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Your employee, Billy, frequently leaves his work station during business hours to go outside for fresh air.
Billy does this even though he knows that, under company policy, an employee who is absent from his/her desk (other than for work purposes, designated breaks and lunch) may be terminated.
When you confront Billy regarding his absences, he pulls from his pocket a letter from his doctor.
The letter states that Billy has disability X.
The letter states nothing about the disability’s impact on Billy’s work or any accommodations which the employer should make.
Later that day, right before a big deadline, Billy again goes outside, staying there for a very long time.
You don’t know why Billy is leaving his desk, but you do know he is repeatedly violating company policy.
So you fire him.
If it turns out that Billy’s disability caused him to need to go outside for fresh air, can Billy successfully sue you, his employer, for disability discrimination under the Wisconsin Fair Employment Act (WFEA)?
Probably not unless Billy advised you, as his employer, that his disability would require Billy’s repeated outside access.
Under standards recently confirmed by the Wisconsin Supreme Court, Billy must prove that you knew both that Billy was disabled, and that the disability required Billy to go outside. Wisconsin Bell v. Labor and Industry Review Commission (“LIRC”).
Disability discrimination claimants, such as Billy, often charge the employer with refusing to or improperly accommodating the employee.
Wisconsin Bell recognizes that an employer cannot be expected to accommodate a disabled employee if it doesn’t know what conduct it is supposed to accommodate.
Wisconsin Bell will help many employers, because it puts the burden on the employee to provide evidence that the employer knew the disability caused the employee’s conduct.
Before Wisconsin Bell, LIRC, an administrative body, could infer that the employer knew the disability caused the employee’s conduct, simply because the employer knew the employee was disabled and fired the employee.
For Billy to have complied with the Supreme Court’s standard, Billy should have at least given you, his employer, medical evidence (i.e., a letter from his treating physician) specifically making the connection between Billy’s disability and his conduct.
A doctor’s note which describes a disability, but not the disability’s resulting conduct, is insufficient.
As this article shows, disability and other discrimination issues are often frustratingly complex.
FOS’s attorneys can help guide you through Wisconsin Bell and other issues under the discrimination laws.