*1 LA CITY OF CROSSE POLICE & FIRE COMMISSION, Petitioner-Appellant,
v. COMMISSION, & REVIEW LABOR INDUSTRY Respondent-Petitioner, RUSCH, Daniel Petitioner.
Supreme Court 17, Argued No. March 85-1890. 1987. Decided June 1987. (Also 510.) reported in 407 N.W.2d *3 there were briefs petitioner-appellant by For Kratz, R. Kenneth attorney assistant with whom city Houlihan, on the brief was Patrick J. city attorney R. Kratz. Kenneth argued by and cause Industry For the Labor and Review Commission Rice, assistant David C. argued the cause was by on the briefs was Bron- with general, whom attorney Follette, son C. La general. attorney James G. For the there were briefs petitioner by Birnbaum, Flaherty, & Ellen M. Frantz Johns S.C., James G. argument La Crosse and oral Birnbaum.
DAY, J. This is a review of a decision of the LIRC, La Crosse Police Comm. v. appeals, court of *4 (1986). 516 2d 385 N.W.2d court Wis. order of the circuit reversed a decision and appeals Montabon, court of La Crosse Hon. Dennis G. county, upholding a determination Judge, presiding, Circuit (Com- Review Commission Industry the Labor and by (Rusch) mission) J. Rusch was discrimi- that Daniel and Fire against the La Crosse Police nated (PFC), contrary Commission to the terms of the Employment Act, 111.31-111.37, Fair Wisconsin secs. opinion [All in Stats. references this are to the 1979-1980 statutes unless otherwise indicated.] complaint brought response Rusch’s was to the police PFC’s not to decision hire Rusch as a officer. pre- The PFC’s decision was based on the results of a employment physical examination administered on Rusch. (1)
The case raises three issues: Could the Com- reasonably mission conclude that in order to be "handicapped considered a meaning individual” within the (Act), Employment of the Wisconsin Fair Act necessary it is not that an individual have an actual impairment, employ- but it is sufficient if the merely perceives having er impairment? the individual as such (2) reasonably Could the Commission disability conclude that a "weak back” is a or an employer might perceive which an being handicap meaning within the of the Wisconsin (3) Employment Fair Act? If Rusch is meaning Employ- within the of the Wisconsin Fair against Act, ment was Rusch discriminated based on handicap proper or was the decision of the PFC exception handicap under discrimination out- lined in the Act? that,
We conclude order for the Commission "handicapped” find that an individual within the meaning necessary it is not to find that the impairment. individual had an actual It is sufficient to employer perceived find that the that the individual handicapped. uphold We the Commission’s con- "handicapped” clusion that Rusch was within the although because, of the Act Rusch had no physical impairment, the PFC that he was
impaired, perceived and the quali- would as a fy handicap. We also conclude that the Commis- sion could have reasonably concluded that the PFC refused to hire Rusch it perceived because him to have back,” a "weak and this impairment constituted handicap. we Finally, conclude that Rusch was dis- criminated against on the basis of handicap, apparent since the sole reason he was denied was employment the Employer’s percep- tion impaired. he was City La Crosse cannot show that its action denying employment legiti- mate under any statutory exception to handicap discrimination. We therefore reverse the decision of the court appeals. 14, 1981,
On May applied Rusch for employment with the City of La police Crosse as a officer. In September, 1981, Rusch was orally employ- offered police ment as a officer by Captain Frick of the Police Department, to a subject physical examination. He accepted the offer.
Rusch underwent a physical examination 18, 1981, September during which required he was perform a test of back strength on a "Cybex” machine. The Cybex machine used measures the strength and flexibility the flexor and extensor muscles of the Alphabetical back. scores given are based on perfor- mance.1
1 A review of the forms used at the Gundersen Clinic for recording performance Cybex on the test reveals that the assess parts. ment is part divided into two "Cybex The first is entitled: II Dynamometer Isokinetic Strength Back Determination.” In this assessment, part taking the individual the test receives (in scores foot-pounds) the number of for both flexion and (30° extension settings per movements at two machine second and *6 rating Rusch received a "B” with following notation: for "Qualified any work with the following conditioning restrictions: 1. Back program exercise undertaking before labor.” heavy 21, 1981, September On personnel PFC direc- police tor recommended to the chief that Rusch not be hired, due to his "B” rating.2 Rusch was informed that he would not be hired because of the test Cybex results.
