Wisconsin Lawyer
Vol. 81, No. 4, April 2008

Discharging Disabled Employees Under No-Fault Attendance Policies

Sidebar:

• "In Part" versus "Determining Factor"

by John C. Carlson Jr.

n Stoughton Trailers Inc. v. LIRC,¹ a 4-2 majority of the Wisconsin Supreme Court ruled that Stoughton Trailers discriminated against Douglas Geen on the basis of disability in violation of the Wisconsin Fair Employment Act (WFEA)² when it terminated his employment because he exceeded the maximum number of absences allowed under its no-fault attendance policy. No-fault policies typically allow a maximum number of absences within a specified period of time. Nearly one-third of Geen's absences were caused by his disability, migraine headaches. Geen was awarded the maximum remedy the WFEA affords.

This article reviews recent Wisconsin Supreme Court decisions interpreting disability discrimination under the WFEA and considers why Stoughton merits examination. It then summarizes Stoughton's relevant facts and procedural history, examines the majority's treatment of the two primary disputed issues ("because-of" and reasonable accommodation), and further comments on the significance of that treatment.

Interpreting Disability Discrimination Under the WFEA

Stoughton is the third divided supreme court decision in four years in which the court ruled in favor of an employee claiming disability discrimination under the WFEA. Crystal Lake Cheese Factory v. LIRC held that "[a] reasonable accommodation is not limited to that which would allow the employee to perform adequately all of his or her job duties," and that "[a] change in job duties may be a reasonable accommodation in a given circumstance."³ A year later, Hutchinson Technology Inc. v. LIRC held that an employee who suffered from back pain related to disc problems was an "individual with a disability" within the meaning of section 111.32(8)(a) of the WFEA,⁴ that a reduction in work hours was a reasonable accommodation under the circumstances, and that such a reduction did not cause a hardship to the employer's business.⁵ Crystal Lake and Hutchinson thus addressed the broad issues of what constitutes a disability within the meaning of the WFEA, whether a proposed accommodation is reasonable under the circumstances, and whether a reasonable accommodation would create a hardship on the employer.⁶

Stoughton's Issues and Import

Stoughton added the novel because-of issue to the mix: whether a termination for exceeding the maximum number of absences allowed under a no-fault attendance policy is a termination because of disability within the meaning of the WFEA, when some of the absences were caused by the disability and others were not. The second primary issue Stoughton addressed was whether the Labor and Industry Review Commission (LIRC) reasonably concluded that Stoughton failed to provide Geen with a reasonable accommodation for his disability.⁷

Stoughton's disposition and analysis of these issues merit examination for several reasons. First, the legal standard for resolving whether Geen was terminated because of his disability was itself at issue. Geen argued that the in-part or mixed-motive test as set forth in Hoell v. LIRC⁸ applied to determine the issue. If an employee is terminated solely because of an impermissible motivating factor, the employee normally should be awarded a cease and desist order, reinstatement, back pay, interest, and attorney fees. If an employee is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, but the termination would not have occurred in the absence of the impermissible motivating factor, LIRC has the discretion to award some or all of the available remedies. Finally, if an employee is terminated in part because of an impermissible factor and in part because of other motivating factors, and the termination would have taken place in the absence of the impermissible motivating factor, the employee should be awarded only a cease and desist order and attorney fees.⁹

John C. Carlson Jr., U.W. 1998, is an attorney with Lawton & Cates S.C., Madison, practicing in general law and civil litigation, including employment and tort law. He represented Douglas Geen before the Wisconsin Supreme Court in Stoughton Trailers v. LIRC.

