¶ 75. 0dissenting). This case has been litigated for years, at great expense to all parties, because it presents a vital question for Wisconsin employers. The question is whether an employer may apply a facially neutral no-fault attendance policy to terminate an employee, without risk of employment discrimination liability, when some of the employee's absences are caused by disability but most are not. More specifically, does an employer discriminate "because of' disability within the Wisconsin Fair Employment Act when the employer terminates an employee under these circumstances? Does an employer refuse to reasonably accommodate an employee's disability within the meaning of Wis. Stat. § 111.34(1) when the employer promises to disregard disability related absences if an employee submits appropriate family/medical leave certification forms but the employee fails to do so?
¶ 76. The majority avoids answering these important questions — directly—and thus abdicates its role as the state's ultimate policy making court. But it does pick a winner.
¶ 77. To rule in favor of Douglas Geen (Geen), however, without answering any tough questions, the majority is forced to make a disputed factual determination that Stoughton Trailers (Stoughton) violated its own no-fault attendance policy and then to infuse discriminatory intent into Stoughton's unremarkable decision to terminate Geen. The result of all this is to permit an employee to miss work, claim that a key absence was based on disability, and escape any conse*555quence even though he has never produced a single piece of medical documentation supporting the reason for the critical absence.
¶ 78. Because the court's handling of this decision is a classic example of adding insult to injury, I respectfully dissent.
¶ 79. This case involves a claim under the Wisconsin Fair Employment Act (WFEA). The WFEA prohibits an employer from terminating an employee "because of' "disability." Wis. Stat. §§ 111.321 and 111.322(1). Employment discrimination "because of' disability includes refusing to "reasonably accommodate" an employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise, or business. Wis. Stat. § 111.34(l)(b).
¶ 80. As the Wisconsin Manufacturers and Commerce (WMC) points out in its amicus brief, the present case raises WFEA issues in a context not previously addressed by this court — absenteeism. WMC notes, "Employee absenteeism directly affects the economic viability and competitiveness of Wisconsin employers. . . . According to the 2005 CCH Unscheduled Absence Survey . .. , the average yearly cost of absenteeism in the United States in 2005 was $660 per employee in paid, unproductive time, which amounted to a financial cost of over $1 million per year for some larger employers." See 2005 CCH Unscheduled Absence Survey. In addition, WMC explained that many Wisconsin employers utilize no-fault attendance policies, citing a survey that reported that in the production, maintenance, and service areas, 60 percent of employers with *556more than 500 unionized employees, and 46.8 percent of employers with more than 500 non-unionized employees, utilized no-fault attendance policies. See 2005/2006 Wisconsin & Northern Illinois Policies & Benefits Survey.
¶ 81. This case presents an opportunity to resolve several legal questions regarding absenteeism and employers' ability to use no-fault attendance policies under the WFEA. Wisconsin employers expect and need guidance on these questions. Instead, the majority leaves the questions for another day.
¶ 82. By leaving these questions for another day, the majority does not disturb the decisions of the Labor and Industry Review Commission (LIRC) and the court of appeals. It does not reverse their decisions or withdraw language from them. It simply moves on. By deciding this case on a narrower ground, the majority has insidiously retained LIRC's decision and the court of appeals' decision as precedent for those future cases that must be decided on grounds broader than the artificially narrow ground used in this case. When a future case arrives, the court of appeals will have no choice but to apply its precedent. See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997) (stating that "the court of appeals may not overrule, modify or withdraw language from a previously established decision of the court of appeals").1
¶ 83. Thus, employers should be wary of applying their facially neutral no-fault attendance policies to *557treat all absences alike regardless of the reason for the absence. Ironically, treating all employees alike does not protect employers from liability under the WFEA. Rather, equal treatment of employees leads to a finding of discriminatory intent by employers in adverse employment decisions.
¶ 84. With each new case, Wisconsin seems determined to vindicate the commentator who wrote:
For years, the employment law purportedly aimed at requiring employers to treat workers neutrally and impartially on their merits, all alike; even affirmative action was shaped in accord with this sort of officially declared goal. But now discrimination is quietly being redefined as the failure to treat each employee differently. Nondiscrimination really requires the most subtle and pervasive discrimination, or so the theory goes; treat all employees alike, and you've broken the law.
Walter Olson, The Excuse Factory 118 (1997).
