Hutchinson Technology, Inc. v. Labor and Industry Review Commission

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2004 WI 90 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 02-3328 Hutchinson Technology, Inc., Petitioner-Appellant-Petitioner, v. Labor and Industry Review Commission and Susan Roytek, Respondents-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 267 Wis. 2d 961, 671 N.W.2d 717 (Ct. App. 2003-Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 27, 2004 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Eau Claire Benjamin D. Proctor JUSTICES: CONCURRED: June 30, 2004 SYKES, J., concurs (opinion filed). WILCOX, J., joins concurrence. ROGGENSACK, J., dissents (opinion filed). PROSSER, J., joins dissent. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For by Carol Johnson, Carol S. the petitioner-appellant-petitioner there were briefs S. Dittmar, Teresa E. O Halloran and Garvey, Anderson, Geraci & Mirr, S.C., Eau Claire, and oral argument by Dittmar. For the respondent-respondent Labor and Industry Review Commission the cause was argued by David C. Rice, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general. For the respondent-respondent Susan Roytek there was a brief by Rose M. Allen, Lisa A. Wiebusch and Mudge, Porter, Lundeen & Seguin, S.C., Hudson, and oral argument by Rose M. Allen. An amicus curiae brief was filed by Timothy G. Costello, Brian M. Radloff and Krukowski & Costello, S.C., Milwaukee, on behalf of Wisconsin Manufacturers & Commerce, Inc., and oral argument by Timothy G. Costello. An amicus curiae brief was filed by Wisconsin Coalition for Advocacy, Milwaukee. 2 Monica Murphy and 2004 WI 90 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 02-3328 (L.C. No. 02 CV 124) STATE OF WISCONSIN : IN SUPREME COURT Hutchinson Technology, Inc., FILED Petitioner-Appellant-Petitioner, v. JUN 30, 2004 Labor and Industry Review Commission and Susan Roytek, Cornelia G. Clark Clerk of Supreme Court Respondents-Respondents. REVIEW of a decision of the Court of Appeals. ¶1 N. Technology, PATRICK CROOKS, Incorporated (HTI), J. Affirmed. Petitioner, seeks review Hutchinson of a court of appeals' decision, Hutchinson Technology, Inc. v. LIRC, No. 023328, unpublished affirming Commission the slip op. decision (LIRC), (Wis. of which the Ct. App. Labor concluded Sep. that 2003), Industry and 18, Review HTI discriminated against Susan Roytek (Roytek) on the basis of her disability. LIRC affirmed the decision by the administrative law judge and concluded that Roytek had a disability, as defined by the Wisconsin Fair Employment Act (WFEA), and that HTI failed to No. 02-3328 provide a reasonable accommodation that would have allowed her to continue her employment with HTI. The circuit court and the court of appeals affirmed LIRC's decision. ¶2 We conclude that Roytek is a person with a disability under the WFEA. Roytek met her initial burden of establishing the reasonableness of her proposed accommodations. prove that disability, months. it could since it Moreover, not reasonably accommodated HTI did not her HTI did not accommodate Roytek's disability introduce any for eight evidence that allowing Roytek to continue to work eight-hour shifts at HTI would cause hardship to the business. We are mindful that a business must have the right to set its own employment rules to encourage maximum productivity. rules do not exist in a requirements of the WFEA. We caution, however, that such vacuum, but must bend to the We, therefore, affirm the court of appeals' decision. I ¶3 HTI is a Minnesota based corporation with manufacturing plant located in Eau Claire, Wisconsin. Claire manufacturing plant computer hard disk drives. has used four crews production facilities. to produces suspension a The Eau assemblies for Since opening, the Eau Claire plant work rotating 12-hour shifts in its HTI instituted the 12-hour shift model after studying production efficiency and determining employees' preferences. Employees generally work three days one week and four days the next, with every other weekend off. Thus, over the course of two weeks, an employee works seven 12-hour shifts 2 No. totaling 84 hours. 02-3328 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. ¶4 HTI's Roytek began her employment as a production worker in photoetch department in June 1998. In the photoetch process, a pattern is photographically imprinted onto stainless steel sheets. The pattern is then etched with a chemical process, cleaned, inspected, sheared, and sent on to the next phase of processing. into four bookwork, areas and All of HTI's photoetch operators rotated during bay. their Each shifts: photoetch inspection, operator had shearing, a primary position in one of these four areas, and the majority of each shift was spent doing the work of such position. In inspection, an operator was required visually to inspect chemically etched steel sheets. position Although the job description of the inspection stated that it required long periods of sitting, adjustable tables were available, in order to permit standing inspection. The shearing position required the feeding of steel sheets into a machine and had to be performed while standing. The bookwork position was a desk job, and a person could stand or sit to perform such tasks. position varied. Roytek The requirements of the bay primarily worked in the inspection position and, at the time she was hired, understood that she would be required to work 12-hour days. 3 No. ¶5 02-3328 In September 1998, Roytek's personal physician, Paul M. Ippel, M.D. (Ippel), diagnosed Roytek with lower back pain1 and concluded that she was temporarily unable to work. Roytek returned to work in November 1998, but with some restrictions. Roytek was limited to working six-hour days and prohibited from lifting anything increased Tuenis her over 20 shifts Zondag, M.D. to pounds. In eight-hour (Zondag), days. performed evaluation on Roytek in August 1999. the evaluation, Roytek could shift, five days per week. January work At a work was disability August leave 10, beginning HTI's fitness Roytek request for work Based on the results of steadily on an eight-hour However, Roytek was incapable of working 12-hour shifts on a consistent basis. of 1999, 1999, and August she 13, Roytek's last day went short-term HTI 1999. on terminated Roytek's employment on September 11, 1999, when her short-term disability pay ran out. ¶6 Roytek Division of filed the a complaint Department of with the Equal Workforce Rights Development (Department), alleging that HTI had discriminated against her on the basis of disability. Ippel informed the After Department Roytek's ability to work. Roytek of filed further her complaint, restrictions on Such restrictions included no sitting for longer than two hours, no static standing, no lifting more than 20 pounds, and no workdays longer than eight hours. 1 Roytek was ultimately diagnosed with degenerative disease at L5-S1 with an annular tear at L5-S1. 4 While disk No. 02-3328 some testimony was presented by HTI before the Administrative Law Judge hearing (ALJ) on what John L. these Brown, presiding restrictions at would the mean Department in terms of performance of certain job functions, the determinations by the ALJ, and by LIRC, focused on the eight-hour day versus the 12hour day issue.2 HTI closed its photoetch department at the Eau Claire plant on June 17, 2000. ¶7 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 concluded that HTI's evidence was too speculative to conclude that it had met its burden to prove hardship. Although HTI expressed fear that other employees would request reduced hours, that her fellow employees production would would experience suffer, a decline the ALJ in morale, concluded that and HTI that had presented no evidence that any of these scenarios had actually occurred. Thus, the ALJ reasoned that HTI violated the WFEA by terminating Roytek's employment. The ALJ then ordered HTI to reinstate Roytek to a position comparable to the position she had held in the photoetch department, unless Roytek stated that 2 During oral argument, the restrictions were discussed only in regard to an eight-hour day. 5 No. she did not want to be reinstated. make Roytek whole for the 02-3328 The ALJ also ordered HTI to losses of pay and benefits to LIRC. she suffered as a result of her termination. ¶8 HTI affirmed appealed the ALJ's the ALJ's decision.3 decision in circuit court. decision HTI sought review of LIRC LIRC's The Eau Claire County Circuit Court, Judge Benjamin D. Proctor presiding, affirmed LIRC's decision. The court concluded that HTI failed to meet its burden with respect to reasonable accommodation and hardship. ¶9 In an unpublished per curiam HTI appealed. opinion, Court of Appeals' Judges David G. Deininger, Margaret J. Vergeront, and Paul Lundsten affirmed the circuit court's judgment, stating that Roytek had a disability under Wisconsin's interpretation of "disability" as set forth 02).4 in Wis. Stat. § 111.32(8)(a) (2001- The