Rusch contacted personnel director. At Rusch’s suggestion, personnel director contacted a second). scores, per 120° Based on these a determination is made "quartile rating” given. as to what the individual is quartile' ratings. correspond There are four These to the percentage foot-pound of individuals that receive similar scores. instance, person quartile For a who scores in the first for flexion per top persons movement at 30° second scores of all 25% quartile ratings (75-100%); tested. The are as follows: First second (0-25%). (50-75%); (25-50%); third and fourth part The second "Physical of the assessment is entitled: Rating.” ratings give judgment These a as to the candidate’s qualifications part for work based on the of results the first "qualified A any assessment. score of "A” connotes for work.” A "qualified score of "B” following connotes for work with the possible categories restrictions. ...” A list of ten of restrictions range possible physical rating follows. The scores is from "A” to "F.” 21,1981, September Rusch, A memo from Jerome Director of
Personnel, Ray Depart to Chief Lichtie of the La Crosse Police ment states: physical report "Because of the examination received from the Clinic, specifically rating problems,
Gundersen 'B’ I back feel that Daniel J. Rusch should not be hired on the La Crosse Department. Police rating have "We confirmed the 'B’ with Dr. Lindesmith and he police employe.” informed us that this is not the best level for a therapist at the University Wisconsin-La Crosse who was familiar with the Cybex machine. conversation, Following that personnel director arranged for a second test to be September taken. On 28, 1981, Rusch took the Cybex test for a second time rating. and received an "A” By letter dated September 30, 1981, personnel the PFC director informed the PFC of the results of the second test. The personnel director also informed the PFC members discussion with an individual at University Wisconsin familiar with the Cybex machine he was (1) told that: "the test has not been completely *7 (2) validated on some back movements” and if an "passes” individual a second Cybex test after "failing” first, the results of the first test should be disregarded. information,
Despite foregoing on November 12, 1981, the PFC decided that Rusch would not be placed police on the list for eligibility officers because he had not passed successfully the first test. Cybex 8, 1981,
On December Rusch filed a handicap complaint discrimination with Department (DILHR), Industry, Labor and Human Relations charging that he was denied employment police as a officer "because of an alleged weak back disclosed by a machine.” The Cybex complaint brought pursu- was 111.31-111.37, ant to the terms of the secs. Stats. Following investigation, department’s in- vestigator rendered an initial determination on Janu- 8, 1982, ary finding probable cause to believe that against PFC had discriminated Rusch because of handicap, violation of A the Act. letter dated 16,1981, Hackner, December sent by Robert President PFC, of the department investigator to the stated that the PFC concluded Rusch should not be hired "be- cause the Test 'B’ Cybex rating indicated back defi- ciencies which possibly permit would not him to adequately perform physical required duties of a La Crosse Police Officer.” Efforts at conciliation between parties were either unsuccessful,” "waived or hearing department conducted before a hearing examiner on January 1983. 19, 1983, decision
By dated July the DILHR concluded, hearing examiner law, as a matter of that: (1) Rusch was "not within the meaning of (2) and, the Act” Rusch has "proved aby preponder- ance Crosse, evidence that [City La [sic] PFC] violated the Wisconsin Fair Employment Act in its failure to hire complainant because of an al- leged/perceived handicap.” The hearing examiner ordered that the City of La Crosse hire Rusch as a police officer and that he receive back pay "to which he would have been entitled from May 1981 but for the unlawful discrimination.” 18, 1984,
On January the full Commission af- decision, firmed the examiner’s but issued a revised (included opinion fact, findings conclusions of law order) and an which was intended clarify position of the Commission.3 The Commission conclud- appended
3The Commission a section entitled "Memorandum *8 Opinion” to its Opinion” decision. This explains "Memorandum the revising Commission’s intent in hearing the examiner’s provides decision and as follows: , findings examiner, "This decision affirms the of the but has been clarifying position rewritten in the interest of the of the Commis- Findings explanatory. respect sion. The of Fact are self With to Law, the Conclusions of we have altered Conclusion of Law #2 to Complainant handicapped state that meaning was 'within the of Respondent the perceived Act.’ Police and Fire Commission Complainant they to have a weak back which concluded to be a
handicap limiting Complainant’s capacity adequately to under- ed, law, as a of matter that Rusch at all "was times relevant his complaint to handicapped within the the in meaning Crosse, of Act [City that of La PFC] perceived addition, him to be handicapped.” In concluded, law, Commission aas matter of PFC discriminated against Rusch on the basis of handicap and, when denied him employment there- fore, violated the Fair Employment Act.
The Commission placed ordered that be Rusch top police list,4 of the patrolman that he eligibility hire,” be offered "immediate and that if he accepted the offer he would be entitled to all employment benefits "from date next following the date of [the October, 1981 meeting” official monthly until PFC’s] the date was police Rusch "instated as a officer.” The Commission also ordered that Rusch receive "lost October, 1981, wages” from until Rusch was "instated as an officer” declined the offer employment. of Amounts earned by during period Rusch the interim patrol police responsibilities. Thus, although take a officer’s we fact, agree Complainant was, physically examiner with the in qualified police perform job of a duties officer without harm others, Respondent
to himself or we' find that denied him employment perception physical because of its erroneous of his capabilities. handicapped Since individuals be have interpreted handicap, been to fall under the Act’s definition of we Complainant conclude within Respondent’s perception of the virtue of the his Therefore, we limitations. affirm examiner’s conclusion that Respondent against Complainant employment discriminated handicap, on the basis violation of the Act.” 12,1983, Hackner, January hearing, 4At the Robert President Commission, City of La Crosse Police and Fire testified that the function of the PFC is to determine individuals are whether officer, eligible hiring. position police puts For the the PFC together list, Department eligibility then Police makes hiring the final decision. *9 operate
would to reduce back otherwise pay allowable. The Commission also ordered that Rusch would not be eligible for back pay during period he was a full- student, time college from 1,1982, January to August 6, 1982.
The PFC then proceedings commenced for judicial review of the Commission’s decision in the La Crosse court, county circuit pursuant 227, Stats., to ch. 15, 1984. February The PFC appealed from that portion of the Commission’s order requiring Rusch receive back pay, the conclusions of law that Rusch was handicapped within the meaning of the Act and that the PFC against discriminated Rusch on the basis of being handicapped. Rusch peti- also tioned for review of the Commission’s order excluding back pay 1, from 1982 January through 6, August 1982. The cases were 10, 1985, consolidated. On July the circuit court affirmed the Commission’s decision merits, on the but remanded the case for further findings of fact concerning Rusch’s eligibility for back pay during the period he was a full-time college student.