¶ 85. The majority defends its decision-making process by invoking the principle that this court "typically decide[s] cases on the narrowest possible grounds." See majority op., ¶ 40 (quoting Barland v. Eau Claire County, 216 Wis. 2d 560, 566 n.2, 575 N.W.2d 671 (1998)). However, the majority then makes its own factual determinations to craft a narrower ground upon which to decide the case. The majority finds that Stoughton violated its no-fault attendance policy when it failed to provide Geen with 15 days to submit medical documentation before it assessed an occurrence against him. Majority op., ¶ 5. Then it finds that, because Stoughton violated its no-fault attendance policy, it *558intentionally discriminated against Geen when it terminated him. See majority op., ¶ 49.
¶ 86. This court is not a fact-finding or error correcting court, see Cook, 208 Wis. 2d at 188-89; Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980); nevertheless, in this case, the majority determines facts sua sponte. Because this case now turns on specific facts, I am compelled to comment on them.
HH HH I — I
¶ 87. LIRC made the following findings of fact in its second decision in this case. Geen v. Stoughton Trailers, Inc., ERD Case No. 199700618 (LIRC, Sept. 12, 2003). As of Geen's return to work on January 8, 1997, Geen had accumulated a balance of 5.5 occurrences. Four-and-a-half of those occurrences were not disability related; the other occurrence was disability related. Geen was assessed one occurrence for a disability-related absence (migraines) from December 12,1996, to January 7,1997, because he never returned the Department of Labor certification form required to establish that his absence could qualify for FMLA leave. Stoughton, however, did qualify Geen's absence as a medical leave and therefore assessed him only one occurrence for the entire period.
¶ 88. On Thursday, January 23, 1997, Geen took an excused vacation day. On Friday, January 24, 1997, the day after his vacation day, Geen called Stoughton before the start of his shift to report that he could not work because he had a migraine headache. Geen also called Stoughton on Monday, January 27, 1997, to report that he could not work because of headaches. On the following day, January 28, 2007, Geen called Stoughton to report that he was seeing a physician that *559day. Geen returned to work on January 29, 1997, and met with Tammy Droessler (Droessler) in the human resources office. She handed Geen a standard letter emphasizing the need to provide Stoughton with medical documentation within 15 days of the letter. The next day, January 30,1997, Geen saw another physician who gave Geen a note stating that Geen was being evaluated for migraines. Geen gave the note to Droessler on the same day, but Droessler told Geen that he needed a physician's note stating that he could return to work without restrictions. Geen obtained a note from his physician the following day, indicating that he was released for work without restrictions and that he had been unable to work on January 27 and 28. The note did not indicate that he had been unable to work on January 24, 1997. After Geen gave Droessler this note on January 31, 1997, Droessler told Geen that he was being discharged because his medical documentation did not excuse him for Friday, January 24, 1997. This unexcused absence caused Geen to accrue an occurrence for that date, putting him at 6.5 occurrences.
¶ 89. At the time he was discharged, Geen stated that his doctor needed additional time to evaluate him before he could bring in more medical documentation. Droessler told Geen about his option to appeal to Stoughton's Attendance Review Board (ARB). She told Geen that he had three days from that date (January 31) to write a letter to the company's ARB in order to try to reverse the assessment of the occurrence. She told him he could submit medical documentation to the ARB.
¶ 90. On Wednesday, February 5, 1997, the ARB received Geen's appeal in which he stated that he had been having trouble with migraine headaches, was on medicine for depression, had been seen by several *560doctors, and was having his primary physician evaluate his headaches. Geen did not submit any medical documentation to the ARB with his letter of appeal. On February 7, 1997, Geen had a follow up exam with his primary physician. Geen did not submit any documentation to the ARB about his February 7 visit with his primary physician, nor did he ask his primary physician at that time to complete the form necessary to establish that his absences qualified for FMLA leave. Geen did not submit any such information to the ARB or anyone else at Stoughton, at any time thereafter.
¶ 91. On February 21, 1997 (more than 15 days after Droessler informed Geen of the need to submit medical documentation), the ARB rejected Geen's appeal. The ARB rejected Geen's appeal because Stough-ton had mistakenly believed that Geen had been absent without notice or excuse on January 23, 1997, the day that Geen took for vacation.
¶ 92. In his findings of fact, the Administrative Law Judge quoted from the ARB's memo to Geen, "The Attendance Review Board reviewed your inquiry regarding the occurrence you received for your absences beginning on January 23, 1997. On January 23, 1997, you didn't call in or bring in medical documentation excusing you on that day. Your absence on Thursday puts you at 6[.5] occurrences."
