Reasonable Accommodation: Recent Disability Decision Gives New Hope to Employers
On September 4, 2009, the Wisconsin Labor and Industry Review Commission (LIRC) issued an important decision clarifying when your duty to provide a reasonable accommodation is triggered. The commission confirmed that the applicant (or employee) has the initial burden of proving that an effective reasonable accommodation exists. This clarifies some recent decisions that seemingly skipped the “reasonableness” analysis in favor of forcing employers to prove that a particular accommodation would result in hardship.
In April 2004, Jeffrey Lee Willis applied for a Plant 6 Assembler B position with Stoughton Trailers. Willis suffers from profound deafness.
Stoughton Trailers manufactures transportation equipment. Plant 6 is a complex manufacturing matrix where workers assemble truck trailers. The company is committed to worker safety and has implemented appropriate safety measures throughout its operations. Because of the nature of the work, oral communication and warning sounds are an integral part of Plant 6’s safety environment.
Willis had never worked in a complex manufacturing environment similar to Plant 6. He is a trained engine mechanic with previous employment experience in aircraft maintenance, automotive mechanics, and repair of eye protection manufacturing equipment. He also worked as a clerk/mail handler for the U.S. Postal Service.
During the application and interview process, Stoughton Trailers engaged Willis in an individualized interactive process to evaluate whether he could safely and adequately undertake the job-related responsibilities of the position for which he had applied with or without reasonable accommodation. The process included two separate interviews and tours of Plant 6. Willis’ sister-in-law attended the first interview and tour as his interpreter. His brother attended the second interview and tour.
As part of its effort to explore possible reasonable accommodations, Stoughton Trailers’ HR director and the safety and worker’s compensation manager both attended the second interview and tour. The company considered all of the accommodations Willis suggested as well as some of its own. Based on the complexity of the operation and potential safety hazards (particularly in light of Willis’ condition), the company concluded that none of the accommodations would enable Willis to safely and adequately perform the duties of the assembler position. Accordingly, it declined to hire him.
Willis filed a disability discrimination complaint alleging that the company failed to hire him in violation of the Wisconsin Fair Employment Act (WFEA). Among other things, the WFEA prohibits an employer from refusing to reasonably accommodate an individual’s disability unless it can demonstrate that the required accommodation would pose a hardship on the business. The company based its defense in part on its conclusion that there was no reasonable accommodation it was aware of that would allow Willis to safely and adequately undertake the duties of the position for which he had applied.
At the hearing, Willis presented testimony from an expert vocational witness concerning possible accommodations, but the expert faltered during cross-examination. He admitted that he never toured the facility, even though a tour was critical in assessing whether the accommodation options suggested by Willis — or on his behalf — would be effective.
Nevertheless, Willis argued that Stoughton Trailers should have considered additional accommodations beyond the ones he suggested during the interview process and beyond the ones separately devised by the company.
The commission rejected Willis’ argument, noting that the company met with him twice to explore accommodation options before making a hiring decision. The commission stated, “Simply because the [employer] did not adopt these accommodations does not mean that a sufficient interactive process did not occur.”
Willis contended that Stoughton Trailers should have done further research on accommodations with respect to deaf employees. He argued that the company could have hired its own vocational expert or contacted the Job Accommodation Network. The commission rejected that argument, noting that Willis presented no legal authority suggesting that an employer has a duty to interact with anyone other than the applicant for employment. Additionally, he failed to prove that even if the company had taken any of the additional steps he suggested, an effective and reasonable accommodation would have been identified.
Finally, the commission rejected Willis’ assertion that it would have been reasonable for Stoughton Trailers to modify the job duties of the assembler position. Although certain duties were less hazardous than others, the evidence didn’t show which of those tasks Willis could safely and effectively perform with or without accommodation. The commission stated that the company wasn’t required to modify the assembler position for a new hire to the extent of effectively creating a new position.
Commissioner Robert Glaser filed a dissenting opinion. He felt Willis proved he could perform the duties of the assembler position after appropriate training as safely and productively as workers without a hearing impairment could. Willis v. Stoughton Trailers, Inc., ERD Case No. CR200402036 (LIRC, 9/4/09).
The most notable aspect of this decision is the commission’s confirmation that there are two separate steps to the reasonable accommodation analysis. The first step is to determine whether the proposed accommodation is reasonable (i.e., whether it effectively enables the disabled individual to perform the job-related responsibilities of the position). If a reasonable accommodation exists, the second step is to determine whether it would impose a hardship on the employer.
Significantly, the commission confirmed that the individual has the initial burden of proving that a reasonable accommodation exists. Although Willis offered a number of accommodations, the commission concluded that he failed to prove that any was reasonable. Therefore, Stoughton Trailers wasn’t obligated to show hardship relative to a particular accommodation.
The Wisconsin Equal Rights Division and the LIRC have applied somewhat inconsistent standards in analyzing failure-to-accommodate disability cases since the Wisconsin Supreme Court decided the important Crystal Lake Cheese Factory case on July 11, 2003. Although the commission’s decision in the Willis case isn’t binding on courts, we feel strongly that the commission got it right.
We are hopeful that in future cases, the administrative agencies and courts will follow the commission’s lead by performing the initial “reasonableness” analysis before undertaking the hardship analysis. There certainly may be occasions in which one or more of the suggested accommodations are reasonable under the circumstances. However, it’s appropriate that the applicant or employee should have the initial burden of proving that an accommodation is reasonable and would allow him to adequately perform the job-related responsibilities of the position without a significant threat of harm to the individual, others, or the employer’s property.
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