BROWN COUNTY, Petitioner-Appellant, v. LABOR & INDUSTRY REVIEW COMMISSION and John Toonen, Respondents-Petitioners.
No. 83-2324
Supreme Court of Wisconsin
Argued January 31, 1985.—Decided June 28, 1985.
369 N.W.2d 735
For the respondent-petitioner, John Toonen, there were briefs by Lise Lotte Gammeltoft and Kaftan, Kaftan, Van Egeren, Ostrow, Gilson, Geimer and Gammeltoft, S.C., Green Bay, and oral argument by Lise Lotte Gammeltoft.
For the petitioner-appellant there was a brief and oral argument by John C. Jacques, assistant corporation counsel.
HEFFERNAN, CHIEF JUSTICE. This is a review of a decision of the court of appeals1 which reversed a judgment of the circuit court for Brown county, Richard G. Greenwood, circuit judge, affirming an order of the Labor and Industry Review Commission (L.I.R.C.) holding that John Toonen was a visually handicapped person and was discriminated against by Brown county. We conclude that John Toonen was a visually handicapped person. Accordingly, we reverse the court of appeals’ holding and remand the cause to that court to review whether the L.I.R.C. correctly concluded, on the basis of properly admitted evidence, that Brown county‘s refusal to hire Toonen violated
This case arises under the procedures established by the W.F.E.A.,
“... public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified persons regardless of their age, race, creed, color, handicap, sex, national origin or ancestry. This subchapter shall be liberally construed for the accomplishment of this purpose.” (Emphasis supplied.)
Sec. 111.31 (3), Stats. 1979-80 .
It is apparent that the policy of the state is not to assure employment to persons because they are handicapped. Rather, the policy is that persons who are “properly qualified” have the opportunity to work—i.e., are not discriminated against because they are handicapped persons.
Nevertheless, persons who physically or otherwise are unable to perform duties of their employment are not protected from termination (
In broad outline, then, the W.F.E.A. means that persons in the protected categories, including the handicapped, shall be hired or fired on the basis of whether they, in fact, can perform on the job.
The issue posed on this review involves only the first element in a handicap discrimination case.5 If the com-
The underlying facts are these.
The record shows that in May, 1977, John Toonen applied for a job as a deputy sheriff with the Brown County Sheriff‘s Department. He was well qualified by experience and education for the position. He had served as a military police officer and had received an associate degree in police science. Before applying for employment with Brown county, he had served without any difficulties as a jail deputy, a dispatcher, and a traffic patrolman in Shawano county. He was told by the Brown County Sheriff‘s Department that, upon the basis of his preliminary examination and experience, he would be hired as a traffic patrol officer by the county if he passed the physical. The physician examining for the county reported, however, that Toonen‘s uncorrected vision in each eye, 20/400,6 failed to meet the county‘s
In March of 1980, Toonen filed a complaint with the Department of Industry, Labor and Human Relations (DILHR) alleging that Brown county had discriminated against him on the basis of handicap. The record developed at a hearing in March, 1981, before a DILHR hearing examiner reveals that Toonen never had any difficulty in performing his duties as a traffic officer because of his vision—that he had on occasion in the course of duty been in fights, sustained blows to the head, but had never lost his contact lenses. There was expert testimony that modern contact lenses were very unlikely to be dislodged, and even if one were lost, a person could see adequately with one lens. There was also evidence that patrolmen on the job with Brown county were not required to maintain the entrance level of uncorrected visual acuity and that serving traffic officers had visual acuity that did not meet the hiring standard.
In May, 1981, the hearing examiner issued her decision. The hearing examiner found that Toonen was handicapped because of his visual impairment, that he had met the required burden under the Act to show that he was denied employment because of his handicap, and that Brown county had failed to meet its burden of showing that Toonen‘s handicap was reasonably related to his ability to perform on the job. The examiner held that Brown county had discriminated against Toonen in violation of W.F.E.A. and ordered Brown county to offer Toonen the next available position and to pay him back pay from January 1, 1980.