Stoughton, however, argued that the determining-factor test applied to resolve the because-of issue. Under this test, the analysis focuses on whether the complainant's disability was merely a factor in the termination and therefore the termination was not because of disability, or whether the disability was a determining factor and therefore the termination was because of disability.¹⁰

Rather than expressly deciding which test applies, the Stoughton majority disposed of the because-of issue on narrow grounds through the exercise of judicial restraint: Because Stoughton had violated its own attendance policy, it could not avail itself of whatever protection that policy otherwise might provide.¹¹ However, as the dissent pointed out, the majority retained LIRC's and the court of appeals' decisions¹² in Stoughton as precedent for those future cases that must be decided on broader grounds.¹³ LIRC and the court of appeals held that the in-part or mixed-motive test as adopted in Hoell v. LIRC for "cases arising out of the WFEA"¹⁴ applied to resolve whether Geen was terminated because of his disability and the remedy, if any, to which he is entitled. The dissent argued that the in-part test is inapplicable in situations involving no-fault attendance policies. This position may invite future challenges to the appellate and LIRC opinions that, the dissent acknowledged, hold otherwise and remain as precedent.¹⁵

Stoughton is worthy of consideration for other reasons as well. Because Stoughton addressed a disability discrimination claim based on an employer's application of a no-fault attendance policy, the decision is relevant to Wisconsin employers who use such policies and to disabled employees who are subject to them. Finally, Stoughton further developed the law interpreting reasonable accommodation under the WFEA¹⁶ and rekindled the ongoing debate within the court over the proper balance between the policies the WFEA is designed to safeguard and the legitimate business interests of employers.

Facts

Stoughton Trailer's no-fault attendance policy used a point-based system. Employees were assigned occurrences for tardiness and absences, subject to limited exceptions, including "[a]bsences meeting State and Federal Family and Medical Leave [FMLA] laws." An employee would be terminated under the policy if he or she accumulated six occurrences.¹⁷

Under Stoughton's no-fault attendance policy, an employee who was absent from work because of a medical condition was provided a standard letter with a Family and Medical Leave Act (FMLA) form to complete and return to the human resources department. If the employee returned the completed form, he or she would not be assessed an occurrence. However, if the employee did not return the certification form within 15 days (but did submit other proof that the absence was for a medical condition), the employee would be assessed one occurrence, regardless of the duration of the leave. Geen submitted a medical excuse for a mid-December 1996 to early January 1997 extended absence but not the FMLA form and thus was assessed one occurrence.¹⁸

Geen returned to work on Jan. 8, 1997. On Friday, Jan. 24, 1997, he called in before his shift and said that he could not work because he had a migraine. He called in sick again with migraines on the following Monday and Tuesday mornings, Jan. 27 and 28. When Geen returned to work on Jan. 29, 1997, Stoughton's human resource administrator (the administrator) provided Geen with a copy of a standard letter noting that Geen had been absent from work since the previous Friday. The letter explained the need to submit a completed FMLA form within 15 days of the date of the letter if Geen was to avoid having the absence counted as an occurrence under Stoughton's no-fault attendance policy.¹⁹ The administrator also reminded Geen orally that he would need to submit the FMLA form to avoid being assessed an occurrence.²⁰

On Jan. 30, Geen provided the administrator with a doctor's note indicating that Geen was being evaluated for migraines. The next day, Jan. 31, Geen provided the administrator with another doctor's note clearing him to return to work and indicating that his absences on Jan. 27 and 28 were due to migraine headaches.²¹ That same day, Stoughton assessed Geen an occurrence under its attendance policy for not providing a medical excuse for his Jan. 24 absence, bringing Geen's total occurrences to 6.5, and then terminated Geen for exceeding the six allowed occurrences under the no-fault attendance policy. The administrator informed Geen that he could seek review of the termination with Stoughton Trailer's attendance review board (ARB) within three working days, and that he could present additional medical documentation to the board. Geen informed the administrator that he would be unable to obtain additional documentation from his doctor for at least one week, because a follow-up exam had been scheduled in one week to evaluate the progress of his treatment for migraines.²² On Feb. 21, 1997, the ARB rejected Geen's appeal.²³

Procedural History

Later in 1997, Geen filed a disability discrimination complaint with the Equal Rights Division of the Department of Workforce Development, alleging Stoughton terminated his employment because of his disability in violation of the WFEA. A hearing examiner ruled that: 1) Geen had a disability as defined by the WFEA; 2) his employment was terminated in part because of his disability; and 3) Stoughton had failed to reasonably accommodate Geen's disability.²⁴ Stoughton appealed and LIRC reversed, concluding that Stoughton had not refused to reasonably accommodate Geen's disability and dismissing Geen's complaint.²⁵

