work an eight-hour shift,
although she was still limited to performing only one of her original
four job functions.41
Hutchinson allowed Roytek to work a modified shift on a temporary
basis but terminated her in September 1999 when it learned that her
eight-hour-per-shift work restriction was permanent.42 Roytek then brought suit, claiming that her
termination constituted disability discrimination under the WFEA.43
LIRC sided with Roytek, determining that reducing the employee's
shifts from 12 to eight hours was a reasonable accommodation that did
not create a hardship for the employer. Quoting Crystal Lake,
the Wisconsin Court of Appeals upheld LIRC's determination in an
unpublished decision, saying succinctly that "[a] change in job duties
may be a reasonable accommodation in a given circumstance."44
Hutchinson Technology: Supreme Court Decision
The Wisconsin Supreme Court affirmed the court of appeals. The
supreme court first held that Roytek was "disabled" under the WFEA,
because she had an actual or perceived impairment that made, or was
perceived as making, achievement unusually difficult or that limited her
capacity to work.45 Accordingly, she was
considered an "individual with a disability" under the WFEA.
The court then considered whether the accommodation suggested by
Roytek - that she be allowed to work eight-hour instead of 12-hour
shifts - was reasonable and whether it imposed a hardship on
Hutchinson.46 Because Roytek's disability
allowed her to perform only one of the four positions required by her
job, Hutchinson maintained that the proposed accommodation required it
to create an entirely new job for her.47
This, Hutchinson argued, posed a significant hardship that employers
should not be required to bear.48 Roytek
countered that she had been working eight-hour shifts for a significant
period with no apparent complications and, thus, Hutchinson could not
meet its burden of showing that the accommodation was unreasonable or
posed a hardship.49
The court sided with Roytek, holding that she met her initial burden
of establishing the reasonableness of her proposed accommodation and
that Hutchinson did not establish that it could not reasonably
accommodate Roytek's disability without any significant difficulties or
hardship to its business.50
Significance of the Supreme Court's Decisions
Meg Vergeront, U.W. 1993,
is a partner at Stafford Rosenbaum LLP, Madison. Her practice focuses on
helping employers find common-sense solutions to day-to-day workplace
problems they face, from hiring to firing and everything in between. She
can be reached at com mvergeront staffordlaw staffordlaw mvergeront com.
Drew J. Cochrane, U.W. 1999, is a senior associate
at the firm, focusing on labor and employment law and litigation. He can
be reached at com dcochrane staffordlaw staffordlaw dcochrane com.
Under the court's rulings in Crystal Lake and
Hutchinson, employers must give consideration to reassigning
any duty that a disabled individual cannot perform because of the
disability, if the employee can perform even some of the job's other
duties. The court's failure to expressly limit this obligation to
nonessential duties creates several issues for Wisconsin lawyers.
As an initial matter, the failure to limit the obligation to
nonessential duties is a substantial departure from what has typically
been considered the law of disability discrimination in this country.
Federal courts have routinely held that the ADA's reasonable
accommodation requirement does not require an employer to eliminate or
reassign essential job duties, create a new job, or hire others to
perform the essential functions that a disabled employee cannot
perform.51 Under Crystal Lake and
Hutchinson, the ADA's essential functions test has no relevance
to cases brought under the WFEA.
While the language of the WFEA does not include the exact essential
functions language used in the ADA, the WFEA does state that an
accommodation is reasonable only if it allows a disabled individual to
"adequately undertake the [person's] job-related
responsibilities."52 The court apparently
has chosen to downplay the significance of this language because, in
both cases, the court held to be reasonable accommodations that forced
the employers to reassign and excuse the disabled employee from having
to undertake what clearly are job-related responsibilities. The court's
willingness to downplay the job-related responsibilities test is bound
to create confusion as employers and employees - and the attorneys who
counsel them - struggle to determine how the court's rulings will apply
While the majority opinion in Crystal Lake stated that
Wisconsin law has never applied an essential functions-type test,53 the case law does not necessarily support the
court's position. For example, in McMullen v. LIRC,54 LIRC itself argued that "the duty to accommodate
an employee's handicap under the WFEA ... does not require an
employer to transfer the employee to a different job."55 Thus, it seems clear that an employee's ability
to perform the position's job-related responsibilities used to merit at
least some consideration. After Crystal Lake and
Hutchinson, this may no longer be the case.
Accordingly, while the question of how the WFEA's disability
provisions have historically been interpreted may be open to debate,
Crystal Lake and Hutchinson clearly strengthen the
ability of disabled persons to bring causes of action under the WFEA.
The law in Wisconsin is now clear that, under the WFEA, disabled persons
may pursue discrimination claims even if they are not able to perform
the position's key job-related responsibilities.
Another practical effect of the Crystal Lake and
Hutchinson decisions is that the litigation of WFEA disability
claims will now focus on the vague questions of whether an accommodation
is "reasonable" and whether the accommodation would pose a "hardship" to
the employer. The WFEA does not define these terms, nor has the case law
helped to clarify the amorphous nature of these terms. For example, in
Target Stores v. LIRC,56 the court
of appeals found that it was unreasonable to terminate an employee with
sleep apnea before determining if treatment could correct the problem
despite the fact that the condition made it impossible for the employee
to perform all the job functions. Conversely, in Gordon v. Good
Samaritan Medical Center,57 LIRC held
that the reasonable accommodation requirement does not require the
employer to retain the employee and tolerate less than adequate
attendance if an employee's disability causes the employee to be absent
excessively. The court did not do much to help define these terms in
either Crystal Lake or Hutchinson. While the decisions
give us two examples of what the court considers reasonable, the court
failed to outline any test that can be used in the future to determine
reasonableness or hardship.
