The decision creates a chasm between state law under the WFEA and federal law under the Americans with Disabilities Act (ADA), but the size of the chasm is questionable.
It is unlikely that Catlin could have survived summary judgment were this case heard in federal court under the ADA. Under the ADA, an employer is not required to shuffle job responsibilities amongst employees to create a position to accommodate a worker, nor must it create a new position. Shuffling "essential" job duties to co-workers is considered an unreasonable accommodation. Jay v. Intermet Wagner, Inc., 233 F.3d 1014, 1017 (7th Cir. 2000).
In Jay, a millwright sought an accommodation that he work only on ground level – a rather minimal accommodation, considering that there were two workers employed by Intermet Wagner who did just that. Nevertheless, the court held the employer did not have to switch Jay with either of those two.
Here, it was undisputed that, although these were not her primary responsibilities, it was necessary at times that Catlin retrieve cheese, cut cheese, shrink-wrap the cheese, and load the cheese – all tasks that she could no longer perform, and that would have to be picked up by the other workers on the team.
If Jay was unable to prevail in federal court, it seems unfathomable that Catlin could. Federal law does not require an employer to accommodate a disabled employee, when no accommodation can be made that would enable the employee to perform an "essential" duty.
The difference in federal and state law is difficult to gauge, however, because the court did not ever speak of "essential" duties, as federal cases do. Instead of "essential" duties, the court spoke exclusively in terms of "nearly all," "most," and "some."
The court stated at one point, "LIRC accepted Catlins testimony that she could perform nearly all the functions she did prior to her accident. … The evidence supports a finding that Catlin could perform most of her duties (emphases added)."
Discussing the position of LIRC, however, the court stated, "LIRC interprets Wis. Stat. sec. 111.34(2)(a) as not necessarily requiring an employee to be able to perform all of the job-related functions, only some or most. As long as the employee can perform some of the job responsibilities, modification of the duties may be a reasonable accommodation."
In the next paragraph, the court stated that it is required to give great weight to this interpretation, unless it clearly contradicts the plain meaning of the statute, which the court concluded it did not.
The decision thus provides little guidance as to how many duties a disabled employee need be able to perform to trigger a duty on the employers part to reasonably accommodate the employee: LIRC found she could perform "nearly all"; the court agreed she could perform "most"; but the court accepted LIRCs interpretation that only "some" is sufficient.
It is also noteworthy that the courts decision lacks not only any reference to "essential" duties, but also lacks a single reference to federal law. Normally, LIRC and courts cite the familiar mantra that, while Wisconsin is not bound in its interpretation of the WFEA by federal interpretation of employment discrimination statutes, courts and LIRC generally look to those cases for guidance.
The absence of any discussion, much less explicit rejection, of any federal cases, further makes it difficult to judge just how much state law deviates from federal.
What is clear, however, in light of the decision, is that attorneys representing employers had better not rely on analogous federal accommodation cases or legal arguments about per se unreasonableness, but should concentrate their efforts on the dollars and cents required by the requested accommodations.
– David Ziemer
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David Ziemer can be reached by email.