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Shorter shifts can be required for disabled

Roggensack

“This is a sea change in Wisconsin employment law because heretofore employers were not required to forego valid business decisions to suit employees and prospective employees who were not able to undertake job-related responsibilities.”

Hon. Patience D. Roggensack in dissent

The Wisconsin Supreme Court held on June 30 that an employer violated the Wisconsin Fair Employment Act by refusing to accommodate a disabled employee by permitting her to work eight-hour shifts, rather than 12.

Hutchinson Technology, Inc. (HTI) has a manufacturing plant in Eau Claire that produces suspension assemblies for computer hard disk drives. HTI uses four crews to work rotating 12-hour shifts in production. The model was adopted to maximize efficiency and employee preference.

HTI has occasionally permitted an employee to work less than 12 hours per shift for a job assigned such hours, but these allowances have been temporary in nature.

Susan Roytek began her employment as a production worker at HTI in June of 1998. In September, she was diagnosed with lower back pain, and was temporarily unable to work. She returned in November, but with some restrictions. Roytek was limited to working six-hour days and prohibited from lifting anything over 20 pounds.

In January 1999, Roytek increased her shifts to eight-hour days. A medical evaluation determined that she could steadily work an eight-hour shift, five days per week, but was incapable of working 12-hour shifts on a consistent basis.

In August 1999, she went on short-term disability leave, and when the leave ran out in September, HTI terminated her. Roytek filed a complaint with the Equal Rights Division of the Department of Workforce Development (Department), alleging disability discrimination.

The ALJ concluded that Roytek had a disability, and that HTI had terminated her employment due to such disability. The ALJ concluded that, although HTI had demonstrated that Roytek’s disability prevented her from performing certain job functions, HTI did not demonstrate that it attempted reasonably to accommodate her disability or that such accommodation would impose a hardship upon it.

The ALJ then ordered HTI to reinstate Roytek, unless Roytek did not want to be reinstated, and also ordered compensation. HTI appealed the ALJ’s decision to LIRC, but LIRC affirmed, as did Eau Claire County Circuit Court Judge Benjamin D. Proctor, and the court of appeals.

The Supreme Court accepted review, and also affirmed, in a decision by Justice N. Patrick Crooks. Justice Diane S. Sykes wrote a concurring opinion joined by Justice Jon P. Wilcox, and Justice Patience D. Roggensack dissented, in an opinion joined by Justice David T. Prosser Jr.

Disability

Applying the standard set forth in La Crosse Police Comm’n v. LIRC, 139 Wis.2d 740, 755, 407 N.W.2d 510 (1987), the court first held that there was a rational basis for LIRC’s conclusion that Roytek was an individual with a disability.

Under La Crosse, a person claiming to be an individual with a disability must establish two things: that he or she has an actual or perceived impairment; and that this impairment either makes, or is perceived as making, achievement unusually difficult or limits one’s capacity to work.

Discussing the first requirement, the court concluded, “Roytek has established that she has damage to her normal bodily condition, as both [Drs.] Ippel and Zondag concluded that she had back pain related to disc problems, and that such problems restricted her ability to work a 12-hour shift, and engage in prolonged static standing or sitting.”

Crooks

“Clearly, a reasonable accommodation was available, since HTI accommodated Roytek’s eight-hour shifts for eight months without any problems.”

Hon. N. Patrick Crooks Wisconsin Supreme Court

Turning to the second, the court concluded, “Roytek is limited in her capacity to work in her job. As discussed above, both Ippel and Zondag concluded that Roytek is limited in the amount of static standing and sitting she can endure before experiencing pain. Moreover, HTI claimed that there are certain positions in the photoetch department that Roytek may no longer be able to perform, such as the shearing and bay positions.”

Accommodation

Having found that Roytek is disabled, the court turned to whether HTI unreasonably failed to accommodate the disability, and agreed with LIRC that it did.

HTI argued that permitting Roytek to work eight-hour shifts, rather than 12 is not a reasonable accommodation, because it would impose hardship on it. HTI claimed that the accommodation would not help Roytek perform her job but would, in fact, excuse her from performing it.

HTI asserted that forcing it to create an eight-hour shift for Roytek would strip it of its management prerogative of setting its own policy with respect to shift schedules, and that it may be forced to implement a part-time or job-share program, Roytek would have to work on two crews under two different supervisors, an additional person may need to be hired to deal with scheduling, and there will be uncertainty as to the shortest shift it will be required to accommodate.

The court rejected the contentions, however, citing its decision in Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis.2d 200, 664 N.W.2d 651, and concluding, “Clearly, a reasonable accommodation was available, since HTI accommodated Roytek’s eight-hour shifts for eight months without any problems.”