Geen appealed to the Dane County Circuit Court, which set aside LIRC's order dismissing the complaint and ordered the matter remanded to LIRC. Stoughton sought review of the circuit court decision with the court of appeals.²⁶ The court of appeals concluded that although LIRC had determined that Stoughton did not discriminate against Geen because of disability, it expressly left open the narrower question of whether Geen was terminated because of disability. The court of appeals remanded the matter to LIRC to consider, to the extent necessary, either or both of the following issues: 1) whether on the present facts Stoughton terminated Geen's employment because of his disability; and 2) whether the FMLA or regulations enacted thereunder affected Stoughton's claim that it reasonably accommodated Geen's disability, and if so, how. Stoughton filed a petition for review, which the supreme court denied on Jan. 21, 2003.²⁷

On remand, LIRC concluded Stoughton terminated Geen because of his disability and failed to reasonably accommodate his disability. LIRC's decision included a cease and desist order, reinstatement of Geen, and an award of back pay and attorney fees and costs.²⁸ Stoughton appealed to the Dane County Circuit Court, which affirmed LIRC's decision. Stoughton sought review in the court of appeals, which affirmed the circuit court's order. The court of appeals concluded that LIRC's determination that Stoughton terminated Geen's employment because of his disability was based on a reasonable interpretation of the relevant provisions of the WFEA and that Stoughton's interpretation of the statute was not more reasonable. The court of appeals also concluded that LIRC reasonably interpreted and applied the WFEA in determining that Stoughton failed to reasonably accommodate Geen's disability. Further, the court of appeals concluded that LIRC properly exercised its discretion in applying the in-part test adopted in Hoell v. LIRC²⁹ to establish Geen's remedy. Stoughton filed a petition for review, which the supreme court granted.³⁰

The Majority's Treatment of the "Because-of" Issue

To meet his burden of proof, Geen had to establish that he had a disability within the meaning of the WFEA (which Stoughton did not contest) and that Stoughton terminated him because of his disability.³¹ Applying a due-weight standard of review, the supreme court majority found LIRC's conclusion that Geen was terminated because of his disability to be reasonable. The majority based this conclusion, however, on a narrower ground than the application of the in-part or mixed-motive test as set forth in Hoell v. LIRC,³² the rationale on which LIRC and the court of appeals had relied. The majority held that Stoughton violated its own attendance policy by not providing Geen 15 days to submit documentation to avoid being assessed an occurrence under the policy. Stoughton gave Geen only two days from the date it provided Geen with the form letter to submit the FMLA form to ensure that the absence was not counted as an occurrence before terminating him. As a result, Geen had not accrued the requisite number of occurrences necessary for termination, and Stoughton was not entitled to whatever protection its no-fault policy might provide.³³ The majority concluded that LIRC's application of the in-part test was reasonable "under the facts of this case."³⁴

The Significance of the Majority's Treatment of the "Because-of" Issue

The narrow ground on which the majority resolved the because-of issue has practical significance for both employers and employees. Employers using no-fault attendance policies should carefully comply with their terms when considering terminating employees whose absences exceed the permissible limit if the absences are wholly or partly disability-related. At the very least, this would include affording the disabled employee the full period the employer's attendance policy allows for securing whatever medical documentation, FMLA or otherwise, its attendance policy requires. Failing to do so may deprive the employer of the protections its attendance policy otherwise would provide.

Conversely, disabled employees subject to no-fault policies should try to understand and carefully comply with such policies. They should obtain the medical documentation their employers require to avoid assessment of occurrences for disability-related absences. They also should comply with the time limits for providing such documentation. If a physician is unable to provide all the information the employer requests or to complete the requested documentation within the time limits imposed by the employer's policy, the employee should request that the physician timely provide whatever information she can and supplement any incomplete documentation as soon as possible.

