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Late last year, the Wisconsin Court of Appeals issued an unpublished decision affirming a decision of the Labor and Industry Review Commission (LIRC) holding that Hutchinson Technologies, Inc. discriminated against a production employee named Susan Roytek on the basis of her disability. Hutchinson Technology, Inc. v. LIRC, Case No. 02-3328 (2003). In affirming the LIRC opinion, the Court of Appeals again evidenced the growing divergence between the Americans with Disabilities Act and the Wisconsin Fair Employment Act's protection of disabled employees.
Hutchinson Technology, Inc. (Hutchinson) produces suspension assemblies for the computer industry. Susan Roytek was hired by the Company in June 1998 for a 12-hour shift, beginning at 6:00 a.m. Roytek was employed by Hutchinson as phototech operator, a position in which she primarily inspected stainless steel sheets that carried photographically imprinted and etched patterns using a stereoscope, a hand scope or the human eye.
Due to a pre-existing back problem, Roytek took off from work on short-term disability from September 16, 1998 to November 1998. When she returned, she was restricted from working more than six (6) hours per shift. Hutchinson allowed Roytek to work on this modified schedule. Roytek's doctor authorized her to increase her daily shift to eight (8) hours in January 1999.
From November 1998 until her termination, Roytek's doctor reported monthly to Hutchinson regarding her hours-per-shift restriction and advised that she should alternate between standing and sitting. To accommodate this request, Hutchinson allowed Roytek to stand at her station and to walk, stretch and rotate into other functions, as needed. Hutchinson also provided adjustable tables to allow employees like Roytek to stand during inspections. Roytek apparently did not experience back pain that prevented her from performing any of the tasks other than inspection.
Hutchinson attempted to determine whether Roytek's 8-hour restriction would be permanent, but her doctor repeatedly indicated that her restriction needed to be continued until her "next monthly appointment." When it became apparent to Hutchinson that Roytek would not be able to return to a 12-hour shift, the Company terminated her employment.
Roytek filed a complaint with the Equal Rights Division, alleging Hutchinson discriminated against her due to her back condition. The Initial Determination and Hearing Decision were in favor of Roytek, and Hutchinson appealed to the Labor and Industry Review Commission. LIRC flatly rejected all of the Company's argument. The Commission again extended the bounds of the word "reasonable" noting the "W[isconsin] F[air] E[mployment] A[ct]... has been broadly construed so as to not rule our any particular type of accommodation as a matter of law. To the contrary, if an accommodation is reasonable and can be provided by the employer without creating a hardship for its business, the WFEA contemplates that it do so." The Commission awarded a reduced attorney's fee award of $3,082 to Roytek, along with reinstatement to her position, back pay, lost benefits and seniority -- all the remedies available to a complainant in an action under the Wisconsin Fair Employment Act.
Court of Appeals Decision
After losing its appeal to the Eau Clare County Circuit Court, Hutchinson presented several cogent arguments in the Court of Appeals. These arguments that would likely have carried the day under the Americans with Disabilities Act. However, this was not so under the Wisconsin Fair Employment Act. Unfortunately, the recent interpretations to the Wisconsin Fair Employment Act under the Crystal Lake Cheese Factory v. LIRC, 2003 WI 106(2003) made a reversal difficult.
Hutchinson argued that Roytek did not prove she was disabled, as she did not have a physical condition that made achievement unusually difficult or limited her capacity to work, as she was not limited in her capacity to work in general, as opposed to working in a specific position. The Court of Appeals rejected this argument, due to the fact that the case law in support of Hutchinson's argument was based on interpretations of the Americans with Disabilities Act and Wisconsin case law defines "disabled" with reference to the particular job in question.
Hutchinson also argued that accommodating Roytek by allowing her to work a shorter shift would result in hardship; however, the Court of Appeals rejected this argument, in part, due to the fact that Roytek worked the modified shift for several months and Hutchinson did not produce evidence of hardship during that period.
Hutchinson also argued that Roytek's physical restrictions made it unreasonable for Hutchinson to accommodate her based on the fact that she was only able to perform one of the four functions of her position. The Court of Appeals rejected this argument because Hutchinson had not shown why this assertion made the accommodation unreasonable, citing the Crystal Lake holding:
A reasonable accommodation is not limited to that which would allow the employee to perform adequately all of his or her job duties. A change in job duties may be a reasonable accommodation in a given circumstance.
Under Crystal Lake, some modification may be necessary to the essential functions of an employee's job. However, the Hutchinson decision signals that all options for accommodation and modification of a position (both reasonable and unreasonable) must be looked at and the employer's response to each request documented. Employers need concrete evidence of hardship in order to prevail, something Hutchinson failed to offer into evidence. If temporary light duty assignments are given to certain employees, the temporary nature of the position should be emphasized and employers should track and document any decreases or bottlenecks in production, lack of quality, customer complaints, or any other impact on the department or operation to demonstrate that reduced hours is not a "reasonable accommodation." Specifically, the employee cannot meet the production standard required of others, even with reduced hours. Any claim of decreased employee morale or employee resentment may be too remote from an accommodation to constitute a hardship.
Supreme Court Review
While an unpublished decision is of no precedent, the case has been appealed to the Wisconsin Supreme Court, which has not yet granted certiorari to review the case. Should the Court accept the case, the stage will be set for another decision holding that employers have a greater duty to accommodate employees under state law than under the Americans with Disabilities Act.
Krukowski & Costello, S.C. filed an amicus brief on behalf of Wisconsin Manufacturers and Commerce in support of Hutchinson's Petition for Review with the Wisconsin Supreme Court, arguing, among other things, that Wisconsin employers need more guidance regarding when an accommodation becomes "unreasonable."
Wisconsin employers should consult knowledgeable labor and employment law counsel when dealing with employees who request accommodation for a physical limitation to help them navigate the increasingly complex panoply of state and federal law.
For more information about this important issue, call (414) 423-1330 or e-mail Krukowski & Costello's Educational Services Department.
WI Supreme Court Has Affirmed Hubbard Decision Regarding Payment of Wage Claims
The Wisconsin Supreme Court has affirmed the Hubbard v. Shawn Messer decision that we reported in our May 2003 e-newsletter and Issue of the Month. In that case, an employee filed a wage claim against a former employer, Hubbard. Hubbard paid the employee the $3,673 claimed. After cashing the wages check, the employee filed a complaint to request an additional $3,673 in penalty wages and attorney's fees. The Court of Appeals ruled and the Wisconsin Supreme Court affirmed that since the employer had promptly paid the back wages, that the employee was no longer permitted to seek additional penalty wages. Again, the moral of the story is to address wage claims as they arise, determine if money is owed or if any error has been made with an employee's pay, pay legitimate back pay claims promptly and prevent the employee from seeking "penalty" wages (damages) or attorney fees, where applicable.
Krukowski & Costello, S.C. also filed an amicus brief in the Hubbard matter on behalf of the Wisconsin Manufacturers & Commerce.
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