The circuit court relied on American Motors Corp.
LIRC,
706,
v.
712,
119 Wis. 2d
(1984),
"The decisions in Chicago [Chicago, M. St. P. & P.R.R. 392, Co. v. Dept., ILHR 62 Wis. 2d 215 (1974)] N.W.2d 443 and Dairy Equipment [Dairy Equipment Company Department, v. ILHR 95 Wis. therefore, 2d (1980)], N.W.2d 330 indicate that in order to be considered within person must actually have a or mental disability that makes achievement unusually difficult or limits the ca- *10 work, pacity person perceived or the must be having disability.” such a The circuit court also Bucyrus-Erie cited Co. v. ILHR 90 Wis. 2d Dept. (1979), 280 142 N.W.2d noting that this case "makes clear a back problem be may considered an handicap actual or a perceived handicap within the meaning of the Act.” The circuit court specifically affirmed the Commis sion’s finding second of fact that Rusch was perceived be within of the Act and the Commission’s third conclusion of law that Rusch was discriminated against based upon handicap. 9,1985,
On October the PFC appeal filed its from the order of the circuit court.5 decision By dated 20, 1986, February of appeals court reversed the the circuit court. order of
Relying interpretation on its of American Motors Corp., appeals court of concluded that Rusch was "handicapped not a individual” within the meaning of 111.31-111.37, secs. Stats. La Crosse Police Comm. LIRC, v. 129 Wis. 2d 432. In at American Motors Corp., a four-foot-ten-inch woman was denied at employment an automobile plant manufacturer’s because of solely height; her this court concluded the complainant was not a "handicapped individual.” American Motors Corp., appeals 119 Wis. 2d at stated: 718. The court of "Rusch’s 'condition’ as revealed Cybex test appeal 9, 1985,
5 In its notice of filed the PFC October stated appealed part judgment "from that rendered and entered in this ... action favor of the ... Commission ... affirming the Commission’s determination that Mr. Rusch was against by discriminated La Crosse Police and Fire Commis perceived handicap.” sion on the basis of a weaker-than-average results —somewhat back mus- comparatively cles—like the short stature of the employee Motors, American outside the definition 'handicap.’” Comm., La Crosse Police Wis. 2d at 435. 111.32(8), appeals
The court of looked to sec. (1983-1984), provides: Stats., which "111.32 When used in subchap- Definitions. this (8) 'Handicapped ter: ... individual' means an indi- vidual who:
"(a) physical impairment Has a or mental which unusually makes achievement difficult or limits work; capacity "(b) impairment; Has a record of such an or "(c) perceived having Is impairment.” as such an appeals apparently The court of construed the statute requiring impairment as actual before an individual handicapped purposes could be characterized as Cybex the Act. Id. at 438. It was noted that the test did impairment, "only not show actual but that the flexor compara- and extender muscles in Rusch’s back were tively weaker than those of others who have taken the test over time.” Id. at 435. appeals
The court of
also discussed two related
by
Dairy Equipment
Rusch,
cases cited
and Brown
County
LIRC,
560,
v.
124 Wis. 2d
The court of
focused on two statements
County,
according
which,
made
court in
this
Brown
appeals,
"seemingly
to the court of
ry.”
were
contradicto-
County,
Rusch’s was filed with the Equal Rights 3,1981. DILHR Division of on December *12 employ, purposes review, We therefore for of our filing. in statutes effect at the time of that brought pursuant 227, This review was to ch. reviewing agency’s order, Stats. In an administrative appellate scope court’s of review is identical to that Boynton Dept., of the circuit court. Cab v. ILHR Co. (1980). 396, 405, 291 Wis. 2d N.W.2d 850 scope arising in of review cases under ch. Stats., 227.20, forth in is set sec. Stats. Section 227.20(6), findings fact, deals with review of and provides: (6) Scope
"227.20 of Review.... If the agency’s depends any action on fact found agency proceeding, a contested case the court shall not judgment its agency substitute for that of the as to weight of the any disputed finding evidence on shall, however, of fact. The court agency set aside agency action or remand the case to the if it finds agency’s depends any finding action supported by fact that is not substantial evidence in the record.”