“Respondent [county] concedes that Complainant is handicapped in a physical sense by virtue of his vision impairment.”7
There was no dispute that the failure to hire was because of the acuity level of Toonen‘s vision as uncorrected. The commission also concluded that the county had failed to show that its denial of employment was because Toonen‘s handicap either made him unable to perform the job responsibilities or would make employment hazardous for Toonen or other workers.
Upon judicial review brought in the circuit court for Brown county, the court, without extended decision, specifically affirmed the decision of the commission.
Upon appeal to the court of appeals, that court never reached the commission‘s findings that the county had failed to prove that Toonen could not perform satisfactorily, because it held that Toonen had not met his threshold burden of showing that he was a person protected under the Act—a handicapped person.
The court of appeals relied upon American Motors v. LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984), decided by this court while the instant case was pending in the court of appeals. This court in American Motors was attempting to give a rational and not an overly broad meaning to the word, “handicap.” It held, in the context of that case, that a woman four-feet-ten-inches in height did not have “a disability or impairment” (at 716) and that her height was not such a substantial deviation from the norm as to make achievement unusually
The court in American Motors further defined “handicap” as:
“. . . an injury, deterioration or lessening that could impede a person‘s normal functioning in some manner and preclude the full and normal use of one‘s sensory, mental or physical faculties.” (At 713)
The court in American Motors also stated that slight stature would not be considered a handicap, although it recognized that we determined in Dairy Equipment Co. v. ILHR Dept., 95 Wis. 2d 319, 290 N.W.2d 330 (1980), that a “perceived” handicap was to be treated as a handicap under the W.F.E.A. We said in American Motors that we did so in Dairy Equipment only because there was, in Dairy Equipment, an actual impairment—i.e., only one kidney—which was perceived as a handicap and used as an excuse for nonhiring even though the impairment, in fact, did not hinder the job applicant in his job performance. Hence, this court in American Motors held that, for there to be a perceived handicap,
The court of appeals in the instant case seized on the language of American Motors to hold that Toonen had no handicap, either actual or perceived. It reasoned that:
“Our conclusion is compelled by the supreme court‘s reference in American Motors to ‘a slightly nearsighted person who wears glasses and who is rejected for a position requiring 20/20 uncorrected vision’ as an example of a physical characteristic imposing some limitations but not amounting to a handicap.” (Slip opinion at page 563).
Thus, the court of appeals equated the applicant Toonen, whose visual acuity measured by the Snellen test for nearsightedness is diminished by 96.7 percent, to the hypothetical “slightly nearsighted person” referred to in dicta in American Motors. The analogy is strained.
What is significant in American Motors, which the court of appeals overlooked, is that American Motors reaffirmed that, where there is an actual impairment and that impairment is regarded by the prospective employer as limiting the capacity to work, it is a perceived handicap and is to be treated as a handicap which makes achievement unusually difficult or limits the capacity to work—even if, in fact, it does neither. The court of appeals did not follow through on the analysis suggested
Whether or not there was a “perceived handicap” is a significant issue in this case, because the rationale of the employer is that the impairment of vision is perceived by the employer as being a disqualification that will prevent adequate performance on the job even though the county has not assumed its burden of showing that the impairment, a perceived handicap, was disqualifying.
The standard of review that we apply in this case and the standard consistent with that used in other cases brought under W.F.E.A. is whether there is a rational basis for the commission‘s conclusion, here the conclusion that Toonen‘s visual acuity of 20/400 uncorrected constituted a handicap under the Act, either in actuality or as an impairment of function which was perceived by the prospective employer as a handicap. Dairy Equipment, 95 Wis. 2d at 327-28; Bucyrus-Erie Co. v. ILHR Dept., 90 Wis. 2d 408, 417, 280 N.W.2d 142 (1979). This is because we have defined handicap either as an actual handicap or a perceived one—and it is our duty under the policy declaration of the Act to support the commission in its liberal interpretation of handicap to implement the basic legislative intent of not permitting the denial of employment of persons who are either handicapped but can perform efficiently, or are not handicapped at all although they may have some actual impairment that would lead to a perception of a handicap.
