Brown County v. Labor & Industry Review Commission

*574SHIRLEY S. ABRAHAMSON, J.

(concurring). According to Dairy Equipment Co. v. ILHR Dept., 95 Wis. 2d 319, 290 N.W.2d 330 (1980), and the majority opinion in the present case, a man with one kidney instead of two and a man with a 96.7 percent diminution of visual acuity (correctable to 20/20 vision) have actual impairments1 which may serve as the basis of a “perceived” handicap. According to American Motors Corp. v. L.I.R.C., 119 Wis. 2d 706, 350 N.W.2d 120 (1984), a woman who is four-feet-ten-inches tall does not have an actual impairment or disability which can serve as the basis of a “perceived” handicap because her “stature [is not] such a substantial deviation from the norm that it makes achievement unusually difficult or limits her capacity to work.” Id. at 716. Yet women four-feet-ten and shorter comprise less than 2 percent of the female population between the ages of 18 and 74. U.S. Dept. of Health, Education and Welfare, Weight and Height of Adults 18-74 Years of Age, United States, 1971-74, 27 (DHEW Publication No. (PHS) 79-1659, May 1979).

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 *575have preferred that the court today withdraw the language of American Motors which appears to limit a perceived handicap to a situation in which there is present an actual impairment, that is, an injury, deterioration or lessening, or an actual disability, that is, a “substantial deviation from the norm that makes achievement unusually difficult or limits . . . capacity to work.” See American Motors, 119 Wis. 2d at 713-14, 716.3

*576Despite my departure from the majority's adherence to American Motors, I concur in the judgment. The policy underlying the Wisconsin Fair Employment Act is to discourage employers from establishing exclusionary categories resting on a person’s physical condition and unrelated to the requirements of the job or to the individual’s capacity to do the job. The message in the majority opinion on the legislature’s instruction that the Act be liberally construed is loud and clear, and the result in this case is appropriately consistent with, and supportive of, that policy.

Brown county argues that because the applicant’s uncorrected vision was correctable by glasses or contact lenses to “normal” vision, the test for determining an actual impairment under American Motors should be applied to the applicant’s corrected vision. Defective vision correctable to normal vision, like short stature, is not an actual impairment but is merely an individual’s normal limitation, argues Brown county. Society does not consider vision that is correctable by glasses or contact lenses to 20/20 to be an actual impairment or a handicap. Actual visual impairment is total blindness or corrected vision that is inadequate for ordinary activity for which sighted persons rely on their eyes.

The majority identifies three “essential elements of proof” for a handicap discrimination case arising under the Wisconsin *575Fair 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 sec. 111.32(5) (f), Stats. 1979-80, which allows an employer to refuse to hire a handicapped applicant if ‘such handicap is reasonably related to the individual’s ability adequately to undertake the job-related responsibilities of that individual’s employment. . . .’” Id. (Citations omitted.)

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.

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.