¶ 84. (dissenting). The majority opinion does not reasonably accommodate the interests and rights of Wisconsin employers.
¶ 85. By ruling in favor of Susan Catlin, the Labor and Industry Review Commission (LIRC) incorrectly interpreted the Wisconsin Fair Employment Act's (WFEA) ban on employment discrimination on the basis of disability. LIRC held that the WFEA requires an employer to "accommodate" an applicant or employee that cannot perform all the applicant or employee's necessary job responsibilities, even with reasonable accommodations. I strongly disagree with this interpretation of the WFEA and with the burden it imposes on employers.
¶ 86. Today, a majority of this court affirms this statutory misinterpretation — made in the first instance by an administrative agency — and adopts this erroneous approach as the law of this state. In the process, the court has taken from Wisconsin employers the ability to define the required job duties of their employees. This is a result altogether unintended by the WFEA.
¶ 87. I disagree with the majority in three primary respects.
¶ 88. First, LIRC and its companion agency, the Wisconsin Personnel Commission, have not consistently ruled that removing necessary elements of an employee's job can be considered a reasonable accommodation under Wis. Stat. § 111.34(l)(b) that is consistent with § 111.34(2)(a). Therefore, I would grant only due weight deference to LIRC's interpretation of how § 111.34 governs adverse employment actions taken against an employee or applicant that cannot perform all the necessary functions of the job for which she applies or for which she is already hired.
*243¶ 89. Second, LIRC's interpretation of § 111.34 in this case is manifestly less reasonable than a readily understandable alternative meaning. Section 111.34(2)(a), even when read in conjunction with § 111.34(l)(b), cannot be read to require that an applicant or employee need only be able to perform "some" or "most" of the basic responsibilities of the job that he or she fills in order to compel an employer to hire or retain that person. Rather, the reasonable accommodations contemplated by § 111.34 are those that assist the disabled employee's ability to perform a preexisting job. "The job" is defined by the basic duties that are incumbent upon the employment.
¶ 90. Finally, it was impermissible for LIRC to find unlawful discrimination on the basis of factual conclusions that were inconsistent with those reached by the administrative law judge (ALJ) without having first conferred with the ALJ. LIRC's factual findings regarding the nature of the job responsibilities that the complainant could or could not perform after her accident were based predominantly on testimony from the complainant herself and others. To declare that these findings are not based on credibility assessments is astounding.
¶ 91. For these reasons, I respectfully dissent.
I. RESTATEMENT OF THE FACTS
¶ 92. As an initial matter, I must highlight the central factual matter at issue in this case: what responsibilities of Catlin's job could she perform after an injury confined her to a wheelchair, and what duties could she not perform, even with reasonable accommodations?
¶ 93. Catlin's job was lead worker/supervisor of Crystal Lake Cheese Factory's wholesale department. *244As the supervisor of this four-person department, Catlin's job required her to perform a variety of duties.
¶ 94. The majority has adopted LIRC's findings as to Catlin's ability to perform adequately "most" of her job duties following her accident. LIRC concluded that, as of the date she sought reinstatement, Catlin could (1) train employees; (2) make boxes; (3) make labels; (4) bake cheese; (5) label cheese (if she used a "reacher" to get at the labels); (6) weigh cheese; (7) price cheese; (8) box cheese; (9) put the cheese on pallets; (10) do inventory and other paperwork; and (11) clean up and wash equipment. Catlin's testimony during the hearings before the ALJ supports LIRC's findings that Catlin could, as a purely quantitative matter, perform these tasks.