Review of matters of law is dealt with in sec. 227.20(5) provides: Stats., which
"The modify court shall set aside or the agency if it agency action finds that has erroneously interpreted provision a of law and a correct interpretation compels action, particular a or it shall remand the case to agency for further action interpretation under correct provi- sion of law.” policy encourage
The stated of the Act is "to practicable employment foster to the fullest extent properly qualified persons regardless of all of their age, handicap, origin race, creed, color, sex, national 111.31(3), ancestry.” keeping or Section Stats. In with 111.32(5), policy, specifically Stats., this sec. makes any employer, organization, "unlawful for labor li- censing agency person against any or to discriminate employe any applicant employment or licens- ing.” 111.32(5)(a),Stats.,
Section defines discrimination handicap. to include discrimination because of Section 111.32(5)(f),provides part: (5) (f)
"111.32 Definitions. ... ... It is discrimi- nation handicap: because of *13 "1. employer, organization, For an labor licensing agency person hire, or other to refuse employ, license, admit or or to bar or to terminate from employment, membership any or licensure individ- ual, against or to any discriminate individual promotion, compensation terms, or in conditions or privileges employment handicap unless such is reasonably related to the individual’s ability ade- quately to job-related undertake the responsibili- ties of that employment, individual’s membership of licensure.” proof handicap
The matters of in a discrimination arising case (1979-1980), under the 111.31-111.37, Stats., secs. recently
were summarized this court: "First, proof there must be complain- that the handicapped ant is within meaning of the Fair Employment Act. The proving burden of a handi- cap Second, complainant. is on the complain- ant must establish that employer’s discrimina- tion was handicap. based The burden then establish, can, shifts to the if it that its alleged permissible discrimination was under sec. 111.32(5)(f), (1979-80), Stats. which allows an em- ployer handicapped to refuse to hire applicant a if handicap 'such reasonably related to the individ- ability ual’s adequately to job-relat- undertake the employment.' responsibilities ed of that individual's 564-565, County, 124 n. 5 ..." Brown Wis. 2d at (citations omitted). question presented
The first
is whether Rush has
proving
met the burden of
that he is
within the
of the Act. Whether Rusch was
"handicapped” presents
question
of law. American
Corp.,
Motors
At the time Rusch filed his the Act contained no definition of a "handicapped individual.” later legislature, This definition was added by ch. 334, 1981, 4, August Laws of effective 1982. The 111.32(8), Stats., definition is codified at sec. which provides: (8) 'Handicapped
"111.32 Definitions. ... indi- vidual’ means an individual who: "(a) impairment Has a or mental which unusually makes achievement difficult or limits work; capacity "(b) impairment; Has a record of such an "(c) perceived having Is as impairment.” such an particular Of relevance to the present case is sec. 111.32(8)(c), Stats., provides which that an individual who is as perceived having a physical or mental impairment which makes achievement unusually dif- ficult or capacity limits the to work fits the definition in handicapped of a individual. This court noted legislative American Motors Corp. history of 111.32(8), sec. revealed that the statutory definition of "handicapped individual” codified essentially the defi- nitions employed this court in prior cases. 119 Wis. 2d at n. 4.
The of La City argues Crosse PFC to this court order to be considered a "handicapped individ- ual” within the individual must have some i.e., actual physical impairment, there must exist "some impairment actual for there to be a handicap situation.” analogizes present The City case to American Motors Corp., which this court held that complainant was not based the fact that she not hired because she was perceived as being too to adequately perform job. short Dairy Brown points Equipment, Chicago, City County proposition cases supporting actual required a finding that an individu- *15 al handicapped. argue
The Commission and Rusch an that individ- perceived ual can handicapped be to be without having impairment. placed an actual Reliance is the same line of cases the La by cited of Crosse City PFC. parties disagree the of over definition handi- individual,
capped especially with to respect percep- tion of with in impairment, dealt the relevant deci- sions emanating from court. this Confusion concern- ing the definition of "handicapped” the term be may in American dissenting opinion result Motors and the concurring opinion in Brown County, both the same by author. County, Brown
In
the writer of the
in
concurrence
this case renewed her
to
objection
majority’s
Motors,
in American
and
decision
stated
her
American Motors
objection to
language
"the
Motors,
American
perceived
which appears to limit a
a
handicap
present
to
situation in which there is
an
Brown
County,
impairment_”
actual
The writer of the concurrence in the instant case recognizes objection that her as stated in apparently her concurrence in Brown was incorrect County by stating says now that American Motors handi "[a] capped individual under the statute includes only impairment individual who has an or who the employ concurrence.) (P. 775, impairment....11 er believes has an added.) (Emphasis
The writer of the concurrence now concludes that in agreement concerning this court is what was however, emphasize, outlined American Motors. We of court not with majority agree this does restatement of set out the writer American Motors
758 of the concurrence. The writer misconstrues American asserting separate ingredient Motors, that it added a impairment. to the of definition She states that required American Motors for order a condi- perceived impairment, tion to constitute real or condition must "in addition be to normal limitations” significant norm,” and "a deviation from the the instant case eliminates both from items consider- (Slip opinion 775.) page ation. at simply It is to incorrect state that American required significant Motors that the abe deviation from the norm. American Motors does not require important principle such a condition. The established in American Motors its determination "impairment” purpose of what constitutes an for persons, recognized given the statute. court "[a]ll This capabilities, their individual characteristics and have general ability inherent limitations their perform jobs. persons achieve or All certain have some mental or from deviations the norm.” Motors, American 2d at Wis. 713. We concluded that "such inherent limitations or deviations from the automatically handicaps.” norm do not constitute Id. concurring opinion not, That is asserts, saying significant same as that a deviation from the required "impairment” norm is to establish an for purposes of the statute. "impairment” purposes
What constitutes an Motors, the statute? In American this court cited Dictionary, Webster’s Third New International (1961), "impairment” which defined as "'the act impairing being impaired: or the state of ...: INJURY 'Impair’ ... ... DETERIORATION LESSENING’ injury.’” Deterioration, Thus, as '... defined Id. *17 showing "impairment” by of satisfied element deterioration, to lessening, damage or an actual either condition, including bodily function or bodily a normal condition, function or the absence of such showing perceived by employer the condition actual if it in fact did constitute an would exist. confu- concurring opinion
Because the cause may of interpretation as to this court’s Wisconsin’s sion past a review of cases and Employment Fair emerged them is framework that has from analytical in order. court, upon been called five
This since has "handicapped the definition interpret times 111.32(8), found in Stats. individual” now sec. 1) with con- Bucyrus-Erie involved an individual genital back defects.