court further concluded that HTI did not proffer 3 LIRC made only two amendments to the ALJ's decision, regarding attorney fees and the submission of a compliance report, neither of which are material to our review of this case. The dissent erroneously contends that "LIRC went directly to assessing whether HTI had shown a hardship under subsection (1)(b)." Dissent, ¶50. Indeed, LIRC addressed the issue of reasonable accommodation when it stated that "there was a reasonable accommodation that could have been provided for [Roytek] which would have enabled her to perform her job notwithstanding her disability, had [HTI] been willing to provide it." 4 Unless otherwise indicated, all references to Wisconsin Statutes are to the 2001-02 edition. Wisconsin Stat. § 111.32(8) states, in relevant part, as follows: "Individual who: with a disability" 6 means an individual No. 02-3328 sufficient evidence to support its contention that accommodating Roytek's disability would impose a hardship upon it. Finally, the court concluded that HTI waived the issue of whether Roytek should be reinstated and receive back pay, since it did not raise such issues before LIRC.5 II ¶10 We now consider whether Roytek was an individual with a disability under the WFEA. The issue of whether Roytek was disabled under the WFEA presents a question of law. Police (1987).6 Comm'n v. LIRC, 139 Wis. 2d 740, 755, 407 La Crosse N.W.2d 510 We must decide whether there was a rational basis for (a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; (b) Has a record of such an impairment; or (c) Is perceived as having such an impairment. 5 We agree with the court of appeals that HTI waived the issue of whether Roytek should be reinstated and receive backpay through the date of reinstatement since it failed to raise the issue in its brief before LIRC. Thus, we decline to further address this issue. 6 Wisconsin Stat. § 227.57(5) provides, in relevant part, as follows: The court shall set aside or modify the agency action if it finds that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action, or it shall remand the case to the agency for further action under a correct interpretation of the provision of law. 7 No. LIRC's conclusion disability.7 ¶11 that Roytek was an individual 02-3328 with a Id. at 756. HTI contends that Roytek is not an individual with a disability Roytek's under Wis. Stat. § 111.32(8). condition difficult, as set does forth not in make HTI asserts achievement § 111.32(8). HTI that unusually claims that achievement is unusually difficult when there is "a substantial limitation on life's normal functions or substantial limitation on a major life activity." Id. at 761. HTI maintains that an employee must be restricted from a vast array of jobs in order to be deemed substantially limited in the major life activity of working. Simply because Roytek is limited in the number of hours she may work, HTI contends, does not mean that she has a disability under interpreted the the WFEA. "limits the HTI asserts capacity to that work" La Crosse language of § 111.32(8) too broadly, when it concluded that the language should be interpreted in light of a person's ability to perform the specific job in question. Instead, HTI maintains, this See also School Dist. of Drummond v. WERC, 121 Wis. 2d 126, 132-33, 358 N.W.2d 285 (1984), which held that "[w]hen the legislature charges an administrative agency to apply and enforce a particular statute as it has with the commission and ch. 111, Stats., the agency's construction and interpretation of the statute are entitled to great weight and any rational basis will sustain its practical interpretations." (Citations omitted). 7 We note that the phrase "individual with a disability," as set forth in Wis. Stat. § 111.32(8), has been substituted for "handicapped individual," which was the phrase at issue in La Crosse Police Comm'n v. LIRC, 139 Wis. 2d 740, 752, 407 N.W.2d 510 (1987). 8 No. language should be interpreted so as to 02-3328 lead to the determination of whether an individual is limited in potential to work any job. ¶12 a Roytek contends that she has demonstrated that she has disability condition under may be under the WFEA. Wis. Stat. § 111.32(8), considered an actual or because a perceived back handicap Roytek also claims that she has proven that her disability limits her ability to perform her photoetch position. Based on the La Crosse decision, Roytek contends that she need only demonstrate her inability to perform the specific job in question. Roytek asserts that she also has demonstrated that her disability has interfered with major life activities, such as performing manual tasks, walking, and sitting. that she is further protected under § 111.32(8) Roytek argues because HTI perceived her back condition as a disability. ¶13 HTI's LIRC contends that this court should not give in to urgings to revisit and revise our La Crosse decision. LIRC asserts that the language "limits the capacity to work" should not be interpreted as referring to one's ability to work, in general. interpretation Instead, as LIRC referring maintains to one's that ability La Crosse's to work a particular job is correct. ¶14 a The Wisconsin legislature defined "an individual with disability" in Wis. Stat. § 111.32(8)(a). As noted previously, § 111.32(8)(a) states, in relevant part, that an individual has a disability when a physical or mental impairment 9 No. 02-3328 "makes achievement unusually difficult or limits the capacity to work . . . ." ¶15 Crosse This court further explained this phrase in our La decision. In La Crosse, we concluded that a person claiming to be an individual with a disability under the WFEA must establish two things. First, the person must demonstrate that he or she has an actual or perceived impairment. 762. Id. at Second, the person must demonstrate that this impairment either makes, or is perceived as making, achievement unusually difficult or limits one's capacity to work. ¶16 With respect to the first Id. step, we defined an impairment as "a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or such bodily condition." at 761. Id. Roytek has established that she has damage to her normal bodily condition, as both 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. ¶17 Since we conclude that the first step is satisfied, we proceed to consider whether the impairment makes "'achievement unusually (quoting difficult or limits the Wis. Stat. § 111.32(8)(a) capacity to (emphasis work.'" added)). Id. Either condition may be satisfied in order to establish that a person has a disability. we have respect concluded to a With respect to the "achievement" criterion, that particular "(t)he job, 10 determination but rather to rests a not with substantial No. limitation on life's normal functions limitation on a major life activity." or Id. a 02-3328 substantial With respect to the "limits the capacity to work" phrase, we have concluded that it refers to the specific job at issue. ¶18 Id. We conclude that Roytek is limited in her capacity to work in her job. concluded that As discussed above, both Ippel and Zondag 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. ¶19 Because Roytek has satisfied the we conclude that Wis. Stat. § 111.32(8)(a), individual with a disability. rational basis contention for that La LIRC's criteria Roytek under is an We are satisfied that there was a determination. interpretation Crosse's capacity to work" is too broad. We reject of HTI's "limits the We noted in Crystal Lake that "[t]he WFEA is a 'remedial statute . . . [and] should be broadly interpreted to resolve the problem it was designed to address.'" Crystal Lake Wis. 2d 200, Cheese 664 Factory N.W.2d 651 v. LIRC, (quoting 2003 WI 106, McMullen v. ¶46, 264 LIRC, 148 Wis. 2d 270, 275, 434 N.W.2d 830 (Ct. App. 1988)). III ¶20 We next consider whether LIRC's conclusion that HTI refused to reasonably accommodate Roytek's disability, and that HTI failed to demonstrate that making such accommodation would impose a hardship upon its business, can be upheld. 11 No. ¶21 agency's We will set aside a decision by LIRC only when "'the action supported Lake, 02-3328 264 by depends on Wis. 2d 200, finding evidence substantial any in ¶27 (quoting of the fact that record.'" is not Crystal Wis. Stat. § 227.57(6)).8 The test for substantial evidence is whether reasonable minds could reach the same evidence in the record. ¶22 In this conclusion as the agency, is case, afforded the Id. we give LIRC's decisions reasonable accommodation great weight deference. deference given to an agency's decision concerning Great weight under the following circumstances: "(1) the agency was charged by the legislature with the duty of administering the statute; (2) that the interpretation of the agency is one of long-standing; (3) that the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) that the agency's interpretation will provide uniformity and consistency in the application of the statute." Brauneis v. State, 2000 WI 69, ¶16, 236 Wis. 2d 27, 612 N.W.2d 635 (citing Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995)). 