How much money is a hardship?

Because of a recent state Supreme Court ruling, Wisconsin’s employers will be held to a higher standard for accommodating employees with disabilities than the federal law requires.
The federal Americans With Disabilities Act (ADA) requires employers to make reasonable accommodations for people with disabilities.
However, the state Supreme Court ruled last July 11 that the Wisconsin Fair Employment Act goes a step farther, requiring an employer to grant those accommodations unless the employer can prove that doing so would pose an undue hardship on the company.
The case, known as Crystal Lake Cheese Factory v. the Wisconsin Labor & Industry Review Commission (LIRC) and Susan Catlin, stemmed from a discrimination complaint filed in March 1998 on behalf of Catlin by the Wisconsin Coalition for Advocacy.
Catlin had been hired by the Crystal Lake Cheese Factory in Comstock in 1995. She worked in the company’s wholesale department as a cheese packer and department head.
However, Catlin was seriously injured in a 1996 non-work related automobile accident that rendered her a quadriplegic with limited use of her arms.
After 10 months of recovery, Catlin contacted the company to inquire about returning to her job. The company determined that it could not reasonably accommodate Catlin’s disability and told her she could not perform all of the functions of her job, including the pulling and stocking of cheese inventory.
The company determined it would incur $47,000 in costs for physical changes to its factory to accommodate an employee in a wheelchair. That monetary burden was an undue hardship, the company argued.
Catlin contended she could perform her job if certain physical changes were made in the workplace and if her job was modified to eliminate the physical duties.
The company refused to make the changes that would be needed to accommodate an employee in a wheelchair.
The LIRC, the Barron County Circuit Court and the Wisconsin Court of Appeals ruled that the company failed to prove that making such accommodations would be an undue hardship.
The Supreme Court, with a split 4-3 decision, upheld those rulings.
In the ruling, Justice N. Patrick Crooks wrote, "…We hold that requiring Crystal Lake to modify the job duties of Catlin and make physical modifications to the workplace was not unreasonable. With such reasonable accommodations, she would have the ability to undertake, adequately, her job-related responsibilities."
The ruling requires Crystal Lake to reinstate Catlin and compensate her for back pay and legal costs, which are still being negotiated.
The state’s ruling goes farther than the ADA standards and sets a precedent for the accommodations employers can be required to make for an employee with disabilities, according to attorneys who represent Wisconsin employers.
"I think all Wisconsin employers really have to be sensitive that their obligations under the Wisconsin discrimination law will be even greater than the federal law," said Robert Duffy, a partner at Quarles & Brady, Milwaukee, who represented Crystal Lake in the Supreme Court case.
"It puts employers in a difficult position of proving undue hardship," said Jesus Jose Villa, employment attorney at Michael Best & Friedrich’s Waukesha offices. "The order was that the job had to be restructured, and the other (physical) functions had to be thrown out. There’s a slippery slope here. She’s a cheese packer who can’t pack cheese.
"It just shifts the focus of the employers to have to prove why these essential functions are essential," Villa said. "The law requires them to be more flexible than the ADA (requires)."
Because of the Supreme Court’s ruling, Wisconsin employers need to reevaluate their strategies for complying with disability accommodation standards, Duffy said.
"The danger is you’ve got lots of employers operating under old assumptions," Duffy said.
An employer should seriously consider making any requested modifications to the workplace or a job description for an employee with a disability, Duffy said.
"Before denying any accommodation, understand the legal ramifications of doing so and be prepared to prove that it would have been a hardship," Duffy said. "You better have the proof necessary to establish hardship."
Patricia Lauten, an attorney at The Schroeder Group, Waukesha, has a different viewpoint of the Catlin case. While acknowledging that the case sets a precedent beyond the ADA, Lauten said it spells out a "common sense" roadmap for employers to follow for accommodating employees with disabilities.
"The goal is to keep people working. They (employers) have to make a reasonable inquiry as to what that person can now do, and absent a hardship showing, they have to accommodate that," said Lauten, who filed an amicus brief in support of Catlin on behalf of the Survival Coalition of Wisconsin, which represents several agencies advocating for people with disabilities. "I think where they lost (the Catlin case) was they never bothered to determine what she could or couldn’t do. They made an assumption, because she was a quadriplegic, that she couldn’t do her job anymore. They also didn’t show that it would be a hardship for
the company."
Anna Pepelnjak can speak from personal experience when assessing the impact of the Catlin decision. A partner at the Weiss Berzowski Brady law firm in Milwaukee, Pepelnjak recently lost an employment law case in Dane County in which the Catlin decision was cited as precedent.
In the case, a woman whose job was being eliminated requested another job with Pepelnjak’s client, the employer. The new job would have required extensive communication by telephone. Unfortunately, the woman had suffered profound loss of hearing.
The Catlin decision was used to justify a ruling in which the employer’s costs of buying expensive telephone equipment to help her function in the new job was not an undue burden, Pepelnjak said.
"They said, ‘Too bad, so sad.’ First, the court in Wisconsin requires that employers change the essential functions of their job to accommodate disabled employees," Pepelnjak said. "The only way an employer can escape is to show that it would be an undue hardship to do that. But the court gave no definition of undue hardship."

Jan. 9, 2004 Small Business Times, Milwaukee

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