2) involved an individual with Dairy Equipment one only kidney.
3) an four Motors involved individual American feet, ten inches tall.
4) with County Brown involved individual eyesight. 20/400
5) with The instant case involves an individual a to have further back projected weak back problems. cases,
In the burden was on the each of these handicap individual to establish that a alleging handicap particular condition constituted a meaning Fair Act. Employment within emerged, two-step process From has a these cases determining whether the individual has analysis handicap established a within so place statute as to burden permissible discrimination. show *18 perceived impairment? First, is there a real or impairment Second, so, if is such it either perceived actually making makes or is as achievement unusually capacity difficult or limits the to work. step analytical process requires
The first in the determining impairment, per- whether an real or impairment ceived, purposes above, exists. As stated perceived lessening of the statute is a real or damage bodily or deterioration or to a normal func- bodily bodily condition, tion or or the absence of such bodily function or such condition. step,
If the individual satisfies the first then he or impairment she must establish that the ly either actual- perceived making is makes or "achievement unusually capacity difficult or limits the to work.” 111.32(8)(a), disjunctive Section Stats. The "or” in the statute makes clear one of two conditions must satisfy step. to be met this second Either the claimant perceived impairment must show that real or unusually difficult, makes achievement or the claim- perceived impairment ant must show that the or real capacity employer’s perception limits the work. An to of either satisfies this element as well. by unusually meant
What is "makes achievement respect difficult?” The determination rests not with particular job, but to a rather substantial limitation limitation on life’s normal functions or a substantial major activity. See, on a County, life School Bd. Nassau (1987). Arline, Fla. v. 107 S. Ct. 1129 capacity What is meant "limits the to work?” Obviously something it must mean other than "makes unusually County achievement difficult.” Brown an- question: capacity swers the "limits the to work” particular question. job refers to the In Brown County, this "[T]he court said: is evidence clear that as one that county
Brown specific job to work at the capacity limited Toonen’s perception — that ... is applied for which he 'handicapped’ that Toonen sufficient establish at 572. 2d ....” Wis. alleging that he she person summary,
In *19 first, Act an under the must establish second, then, that perceived impairment, actual or or as actually perceived either makes such condition the difficult or limits making unusually achievement to work. capacity that court’s decided cases fit within
All of this and, framework, to the contrary assertion analytical reconcilable concurring opinion, readily of are the with each other. congenital had three
Bucyrus-Erie: The claimant three step congen- The first was satisfied: back defects. an The impairment. defects constitute actual ital back step also satisfied: the individual establish- second was impairment ed that the employer that his to work a welder. Inasmuch as ability limited showing its of employer then failed meet burden could not have safely efficiently the individual for, this court affirmed the performed job applied discrimination. finding of unlawful only The claimant had one Dairy Equipment: step The first was satisfied: absence of one kidney. The impairment. constituted an actual second kidney of one although was also satisfied: absence step did not make normal achievement or kidney actually difficult, unusually employer perceived work exposed the claimant to an kidney the absence of injury remaining kidney. risk to his The undue of protections claimant was therefore entitled to the the law. feet,
American Motors: individual was four step ten inches tall. The first was not satisfied: actual ten stature four feet inches did not constitute a lessening, damage deterioration, a or to a normal bodily bodily function condition and was therefore purposes not of the statute. Nei- allege per- employer did ther the claimant that her exist, a condition did ceived not in fact as was the question fact the instant was case. There no perceived by the condition was the feet, actual Thus, condition of four ten inches. impair- claimant failed to establish the of an existence ment. County: eyesight
Brown The individual had impairment. step 20/400. This an actual The first step was satisfied. The second was also satisfied: although eyesight his was correctable to 20/20 there- actuality making unusually not achievement *20 limiting capacity employer work, difficult or perceived his to the capacity
that his condition limited his to particular job. Thus, work at the he was entitled to the protections the statute. We the remanded case to employer opportunity allow the the under the Act to prove reasonably that its standard was related to the ability actually perform job. claimant’s to the impair- In the instant case Rusch had no actual step However, ment of his back. first is the satisfied perceived employer because the that Rusch had impairment por- that consisted of weak a back that problems. tended future back Inasmuch as the condi- that tion the PFC would constitute an impairment employer’s percep- existed, it in if fact the step. step tion the satisfied first The second is also satisfied; that made Rusch had no capaci- unusually or limited his difficult achievement employer perceived ty that Rusch work, the to but police capacity perform Thus, to work. limited in his protections the of the statute. is to Rusch entitled case, is evidence In instant there substantial the was not hired because his to performance that Rusch show Cybex contends, Rusch on the first test.6 agree, parties appear is that he in excellent the and physical perceived, here the health. The Cybex result, that Rusch had an test basis impairment capacity to work. which would limit his hearing the testified before ex- Robert Hackner Cybex he that the machine aminer that understood people have "determine if back deficiencies would possibility the of future back deficiencies which have operating prohibit properly from a them as would police He could also testified that PFC not officer.” rating receiving "B” since: afford have individuals possibility emergency is a and the situation "There might Fire arise both Police which Departments they proper- able to that wouldn’t be presuming ly perform Cybex their duties and test, told, we have been indicates there can 12, 1983, hearing Department January 6 At before the Examiner, Hackner, PFC, Hearing Robert President testi fied as follows: true, not, put you And is it is it did not Daniel Rusch on "Q. ’81, eligibility you? did list for hire November of
"A. That is correct. true, not, it And is sole exclusive reason "Q. rating your he failure to do that as fact that had received a B *21 Cybex on a Test? "A. Yes.” posing
be weaknesses in the back that in the line of duty, they injure back, may their and not—will no longer capable performing be of their duties.” It is clear that the PFC attached a good deal of significance to of the results the Cybex test. A poor result meant the candidate was sufficiently impaired so as to limit his her perform to capacity police duties. As a result of the first test, Cybex PFC concluded that Rusch was physically impaired.
