Supreme Court Holds that an Employer’s Actual Knowledge of Link Between an Employee’s Disability and Misconduct Resulting in Termination is Required to Prove Disability Discrimination

Posted by Attorney David McClurg in Employer-Employee Relationship, Human Resources, Labor Relations / Comments

An employer can be held liable under the Wisconsin Fair Employment Act if it takes an adverse action (including termination or other disciplinary action) against an employee “because of" the employee's disability. One of the most vexing problems for employers arises when, after terminating an employee for misconduct or rule violations, the employee claims that the conduct leading to the discipline was “caused by" their underlying disability. This has been particularly troublesome in situations involving employees suffering from psychological disorders.

In the past, employers' exposure to liability in these situations was significantly increased by the Labor & Industry Review Commission's adoption of the “inference method" of establishing disability discrimination. Under this method, intent to discriminate on the basis of disability was found whenever an employer took an adverse action against an employee based on “a problem with the employee's behavior or performance which is caused by the employee's disability." The Commission held that “If an employee is discharged because of unsatisfactory behavior which was a direct result of a disability, the discharge is, in legal effect, because of that disability" even absent evidence that the employer knew that the behavior was caused by the employee's disability.

In Wisconsin Bell, Inc. v. Labor & Industry Review Commission the Wisconsin Supreme Court held that the “inference method" utilized by LIRC for over 20 years was inconsistent with the Wisconsin Fair Employment Act because it relieves the employee of the burden of proving discriminatory intent. The court held that, in order to prove disability discrimination, an employee must prove that an employer knew of the connection between his/her disability and the conduct for which the employee was terminated or otherwise disciplined.

The Wisconsin Bell case was also significant in that it incorporated and applied its holding in a companion case, decided on the same day, in which the court decided to end its past practice of deferring to administrative agencies' conclusions of law in situations where the agency had extensive experience in applying the statute in question. Courts will now give only “due weight" to the agency's experience, technical competence, and specialized knowledge when interpreting statutes and deciding other questions of law.

If you have questions about disability discrimination or other labor & employment questions, please feel free to contact Dave McClurg at (414) 223-6956 or dmcclurg@petriepettit.com.