EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
351 west wilson street
St. Vincent De Paul Society
RECOMMENDED FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
Case No. 2551
A complaint in this matter was filed with the Madison Equal Opportunities Commission on January 11, 1980 alleging discrimination on the basis of age and handicap in employment. The case was investigated by Renee Caldwell and an Initial Determination of Probable Cause was issued on March 7, 1980.
Conciliation was waived or unsuccessful, and the case was certified to public hearing on May 4, 1980.
A hearing was held on September 12, 1980, and based on the record of the hearing, the following Recommended Findings of Fact, Conclusions of Law and Order are proposed:
RECOMMENDED FINDINGS OF FACT
RECOMMENDED CONCLUSIONS OF LAW
This case be and hereby is dismissed.
The scenario in this matter is as follows:
A 61-year old individual, Earl Wopat, who had worked for approximately 12 years as a trucker in the employ of the St. Vincent de Paul Society took a medical leave of absence on March 1, 1979. On March 15, 1979, St. Vincent de Paul hired a new store manager, one Dan Strizek. When Wopat returned to the store in late March on a Friday, he told Strizek, someone he had never seen before, that he was only able to lift light loads. The following Monday, Strizek told Wopat that a meeting had been held and it was decided that the store could no longer use him.
What is conspicuously lacking in this case is any medical evidence to show that Complainant was handicapped. No medical evidence was introduced to show that Complainant suffered from a medical ailment or that a doctor had advised him not to lift items that exceeded a certain weight.
Handicap was first defined by the Wisconsin Supreme Court as "a disadvantage that makes achievement unusually difficult; especially a physical disability that limits capacity to work." See Chicago, Milwaukee, St. Paul and Pacific Railroad v. DILHR (Goodwin), 62 Wis. 2d 392, 215 N.W. 2d 443 (1974).
The court further stated in St. Paul that "Although the Act (Wisconsin Fair Employment Act) does not define what legally constitutes a handicap, it does not mean that a person must be incapacitated from normal remunerative occupations or be an economic detriment to a normal employer and require rehabilitative training since it was the legislative policy to encourage employment of all properly qualified persons."
Later, in Connecticut General Life Insurance v. DILHR (Bachand), 86 Wis. 2d 393 (1979), the State Supreme court said that
In determining whether a condition is a handicap, weight is given to the fact that it is medically diagnosable . . .
Finally, in Dairy Equipment v. DILHR (Wolf), No. 77-504 (Wis. Sup. Ct., filed April 1, 1980), the high court affirmed Judge Sachtjen's Circuit Court analysis that
A handicap may be a condition which creates a perceived sensitivity in the mind of the employer to injury in the future . . .
An analysis of the three cited cases indicates that a handicap is a "disadvantage" such as a "physical disability"1 or a "condition," actual or perceived. While Mr. Wopat showed that he believed he was limited in his capacity to work in that he could not lift "heavy loads," he did not show that such inability was due to a "disadvantage" or a "condition." While medical evidence may not be absolutely necessary to establish that a "condition" is a handicap, Connecticut General teaches that great weight is given to the fact that it is medically diagnosable.
It can be imputed that once Wopat informed the employer of his inability to lift the "heavy loads," the employer could not turn away, but instead had a duty to inquire as to the nature of the inability to determine whether or not it was handicap related. However, in this instance, Wopat stated that he did not have any medical restrictions, so a Respondent's inquiry would have been fruitless.
It is the Examiner's belief that the handicap discrimination laws in the Madison General Ordinances were passed with similar intent to the state law as construed in St. Paul, Connecticut General, and Dairy Equipment, that intent being not to protect individuals because they have less skill or ability, but to protect individuals who suffer or are believed to suffer from a "disadvantage" or "condition," actual or perceived, that is ordinarily medically diagnosable.
Once that "disadvantage" or "condition" is established, along with the other elements of a prima facie case, only then does the burden shift to the Respondent to prove that individual could not adequately undertake the job-related duties. The fact than an individual returned from a short-term medical leave of absence and said he was unable to lift "heavy loads" did not establish per se that the individual was in fact handicapped or perceived to be handicapped.
Even had Mr. Wopat proven he was handicapped, this Examiner believes that findings adequately reflect that Mr. Wopat could not perform the required job duties of the position he sought to return to,2 and for this reason his age claim is rejected as well. Also, there were no other job openings in areas other than trucking which Mr. Wopat had previously performed for the employer, nor was there any showing that newly-hired younger employees performed any job duties in those other areas.
While the Examiner does not doubt that St. Vincent de Paul performs various commendable charitable functions in the community, the Examiner does not feel that St. Vincent de Paul's treatment of Mr. Wopat, though not discriminatory, was consistent with the Society's generally humanitarian orientation, and the rather sloppy employment practices of the Society should be given immediate attention to avoid future mistreatment of aged, long-term employees, whether discriminatory or merely unfair.
Signed and dated at Madison, Wisconsin this 7th day of October, 1980.
Allen T. Lawent
1Case law in the lower courts has consistently found mental disabilities to be handicaps as well.
2However, if Mr. Wopat were found to be handicapped, one would have to deal with the issue of reasonable accommodation. That does not have to be addressed here, however, because he has not been found to be handicapped, and reasonable accommodation is not an issue of age discrimination.