We conclude that there is a rational basis support- ing the Commission’s conclusion that Rusch was "handicapped” within the of the Act. The conclusion answers the questions presented first two First, that, on this review: we hold in order to be considered a individual within the mean- ing not is necessary an individual an actually have if per- the employer ceives a handicap. such This prior confirms case law. Second, the back problem which the thought PFC revealed result of the test Cybex clearly within the ambit "handicap,” since substantial evidence in the record shows that the PFC treated the problems back as an impairment which would limit the applicant’s capacity to do work. evidence,”
"Substantial
for purposes
reviewing
decision,
administrative
is such relevant evidence
as a reasonable mind might accept
adequate
support a conclusion. Gilbert v. Medical Examining
Bd.,
168, 195,
(1984).
119 Wis. 2d
The final issue is whether handicap. against We on the basis nated against on the was discriminated that Rusch conclude clearly handicap record reveals that since the basis of solely employer to hire Rusch because of refused the perceived handicap. of the definition the This meets 111.32(5)(f), handicap in sec. set forth discrimination reasonably The could conclude that Stats. Commission against PFC Rusch its decision the discriminated place eligibility him the list. not argues City PFC can The of La Crosse legitimate justify its under the terms of the actions as 111.32(5)(f). argued statute, It is that it can show sec. handicap "reasonably is relat- that Rusch’s ability adequately to the undertake ed to individual’s responsibilities job-related of that individual’s the 111.32(5)(f), employment.” Section Stats.7 court, that, argues assuming PFC 7In its Brief to this "handicapped” is within the Rusch applicants Cybex rejecting "B” scores on the test standard with relationship safety obligations to the which bears a rational are upon police department. imposed PFC The states although this was not addressed the Court of issue handicapped. Appeals, it is held to be must be considered if Rusch Although neither Rusch nor the Commission addressed this briefs, up initial did take the issue issue their Commission reply in its brief. 809.62(6), that under the terms of Commission notes sec.
Stats., granted, petitioner petition "the if for review is cannot argue petition forth in the unless ordered raise or issues not set supreme argued by the court.” It is that: otherwise case, although properly its "In this the ... Commission restricted review, petition brief to the two issues contained in attempts argue PFC to raise and a third issue. That issue proved perceived handicap PFC whether Rusch’s decision, The PFC cites the Commission’s Finding of Fact Number which provides: At application "10. the time of his and consider- *23 employment ation for with the City of La Crosse Department, Complainant’s Police the condition of present back was not a to hazard his own or safety others, it, that of nor was to any reasonable a probability, future hazard to his safety own or that of others.” that, is in argued
It using "reasonable probabili- the ty,” Commission was applying the standard uti- lized in Bucyrus-Erie, which requires that an employer must establish to a reasonable probability be-
reasonably ability adequately job- related to his to undertake the responsibilities police related aof officer.” The Commission maintains the hiring issue of the properly is standard not before the court and if that Rusch is held handicapped, to be the be matter should court remanded the of appeals, County. in accordance with Brown petitions by We note that in the for review filed the Commis- (March 1986) 7, (March 24, 1986), sion and Rusch the issue of hiring ability perform the standard and Rusch’s the duties of a police surprising officer not It is raised. is not that the issues as petitions in stated the for review the centered on definition of handicap, appeals because the court of decided the case on the handicapped. significant issue Rusch question of whether was The warranting review this case was whether an actual required to be considered the within the Act.
However,
brought
227,
this case is
under ch.
the administra-
procedure
Appellate
tive
act.
court review in ch. 227 actions
requires
complete
agency
review of the
determination. The
Appeals
engage
Court of
did not
in an extended review because it
handicapped.
was decided Rusch was not
we
Since
decide that
handicapped,
proceed
contemp-
Rusch
we
with the review as
lated under ch.
Stats.
physical condition, the em-
individual’s
of an
cause
ployment
sought
position
be hazardous to
could
the
safety
the
or to other
health of
individual
the
or
workplace.
frequenters
employees
90 Wis. 2d
applying
argues
instead of
The PFC then
at 421.
apply
standard,
fiucyrus-Erie
should
Court
Boynton
Boynton
Under
enunciated in
Cab.
standard
hiring
standard
Cab,
must show that
obligations
relationship”
safety
to the
"rational
bore a
imposed upon
company
and that
standard was
lacking
arbitrary
of an
belief
not
the result
objective
"111.32 ... ... handicap against tion discrimination because employ to failure of an apply does not any person employe to retain as an who because handicap physically is or otherwise unable of a efficiently perform, by at the standards set the required job....” in that employer, the duties arguing general they that had a The PFC is rule rating Cybex "B” on that those who received a a test argue, they reasonably rule, would not be hired. This who, due to filtered out those individuals the Cybex results, condition revealed the test would pose safety a risk to the and health of themselves and police other officers. special argues police that
PFC since the have obligations safety imposed them, common do Boynton relationship carriers, the rational stan- Cab applied. argued hiring It is dard should be standard bears a rational relationship to the safety obligations imposed on the PFC. First,
We disagree. the relevant statute in this Boynton case is not Cab applied statute in Bucyrus-Erie. Second, we have concluded Rusch a handicap, had although he had no actual impairment. There is no evidence that show that could Rusch could not adequately job-related undertake responsibilities a police officer.