We have stated the meaning of handicap and defined it in numerous cases since the original passage of the W.F.E.A.
In Chicago, Milwaukee & St. Paul, we also adopted the definition which is now found in the current statutes. Although this statutory definition was not adopted prior to the events in the instant case, the definition is gleaned from cases decided by this court which are antecedent to the facts at issue here. Hence, we consider the present statute,
“(8) ‘Handicapped Individual’ means an individual who:
“(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.”10
In the instant case, the situation that presents itself is that Toonen has an actual impairment—the 96.7 percent loss of distance vision in each eye—which the employer mistakenly perceives as limiting the capacity to work, or mistakenly believes will make achievement unusually difficult when in fact all the evidence thus far adduced indicates that, despite the impairment—which is
In the instant case, because the court of appeals erroneously found that Toonen was not handicapped within the meaning of the W.F.E.A., it never explored the question of whether Brown county erroneously and without proof concluded that Toonen was not qualified to perform. The only question before us is whether Toonen is a handicapped person entitled to protection of the Act. We conclude that he is handicapped and protected, because he is, without doubt, visually impaired to a serious degree. He met the test of perceived handicap restated by this court in American Motors. The impairment was actual, but the employer was, arguably at least, mistaken in its perception that he was handicapped, because with corrective lenses his capacity to work was unimpaired.
Under the definition of what it is to be considered under the Act as a perceived handicap, as established in Dairy Equipment and American Motors, Toonen must initially be treated as a handicapped person. Here, the complainant proved that he had an actual impairment of visual acuity; and, although that impairment might well have not disqualified Toonen from work generally, the evidence is clear that Brown county perceived the impairment as one that limited Toonen‘s capacity to work at the specific job for which he applied. While that perception, in light of the actual impairment, is sufficient to establish that Toonen was “handicapped,” it should be remembered that this step in the process of proof under the Act only permits a complainant to bring suit as a handicapped person under the W.F.E.A. and does not guarantee him a successful outcome in the sense that he is to be afforded the particular job sought. The employer still has the opportunity under the Act to prove that the standard it has set in respect to uncor-
In conclusion, then, Toonen was perceived by the prospective employer as being handicapped, because he had an impairment which the county believed would limit his ability to perform the particular job.
Accordingly, under our cases, he must be considered handicapped within the meaning of the W.F.E.A. There is no doubt that the county perceived him as handicapped, because it rejected him solely for his failure to meet the uncorrected vision standards which it required for employment eligibility. The county believed, in other words, that Toonen‘s visual impairment limited his ability to perform on the job. Therefore, under the facts as developed to date in these proceedings, it appears that Toonen has been categorized as a handicapped person and, on the basis of that categorization, has been denied the opportunity to work at a particular employment, even though he may, in fact, be properly qualified. This is exactly the type of treatment which the Wisconsin Fair Employment Act denominates as discriminatory and prohibits. The burden, accordingly, now falls upon the county to show that Toonen cannot perform the work. Because at least some of the facets of the county‘s possible proof were apparently before the court of appeals but were not thought necessary to consider because of that court‘s inaccurate interpretation of American Motors, the case is remanded to the court of appeals to determine whether the county has assumed its burden in proving that Toonen is unqualified.
By the Court.—Decision reversed, and cause remanded.