The majority's treatment of the because-of issue also is legally significant. In the gentle wake of its judicial restraint, the majority left undisturbed as precedent the court of appeals' decision affirming LIRC's remand decision. LIRC on remand applied the in-part or mixed-motive test as set forth in Hoell v. LIRC.³⁵ Applying this test, LIRC reasoned that Geen was discharged in part because of absences caused by a disability and in part because of absences not caused by a disability. The discharge would not have occurred, LIRC continued, had Stoughton not counted against Geen the final absences, which were caused by his disability.³⁶

The court of appeals affirmed LIRC's decision that Geen was terminated because of his disability. The court further concluded that LIRC's application of the Hoell in-part standard to cases involving no-fault attendance policies enforced against disabled employees comports with the purpose of WFEA's disability discrimination provisions, namely, to encourage and foster the employment of persons with disabilities and to facilitate the performance of their job-related responsibilities.³⁷ Significantly, the court of appeals also rejected Stoughton's argument that the in-part test applies only when discriminatory intent is at issue and that Geen must prove discriminatory intent beyond showing that disability was a factor leading to an adverse employment decision.³⁸

The supreme court dissent rebuked the majority for "abdicat[ing] its role as the state's ultimate policy making court"³⁹ and for "insidiously" retaining LIRC's and the court of appeals' decisions as precedent.⁴⁰ Regardless of the merits of its criticism, the dissent correctly acknowledged that the court of appeals' decision affirming LIRC's second decision⁴¹ is indeed precedent. These decisions held that the in-part test as set forth in Hoell should be applied on a case-by-case basis to resolve the issues of whether a termination for exceeding the maximum number of absences allowed under a no-fault attendance policy is a termination because of disability when some of the absences were caused by a disability, and, if so, what remedy is appropriate.⁴² Hoell is precedent, unless and until the supreme court decides otherwise.

In its dialogue with the dissent, the majority at least intimated that it would affirm Hoell's application of the in-part standard in cases involving no-fault attendance policies enforced against disabled employees, were it to squarely address the issue. The dissent charged the majority with "leap[ing] to the determination ... that ... Stoughton intentionally discriminated against Geen when it terminated him."⁴³ The majority responded that the dissent ignored Wis. Stat. section 111.34(1)(b), which defines employment discrimination because of disability. This definition includes "[r]efusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business."⁴⁴ The majority later added, "[t]his case involves discriminatory intent given Stoughton's refusal to reasonably accommodate Geen's disability, and the full circumstances of Geen's termination…."⁴⁵ Thus, while the court of appeals in Stoughton found that "the Hoell in-part (mixed-motive) test did not require a finding of discriminatory intent,"⁴⁶ the supreme court majority appeared to suggest that even if the in-part test required such a finding, the requisite intent would be co-extensive with, and met by, the employer's refusal to provide a reasonable accommodation, in violation of Wis. Stat. section 111.34(1)(b). In addition, the majority concluded that LIRC properly exercised its discretion in awarding Geen the full scope of remedies based on the legal standard set forth in Hoell and the WFEA.⁴⁷ It would be awkward if not inconsistent for the court to decide that Hoell's in-part test determined the proper remedy in Stoughton but not the because-of issue generally in any future discrimination cases involving disability-related absenteeism and no-fault attendance policies.

The Majority's Treatment of the Reasonable Accommodation Issue

Once Geen met his burden, Stoughton had to prove that his disability was reasonably related to his ability to do his job, which Geen did not dispute, and that either: 1) Stoughton reasonably accommodated Geen's disability before his termination; or 2) any accommodation would have posed a hardship on its business.⁴⁸ Because Stoughton did not argue hardship, the remaining issue was whether Stoughton provided a reasonable accommodation. Stoughton argued that it did so by providing Geen the option to take FMLA leave.

Applying a great-weight standard of review, the majority disagreed with Stoughton and affirmed both grounds on which LIRC concluded that Stoughton refused to provide a reasonable accommodation. First, the majority upheld LIRC's determination that Stoughton refused to reasonably accommodate Geen by failing to give him sufficient time to submit medical documentation to avoid being assessed an occurrence.⁴⁹ Second the majority affirmed LIRC's determination that Stoughton failed to exercise "clemency and forbearance." According to the majority, LIRC reasonably concluded that an employer should exercise clemency and forbearance by not immediately terminating an employee when, as here, the employer knows that a medical intervention is already underway that has not had the chance to take effect but could potentially resolve the problem of the employee's absences.⁵⁰