The correct in County, Brown standard was stated applied where this court the 1979-1980 version of the County, statute. As Brown in appeals court of here erroneously concluded complainant not handicapped. appeals The court of therefore did not question reach the whether set by standard in respect PFC to results on the Cybex machine is not discriminatory because is related to reasonably ability perform Rusch’s to "actually require- the job ments.” Brown County, 2d Wis. at 573.
We would remand this normally cause deter- mination of whether the PFC has met its burden However, proving that is unqualified.8 Rusch is there nothing the record to a absolutely support conclu- sion that Rusch perform could not a duties of officer. police
"Where the convincing, evidence clear and this Court, court, or the finding trial can of fact— supply missing from the agency *25 might decision —where it be County, correctly *26 my
"A. To the knowledge best of is true.” Under test any assessing hiring for standards pursuant to the there is insufficient proof in this record that the Cybex machine was a reliable indica- tor of the adequacy performance of the of the job- responsibilities related police a officer by job applicants. a de novo review of the
Since contemplates ch. 227 decision, Commission’s we consider the Commission’s order in providing, part, for back In pay.9 Rusch’s provided:
9 The Commission’s Order Respondent discriminating "1. That shall cease and from desist against Complainant handicap. basis of Respondent immediately place Complainant "2. That shall at list, top police patrolman eligibility shall direct hiring authority Complainant to offer immediate hire as City police patrolman, Complainant a of La Crosse and if accepts employment offer, days within ten of such shall immediately appointment. confirm his Complainant accepts position, Respondent "3. That if shall Complainant benefits, seniority, privi- afford and other leges employment entitled, to which he would have been discrimination, but for the unlawful from the date next following Respondent’s the date of October 1981 official monthly meeting, Complainant until the date is instated as police officer. Complainant payment "4. The be shall entitled to of all lost wages that he otherwise would been have entitled to as a police patrolman period October, commencing for the 1981, employment until he is instated or declines with Respondent. by Complainant during Amounts earned operate backpay interim shall to reduce the otherwise Additionally, Complainant eligible allowable. will not be for backpay period January 1, August for the 1982 to college when he was a full-time student. Amounts received unemployment payments benefits or welfare not shall backpay reduce the allowable but shall be withheld from court, brought circuit review petition original *27 of the Commission’s portion from that appealed he 1, 1982 to disallowing pay January back from order 6, 1982. August prohibiting the order back treat the issue of
We college a full-time period the Rusch was during pay See, Omer preserved for review. student as issue Resources, 234, 255, 100 2d Nat. Wis. Dept. nick v. of (1981). provisions the of We find 301 N.W.2d providing that Rusch be Commission’s order the and other seniority and receive employment offered range delegated the of discretion are within benefits law; find no abuse of discretion. to it we by However, the circuit court that agree we with findings of fact omit reference Commission’s to find attempting employ- or not attempting Rusch’s full-time student in order to enrolled as a ment while 111.36(3) Stats., sec. mitigate his Under damages. examiner immediately paid Unemployment Complainant and to the or, payment, to the Fund in the case of a welfare Reserve making agency payment.
welfare backpay Complainant determined in number 4 "5. That all to reflect an of this Order shall be further increased above (7) percent per the rate of seven accrual of interest at annum. expiration days Respondent shall within 30
"6. That herein, appeal may submit a time within which an be taken report detailing specific compliance taken to action report compliance comply with the Commission’s Order. DePrey, Labor directed to the attention of Kendra shall be Commission, 8126, Madison, Industry Box Review P.O. and Wisconsin, 53708.” "(c) shall findings make written and order by respondent such action as will effectuate the purpose subchapter, of this with or without back pay... earnings .Interim or amounts earnable with diligence person reasonable discriminated against subjected testing or to unfair honesty shall operate pay to reduce back otherwise allowable.” obliged weight” This court is to accord "due to the "experience, competence, specialized technical knowledge agency involved, well as the discretionary authority upon conferred it.” Section 227.20(10), Stats. Such deference does not allow this uphold court to an exercise of discretion which finds explanation support agency’s findings no *28 Accordingly, fact. we remand the cause to the Com- findings mission, court, as did the circuit for of fact on during pay college the issue back Rusch’s enroll- January August ment, 1, 1982 6, 1982. foregoing, basis On the of the we reverse the appeals. decision the court of By ap- the Court.—The decision of the court of peals is reversed and cause the is remanded to the Industry proceed- Labor and Review Commission ings opinion. with consistent this {concurring). ABRAHAMSON,
SHIRLEY S. J. I agree defining majority’s perceived with the a handi- cap 111.32(5)(f), 1983-84, under sec. Stats. as follows: handicapped In order to find an individual within the meaning Employment Act, of the Wisconsin Fair it is necessary not to find that the individual has an actual impairment. An is if individual the employer erroneously, believes, albeit the that individ- impairment perceives employer ual has an the and unusually that makes achievement
773 opinion Majority to work. capacity or limits difficult pages at 765.1 concludes, agree, and I apparently majority applicant that an has employer perceives if an perceives and problems him might give
