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December 2007/January 2008Newsletter

New LIRC Decision Holds That Wisconsin Fair Employment Act Does Not Require Unlimited Modification of Job Duties for Disable Employees

Employment Law Express

On December 21, 2007, the Wisconsin Labor and Industrial Review Commission (“LIRC”) issued a remarkable decision in King v. City of Madison, addressing an employer’s duty to accommodate a disabled employer. The holding is that, while modification of job duties may be a reasonable accommodation in some cases, the Wisconsin Fair Employment Act (“WFEA”) does not require unlimited modification. Gail King was a bus driver for the City of Madison, who provided doctors’ notes saying she could return to work after a period of disability but had numerous restrictions, including the inability to drive a bus. In other words, King was a bus driver who could not drive a bus. King was terminated at the end of her 18 month disability leave and brought a claim of disability discrimination under the WFEA. King argued that she should have been given a position as a transit service worker as a reasonable accommodation for her disability. LIRC disagreed, concluding that King could only have performed one of five basic components of the position and “although modification of a position’s duties can constitute a reasonable accommodation, modification to this extent is not required.”

The King decision is significant because it limits a previous Wisconsin Supreme Court decision, which required the employer to accommodate a disabled employee by making significant changes to her job duties. Furthermore, it is the first time in years that LIRC has focused on whether an accommodation was reasonable, rather than focusing on whether the employer showed that the requested accommodation was a hardship. In this case, LIRC determined that it was not reasonable to place an employee in a position for which she could only complete 20% of the job duties, and did not address whether putting her in this position would have been a hardship for the City of Madison.

Other significant aspects of the decision include the following:

  1. A holding that displacing another worker in King’s bargaining unit so that King could have a job was not a reasonable accommodation under the WFEA.
  2. The rejection of King’s argument that the failure to appoint her to any of five vacant, clerical positions for which she applied violated the reasonable accommodation provision of the WFEA. LIRC explained that “the City was not required, in order to satisfy the WFEA, to disregard its competitive, merit-based recruitment and selection process created through ordinance and collective bargaining agreement, in order to accommodate King’s disability.”
  3. A discussion of light duty positions, with a conclusion that the City was not required, in order to meet the reasonable accommodation requirements of the WFEA, to convert a temporary, light duty position to a permanent position for King.

What does the King decision mean for employers? As always, decisions about accommodations for disabilities must be made on a case-by-case basis. However, this decision does offer some guidance for determining if a requested accommodation is reasonable:

  • An accommodation that would eliminate a large portion of a job’s essential functions is unlikely to be reasonable.
  • An employer is not required to displace another employee to accommodate a disabled employee.
  • Nor is an employer required to appoint a disabled employee to a vacant position if there are other, more qualified applicants.
  • An employer is permitted to hold light duty positions open for employees on workers’ compensation, rather than converting them to permanent positions for disabled employees.

When analyzing reasonable accommodations going forward, it is important to keep in mind that King is a LIRC decision likely to be appealed. The courts will have the final word. Stay tuned to the Employment Law Express for appeal-related developments.

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