8 Wisconsin Stat. § 227.57(6) states, in relevant part, the following: If the agency's action depends on any fact found by the agency in a contested case proceeding, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record. 12 No. ¶23 02-3328 In Crystal Lake, we cited with approval the court of appeals' conclusion in Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 "reasonable deference. (Ct. App. 1998), accommodation" Crystal that should Lake, 264 LIRC's be interpretation afforded Wis. 2d 200, omitted)(citing Target, 217 Wis. 2d at 13). great ¶29 of weight (citations In Crystal Lake, we concluded that LIRC's interpretation of reasonable accommodation should be accorded great weight deference for the following reasons: "First, LIRC is charged with adjudicating appeals from the hearing examiner's decision on complaints under the WFEA, § 111.39(5), Stats., which includes complaints under § 111.322, Stats., for handicap discrimination. Second, § 111.34(1), Stats., was enacted in 1981 and LIRC has developed experience and expertise in interpreting this section. . . . Third, by according great deference to these determinations, we will promote greater uniformity and consistency than if we did not do so. Fourth, this determination is intertwined with factual determinations. Fifth, this determination involves value and policy judgments about the obligations of employers and employees when an employee, or prospective employee, has a handicap. Id. (Citations omitted). ¶24 Here, we reaffirm our conclusion in Crystal Lake that LIRC's determination regarding reasonable accommodation should 13 No. be given LIRC's great deference.9 weight interpretation deference as well. of We hardship further deserves 02-3328 conclude great that weight In Crystal Lake, we stated that "[h]ere, any decision made by LIRC will be given great weight due to the agency's knowledge Wis. Stat. § 111.34," and Id., experience ¶28 (citing in application Target, 217 of Wis. 2d at 13), and specifically concluded that LIRC's findings regarding hardship are entitled to great weight deference. Id., ¶¶53, 79. We will uphold LIRC's interpretation of a statute, if it is reasonable and compatible with the plain meaning of the statute even if another interpretation may be more reasonable. Id., ¶30. ¶25 HTI accommodation contends is that Roytek reasonable Wis. Stat. § 111.34(1).10 If the must or prove whether unreasonable employee can prove an under that a 9 We strongly disagree with the dissent's statement that the appropriate standard of review is de novo. See dissent, ¶¶5051. Our decision in Crystal Lake makes it clear that great weight deference is the appropriate standard of review for LIRC decisions regarding reasonable accommodation and hardship under the WFEA. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, ¶¶29, 53, 79, 264 Wis. 2d 200, 664 N.W.2d 651. Moreover, while the specific facts in this case may differ from the facts of previous cases of reasonable accommodation and hardship dealt with by LIRC, it does not follow that the issues of reasonable accommodation and hardship are one of first impression. If this were true, all decisions by LIRC would involve issues of first impression, because no two sets of facts are likely to be the same. 10 Wisconsin Stat. § 111.34(1) states, in relevant part, as follows: Employment discrimination because includes, but is not limited to: 14 of disability No. reasonable then accommodation shifts to the exists, HTI employer asserts to that demonstrate 02-3328 the burden that accommodation would impose a hardship on the employer.11 claims that the Roytek perform performing it. accommodations her job but proposed would, in here fact, such HTI would not help excuse her from HTI maintains that it is not required to shorten its shift length to accommodate Roytek and that it would suffer hardship if it was forced to do so. HTI contends that it did not offer statistical data regarding lost profits, production losses, and morale problems because the eight-hour shift was intended to be a temporary accommodation only. HTI asserts that forcing it to create an eight-hour shift for Roytek strips it of its management prerogative respect to shift schedules. of setting its own policy with Moreover, HTI contends that it may (a) Contributing a lesser amount to the fringe benefits, including life or disability insurance coverage, of any employee because of the employee's disability; or (b) Refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business. 11 Wisconsin Manufacturers & Commerce, Inc. (WMC) filed an amicus brief in this case and also participated in oral arguments. WMC contends that LIRC erred in placing the burden on HTI to demonstrate that the accommodation was reasonable. Instead, WMC claims, Roytek should have had to prove that an accommodation was reasonable. In addition, WMC asserts that Roytek was required to prove that the accommodation was effective and that its burden was proportional to its benefits. WMC contends that Roytek failed to meet any of these burdens. 15 No. 02-3328 be forced to implement a part-time or job-share program, Roytek will 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. ¶26 HTI contends that simply because it could accommodate Roytek's condition for a short time, does not mean that it could do so permanently. claims that it Aside from Roytek's hours restrictions, HTI would experience hardship if it were to accommodate all of Roytek's other physical issues, such as her inability to static stand or sit for a long period of time. Under her restrictions, HTI asserts that Roytek can fill only one of the four positions completely in the photoetch department and, regardless of the accommodation made, she will continue to experience pain on the job.12 HTI maintains that courts should not second-guess the policy judgments of a business when the structure of a position serves a legitimate business purpose. HTI contends that requiring it, in effect, to create a new job to accommodate Roytek would result in hardship. ¶27 Roytek contends that, since she established that she had a disability under the WFEA, the burden then shifted to HTI to prove that the requested accommodation was unreasonable or would impose a hardship upon it. 12 Roytek claims that she worked In Crystal Lake, 264 Wis. 2d 200, ¶52, n.19, we stated that the emphasis should be on the employee's ability to perform her job responsibilities adequately, not on terms that attempt to quantify the number of job responsibilities the employee can perform. 16 No. 02-3328 eight-hour shifts for eight months and never received complaints about her work. complained Roytek's to Moreover, Roytek maintains that no employees management schedule, and that no they were temporary overburdened workers compensate for the hours Roytek did not work. to hired were due to Roytek asserts that HTI has produced no credible evidence that it experienced hardship by accommodating her. Roytek contends that speculation as to problems that may arise in the future is not enough to establish hardship. ¶28 LIRC asserts that the employer has the burden proving that a proposed accommodation is unreasonable. contends that the initial burden of proof as of LIRC to the reasonableness of an accommodation should fall on the employee. Once the employee has met this initial burden of proof, LIRC maintains that the employer must show that the accommodation is unreasonable or that it would impose a hardship on the employer. LIRC contends that this court should not conclude that, as a matter of law, an employer can never be required to modify an employee's work schedule. reasonably find that experiencing hardship. employer to create HTI LIRC could concludes accommodate that it Roytek could without LIRC claims that the WFEA may require an modified work schedules as part of a reasonable accommodation, if the employer would not experience hardship. Moreover, LIRC maintains that HTI has failed to produce any evidence that its production has suffered due to Roytek's modified schedule. 17 No. ¶29 We begin by recognizing the important 02-3328 role that management prerogatives play in the success of a business. This court has stated that "it is necessary to preserve the freedom of private enterprise to manage its business as it sees fit." Libby, McNeill N.W.2d 805 & Libby (1970). See v. WERC, also 48 Wis. 2d 272, Kelley Co. Wis. 2d 234, 251, 493 N.W.2d 68 (1992).13 v. 280, 179 Marquardt, 172 We are mindful that a business must have the right to set its own employment rules to encourage maximum productivity. rules do not exist in a We caution, however, that such vacuum, but must bend to the requirements of the WFEA. Because our recent decision in Crystal Lake has direct ¶30 bearing in this case, it is necessary to discuss it in some detail. In Crystal Lake, an employee of Crystal Lake Cheese Factory was injured in a non-work related automobile accident and became a quadriplegic. Before her department accident, that the Crystal Lake, 264 Wis. 2d 200, ¶9. employee consisted of was the head of a four-person following positions: department head, cheese cutter, cryovacer, and labeler. ¶6. Id., After her accident, the employee contacted Crystal Lake to 13 In Kelley Co. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992), which involved a different issue under the Family Medical Leave Act, we discussed the necessary balancing that must occur between management prerogatives and statutory rights of employees. We stated: "On one hand, businesses are not curtailed from making legitimate business decisions and changes, and on the other hand, an employee may take family or medical leave without the fear of losing his or her position in the work place which includes status, authority, and responsibility." Id. at 251. 18 No. state that she was ready to return to work. Id., ¶10. 02-3328 Crystal Lake hired a consulting firm to determine what accommodations would need to be made that would enable the employee to do her job. Id. The firm ultimately concluded that no reasonable accommodations could be made to enable the employee to do her job. Id. The employee hired her own assessor who concluded that she could be reasonably accommodated. time of this assessment, the employee's Id., ¶11. department eliminated, and her former job no longer existed. At the had been Id. The employee filed suit against Crystal Lake. ¶31 The administrative law judge concluded that Crystal Lake did not discriminate against the employee because there were no reasonable accommodations that could be made. The employee appealed to LIRC. Id., ¶14. LIRC concluded that reasonable accommodations could have been made, such as modifying her job duties to excuse her from doing more without hardship befalling Crystal Lake. taxing physical Id., ¶15. tasks, Both the circuit court and the court of appeals affirmed LIRC's decision. Id., ¶¶17-20. ¶32 We stated that, as an initial matter, a plaintiff must show that he or she is an "individual with a disability" under Wis. Stat. § 111.32(8) and that his or her employer took one of the several actions listed in Wis. Stat. § 111.322. Id., ¶42. Once the employee meets the initial burden of proving that he or she has a disability, we stated that the employer then has the burden of proving a defense under Wis. Stat. § 111.34. Id. We stated that "§ 111.34(1)(b) and (2)(a) require an employer to 19 No. prove that even with reasonable accommodations, the 02-3328 employee would not be able to perform his or her job responsibilities adequately or that, where reasonable accommodations would enable the employee to do the job, hardship would be placed on the employer." Id., ¶32 (citation omitted). Since there was no dispute that the employee had a disability in Crystal Lake, we focused our analysis on whether reasonable accommodations could have been made for the employee without creating hardship for Crystal Lake. ¶33 We Id., ¶44. rejected Crystal Lake's contention that a reasonable accommodation need only be made if it enables the employee to perform all of his or her job functions.14 Id., ¶47. After discussing cases such as Target, McMullen, and Frito Lay, Inc. v. LIRC, 95 Wis. 2d 395, 290 N.W.2d 551 (Ct. App. 1980), we 14 The dissent contends that we fail to recognize the relationship between Wis. Stat. § 111.34(1)(b) and (2)(a). Dissent, ¶61. To the contrary, we recognized the connection between those provisions in Crystal Lake and reiterate our discussion of the connection here. The dissent incorrectly concludes that the accommodation was unreasonable "because it did not permit the employer to have the job-related responsibilities of Roytek's employment met, i.e., working for 12-hour shifts." Id., ¶ 62. It is important to note that HTI never demonstrated that Roytek's shift change adversely affected its production schedule or its employee morale. Moreover, we again emphasize our conclusion in Crystal Lake that: "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." Crystal Lake, 264 Wis. 2d 200, ¶52. The decisions in Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998) and McMullen v. LIRC, 148 Wis. 2d 270, 275, 434 N.W.2d 830 (Ct. App. 1988) were correctly cited by us as supporting that conclusion. 20 No. 02-3328 ultimately concluded that "[a] change in job duties may be a reasonable accommodation in Lake, 264 Wis. 2d 200, ¶52. the three other employees a given circumstance." Crystal We noted that the fact that two of in the employee's department were willing to accommodate her change in job duties supported the argument that such accommodation would be a reasonable one. Id., ¶51. ¶34 With respect to our analysis of hardship in Crystal Lake, we noted that while there is some overlap, hardship and reasonable accommodation are "'separate and distinct considerations that are to be addressed independently.'" ¶75 (quoting McMullen, 148 Wis. 2d at 277). Id., We concluded that Crystal Lake could have modified the employee's job site, as well as her job duties, without experiencing hardship.15 Id., ¶¶76-77. ¶35 we relied Applying our decision in Crystal Lake, and the cases on for that decision, and according great weight deference to the LIRC decision, we conclude that HTI did not meet its burden in rebutting the initial burden satisfied by 15 The dissent incorrectly concludes that our holding in this case "goes far beyond our conclusions in Crystal Lake. . . ." Dissent, ¶64. Rather, our decision in this case is absolutely consistent with our holding in Crystal Lake. As explained above, we concluded that the employer in Crystal Lake did not demonstrate that it would experience hardship in providing a reasonable accommodation to its disabled employee. Crystal Lake, 264 Wis. 2d 200, ¶¶76-77. Similarly, HTI has failed to produce any evidence, beyond mere speculation, that it would experience hardship if it accommodated Roytek. Both cases boil down to the failure by each of these employers, HTI and Crystal Lake, to satisfy the requisite burden of proof. 21 No. Roytek. HTI failed to establish that no 02-3328 reasonable accommodations could be made to enable Roytek to perform her job, or that it accommodations. would experience has the accommodation. in making such We further conclude that we see no substantial difference in the positions party hardship burden of of LIRC proof and with HTI regarding respect to which reasonable We conclude that the initial burden is on the employee to prove that a reasonable accommodation is available, and, in this case, Roytek has satisfied that burden.16 Substantial and credible evidence is present in the record from which LIRC could hold as it did that HTI failed to reasonably accommodate Roytek. Clearly, a reasonable accommodation was available, since HTI accommodated Roytek's eight-hour shifts for eight months without any problems. ¶36 Moreover, continuation of unpersuasive.17 this HTI's assertions schedule would that create any a prolonged hardship are Over a two-week period, Roytek had the potential 16 Inexplicably, the dissent claims that we ignore a claimant's initial burden to demonstrate that a reasonable accommodation is available. See dissent, ¶62. We have plainly stated that Roytek has the initial burden of establishing that a reasonable accommodation exists, and has met that burden. 17 While Wis. Stat. § 111.34(1)(b) states that a business must demonstrate "hardship," the Americans with Disability Act (ADA) refers to "undue hardship." The provision, 42 U.S.C. § 12112(b)(5)(A) states, in relevant part, as follows: As used in subsection (a) of this section, the term "discriminate" includes-- . . . not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless 22 No. 02-3328 to work only four hours fewer than her fellow employees due to a possible schedule of five eight-hour days weekly.18 Although HTI hypothesized that certain problems could arise in the future, it such covered entity can demonstrate that the accommodation would impose an undue hardship in the operation of the business of such covered entity. . . . Based on our decision in Crystal Lake, 264 Wis. 2d 200, ¶46, it appears quite clear that there is no real difference in the terms "hardship" and "undue hardship," since the "hardship" referred to in Wis. Stat. § 111.34(1)(b) must be substantial in nature, and definitely something more than mere speculation. The dissent is absolutely wrong when it states that we "import" the undue hardship test from the ADA into the standard set forth in § 111.34(1)(b). See dissent, ¶59, n.6. We merely point out the differences in the language and indicate that there is no substantial difference between the two terms, since "hardship" under § 111.34(1)(b) certainly must be something more than a slight inconvenience. In Crystal Lake, we concluded that the employer failed to prove that it would experience hardship if it were required to modify its employee's jobsite and responsibilities, since it performed a generic evaluation of what limitations a wheelchair-bound person would experience while performing the job, and avoided talking with the employee to find out what her actual limitations were. Crystal Lake, 264 Wis. 2d 200, ¶¶76-80. 