IV
¶ 93. Based on these facts, the majority finds that Stoughton violated its no-fault attendance policy by not giving Geen 15 days to submit medical documentation before it assessed an occurrence against him. From that finding, the majority leaps to the determination— although not explicitly stating so — that, because-*561Stoughton violated its no-fault attendance policy, Stoughton intentionally discriminated against Geen when it terminated him. See majority op., ¶ 48 (stating, "Because Stoughton did not terminate Geen by proper application of its no-fault attendance policy, its argument for precluding the application of the in-part test must fail.").2 Both of these determinations are without merit.
¶ 94. First, LIRC never found and the facts do not show that Stoughton violated its no-fault attendance policy. Droessler's note to Geen indicated that he had 15 days to submit medical documentation in order to continue on medical leave. When Geen submitted such medical documentation on January 31 — justifying his absences on January 27 and 28 — he failed to justify his absence on January 24. From that point on, Stoughton was not required to believe that Geen's absence on January 24 was disability related. Unlike some disabilities, migraine headaches are not visibly evident. In addition, migraine headaches are not always permanent —they come and go. Without medical documentation justifying his absence on January 24 (the day after a vacation day), Stoughton could have believed that it was assessing an occurrence against Geen for a non-disability related unexcused absence. When an employee is absent for a non-disability related reason, Stoughton's policy does not require waiting 15 days before it assesses an occurrence against an employee. Perhaps Stoughton was simply following its policy of assessing one occurrence for a non-disability related, unexcused absence.3
*562¶ 95. Second, although Droessler's note informed Geen that he had 15 days to submit medical documentation, it did not pinpoint when Stoughton ultimately assesses occurrences against employees. Droessler testified that on many occasions Stoughton would assess an occurrence against an employee, but once the employee turned in the proper medical form, Stoughton would remove the occurrence from the employee's record.
¶ 96. Third, the majority treats January 31 as the official discharge date without acknowledging that Geen's discharge on January 31, 1997, was reversible upon Geen's submittal of the proper FMLA form. Stoughton's discharge of Geen became final on February 21,1997, more than 15 days after Stoughton advised Geen to submit medical documentation. The majority does not acknowledge that, if Geen had turned in the FMLA form during his appeal to the ARB, both the FMLA and Stoughton's attendance policy would have required Stoughton to reverse the occurrence against Geen. By refusing to acknowledge that Geen's discharge on January 31, 1997, was not final but was contingent upon Geen's submittal of FMLA documentation, the *563majority implies, without providing any justification, that Stoughton did not comply with the FMLA.
¶ 97. More disturbing than the majority's factual determination that Stoughton violated its no-fault attendance policy is the majority's determination that, because Stoughton violated its no-fault attendance policy, it intentionally discriminated against Geen when it terminated him. See majority op., ¶ 49. Once again, the majority makes a factual determination — this time in direct contradiction of some of LIRC's previous findings.
¶ 98. In its first decision, LIRC explicitly stated that this case did not "involve[] bad intent and invidious discrimination because of hostility towards [Geen] because of his disability." Geen v. Stoughton Trailers, Inc., ERD Case No. 199700618 (LIRC, Aug. 31, 2000). LIRC noted that the Administrative Law Judge "did not make any findings of fact consistent with [Geen's] theory of invidious discrimination." Id. LIRC added that it did "not believe that there is substantial evidence supporting a conclusion that Stoughton was motivated by bias against Geen because of his disability." Id.
¶ 99. Notably, there has never been a factual finding of discriminatory intent on the part of Stoughton— until the majority said so. Although LIRC eventually reversed its prior decision, it never commented on or invalidated its conclusion that Stoughton lacked discriminatory intent. On appeal, Geen did not argue that Stoughton had discriminatory intent. Rather, Geen argued, and the court of appeals found, that the Hoell4 in-part (mixed motive) test did not require a finding of discriminatory intent. See Stoughton Trailers, Inc. v. LIRC, 2006 WI App 157, ¶ 33, 295 Wis. 2d 750, 721 N.W.2d 102.
*564¶ 100. This court was supposed to clarify whether the in-part test requires discriminatory intent5 and to determine whether the in-part test would be appropriate in cases where an employer utilizes its no-fault attendance policy to terminate an employee when some of the employee's absences are disability related and others are not. The majority chooses not to address this issue, thus leaving as precedent the court of appeals' decision that discriminatory intent is not required under the in-part test and that the in-part test is appropriate to apply in cases involving termination under a no-fault attendance policy.
