Vol. 77, No. 10, October 2004

ADA and WFEA: Differing Disability Protections

Sidebars:

• The Scope of Disability Law in Wisconsin

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 employees."⁴

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

Backer

Mishlove

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 and employers.

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 limitation,"²⁸ "unusually difficult,"²⁹ or not "merely difficult."³⁰

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 day.³⁴

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

Conclusion

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 and responsibilities.⁴²

Endnotes

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 position.

²See infra notes 20 and 39 and accompanying text.

³Wis. Stat. § 111.32(6)(a).

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), 12211(b).

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 1.

⁸Wis. Stat. § 111.34(2)(b).

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. 2004).

¹⁰Wis. Stat. § 111.32(8)(a) (emphasis added).

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) (emphasis added).

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 (1987).

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) (emphasis added).

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).

²²See supra note 11.

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 491.

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 (7^th Cir. 1996).

³⁷Palmer, 117 F. 3d 351.

³⁸Schneider (LIRC Jan. 12, 1999).

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 other agency.

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