18 In the ALJ's memorandum, he stated that HTI refused to put Roytek on a five-day per week schedule because they claimed that it would be problematic if she worked on two different crews and for two different supervisors. Although HTI stated that problems would arise if Roytek worked on two different crews and for two different supervisors, it never explained in detail the difficulties it claimed this would impose. While Roytek never worked a five-day per week schedule, it is certainly not the case that she offered "to continue working only two-thirds of her shift. . . ." Dissent, ¶45. In fact, she "offered" to work 40-hour weeks, but HTI declined such arrangement without offering any evidence of the difficulties that this modified schedule would impose upon it. Rather, it offered nothing but speculation in support of its position. 23 No. presented no evidence that any ever did. not submit any evidence that other 02-3328 For example, HTI did employees sought to work reduced shifts, that morale problems had arisen among its other employees, Roytek's or that production arrangement. We had agree decreased with LIRC's as a result conclusion of that "[t]he hypothetical difficulties associated with permanent parttime status for the complainant are simply too speculative to meet the respondent's burden of proof in the matter. The respondent had ten months19 to determine that the complainant's shorter work shift failed to do so." caused production or profit losses, but We further agree with the court of appeals' conclusion that HTI was "unable to point to significant evidence in the record that demonstrates hardship in this particular situation, rather than speculation or theoretical complaints." Hutchinson, No. 02-3328, unpublished slip op., ¶5. We agree with these statements by LIRC and the court of appeals which concluded hardship that and HTI has failed failed to to meet rebut 19 its burden Roytek's of proof argument that on a The ten months refers to the two months Roytek worked six-hour shifts, from November 1998 to January 1999, and the eight months that she worked eight-hour shifts, from January 1999 to August 1999. 24 No. reasonable accommodation could have been made.20 02-3328 We reiterate our conclusion in Crystal Lake that reasonable accommodation and hardship inquiries, are two since distinct an concepts accommodation that may involve be separate reasonable, nevertheless work a hardship upon a specific employer.21 Lake, 264 Wis. 2d 200, ¶75. 277. but Crystal See also McMullen, 148 Wis. 2d at As the abovementioned analysis indicates, HTI failed both tests. HTI did not introduce any evidence, beyond mere conjecture, that accommodating Roytek would impose a hardship upon its business. IV ¶37 under the We conclude that Roytek is a person with a disability WFEA, and that Roytek met her initial burden of establishing the reasonableness of her proposed accommodations. 20 While the dissent lists a parade of horribles that may occur as a result of this decision, such an alarmist approach is Our decision in without merit. See dissent, ¶¶65, 68, 70-71. this case hinges on the fact that HTI was unable to provide any proof that providing a reasonable accommodation to Roytek would work hardship upon its business. Had HTI provided anything beyond mere speculation as to the problems that might arise if it were forced to accommodate Roytek, the evidence could then have been evaluated to determine if such accommodation would have, indeed, imposed hardship. Nevertheless, the dissent fails to acknowledge that HTI has not proved that it would experience hardship and, instead, resorts to hyperbole to reach its conclusion. 21 Contrary to the dissent's contention, we do not conflate the applicable statutory provisions in this case. See dissent, ¶54. We have analyzed, in detail, whether Roytek met her initial burden of demonstrating that a reasonable accommodation exists and whether HTI rebutted that showing and met its burden of demonstrating hardship, if it were forced to accommodate Roytek. 25 No. 02-3328 HTI did not establish that it could not reasonably accommodate Roytek's disability, since it accommodated her disability for eight months without any significant difficulties. HTI did not introduce any evidence that allowing Moreover, Roytek to continue to work eight-hour shifts at HTI would cause hardship to its business. right to set productivity. its We are mindful that a business must have the own employment rules to encourage maximum We caution, however, that such rules do not exist in a vacuum, but must bend to the requirements of the WFEA. We, therefore, affirm the court of appeals' decision. By the Court. The decision affirmed. 26 of the court of appeals is No. ¶38 DIANE S. SYKES, J. 02.3328.dss This (concurring). case is controlled by this court's interpretation in Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651, of the "reasonable accommodation" requirement of the disability discrimination provisions in the Wisconsin Fair Employment Act (WFEA), Wis. concluded Stat. § 111.34. that compliance requirement of the discrimination may In Crystal with the as it an employer WFEA require Lake, "reasonable this accommodation" pertains to to court disability alter the job responsibilities associated with the employee's or prospective employee's job. Crystal Lake, 264 Wis. 2d 200, ¶52. held change that "[a] in job duties accommodation in a given circumstance." ¶39 In reaching this may be The court a reasonable Id. conclusion in Crystal Lake, this court addressed and specifically rejected an interpretation of Wis. Stat. § 111.34 that would have reconciled the language of subsection (1)(b) of the statute with subsection (2)(a) of the statute, as argued by Justice Roggensack Crystal Lake, 264 Wis. 2d 200, ¶¶34-52. Wis. Stat. § 111.34 defines disability in dissent here. Subsection (1)(b) of discrimination as including "[r]efusing to reasonably accommodate an employee's or prospective employee's disability." However, subsection (2)(a) of "it the statute discrimination provides . . . to that refuse to hire, is not employ, employment . . . or terminate . . . any individual . . . [on account of disability] if the disability is reasonably 1 related to the individual's No. 02.3328.dss ability to adequately undertake the job-related responsibilities of that individual's employment." ¶40 The employer in Crystal Lake argued that these two sections of the WFEA, read together, meant that the "reasonable accommodation" requirement of accommodations that permit perform existing the determined by the ¶¶33-35. The would the statute confined to disabled the was employee to responsibilities employer. court Crystal rejected this of Lake, employment 264 as Wis. 2d 200, interpretation, instead holding that "a reasonable accommodation is not limited to that which would allow the employee to perform adequately all of his or her job duties." Id., ¶52. That is, the court held that the "reasonable accommodation" requirement may compel an employer to alter the responsibilities of employment that is, to redefine the job, or create a new job in order disability discrimination under the WFEA. to avoid committing The statute allows an employer to defend against a disability discrimination claim by showing that the "accommodation would pose a hardship on the employer's program, Wis. Stat. § 111.34(1)(b); enterprise the court or in business," Crystal Lake see affirmed LIRC's conclusion that the employer had not carried its burden of demonstrating hardship. Crystal Lake, 264 Wis. 2d 200, ¶¶7980. ¶41 Crystal Also Lake accommodation" important held that and to the LIRC's outcome determinations "hardship" 2 here, for the of court in "reasonable purposes of No. 02.3328.dss Wis. Stat. § 111.34 were entitled to great weight deference on judicial review. ¶42 I Crystal Lake, 264 Wis. 2d 200, ¶¶28-30. disagreed with the court's resolution of these issues in Crystal Lake, agreeing instead with the analysis in Justice Prosser's dissenting). dissent. Id., ¶¶84-136 (Prosser, J., Here, Justice Roggensack has identified some of the flaws and consequences of an interpretation of the WFEA that fails to reconcile the language of Wis. Stat. § 111.34(1)(b) and (2)(a). These arguments, however, were made by the employer in Crystal Lake and discussed at length in Justice Prosser's dissent, which I joined. ¶43 Crystal Lake is applicable and binding precedent, and I cannot distinguish its interpretation of the WFEA's reasonable accommodation requirement as Justice Roggensack has done here. Crystal Lake did not define "reasonable accommodation" as an accommodation that would permit the employer to have the jobrelated responsibilities of the individual's employment met or permit an employer to implement a valid management decision. Dissent, ¶¶1, 10, 13, 18-22. To the contrary, Crystal Lake broadly held that an employer may indeed be required to alter an employee's WFEA, job and that accommodation" deference. responsibilities in LIRC's this in order to determinations regard are entitled comply of to with the "reasonable great weight 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. 