Differences in ADA & Wisconsin Fair Employment Act highlighted by recent cases.

• Date: 30 March 2005
• Author: Ziemer, David
• Published date: 30 March 2005
• Author: Ziemer, David

Byline: David Ziemer

"We are all either an employer or an employee."

Thus did Kirk D. Strang, Managing Partner of the Madison office of Davis & Kuelthau, s.c., sum up the universality of employment law issues. Strang spoke to the Dane County Bar Association on March 22, on developments under the Wisconsin Fair Employment Act in, and since, the Wisconsin Supreme Court decisions in Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis.2d 299, 664 N.W.2d 651, and Hutchinson Technology v. LIRC, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343.

In Crystal Lake, an employer was found liable under the WFEA when it failed to accommodative an employee confined to a wheelchair after an automobile accident. Although the employee was able to perform some functions of the job, others had to be performed by other members of her four-person crew, who were willing to do so.

In affirming the Labor and Industry Review Commission on this issue, the Supreme Court in Crystal Lake cemented a significant difference between state law under the WFEA and federal law under the Americans with Disabilities Act.

While the ADA specifically contemplates job restricting as an accommodation, elimination of "essential functions" - defined as "those that the individual who holds the job would have to perform, with or...