Over the last several years, the Wisconsin Labor and Industry Review Commission (“LIRC”) has developed a maddening interpretation of the Wisconsin Fair Employment Act as it relates to disability discrimination; that is, if the conduct that prompted an employee’s discipline was caused by a disability, then taking action based on that conduct is an act of discrimination, regardless of whether the employer was aware of the connection between the two. For example, if an employee with a known mental disability tells his supervisor to “stick it” and is then disciplined, but later contends his conduct was due to his disability, LIRC has found that disciplining the employee because of his conduct is tantamount to disciplining him because of his disability, and therefore a violation of the WFEA.

Not anymore. In Wisconsin Bell v. LIRC, 2018 WI 76, the Wisconsin Supreme Court put an end to this “inference method” of proving an intent to discriminate on the basis of disability. Under the WFEA (as in any discrimination law), an employee must prove that the employer discriminated against him “on the basis of” his disability, which requires proof of intent. In the absence of direct evidence of a discriminatory motive, LIRC has found that proof of intent can be inferred when an employer bases its adverse action on a problem with an employee’s behavior or performance that is caused by the employee’s disability,” regardless of whether the employer knew of the connection between the two.

The Court found that application of the inference method of proof in cases involving disability discrimination violated the WFEA’s requirement of proof that an employer acts “on the basis of” the disability. It thus held, “an employer does not engage in intentional discrimination when it bases an adverse employment action on the employee’s conduct unless the employee proves the employer knew his disability caused his conduct” – which generally requires more than the employee’s word. Id at ¶ 41.

This is huge, especially in cases involving issues with mental conditions, which are often conveniently used, after discipline is issued, to justify unacceptable behavior. Moreover, given the “amorphous nature” of certain disabilities (in Wisconsin Bell, the employee suffered from bipolar disorder), “an employee’s bare assertion of causality cannot be credited as authoritative.” Id at ¶ 46. In other words, proof of knowledge will generally require more than an employee’s claim that his condition caused his conduct. Of course, this is not to say that an employer may remain blissfully ignorant of mental health issues in the workplace, which are always difficult. It does, however, prevent an employer from being blind-sided and held responsible for after-the-fact hindsight and imputed motives based on evidence that was not in existence at the time it made its decision.

If you have any questions feel free to contact WS Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.