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Wisconsin Supreme Court Continues Broad Interpretation of The Wisconsin Fair Employment Act's Disability Discrimination Provisions
By Alexis Pheiffer, Quarles & Brady LLP

On June 30, 2004, the Wisconsin Supreme Court issued its decision in Hutchinson Technology, Inc. v. LIRC, the first disability discrimination decision by the Court since it decided Crystal Lake Cheese Factory v. LIRC on July 11, 2003. In Crystal Lake, the Court held the Wisconsin Fair Employment Act (WFEA), unlike the federal Americans with Disabilities Act (ADA), may require as reasonable accommodation that an employer eliminate job duties a disabled individual cannot perform and reassign those duties to other employees.

The Hutchinson plaintiff, Susan Roytek, worked as a production worker at Hutchinson's plant in Eau Claire. The Eau Claire plant used four crews working rotating 12-hour shifts in its production facilities. After working for Hutchinson for a few months, Roytek was diagnosed with lower back pain. Initially, she was unable to work, but she eventually returned to work with restrictions, including a limitation to working only 8-hour shifts. Hutchinson initially accommodated Roytek's restriction. After eight months of working 8-hour shifts, Roytek informed Hutchinson that her restriction was a permanent one, and Hutchinson terminated her employment.

Roytek filed a complaint with the Equal Rights Division, alleging disability discrimination. The administrative law judge, LIRC, the circuit court and the Wisconsin Court of Appeals all found in favor of Roytek on her claim, and the Supreme Court affirmed the court of appeals decision. The Court concluded Roytek was a person with a disability and then turned to consider Hutchinson's claim that accommodating Roytek with a reduced schedule would cause a hardship. Hutchinson argued that forcing it to create an 8-hour shift for Roytek robbed it of its management prerogative to set its own policy with respect to shift schedules. Hutchinson also claimed that simply because it could accommodate Roytek's schedule for a short time did not mean it could do so permanently. The Court rejected both of these arguments, and it relied heavily on Crystal Lake in reaching its conclusion. First, the Court recognized that management prerogatives play an important role in the success of a business and that it was mindful that a business must have the right to set its own employment rules to encourage maximum productivity. However, the Court also cautioned that employment rules "do not exist in a vacuum but must bend to the requirements of the WFEA." Turning to Hutchinson's second argument, the Court agreed with LIRC's conclusion that the hardships alleged by Hutchinson were nothing more than speculation. Hutchinson produced no evidence that accommodating Roytek would impose a hardship upon its business, and the Court used the temporary provision of the 8-hour shift accommodation as proof the accommodation was reasonable.

The Court did clarify the burden of proof in disability discrimination cases, stating the initial burden of proving a reasonable accommodation is available falls on the employee. However, the Court did not address what constitutes "hardship" under the WFEA, and that crucial issue remains an open question.

In a concurring opinion filed by Justice Diane Sykes, one of three dissenting judges in Crystal Lake, Justice Sykes suggested any "relief" from Crystal Lake will need to come from the legislature.

This decision means that, at least for now, Crystal Lake is here to stay, and Wisconsin employers have a high burden in responding to a disabled employee's accommodation request. Wisconsin employers must continue to engage in a sustained, meaningful and well-documented interactive process with any disabled employee who seeks an accommodation related to the job. Also, in response to a disabled employee's request that his or her job be modified/shortened and that certain duties (or hours) be assigned to other co-workers, consider surveying the co-workers who will be impacted. If they object, their refusal to willingly take on additional duties or hours may provide strong evidence supporting the denial of the requested accommodation. Finally, given the difficulty in establishing that a requested accommodation is unreasonable under Wisconsin law, employers must consider whether they can prove hardship before denying any accommodation request. Although the precise definition of hardship remains unclear, speculation will not be sufficient. Rather, employers will need to obtain and rely on hard evidence concerning the costs of the accommodation, the negative effects of the requested accommodation on production and/or other employees, and the detriments to the employer's business should the accommodation be provided.

What Would You Do?
Your traffic manager, an exempt employee, and a mail room clerk (non-exempt) wind up in a fist fight during the work day on company property. Company policy requires a three-day suspension without pay for fighting in the work place. Under the current regulations, who could be suspended? Any change under the new regulations? ANSWER BELOW

Question of the Month:
By Alexis Pheiffer, Quarles & Brady LLP

Question: Will Wisconsin be adopting/applying the new federal Fair Labor Standards Act ("FLSA") exemptions and other revisions to state wage and hour laws?

Answer: Not necessarily. Wisconsin's wage and hour regulations do include a provision stating Wisconsin's exemptions are to be interpreted in a manner consistent with the FLSA overtime exemptions. However, when the new federal regulations take effect on August 23, 2004, Wisconsin's laws will remain unchanged unless the Department of Workforce Development (DWD) changes the state's rules. DWD has recently given the opinion that, new federal rules notwithstanding, DWD will not defer to federal law, and the agency will be likely to strictly enforce the application of its own overtime exemptions. Stay tuned for more developments.

Have a question you think should be featured as the "Question of the Month" for August 2004? Send your submissions to GMA SHRM.

Answer: What Would You Do?
Under the current version of the FLSA regulations, only the mail room clerk could receive an unpaid suspension of three days. However, under the new FLSA regulations, set to take effect next month, both employees could receive an unpaid suspension per the employer's policy. The new regulations allow employers to make deductions for one or more full days of pay as discipline for violation of workplace conduct rules without destroying an employee's exempt status. The regulations are clear that only violation of a conduct rule qualifies under the exemption; poor attendance and/or poor performance are insufficient.

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