This court‘s rulings lack the consistency and guidance that the Labor and Industry Review Commission, the circuit courts, and the court of appeals need in order to determine whether an employer may perceive a particular “deviation from the norm” as a handicap.2 I would
Notes
“111.31 Declaration of policy. (1) The practice of denying employment and other opportunities to, and discriminating against, properly qualified persons by reason of their age, race, creed, color, handicap, sex, national origin, ancestry, arrest record or conviction record, is likely to foment domestic strife and unrest, and substantially and adversely affect the general welfare of a state by depriving it of the fullest utilization of its capacities for production. The denial by some employers, licensing agencies and labor unions of employment opportunities to such persons solely because of their age, race, creed, color, handicap, sex, national origin, ancestry, arrest record or conviction record, and discrimination against them in employment, tends to deprive the victims of the earnings which are necessary to maintain a just and decent standard of living, thereby committing grave injury to them.
“(2) It is believed by many students of the problem that protection by law of the rights of all people to obtain gainful employment, and other privileges free from discrimination because of
age, race, creed, color, handicap, sex, national origin or ancestry, would remove certain recognized sources of strife and unrest, and encourage the full utilization of the productive resources of the state to the benefit of the state, the family and to all the people of the state.
“(3) In the interpretation and application of this subchapter, and otherwise, it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified persons regardless of their age, race, creed, color, handicap, sex, national origin or ancestry. This subchapter shall be liberally construed for the accomplishment of this purpose.
“(4) The practice of requiring employes or prospective employes to submit to honesty tests without providing safeguards for the test subjects is unfair, and the use of improper tests and testing procedures causes injury to the employes and prospective employes.”
The majority identifies three “essential elements of proof” for a handicap discrimination case arising under the Wisconsin Fair Employment Act. At page 564, n 5. Furthermore, it sets these elements out as sequential steps:“First, there must be proof that the complainant is handicapped within the meaning of the Fair Employment Act. . . . Second, the complainant must establish that the employer‘s discrimination was based on the handicap. . . . The burden then shifts to the employer to establish, if it can, that its alleged discrimination was permissible under
The majority works hard to preserve the separateness of these determinations. Although it emphasizes that the third step is not now before the court, p. 572, one way of reconciling the categorizations in Dairy Equipment, American Motors (including the reference to the five-foot-six-inch Milwaukee Bucks hopeful), and now in the present case would be to conclude that in each case, despite its avowal of the separateness of the elements, the majority grants the applicant the Act‘s protection on the majority‘s own confidence that the applicant could do the job for which he or she had applied. This conclusion is reinforced in the present case by the facts that Toonen had successfully served in similar jobs in the past, cf. at p. 565, “that patrolmen on the job with Brown county were not required to maintain the entrance level of uncorrected visual acuity and that serving traffic officers had visual acuity that did not meet the hiring standard.” Id. at 566.
“(c) Nothing in this subsection shall be construed to prevent termination of the employment of any person physically or otherwise unable to perform his duties, nor to affect any retirement policy or system of any employer where such policy or system is not a subterfuge to evade the purposes of this subsection, nor to preclude the varying of insurance coverage according to an em-
ploye‘s age; nor to prevent the exercise of an age distinction with respect to employment of persons in capacities in which the knowledge and experience to be gained might reasonably be expected to aid in the development of capabilities required for future advancement to supervisory, managerial, professional or executive positions.” The majority opinion in this case attempts to avoid the pitfall of American Motors in which the majority described actual impairment or disability—which must exist to allow the employer to perceive the person as handicapped—in terms of a physical condition which makes achievement unusually difficult or which limits the capacity to work. See American Motors, 119 Wis. 2d at 713, 716.“(f) It is discrimination because of handicap:
“1. For an employer, labor organization, licensing agency or other person to refuse to hire, employ, admit or license, or to bar or to terminate from employment, membership or licensure any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment unless such handicap is reasonably related to the individual‘s ability adequately to undertake the job-related responsibilities of that individual‘s employment, membership or licensure.
“2. For an employer to contribute a lesser amount to the fringe benefits, including life or disability insurance coverage, of any employe because of a handicap.”