3 No. ¶44 02.3328.dss I am authorized to state that Justice JON P. WILCOX joins this concurrence. 4 No. ¶45 PATIENCE D. ROGGENSACK, J. 02-3328.pdr The (dissenting). majority opinion concludes that because Hutchinson Technology, Inc. (HTI) refused to permit the claimant, Susan Roytek, to work 56 hours every two weeks, rather than the 84 hours every two weeks that she was hired to work, it has unreasonably failed to accommodate her disability; and therefore, HTI has discriminated against her in violation of the Wisconsin Fair Employment Act (WFEA). However, I conclude no WFEA violation occurred because Roytek's offer to continue working only two-thirds of her shift is insufficient to be an "accommodation," as that term is used in Wis. Stat. § 111.34(1)(b) (2001-02).22 Additionally, Roytek's offer results in negating § 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. Accordingly, I respectfully dissent. I. ¶46 photoetch Roytek was department hired as a BACKGROUND by HTI in photoetch June of operator. 1998 When in the she was hired, she was told that HTI operated 24 hours per day, seven days a operating week. in HTI 12-hour explained shifts, that four it shifts had one determined week and that three shifts on the next, met the needs of HTI to increase production by fully utilizing its equipment and it also met the preference of HTI's employees who were asked whether they preferred to work 22 All further references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. 1 No. 02-3328.pdr eight-hour shifts five days each week or 12-hour shifts, three or four days per week. She accepted the position, which involved rotating through four types of work throughout each inspection, shearing, bookwork and work in the bay.23 shift: Prior to being hired by HTI, Roytek had suffered from low back pain. She stated that she has had problems with her back since March of 1990 or 1991. ¶47 three Roytek months, worked until the 12-hour mid-September shifts of 1998, for approximately when she took a medical leave of absence, not returning until November of that year. When she returned, she had a note from her treating physician stating that she could work only six-hour shifts so at that time, she worked 42 hours every two weeks. 1999, her treating physician increased her In January of work time to an eight-hour shift and then she worked no more than 56 hours every two weeks.24 worked 84 employees. Full-time employees in the photoetch department hours every However, two HTI weeks. permitted HTI employs Roytek to no part-time continue her 23 The record reflects that during the hours she works, Roytek is not able to perform all of the tasks due to her inability to stand or sit for the length of time required. However, this aspect of Roytek's inability to perform her job has not been addressed by the majority opinion, although it was briefed by HTI. Because it is not necessary to my analysis of Roytek's claim, I do not discuss it further. 24 The majority opinion implies that Roytek worked eighthour shifts, five days per week. Majority op., ¶36. However, the record, which contains Roytek's time-sheets, shows she never worked more than eight-hour shifts three days one week and four days the next. There were many two-week periods where she did not even work those hours. Accordingly, although she was hired as a full-time employee, she never returned to full-time work. 2 No. employment with the expectation that she would 02-3328.pdr resume the required 12-hour shifts, when her back condition improved. ¶48 In the early summer of 1999, one of the physicians who had examined Roytek gave his professional opinion that she could work no more than eight hours per shift on a permanent basis. When HTI learned that Roytek would never be able to work fulltime, it terminated her. ¶49 Roytek sued HTI, claiming the back condition that caused her to be unable to work the full shift for which she had been hired was a disability within the meaning of WFEA, and that HTI violated WFEA when it terminated her based on the effects of that disability. LIRC agreed with her contention, concluding that because HTI had accommodated her 56-hour per two weeks work schedule in the past, HTI should be required to continue that schedule on a permanent basis, thereby leaving HTI's equipment unused for 28 hours every two weeks, or 728 hours per year.25 HTI appealed and the circuit court affirmed, as did the court of appeals. We accepted review, and are now presented with the question of whether an employer, who makes a business decision to utilize its facilities 24-hours per day, will be permitted to do so when confronted with employees and prospective employees who provide medical statements that they cannot work the full shift necessary to accomplish that valid management decision. 25 If Roytek were to work eight-hour shifts five days per week, HTI's equipment would be unused 40 hours every two weeks or 1,040 hours per year. 3 No. II. A. 02-3328.pdr DISCUSSION Standard of Review ¶50 Questions of statutory interpretation and application, which when decided by an administrative agency, such as LIRC, may be given deference at one of three levels: great weight deference, due weight deference, or no deference in a de novo review. UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996). As will be explained below, LIRC did not interpret the dispositive Wis. Stat. § 111.34 issue, i.e., whether working eight-hour shifts on a permanent basis was an "accommodation," as that term is used in § 111.34(1)(b). assessing whether HTI (1)(b). had Accordingly, shown there is a LIRC went directly to hardship nothing to under subsection which to defer. Additionally, the definition of "accommodation" and its effect on the legal sufficiency of a WFEA claim is one impression for LIRC that we would review de novo. of first See Keup v. DHFS, 2004 WI 16, ¶16, 269 Wis. 2d 59, 675 N.W.2d 755; see also Bunker v. LIRC, 2002 WI App 216, ¶16, 257 Wis. 2d 255, 650 N.W.2d 864 (taking up and deciding a legal issue that LIRC did not address). ¶51 on In order to state a claim for a WFEA violation based a disability, satisfies Wis. Roytek Stat. must state § 111.34(1)(b) an and accommodation (2)(a). We that do not determine whether an accommodation is reasonable or whether it causes a hardship prospective until employee's we assess suggestion 4 whether the permits the employee or job-related No. responsibilities of that individual's employment 02-3328.pdr to be met. This is so because it is only then that a statutorily sufficient accommodation has been stated. ¶52 presents Whether a an question experience; employee of therefore, law we has on owe stated which no an courts deference accommodation have to extensive LIRC. See Anderson v. LIRC, 111 Wis. 2d 245, 253, 330 N.W.2d 594 (1983) (applying a de novo standard of review to LIRC's decision interpreting a WFEA provision); Harrison v. LIRC, 211 Wis. 2d 681, 685, 565 N.W.2d 572 (Ct. App. 1997) (applying a de novo standard of review to the question of whether Harrison's complaint stated a claim under WFEA). B. Roytek's WFEA Discrimination Claim 1. Introduction ¶53 Roytek must establish that she has a disability and that a available. reasonable accommodation Majority op., ¶35. for I that agree that disability in is Wisconsin, Roytek has a disability under long-established case law. City of La Crosse Police & Fire Comm'n v. LIRC, 139 Wis. 2d 740, 752, 407 N.W.2d 510 (1987). However, where I part company with the majority is in its implicit conclusion26 that Roytek has shown an accommodation by working eight hours per day, three days one week and four days the next, because her suggestion is not an 26 The majority opinion does not recognize the issue upon which I conclude this case turns, whether permitting Roytek to permanently work two-thirds of the shifts she was hired to fill is an accommodation within the meaning of Wis. Stat. § 111.34(1)(b) and (2)(a). 