¶ 101. By avoiding this issue and simply infusing discriminatory intent into Stoughton's termination decision, the majority is able to avoid Geen's argument that this case is really a disparate impact case.6 At oral argument, while continuing with his position that discriminatory intent is not required under the in-part test, Geen argued that this case was a disparate impact case.7 Geen is correct that under a disparate impact *565theory, discriminatory intent is not required. See Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 595, 476 N.W.2d 707 (Ct. App. 1991). However, the in-part test does not apply to disparate impact claims. Id. at 597. Furthermore, although a plaintiff need not prove discriminatory intent under a disparate impact claim, the plaintiff must provide "statistics showing, or allowing a reliable deduction," of an adverse disparate impact on a protected group. See Racine Unified Sch. Dist., 164 Wis. 2d at 598; Kaczmarek v. City of Stevens Point, ERD Case No. 200200370 (LIRC, Aug. 12. 2003). Geen did not provide such statistics; therefore, he had the burden of proving discriminatory intent. Up until the majority said so, Geen had not met this burden.
¶ 102. The majority is in no position to make this factual determination, especially when reasonable inferences favor a finding that Stoughton lacked discriminatory intent. First, LIRC found no bad intent or invidious discrimination on the part of Stoughton. Second, Stoughton terminated Geen without ever being provided one piece of medical documentation justifying Geen's absence on January 24. Stoughton could have thought it was terminating Geen because of an unexcused, non-disability related absence. Third, the ARB rejected Geen's appeal not because of any alleged disability related absence but because of its mistaken belief that Geen had taken an unexcused absence, rather than an excused vacation day, on January 23. These facts support a reasonable inference that Stoughton did not intentionally discriminate against Geen when it terminated him.
*566V
¶ 103. After making these factual determinations and holding that Stoughton terminated Geen because of disability, the majority determines that Stoughton did not reasonably accommodate Geen. The majority reaches two contradictory conclusions. First, the majority concludes that Stoughton did not reasonably accommodate Geen because it failed to give him sufficient time to submit documentation to avoid being assessed an occurrence. Majority op., ¶ 59. The majority continues, however, and concludes that Stoughton did not reasonably accommodate Geen because it failed to extend "clemency and forbearance" by temporarily suspending its attendance requirements for Geen. Majority op., ¶ 64. Thus, under the majority's second conclusion, even if the majority had found that Stoughton had given Geen 15 days to submit the medical documentation before it terminated him, Stoughton would still have failed to reasonably accommodate Geen. The majority therefore requires an employer to suspend its attendance requirements even if an employee fails to submit medical documentation confirming that his absence was disability related.
¶ 104. The majority's first conclusion — that Stoughton did not reasonably accommodate Geen because it failed to give him 15 days to submit medical documentation — is without merit. Geen had opportunities to turn in the FMLA form while the ARB was considering his appeal.8 Even after Geen visited his *567primary physician during the appeal to the ARB, Geen neither asked the physician to fill out the FMLA form nor asked the physician for medical documentation concerning his January 24 absence. To this day, Stough-ton has never received any medical documentation justifying his absence on Friday, January 24 (the day after his vacation day). Stoughton gave Geen ample opportunity to have his occurrence reversed, but Geen did not take advantage of it. Thus, Stoughton should not be penalized for its employee's failure to provide FMLA documentation.
¶ 105. The majority's second conclusion — that Stoughton did not reasonably accommodate Geen because it failed to exercise "clemency and forbearance" — is also without merit. The majority's conclusion conflicts with the settled principle that where "an employer offers an accommodation which effectively eliminates the conflict between the [disabled] employee's abilities and the job requirements, and which reasonably preserves the affected employee's employment status, the accommodation requirement is satisfied." Norton v. City of Kenosha, ERD Case No. 9052433 (LIRC, May 21, 1993); Owen v. Am. Packaging Co., ERD Case No. 8920686 (LIRC, Aug. 31, 1990). In this case, Stoughton offered an accommodation to eliminate any conflict by giving Geen the opportunity to submit FMLA documentation to avoid an *568occurrence under the no-fault attendance policy. In essence, Stoughton would have exercised clemency and forbearance by not assessing Geen a disability related occurrence if Geen had only provided it with proper FMLA documentation. The majority concludes, however, that Stoughton should have exercised clemency and forbearance without the employee ever having to provide the employer with any medical documentation justifying his absence. Employers must now take employees at their word regarding disability related absences. That is unreasonable accommodation.
