Accommodation Case Analysis

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When Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis.2d 200, 664 N.W.2d 651 was decided at the end of last term, it created a major difference between state interpretation of the Wisconsin Fair Employment Act and federal interpretation of the Americans with Disabilities Act, respecting what constitutes a reasonable accommodation, by requiring state employers to change job duties for disabled workers.

The decision in the case at bar also focuses on what is a reasonable accommodation, but arguably, the greater effect is not on that issue, but on the issue of who is a qualified individual with a disability.

Were this a federal case under the ADA, the court would never have reached the question of accommodation, because Roytek would not qualify as disabled, under Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).

In Sutton, two severely myopic job applicants brought a disability discrimination action against an airline, challenging its minimum vision requirement for global pilots, but the U.S. Supreme Court held they were not disabled.

A disability is defined under federal law as “a physical or mental impairment that substantially limits one or more of the major life activities” of an individual. 42 U.S.C. 12102(2)(A). “Working” is considered a major life activity.

However, to be substantially limited in the major life activity of working,” one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.” Sutton, 527 U.S., at 492.

An employee who is able to work an eight-hour shift in a factory, and whose only disability is a back injury that precludes her from working longer than that clearly would not meet this definition.

Justice Ginsburg’s concurrence in Sutton makes the point by focusing on the purpose of the ADA — preventing discrimination against a “discrete and insular minority.”

Ginsburg added that Congress intended “to restrict the ADA’s coverage to a confined, and historically disadvantaged, class.”

Many people have back problems that would rule out a 12-hour factory shift, but would not come within the ambit of the ADA, as they could not be considered an insular minority or a historically disadvantaged class.

Were this case in federal court, the Seventh Circuit’s decision in Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944 (7th Cir. 2000), would also require summary judgment on the grounds that Roytek is not disabled. In Moore, an employee with rheumatoid arthritis was held not to be disabled, even though his arthritis required that he not be exposed to cold or damp weather for extended periods.

Finding Moore was not disabled, the court stated, “To qualify as substantially limiting his ability to work, Mr. Moore’s condition must preclude him from a class or range of jobs for which he possesses the necessary training, skills and abilities.” Moore, 221 F.3d at 953.

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Presumably, factory jobs with 12-hour shifts, rather than eight, would not qualify as a “class or range of jobs” under federal law.

A question raised by the decision is what the result would be in the hypothetical posed by the dissent — a factory had eight hour shifts, but an employee could only work six.

The dissent speculates that the factory will be required to let its equipment stand idle for two hours each shift for each employee who has such a disability.

The majority rebuts this by stating that its decision “hinges on the fact that HTI was unable to provide any proof that providing a reasonable accommodation to Roytek would work hardship upon its business.”

Implicit in this rebuttal, however, is that a person who can only work six hours is a qualified individual with a disability, and that permitting him to work only six-hour shifts is a reasonable accommodation. The court’s decision would place the burden squarely on the employer to prove hardship, even in that case.

– David Ziemer

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David Ziemer can be reached by email.