5 No. 02-3328.pdr accommodation, under Wis. Stat. § 111.34(1)(b). Therefore, her termination according to misinterprets the is not a violation of WFEA § 111.34(2)(a). ¶54 In my view, the majority statute in two fundamental ways. the connection between Wis. opinion First, it does not recognize Stat. § 111.34(1)(b) and (2)(a), both of which bear on the meaning of accommodation in subsection (1)(b). The first clause of subsection (1)(b) focuses on the claimant's obligation to show an "accommodation." Subsection (2)(a) requires that the plan selected permits the employer to have the job-related employment met. responsibilities The majority of opinion, that individual's however, implicitly assumes by its statement, "HTI failed to provide a reasonable accommodation that would have allowed [Roytek] to continue her employment," that Roytek provided a accommodation in the first instance. statutorily sufficient Majority op., ¶1. The majority opinion then concludes that HTI violated WFEA because it did not show hardship under § 111.34(1)(b). ¶36. In so doing, it conflates three distinct claimant has provisions: (1) whether the accommodation; (2) if whether so, Majority op., statutory an accommodation the stated is reasonable; and (3) if so, whether the employer has shown that the reasonable accommodation would pose a hardship to its business operation. ¶55 Second, the majority opinion ignores the valid business decision of HTI to increase production by using its equipment 24 hours per day, and in so doing, it negates the 6 No. 02-3328.pdr protections afforded an employer to make such a decision under Wis. Stat. § 111.34(2)(a). Because there is no dispute that Roytek's disability will not permit her to work the required 12hour shifts to meet HTI's production decision, the ultimate question is whether Roytek's failure to state an accommodation that is sufficient under § 111.34 causes her assertions to fail to state a § 111.34(1)(b) fully, I claim and begin for employment (2)(a). with To the discrimination address interpretation these of under concerns WFEA's more relevant provisions. 2. WFEA ¶56 I interpret Wis. Stat. § 111.34(1)(b) and (2)(a) in order to interpret determine or apply what a is an statute, "accommodation." we attempt to When ascertain we its meaning in order to give the statute its full intended effect. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶44, __ Wis. 2d __, __ N.W.2d __. We begin with the words chosen by the legislature, giving them their plain and ordinary meanings. Id., ¶45. This is our initial focus, because as we have explained, "[w]e assume that the legislature's intent is expressed in the statutory language." Id., ¶44. We are aided in ascertaining the meaning of a statute by the context in which words are placed. Id., ¶46. If the statute's meaning is clear on its face, we need go no further; we simply apply it. ¶45. Id., However, if the statutory language is capable of being understood by reasonably well-informed persons in two or more ways, then it is ambiguous. Bruno v. Milwaukee County, 2003 WI 7 No. 28, ¶19, 260 Wis. 2d 633, 660 N.W.2d 656. 02-3328.pdr A statute may also be ambiguous due to its interactions with other statutes. State v. White, 97 Wis. 2d 193, 198, 295 N.W.2d 346 (1980). If the statutory language is ambiguous, we sources to ascertain legislative intent. may consult extrinsic Stockbridge Sch. Dist. v. Department of Pub. Instruction Sch. Dist. Boundary Appeal Bd., 202 Wis. 2d 214, 223, 550 N.W.2d 96 (1996). I conclude that the term "accommodation" is ambiguous because it reasonably could be understood in two ways: (1) as the majority does, by looking solely to § 111.34(1)(b) and concluding it is a plan that "would have allowed [Roytek] to continue her employment with HTI," majority op., ¶1; or (2) as I have, by reading § 111.34(1)(b) and (2)(a) together and concluding it is a plan that will permit Roytek to assist HTI in implementing its valid business decision to utilize its equipment 24 hours per day. ¶57 In order to accurately assess whether Roytek has stated a claim for a WFEA violation based on a disability, it is necessary to understand the interaction between two provisions of WFEA, § 111.34(1)(b) and (2)(a). Subsection (1)(b) provides that an employer must "reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship" to its business. Subsection (2)(a) affects the meaning of "accommodation" in subsection (1)(b) when it provides that "it is not employment discrimination because of disability to refuse to hire [or] employ" if the "disability is reasonably related to the individual's ability to adequately undertake the job-related 8 No. responsibilities of that individual's employment[.]" 02-3328.pdr These two provisions are related in that an accommodation under subsection (1)(b) must be such that it also satisfies (2)(a), by permitting the job-related responsibilities of that individual's employment to be met. Our understanding of the interaction between these two provisions is facilitated by a review of when and why the legislature created them. ¶58 WFEA did not discrimination until 1965. protect disabled persons Ch. 230, Laws of 1965. from A provision substantially similar to Wis. Stat. § 111.34(2)(a), explaining that it is not discrimination contrary to WFEA to refuse to provide the employee or prospective employee with work if the disability of that person is related to the individual's inability to do the job, was a part of those initial provisions. Id. at § 3. ¶59 In the 1981-82 legislative session, WFEA was revised, in part due to our decision in American Motors Corp. v. DILHR, 101 Wis. 2d 337, 305 N.W.2d 62 religious discrimination claim. (1981), which addressed a Those revisions included what is now Wis. Stat. § 111.34(1)(b), requiring an employer to make a reasonable accommodation for the individual's disability, unless to do so would pose a hardship on the employer. ch. 334, Laws of 1981; Wis. 9 Legis. Council, § 17, Information No. Memorandum 82-17, at 7 (1982)27 02-3328.pdr Subsection 111.34(1)(b) did not remove the protection for the employer found in § 111.34(2)(a). Subsection Giving (2)(a) each remained section an unchanged independent, during yet the amendments. related, function permits an employer lawfully to refuse to employ an individual who does not have an accommodation to the disability that will permit the adequate undertaking of the job-related responsibilities of the individual's employment. 27 The modifier, "undue," for the term, "hardship," was included in the religious accommodation revisions made during the same legislative session as that in which the disabilities section was revised. However, the word, "undue," was intentionally deleted from the disability discrimination provisions. Wis. Legis. Council, Information Memorandum 82-17, at 7 (1982). This gave an employer a lower burden in regard to when it must make a reasonable accommodation for a disability as compared with a religious-based accommodation. Wisconsin Stat. § 111.337(1), the WFEA provision that addresses religious discrimination, continues to place a heavier burden on the employer to accommodate religious practices as it requires a reasonable accommodation unless the "employer can demonstrate that the accommodation would pose an undue hardship . . . ." The majority opinion erroneously imports the "undue hardship" test from federal law, asserting that "it appears quite clear that there is no real difference in the terms 'hardship' and 'undue hardship,' since the 'hardship' referred to in Wis. Stat. § 111.34(1)(b) must be substantial in nature . . . ." Majority op., ¶36 n.17. I disagree, as the legislative history cited above from the 1981-82 amendments, as well as the "undue hardship" standard that was chosen for accommodations to religious choices in § 111.337(1), show. In my view, the disposition of Roytek's claim does not require us to proceed as far as a hardship assessment. However, if it did, I would conclude that the majority opinion uses an incorrect standard in this regard. 10 No. 3. Application of WFEA to Roytek's claim ¶60 As 02-3328.pdr I have noted above, analysis of a WFEA claim involves three steps: (1) The employee must prove he or she has a of disability. City La Crosse Police & Fire Comm'n, 139 Wis. 2d at 760. (2) The employee must prove an accommodation exists, that the notwithstanding that refused employment. accommodation reasonable two suggested elements, accommodation, the but employer (3) If the employee succeeds on these the accommodation violation of WFEA. reasonable, See US Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002).28 first is employer is a must hardship, then in prove order to that the avoid a Geen v. LIRC, 2002 WI App 269, ¶15, 258 Wis. 2d 498, 654 N.W.2d 1. However, if the employee does not prove an accommodation that permits the employee to adequately undertake the job-related responsibilities of that individual's employment, the employer may refuse to employ that individual without violating WFEA. Wis. Stat. § 111.34 (1)(b) and (2)(a); see also Geen, 258 Wis. 2d 498, ¶15. This makes sense because otherwise an employer would be required to hire all individuals without regard for the job-related responsibilities the employer 28 The decision in US Airways is instructive in regard to the foundational issue of an accommodation because it begins with a statement showing that a reasonable accommodation is one that permits the employee to perform the essential functions of the job. US Airways, Inc. v. Barnett, 535 U.S. 391, 393 (2002). It then explains that an accommodation must be shown to be reasonable only on its face, in that with this change the employee can do the essential functions of the job. Id. at 401. The burden will then shift to the employer to show hardship. Id. at 