VI
¶ 106. In finding that Stoughton terminated Geen because of disability and failed to reasonably accommodate him, the majority affirms LIRC's conclusion that all of the following remedies are appropriate: a cease and desist order, reinstatement, attorney's fees, back pay and interest. Majority op., ¶ 70. As a result, Stoughton must pay Geen the sum he would have earned as an employee from the date of his discharge until Geen resumes employment with Stoughton or would resume employment with Stoughton but for Geen's refusal of a valid offer of a substantially equivalent position. The amount payable to Geen is also increased by interest at the rate of 12 percent simple. Geen was terminated in early 1997, over 10 years ago. At that time, he was making $9.52 an hour. This is a breathtaking penalty.
¶ 107. The majority upholds LIRC's award after finding discriminatory intent and thus crafting a way to apply HoelVs in-part test. What is astonishing is that the majority awards Geen the maximum remedies allowed under the WFEA for cases of pure invidious discrimination.
*569VII
¶ 108. Because the majority avoids deciding the real issue presented in this case and does so by crafting a narrower ground upon which to decide the case, I respectfully dissent.
¶ 109. I am authorized to state that Justice JON E WILCOX joins this dissent.
The court of appeals' decision and LIRC's second decision are cited in Rose Ann Wasserman, Wisconsin Employment Law §§ 14.58, 14.63 (2004 & Supp. 2007); Rose Ann Wasserman, A Guide to Wisconsin Employment Discrimination Law § 3.31 (Supp. 2007); 30 Mental & Physical Disability Law Reporter 678, 800 (Sept./Oct. 2006).
Stoughton argued that the in-part test did not apply in this case because the in-part test requires a finding of discriminatory intent.
In its findings of fact, LIRC trivializes Geen's failure to turn in medical documentation justifying his absence on Janu*562ary 24. Instead of acknowledging that Geen's failure to turn in medical documentation for January 24 justified the assessment of an occurrence under Stoughton's no-fault attendance policy, LIRC simply surmises that, even if Geen had turned in medical documentation for January 24, Stoughton would still have assessed an occurrence against Geen for the period of January 24, 27, and 28. That finding is purely speculative. If Geen had turned in proper medical documentation for January 24 justifying his absence as disability related, perhaps Stoughton would have continued to wait for Geen to submit the FMLA form and perhaps Stoughton would have considered combining this later period of absence with his previous period of absence from December 1996 to early January 1997.
Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994).
See State Dep't of Employment Relations v. WERC, 122 Wis. 2d 132, 142, 361 N.W.2d 660 (1985) (stating, "A violation of SERLA is not established by merely proving the presence of protected concerted activity. The employee must show that the employer was motivated, at least in part, by anti-union hostility."); Hoell, 186 Wis. 2d at 614 (stating, "The question of an employer's motivation presents a question of ultimate fact."); Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 597, 476 N.W.2d 707 (Ct. App. 1991) (stating that the in-part test does not apply to disparate impact claims, where a finding of discriminatory intent is not required).
"Wisconsin law recognizes two theories of employment discrimination — the disparate impact theory and the disparate treatment theory." Racine Unified Sch. Dist., 164 Wis. 2d at 594.
Geen's argument is insightful because the facts of this case do more logically apply to a disparate impact theory. "The *565disparate impact theory is invoked to attack facially neutral policies which, although applied evenly, impact more heavily on a protected group." Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 595, 476 N.W.2d 707 (Ct. App. 1991). A no-fault attendance policy is a facially neutral policy.
The majority mischaracterizes LIRC's finding when it states that "Droessler informed Geen that he had three days to submit adequate documentation to excuse the absence." Majority op., ¶ 61. Rather, LIRC stated that "Droessler told [Geen] that he had three working days from that date (January 31) to *567write a letter to the company's Attendance Review Board in order to try to reverse the assessment of the occurrence. She told him he could submit medical documentation to the Board.” (Emphasis added.)
LIRC never found that Droessler told Geen that he had only three days to submit medical documentation. In fact, the parties disputed whether Droessler told Geen at that time that he could turn in the FMLA form within 15 days to remove the occurrence and make the "whole thing go[] away."