back limit that would condition physical as a back work, at opinion majority capacity to do applicant's statutory within the falls 759-760, applicant then handicapped individual.2 of a definition handicap perceived I this definition believe line of Motors pre-American the court’s comports with the statute. See purpose of legislative and the cases 560, 574, 369 LIRC, 124 Wis. 2d N.W.2d Brown Co. v. (1985) (Abrahamson, J., concurring); American 706, 719, 350 LIRC, 119 2dWis. v. Corp. Motors (1984) (Abrahamson, J., dissenting). N.W.2d opinion stops just Unfortunately, majority reasoning language think its and where I short of v. overruling Corp. of American Motors to the lead: that, in for the Commission to find that 1"We conclude order meaning 'handicapped’ individual is within impair necessary that the individual had an actual not to find perceived that the It to find that ment. is sufficient uphold handicapped. the Commission’sconclu individual was We 'handicapped’ of the Act within the sion that Rusch because, impairment, although the PFC Rusch had no perceived impairment impaired, that he was pages qualify handicap." Majority opinion 744-745. would as a at *29 "Second, problem thought which the PFC the back clearly by Cybex the test is within the ambit revealed the result of 'handicap,’ in evidence the record shows since substantial impairment perceived problems the back as an the PFC treated Majority capacity applicant's to do work." which would limit the opinion page at 765. Arline, County, 107 S. Ct. Fla. v. 2 Cf.School Bd. Nassau (1987) 1123, n.4, 1128, (discussing federal 1127 and 1129 n.10. statute). 774 (1984). LIRC, 119 2dWis. 120 N.W.2d The today my opinion, can, test the court announces in explain neither result American Motors nor be reasoning reconciled with in that case. appeals Motors, I view American the court of in its opinion in Motors, this case views American and at argument oral City counsel Commission and the giving only Motors,
viewed American as certain (which actually characteristics the individual have) employer has or the handicap believes the individual to Motors, status. American 119 Wis. saying: at 713. 2d We all read American Motors as
AA. individual under the statute only impairment includes who an individual has an or employer impairment; who believes has an and (actual impairment B. The kind of or believed exist) handicap that can constitute a under the statute injury, lessening disability deterioration, is an (1) [the is "in addition to individual’s] normal significant limitations” is "a and deviation from the norm,” Motors, 713, 714, 716; American 119 Wis. at2d
(2) unusually makes achievement difficult or capacity limits to work isor making unusually limiting achievement difficult or capacity to work. opinion majority in this case never discusses (B)(1) i.e., the first element of above— physical condition which exists addition to normal significant limitations and which is a deviation from apparently thus norm —and has it eliminated majority apply from consideration. If the were to. case, American Motors this should reason as using language follows of American Motors: *30 "Although her stature this case his [in back] impose ability limitations on her may certain [his] possible job, it perform every injury, to is not an lessening impedes deterioration or that her [his] functioning. Nor is her stature normal [his back] from norm such a substantial deviation that unusually makes achievement difficult or limits Thus, capacity her to work. Basile had [his] [Rusch] [City] no limitation that AMC could have impairment, disability to be a or let impairment disability alone a or that made unusually achievement difficult or limited her [his] Here, capacity .... to work Basile does not [Rusch] disability impairment even have a or about which perception could have been made that disability impairment or made un- achievement usually difficult her capacity or limited [his] work. "_ near-sighted slightly person who [A] glasses rejected position wears and who is for a requiring 20/20 uncorrected vision could contend impairment that disability he or she has a or capacity limits the to work or that perceives having him or her as a disability or impairment capacity limits to work. However, although persons slightly or near- [short sighted persons], persons, like all have characteris- some limitations on their impose tics that ability particular jobs, do in neither case could one argue seriously person that the a disability has unusually that makes achievement difficult, capacity or that limits the to work.” Motors, American (Emphasis 716-18. Wis. 2d original.) in the record,
I proof find no this and the majority hold, does not either of future back possibility *31 rating3 any deficiencies or a Class B or other variation vague descriptions City used for Rusch’s perceived physical characteristics or condition is "in significant addition to his normal limitations” or is "a got rating deviation from the norm.” Rusch a B on the Cybex placed basis of the which test him in the percentile, among upper is, 50-75% half of persons taking those this test. LIRC made the follow- ing finding Cybex may of fact: "The Test show the strength of an individual’s flexor and extender mus- relationship possible potential cles, but bears no to a problems.” finding amply supported for back This is Thus, the record. under American Motors the Commis- reasonably sion could not conclude that the condition City disability described in this case is a City might perceive being which the handicap. Majority opinion at 744. majority opinion,
IAs read the
which now includes
majority's response
majority
concurrence,
to this
opinion
majority
reinterpreted
757-764,
at
allows a
survive,
American Motors limited to its facts.
rating
3 A class B
person
is defined as
qualified
any
work with the restriction that
there be a back
conditioning
program
undertaking
exercise
heavy
before
labor.
8 The Commission
notes
in
Brown
this
Appeals
court remanded a
to the
cause
Court
for determination
question involving
qualifications
aof
similar
an individual’s
for
County,
job. Brown