The inevitable uncertainty about what constitutes a hardship
undoubtedly will increase the amount of litigation in this area and will
make it difficult for attorneys to advise their clients, whether they be
employers or employees. The likelihood of increased litigation is
compounded by the fact that whether a particular type of accommodation
is reasonable and whether it imposes a hardship are factual issues that
must be resolved on a case-by-case basis.58
Because the focus of future WFEA litigation now will be on the
interpretation of these vague terms, the decisions are bound to increase
costs for businesses as litigation becomes more uncertain.
Similarly, the decisions also restrict the ability of employers to
configure their workforce in the most efficient manner possible. Rather,
employers must be prepared to rewrite job descriptions and otherwise
alter the nature of their workforce to accommodate disabled individuals.
The Hutchinson court specifically mentioned this concern,
stating that it was "mindful that a business must have the right to set
its own employment rules to encourage maximum productivity. We caution,
however, that such rules do not exist in a vacuum, but must bend to the
requirements of the WFEA."59
Exactly how much "bending" will be required is, of course, uncertain.
For example, as noted by the dissent in Crystal Lake, because
the WFEA applies equally to applicants and current employees,60 an employer now must be prepared to post job
openings in which it ultimately may be required to hire someone who,
even with accommodations, would not be able to perform the duties
attributed to the position they are seeking to fill.61 The potentially endless reach of these decisions
is yet another question left unanswered by the court.
Crystal Lake and Hutchinson demonstrate that LIRC
and the courts will become increasingly involved when it comes to
defining jobs. An employee's inability to perform the position's key
job-related responsibilities will not be sufficient justification under
the WFEA for denying a requested accommodation. Rather, the employer
must justify and prove why a proposed accommodation is unreasonable or
creates a hardship. Unfortunately, the decisions ultimately raise many
more questions than they answer, leaving lawyers and business owners in
a quagmire that will be sorted out only through more litigation.
1Matt Pommer, Court Rules for
Disabled Workers, Capital Times, July 11, 2003, at 7D.
2Supreme Court Disables
Business, Wis. State J., Aug. 17, 2003, at B3.
32003 WI 106, 264 Wis. 2d 200, 664
4Id. ¶ 19.
52004 WI 90, 267 Wis. 2d 961, 682
6Id. ¶ 2.
9See, e.g., Peters v. City of
Mauston, 311 F.3d 835, 845-46 (7th Cir. 2002); Watson v.
Lithonia Lighting, 304 F.3d 749-52 (7th Cir. 2002); Bultmeyer
v. Fort Wayne Community Sch., 100 F.3d 1281, 1284 (7th Cir.
10Crystal Lake, 2003 WI
106, ¶ 6, 264 Wis. 2d 200.
14Id. ¶ 9.
16Id. ¶ 10.
21Id. ¶ 13.
22Id. ¶ 14.
25Crystal Lake Cheese Factory
v. LIRC, 2002 WI App 290, 258 Wis. 2d 414, 654 N.W.2d 186.
26Brown County v. LIRC,
124 Wis. 2d 560, 564-65 n.5, 369 N.W.2d 735 (1985).
27Wis. Stat. §
28Wis. Stat. §
29Crystal Lake, 2003 WI
106, ¶ 44, 264 Wis. 2d 200.
31Id. ¶ 45.
32Id. ¶ 52.
33Hutchinson, 2004 WI
90, ¶ 3, 267 Wis. 2d 961.
37Id. ¶ 4.
39Id. ¶ 5.
43Id. ¶ 6.
44No. 02-3328, 2003 WL 22143719
(Wis. Ct. App. Sept. 18, 2003).
45Hutchinson, 2004 WI
90, ¶¶ 10-19, 267 Wis. 2d 961.
46Id. ¶ 20.
47Id. ¶ 26.
49Id. ¶ 27.
50Id. ¶ 37.
51See, e.g., Peters v. City
of Mauston, 311 F.3d 835, 845-46 (7th Cir. 2002); Watson v.
Lithonia Lighting, 304 F.3d 749-52 (7th Cir. 2002); Bultmeyer
v. Fort Wayne Community Sch., 100 F.3d 1281, 1284 (7th Cir.
52Wis. Stat. §
53Crystal Lake, 2003 WI
106, ¶ 115, 264 Wis. 2d 200.
54148 Wis. 2d 270, 434 N.W.2d 830
(Ct. App. 1998).
55Crystal Lake, 2003 WI
106, ¶ 115, 264 Wis. 2d 200 (citing Brief of LIRC at 24,
McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (emphasis
56217 Wis. 2d 1, 576 N.W.2d 545
(Ct. App. 1998).
57ERD Case No. 8551631 (Apr. 26,
58McMullen, 148 Wis. 2d
59Hutchinson, 2004 WI
90, ¶ 37, 267 Wis. 2d 961.
60Wis. Stat. §
61Crystal Lake, 2003 WI
106, ¶ 114 n.4, 264 Wis. 2d 200.