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On July 11, 2003, the Wisconsin Supreme Court decided a case under the disability provisions of the Wisconsin Fair Employment Act (WFEA) that will require Wisconsin employers to revise how present and future cases are evaluated. The case is Crystal Lake Cheese Factory v. Labor and Industry Review Commission and Susan Catlin, 2003 WI 106 (Wis., 2003).
This case is difficult to apply because there were limited facts regarding the responsibilities of the job and the disabled employee's limitations or the extent the employee could perform her previous job. No effective expert testimony was presented. The employee became a quadriplegic following a car accident. The Court accepted the fact that she could not perform all of her job responsibilities and, without challenged testimony, her mother and sister testified that they were willing to perform the work that Catlin could not perform. Therefore, the Court concluded that the employer did not reasonably accommodate Catlin by creating, in effect, a "new" job. These bad facts have created a confusing decision that may be overworked by plaintiffs and their attorneys in future claims.
Summary of the Crystal Lake Holding
The Wisconsin Supreme Court held that employers may be required to retain and accommodate disabled employees even if the accommodations would not allow the employee to perform all of the functions of the employee's position. In what we view as a significant and unjustified intrusion on employers' rights to assign core job duties consistent with their operational needs, the Court held that employers may be required to restructure disabled employees' job responsibilities so as to eliminate those duties that an employee is unable to perform. Unlike the Americans with Disabilities Act, this case makes no distinction between essential/core/primary job duties and those that are merely marginal/non-essential/secondary functions of the disabled employee's position.
This decision presents serious challenges for Wisconsin employers because:
- Under the Crystal Lake decision, any time an employee's physical/mental impairments preclude him/her from performing their particular job, the employer must consider "restructuring" that job as a reasonable accommodation.
- It appears that the Court rejected the "essential functions/marginal function" analysis typically applied under the ADA to determine whether job restructuring may be a reasonable accommodation, without providing any guidance or alternative analytical framework that employers can use to determine the extent of job "restructuring" that may reasonably be required to accommodate a disabled employee; and
- The restructuring requirement imposed by the Crystal Lake decision would appear to apply with equal force to job applicants with disabilities. Consequently, the Court also left open the implications of this decision on the hiring process.
Factual Background of Crystal Lake Case
The employee at the center of the Crystal Lake case, Susan Catlin, had been the head of the "Wholesale Department" at the Crystal Lake Cheese Factory before a car accident left her paralyzed and wheelchair bound. Her position required that, in addition to administrative tasks, she be able to fill in for the other three people (two family members) in the department when they were busy or off work. As a result of her injuries, she was no longer able to perform many of the duties of these other positions, such as lifting forty (40) pound blocks of cheese, getting cheese from higher shelves, loading cheese on trucks, cutting cheese and placing the cheese into a hot-water bath to shrink wrap it.
Despite her inability to perform these important functions of the positions in her department, the court affirmed the Labor and Industry Review Commission's finding that Catlin could perform "most" of the functions of her position, and that Crystal Lake could (and should) have accommodated her, without hardship, by eliminating the heavier jobs (that she could no longer perform) from her responsibilities. The court repeatedly noted that two of the three other members of the department had indicated that they would be willing to pick up the slack and perform these heavier functions in her place.
Perhaps most troubling about the Crystal Lake decision is the failure to give any meaningful guidance to help employers determine just how much "restructuring" of job duties may be considered a "reasonable accommodation." The decision stressed that the disability discrimination provisions of the Wisconsin Fair Employment Act are different from those under the ADA, and that Wisconsin law ignored the "essential functions" analysis commonly utilized under federal law. Consequently, the Court rejected the employer's argument that, as a matter of sound policy and consistency with federal law, Wisconsin should follow ADA cases which: 1) impose a duty of accommodation only for "qualified individuals with a disability," (meaning those individuals who are able to perform the "essential functions" of the job with or without accommodation); and 2) do not require employers to "eliminate job duties, create new jobs or employ others to perform functions that a disabled employee cannot perform."
Rather, the Court focused on the language of Wisconsin Statute 111.322 which provides that it is not "employment discrimination because of disability" to refuse to hire, employ or terminate any individual if "the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment." The case held that an employee does not have to be able to perform all of the duties of a particular position in order to "adequately undertake the job-related responsibilities" of the position. Unfortunately, after rejecting the ADA's "essential functions" approach, the decision did not provide any useful guidance to help employers determine what part of the duties of a particular job an employee must be able to perform, with or without accommodations, in order to "adequately undertake the job-related responsibilities" of the position so as to trigger the duty to accommodate.
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