The court also found that HTI’s suggested hardships were purely speculative, reasoning, “Over a two-week period, Roytek had the potential to work only four hours fewer than her fellow employees due to a possible schedule of five eight-hour days weekly. Although HTI hypothesized that certain problems could arise in the future, it presented no evidence that any ever did. For example, HTI did not submit any evidence that other employees sought to work reduced shifts, that morale problems had arisen among its other employees, or that production had decreased as a result of Roytek’s arrangement. We reiterate our conclusion in Crystal Lake that reasonable accommodation and hardship are two distinct concepts that involve separate inquiries, since an accommodation may be reasonable, but nevertheless work a hardship upon a specific employer. … HTI failed both tests. HTI did not introduce any evidence, beyond mere conjecture, that accommodating Roytek would impose a hardship upon its business.”

What the court held

Case: Hutchinson Technology, Inc. v. LIRC, No. 02-3328.

Issue: Did a factory violate the Wisconsin Fair Employment Act by refusing to accommodate a disabled employee by permitting her to work eight hour shifts, rather than twelve?

Holding: Yes. Where the employer failed to produce evidence of hardship, other than speculation, the employer violated the Act.

Counsel: Carol S. Dittmar, Teresa E. O’Halloran, Eau Claire, for appellant; David C. Rice, Peggy A. Lautenschlager, Madison, for respondent.

Accordingly, the court affirmed.

The Dissent

Justices Roggensack and Prosser dissented, arguing that the case is distinguishable from Crystal Lake, because in that case, the employer was only required to shift job duties, while the case at bar disregards an employer’s business decision about how best to increase production.

The dissent concluded, “the majority decision here goes far beyond our conclusions in Crystal Lake because Crystal Lake focused on the tasks that comprised the job that the disabled worker was hired to perform. In Crystal Lake, we concluded that because the tasks the job required would continue to be fully accomplished, albeit not all by the disabled employee, what the employee offered was a reasonable accommodation. In other words, the valid management decision the employer made about what tasks it needed done, got done.

“Here, by contrast, HTI made a valid management decision to increase production by implementing 12-hour shifts, two per day. Roytek suggested an eight-hour work schedule, which may seem to be an accommodation from her perspective because she could do it. However, it is not a statutory accommodation, because HTI is not being permitted to use its equipment 24 hours a day for a full team of workers on each shift. And contrary to the accommodation in Crystal Lake where other workers offered to do the tasks that the disabled worker could not do, no other worker has offered to do Roytek’s missing four hours per shift. That no such offer was made is understandable because the other workers were already working 12 hours per shift, four hours of which were the same four hours that Roytek was not working.”

The dissent declared, “This is a sea change in Wisconsin employment law because heretofore employers were not required to forego valid business decisions, such as using equipment 24 hours per day, to suit employees and prospective employees who were not able to undertake those job-related responsibilities. It is important to note that although Roytek wanted to work eight-hour shifts, the majority opinion applies equally to other employees and prospective employees who can work only six hours of an eight-hour shift. For example, when the General Motors plant in Janesville works three eight-hour shifts per day and one or more employees or prospective employees have statements from a physician that the individual can work only six-hour shifts, General Motors will be required to let its equipment stand idle for two hours each shift for each employee who has such a disability. This cannot be what the legislature had in mind when it amended WFEA in 1981.”

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Case Analysis

The dissent further concluded that the majority interpretation results in the negation of sec. 111.34(2)(a), which provides that it is not discrimination to refuse to employ an individual when the job-related responsibilities of that individual’s employment are not met.

The Concurrence

Justices Sykes and Wilcox wrote separately, maintaining that, although Crystal Lake was incorrectly decided, it is binding precedent, and requires the holding that HTI unreasonably failed to accommodate Roytek’s disability.

Sykes wrote, “Crystal Lake is applicable and binding precedent, and I cannot distinguish its interpretation of the WFEA’s reasonabl
e accommodation re-quirement as Justice Roggensack has done here. Crystal Lake did not define ‘reasonable accommodation’ as an accommodation that would permit the employer to have the job-related responsibilities of the individual’s employment met or permit an employer to implement a valid management decision. Dissent, pars. 1, 10, 13, 18-22. To the contrary, Crystal Lake broadly held that an employer may indeed be required to alter an employee’s job responsibilities in order to comply with the WFEA, and that LIRC’s determinations of ‘reasonable accommodation’ in this regard are entitled to great weight deference. As such, although I disagreed with Crystal Lake, I am bound by it, and join the court’s application of it in this case. Any remedy will have to come from the legislature.”

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David Ziemer can be reached by email.

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