City of La Crosse Police & Fire Commission v. Labor & Industry Review Commission

SHIRLEY S. ABRAHAMSON, J.

{concurring). I agree with the majority’s defining a perceived handicap under sec. 111.32(5)(f), Stats. 1983-84, as follows: In order to find an individual handicapped within the meaning of the Wisconsin Fair Employment Act, it is not necessary to find that the individual has an actual impairment. An individual is handicapped if the employer believes, albeit erroneously, that the individual has an impairment and the employer perceives that the impairment makes achievement unusually *774difficult or limits the capacity to work. Majority opinion at pages 744, 765.1

The majority apparently concludes, and I agree, that if an employer perceives that an applicant has a back that might give him problems and perceives that back as a physical condition that would limit the applicant's capacity to do work, majority opinion at 759-760, then the applicant falls within the statutory definition of a handicapped individual.2

I believe this definition of perceived handicap comports with the court’s pre-American Motors line of cases and the legislative purpose of the statute. See Brown Co. v. LIRC, 124 Wis. 2d 560, 574, 369 N.W.2d 735 (1985) (Abrahamson, J., concurring); American Motors Corp. v. LIRC, 119 Wis. 2d 706, 719, 350 N.W.2d 120 (1984) (Abrahamson, J., dissenting).

Unfortunately, the majority opinion stops just short of where I think its language and reasoning lead: to the overruling of American Motors Corp. v. *775LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984). The test the court announces today can, in my opinion, neither explain the result in American Motors nor be reconciled with the reasoning in that case.

I view American Motors, the court of appeals in its opinion in this case views American Motors, and at oral argument counsel for the Commission and the City viewed American Motors, as giving only certain physical characteristics (which the individual actually has or the employer believes the individual to have) handicap status. American Motors, 119 Wis. 2d at 713. We all read American Motors as saying:

A. A handicapped individual under the statute includes only an individual who has an impairment or who the employer believes has an impairment; and

B. The kind of impairment (actual or believed to exist) that can constitute a handicap under the statute is an injury, deterioration, disability or lessening that

(1) is "in addition to [the individual’s] normal limitations” and is "a significant deviation from the norm,” American Motors, 119 Wis. 2d at 713, 714, 716; and

(2) makes achievement unusually difficult or limits capacity to work or is perceived by the employer as making achievement unusually difficult or limiting the capacity to work.

The majority opinion in this case never discusses the first element of impairment above — i.e., (B)(1) a physical condition which exists in addition to normal limitations and which is a significant deviation from the norm — and thus has apparently eliminated it from consideration. If the majority were to. apply American Motors to this case, it should reason as follows using the language of American Motors:

*776"Although her stature [in this case his back] may impose certain limitations on her [his] ability to perform every possible job, it is not an injury, deterioration or lessening that impedes her [his] normal functioning. Nor is her stature [his back] such a substantial deviation from the norm that it makes achievement unusually difficult or limits her [his] capacity to work. Thus, Basile [Rusch] had no physical limitation that AMC [City] could have perceived to be a disability or impairment, let alone a disability or impairment that made achievement unusually difficult or limited her [his] capacity to work .... Here, Basile [Rusch] does not even have a disability or impairment about which a perception could have been made that the disability or impairment made achievement unusually difficult or limited her [his] capacity to work.
"_ [A] slightly near-sighted person who wears glasses and who is rejected for a position requiring 20/20 uncorrected vision could contend that he or she has a disability or impairment that limits the capacity to work or that the employer perceives him or her as having a disability or impairment that limits the capacity to work. However, although [short persons or slightly nearsighted persons], like all persons, have characteristics that impose some limitations on their ability to do particular jobs, in neither case could one seriously argue that the person has a disability or impairment that makes achievement unusually difficult, or that limits the capacity to work.” American Motors, 119 Wis. 2d 716-18. (Emphasis in the original.)

I find no proof in this record, and the majority does not hold, that either the possibility of future back *777deficiencies or a Class B rating3 or any other variation of the vague descriptions the City used for Rusch’s perceived physical characteristics or condition is "in addition to his normal limitations” or is "a significant deviation from the norm.” Rusch got a B rating on the basis of the Cybex test which placed him in the 50-75% percentile, that is, among the upper half of those persons taking this test. LIRC made the following finding of fact: "The Cybex Test may show the strength of an individual’s flexor and extender muscles, but bears no relationship to a possible potential for back problems.” This finding is amply supported in the record. Thus, under American Motors the Commission could not reasonably conclude that the condition described by the City in this case is a disability or impairment which the City might perceive as being a handicap. Majority opinion at 744.

As I read the majority opinion, which now includes the majority's response to this concurrence, majority opinion at 757-764, the majority allows a reinterpreted American Motors to survive, limited to its facts.

"We conclude that, in order for the Commission to find that an individual is 'handicapped’ within the meaning of the Act, it is not necessary to find that the individual had an actual impairment. It is sufficient to find that the employer perceived that the individual was handicapped. We uphold the Commission’s conclusion that Rusch was 'handicapped’ within the meaning of the Act because, although Rusch had no physical impairment, the PFC perceived that he was impaired, and the perceived impairment would qualify as a handicap." Majority opinion at pages 744-745.

"Second, the back problem which the PFC thought was revealed by the result of the Cybex test is clearly within the ambit of 'handicap,’ since substantial evidence in the record shows that the PFC treated the perceived back problems as an impairment which would limit the applicant's capacity to do work." Majority opinion at page 765.

Cf. School Bd. of Nassau County, Fla. v. Arline, 107 S. Ct. 1123, 1127 n.4, 1128, and 1129 n.10. (1987) (discussing federal statute).

A class B rating is defined as meaning that the person is qualified for any work with the restriction that there be a back conditioning exercise program before undertaking heavy labor.