402. Here, as we explain throughout, the plan offered by Roytek was not sufficient on its face. 11 No. 02-3328.pdr sought to accomplish by making the job available in the first instance. ¶61 Courts must keep the provisions of Wis. Stat. § 111.34(2)(a) in mind when considering whether what has been offered is an "accommodation" under § 111.34(1)(b) because subsection (1)(b) requires an employer to employ the individual when the accommodation satisfies subsection (2)(a), unless the employer proves a hardship.29 to whether the employee's If the analysis shifts too quickly suggestion creates, or does not create, a hardship for the employer, the initial analysis of whether what is offered is actually a statutory "accommodation" will be lost, as will the employer's right business decisions without violating the law. to make valid Therefore, an accommodation that is sufficient under the statutes permits the employee to work and at the same time, it permits the employer to have the job-related responsibilities of that individual's employment met. Target Stores v. LIRC, 217 Wis. 2d 1, 17, 576 N.W.2d 545 (Ct. App. 1998). ¶62 Here, Roytek proved she has a disability under WFEA. However, she did not prove an "accommodation" under Wis. Stat. § 111.34(1)(b). Her suggestion of permanent eight-hour shifts did not permit HTI to implement its valid management decision of increasing production by using its equipment 24 hours per day. Stated another way, her suggestion was not an "accommodation" 29 This is very similar to the reasoning in US Airways, where the accommodation must permit the employer's job to be done or no accommodation was provided. See US Airways, 535 U.S. at 402. 12 No. 02-3328.pdr because it did not permit the employer to have the job-related responsibilities of Roytek's employment met, i.e., working for 12-hour shifts. Section 111.34(2)(a) requires this condition in order to make a prima facie showing of an accommodation. Airways, 535 U.S. at 402. See US The majority opinion ignores this obligation of a WFEA claimant by repeatedly stating that HTI has not shown hardship. ¶63 The See, e.g., majority op., ¶34 n.15, ¶35. majority opinion relies extensively on our decision in Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 200, reasonable 664 N.W.2d accommodation 651, where without we hardship held to that the it was employer a to require the employer to retain an employee who could not do all the tasks that she had been hired to perform. Id., ¶51. We concluded that the employer was required to partially reassign the employee's duties to two of the three other employees in the disabled worker's department because those employees said they would complete the perform. that tasks Id., ¶78. the requested that the disabled could not Additionally, the employer had not shown physical modification accommodate a wheelchair was a hardship. ¶64 worker necessary to Id., ¶80. It is important to note that 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. Id., ¶70. 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 13 No. accommodation. Id., ¶78. 02-3328.pdr In other words, the valid management decision the employer made about what tasks it needed done, got done. ¶65 Here, by contrast, HTI made a valid management decision to increase production by implementing 12-hour shifts, two per which day. may because Roytek seem she to could be do suggested an eight-hour an accommodation from it. However, is it work her not schedule, perspective 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. ¶66 full Furthermore, if the accommodation to work less than a shift is held to be sufficient to meet the employee's burden under Wis. Stat. § 111.34(1)(b), then that interpretation cancels the employer's right under § 111.34(2)(a) to make a valid management decision to run its manufacturing business 24 hours per day. This was never the intent of the legislature in enacting WFEA. Rather, the purpose of WFEA was to encourage employers to evaluate an employee or applicant for employment based upon qualifications. the employee's Section 111.31(2). 14 or applicant's individual No. ¶67 02-3328.pdr The majority also relies on HTI's permitting Roytek to work partial shifts while her back condition was improving to support its conclusion that HTI should be required to continue with shortened shifts on a permanent basis. Majority op., ¶35. This conclusion appears to be based in part on the court of appeals decision in Target, which in my view, the majority misinterprets. ¶68 In Target, the employee repeatedly sleeping on the job. was cited by Target for Management suggested that she see a physician to determine why she kept dosing off at work. She did so and learned she had a type of sleep apnea. physician suggested treatments, which the employee The began. However, shortly thereafter, she was again cited for sleeping on the job, and even though management knew that she was undergoing treatment for a sleep disorder, it terminated her, rather than waiting a reasonable amount of time to see if the treatment would be effective. The employee sued under WFEA, claiming discrimination due to disability, and LIRC concluded that Target violated WFEA by not continuing her employment. LIRC said because she was actively treating her disability and it would in "all likelihood be [resolved on] a short-term basis," Target should have given the treatment a chance to succeed. Target, 217 Wis. 2d at 8-9. ¶69 The court of appeals agreed with LIRC. However, it did not require a permanent change in expectations in regard to the employee's not sleeping on the job, but rather a "temporary accommodation to permit medical treatment which, if successful, 15 No. will remove the responsibility." difficulty Id. at in 19. performing Here, the the 02-3328.pdr job-related majority permits a permanent disregard of the employer's business decision about how to increase production. In so doing, the majority uses HTI's forbearance from termination while Roytek was attempting to resolve her back condition against HTI. This puts employers between the proverbial rock and a hard place: Target requires an employer to wait a reasonable time when an employee is being treated to resolve a medical condition and the majority opinion herein concludes that an employer who waits to see if a medical condition will resolve, will have that used against it, if the condition becomes permanent and the employee is fired. ¶70 Also of importance to the case at hand is the court of appeals explanation in Target of the interrelationship between Wis. Stat. § 111.34(1)(b) and (2)(a): When read together, the only reasonable construction of these two provisions is that the purpose of reasonable accommodation is to enable employees to adequately undertake job-related responsibilities. Id. at 17 (emphasis added). statutes is the interpretation issue ignores The relationship between these two here it. too, In but so the doing majority's it cancels § 111.34(2)(a), which protects an employer from having to employ individuals when the job-related responsibilities of individual's employment will not be met. ¶71 It is interesting to note that the majority says: We begin by recognizing the important role that management prerogatives play in the success of a business. This court has stated that "it is necessary to preserve the freedom of private enterprise to 16 the No. 02-3328.pdr manage its business as it sees fit." Libby, McNeill & Libby v. WERC, 48 Wis. 2d 272, 280, 179 N.W.2d 805 (1970) [additional citations omitted]. We are mindful that a business must have the right to set its own employment rules to encourage maximum productivity. Majority op., ¶29. However, these are hollow assurances because after the release of the decision in this case, no employer will be able to say that a certain number of hours must be worked in a shift or that it will use its equipment 24 hours per day and seven days a week, if employees and potential employees have notes from their doctors that say that those individuals have disabilities that prevent them from working more than a stated number of hours in a shift. ¶72 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 eighthour 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 disability. each shift for each employee who has such a This cannot be what the legislature had in mind when it amended WFEA in 1981. 17 No. III. ¶73 offer to 02-3328.pdr CONCLUSION I conclude no WFEA violation occurred because Roytek's continue working only two-thirds of her shift is insufficient to be an "accommodation," as that term is used in Wis. Stat. § 111.34(1)(b). in negating § 111.34 Additionally, Roytek's offer results (2)(a), which provides that it is not discrimination to refuse to employ an individual when the jobrelated responsibilities of that individual's employment are not met. Accordingly, I respectfully dissent. ¶74 I am authorized to state that Justice DAVID T. PROSSER joins this dissent. 18 No. 1 02-3328.pdr

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