The Significance of the Majority's Treatment of the Reasonable Accommodation Issue

The above comments regarding the practical significance of employers' and employees' careful compliance with no-fault attendance policies apply with equal force to the majority's treatment of the reasonable accommodation issue. In addition, the majority's decision regarding reasonable accommodation adds to the growing body of precedent regarding an employer's duty in this regard. While the court of appeals had recognized the employer's duty of clemency and forbearance in Target Stores v. LIRC,⁵¹ Stoughton gave this obligation the imprimatur of supreme court authority. Just how much clemency and forbearance an employer must provide necessarily depends on what is reasonable under the circumstances of each case and is not necessarily determined by, or limited to, the duration of leave allowed by the FMLA. However, Stoughton expressly clarified that an employer is not required to suspend indefinitely the application of a reasonable attendance policy to accommodate a disability.⁵²

Lastly, Stoughton, like Crystal Lake and Hutchinson, is significant for its dialogue among members of a divided court regarding the proper balance between competing policy interests. According to the majority, "`a business must have the right to set its own employment rules to encourage maximum productivity,' but `such rules do not exist in a vacuum, [and] must bend to the requirements of the WFEA.'"⁵³ In addition, noted the majority, "[t]he WFEA states that its purpose is `to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals' regardless of their status as a member of a class protected by the statute, and that its provisions `shall be liberally construed for the accomplishment of this purpose.'"⁵⁴

The dissent, by contrast, characterized the case as "present[ing] a vital question for Wisconsin employers," namely, "whether an employer may apply a facially neutral no-fault attendance policy to terminate an employee, without risk of employment discrimination liability, when some of the employee's absences are caused by disability but most are not."⁵⁵ The dissent criticized the majority for avoiding the question under the guise of judicial restraint.⁵⁶ The dissent incorporated into its analysis various survey figures contained in an amicus brief of Wisconsin Manufacturers and Commerce (WMC) regarding the cost of absenteeism to Wisconsin employers. The dissent even quoted Walter Olson's book, The Excuse Factory,⁵⁷ for the proposition that Wisconsin decisions are vindicating the author's indictment of anti-discrimination laws as requiring, rather than eliminating, differential treatment.

But reasonable accommodation of an employee's disability under the WFEA is an affirmative duty requiring more than the nondifferential treatment most other protected classifications require and that Olson and the dissent espoused.⁵⁸ The dissent, moreover, did not recognize and offered no statistics regarding: 1) the cost of disabled employees' absenteeism compared to that of nondisabled employees, 2) the economic contribution of disabled employees, or 3) the costs to society if disabled workers are not employed.⁵⁹ In addition, Olson made short shrift of studies suggesting that the costs to society of accommodating disabled workers are low.⁶⁰ And Olson is not without his detractors in other respects. One critic argued, for example, that "Olson is unable to portray a semblance of neutrality in making his points" and that "[his] meager attempts to address the other viewpoints usually serve as vehicles upon which he heaps more criticism."⁶¹

Regardless of one's opinions of the merits of the dissent, the dissent did evoke a broader debate, one that highlights the ongoing tension between the competing policy interests underlying the WFEA's protection against disability discrimination. Each new decision in this area of the law represents an effort to reconcile the usually legitimate but often opposing needs of both businesses and disabled employees.

Conclusion

Stoughton is significant, both for what the court said and what it left to precedent. The decision does not represent the death knell of no-fault attendance policies, but it does require employers to comply with their terms, if they wish to avail themselves of the protections those policies may afford. Moreover, employers must exercise clemency and forbearance on a case-by-case basis in situations in which the employer knows a medical intervention is already underway that has not had the chance to take effect and could potentially resolve the problem of the employee's absences. A finding of termination because of disability in the application of a no-fault policy is not necessarily tantamount to discrimination based on disability under the WFEA, as long as the employer provides a reasonable accommodation that does not present a hardship to its business. The Stoughton court attempted to resolve the issues before it in a manner that recognizes disabled employees' rights to employment and employers' rights to set their own employment rules, so long as those rules comport with the requirements of the WFEA and the employers follow the rules.

Endnotes

Wisconsin Lawyer