¶ 95. There also is a nontrivial number of duties that LIRC found — and which Catlin has admitted— that she could not perform. Catlin could not perform "some" of the heavier physical tasks, including (1) lifting 40-pound blocks of cheese; (2) loading and unloading cheese onto hand carts and semi trucks; (3) reaching boxes stacked high in the storeroom; (4) reaching cheese stacked high in the cooler; (5) cutting cheese; and (6) placing the cheese in the hot-water bath to shrink-wrap it. LIRC proclaimed that the last two duties were not ones that Catlin performed "very frequently," as they were primarily the jobs of the cheese cutter and "cryovacer." Conspicuously absent from either of LIRC's lists is the vacuum-bagging role of the cryovacer, which involves the operation of a cryovac machine. In addition, prior to her accident Catlin had assisted in moving cheese by use of a handcart and *245loading it on a pickup truck to go to the retail store.1 After her accident, Catlin was unable to perform either of these two functions as well.
¶ 96. In all, there is no disagreement between the parties or their respective experts that Catlin was physically unable to perform a fair number of her job duties, even with reasonable accommodations.
¶ 97. In determining whether Catlin could undertake her job responsibilities adequately, it appears that LIRC took mostly a quantitative approach. LIRC simply counted the number of duties Catlin could perform, added to this number those duties that she could perform with accommodation, and then compared this total to the number of jobs that she could not perform. Accordingly, it determined that Catlin could perform "most" of her job functions. This analytical technique is suspect, because it fails to account for the amount of time that Catlin spent daily on each of the jobs and the relative importance of each of the tasks that she was required to perform. Rather than engaging in such an analysis of assigning weight to Catlin's job requirements, LIRC slapped the ambiguous modifier "most" on the number of duties that she could still do and concluded that the duties she could not do anymore were those that she had performed "not very frequently."
¶ 98. There is mostly ambiguous testimony regarding how often and for what length of time Catlin engaged in any of her duties. As a result, it is difficult to determine how the performance of each of these tasks relates to Catlin's ability to adequately perform the *246functions that are necessary to her position.2 However, we do know the amount of time that she spent on one of her tasks; we know that she only spent about one to one-and-a-half hours at the beginning of her day handling her general paperwork and administrative duties. According to the "modifications" recommendation of Catlin's expert, however, these "paperwork" duties would have constituted the majority of Catlin's job upon her "accommodation."3
¶ 99. In any event, Catlin and several other witnesses testified that one of the primary responsibilities of the four employees in this department was to undertake the jobs of the other three employees in the event *247of a temporary absence or if another employee were falling behind and needed help. For example, Catlin testified that she often "jumped in" to take 40-pound blocks of cheese to and from the cooler and that some days she would do this "a couple of times a day." This task required her not only to lift the blocks but also to reach to the higher shelves in the cooler. Naturally, the ability of these four employees to work together and to work smoothly by filling in when needed was essential to the efficiency of the department's production process. In all, Catlin assisted with all the duties of the wholesale department on a daily basis and many of these duties she could no longer perform after her accident.
¶ 100. Nevertheless, LIRC concluded that Catlin could be assigned to performing all but the "heaviest physical tasks" in a department where such tasks are commonplace and where all employees, including Cat-lin, were required to perform each other's duties on a daily basis. Of course, LIRC's conclusion is based on a different view of the facts than that of the ALJ who first heard this case. Of particular concern is the difference between how the ALJ and LIRC characterized the frequency by which Catlin assisted other members of the department, including help with the "heavy physical tasks." The ALJ concluded in his findings of fact that each employee in the department "regularly had to assist each other to keep work flowing smoothly and cover for each other when temporary absences occurred." Meanwhile, LIRC concluded that the duties which Catlin could not perform were tasks that she did not do "very frequently" and were those that she "helped out only occasionally." Well, which is it?
*248II. LEVEL OF DEFERENCE
¶ 101. The majority begins its analysis by incorrectly finding that LIRC's legal conclusions in this case are entitled to extremely deferential treatment under the "great weight" standard of review. As this court has previously stated:
Great weight deference is appropriate once a court has concluded that: (1) the agency was charged by the legislature with the duty of administering the statute; (2) that the interpretation of the agency is one of long-standing; (3) that the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) that the agency's interpretation will provide uniformity and consistency in the application of the statute.
Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995); see also UFE v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996); Linsey v. LIRC, 171 Wis. 2d 499, 505, 493 N.W.2d 14 (1992). LIRC has failed to meet the second and fourth prongs of the test. Thus, I would conclude that great weight deference is an inappropriate standard of review.
¶ 102. Though LIRC has experience in interpreting Wis. Stat. § 111.34, LIRC's interpretation of the statute on matters related to this issue is not one of "long standing." Therefore, LIRC does not satisfy the second prong of the test. I believe that "[t]his is precisely the situation that warrants due weight deference: LIRC has had some experience interpreting [Wis. Stat. § 111.34], yet has not faced the particular circumstances we have here." Brauneis v. LIRC, 2000 WI 69, ¶ 19, 236 Wis. 2d 27, 612 N.W.2d 635.
¶ 103. Indeed, LIRC has yet to address the specific issue of whether "reasonable accommodation" un*249der the WFEA includes a duty to eliminate multiple, basic job duties of an employee and to create a wholly different, previously nonexistent job for a disabled employee. LIRC incorrectly cites Fields v. Cardinal TG Co., ERD Case No. 1997-02574 (LIRC Feb. 16, 2001), as conclusive support for the proposition that LIRC has held a reasonable accommodation to require an employer to restructure the physical demands of the job in order to accommodate a disabled employee. Even putting aside that Fields was decided well after the eviden-tiary hearing in this case, that case actually held that an employer may not restructure the job of a disabled employee such that the employee is no longer able to perform it because of a disability.
¶ 104. Outside of Fields, LIRC cites no legal authority or precedent from its own opinions to directly support its prior history of following the rule it presently advances. Thus, while LIRC may have addressed cases that are similar to this question, this is the first occurrence under these particular circumstances. Therefore, great weight deference should not be afforded to LIRC's interpretation. See Local No. 695 v. LIRC, 154 Wis. 2d 75, 81, 452 N.W.2d 368 (1990).
¶ 105. To the extent LIRC has addressed issues related to modifying jobs as a means of accommodating an employee's disability, it has a spotty history of providing uniformity and consistency in applying § 111.34. In McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988), LIRC was given no deference in its interpretation of § 111.34 due to its inconsistent statements regarding whether a reasonable accommodation could ever include an employee's transfer to another position. Id. at 274. LIRC had stated in its own decision in the matter that transferring a disabled employee to another position may be considered a *250reasonable accommodation. Id. When facing the court of appeals, however, LIRC reversed its position and argued that an employer's duty to accommodate could never include a transfer. Id. Not only did LIRC contradict itself within the framework of a single case, it did so on a topic similar to the issue in this case.
¶ 106. Indeed, McMullen is not the only case illustrating LIRC's limitations when interpreting §111.34 on issues related to the present case. In Macara v. Consumer Co-op, ERD Case No. 8802872 (LIRC Feb. 14, 1992), LIRC held that the duty to accommodate does not require creating a position or discharging another employee to allow for a transfer of a disabled employee. Meanwhile, in 1988, the Wisconsin Personnel Commission, LIRC's sister agency, had analyzed § 111.34(2)(a) in light of § 111.34(l)(b) and ruled that the WFEA does not require an employer to create a new job or reassign job duties to other staff as a reasonable accommodation. Harris v. DHSS, Case No. 84-0109-PC-ER (Wis. Personnel Comm'n Feb. 11, 1988). Rather, "the employer's obligation is limited to the job-related responsibilities of the handicapped individual's employment vis-á-vis the particular job he or she occupies or for which he or she is applying." Id. at 14-15. In both of these decisions, the foregoing conclusions were not particular to the facts of the case but were offered as general legal principles.
¶ 107. If nothing else, this history indicates inconsistency in agency interpretations of Wis. Stat. § 111.34 on this matter. "[S]pecial deference to be afforded an agency is the result of a course of uniform interpretation over a period of time." Local No. 695, 154 Wis. 2d at 84. Given the preceding history, there has hardly been uniform application of § 111.34 by LIRC and the Wis*251consin Personnel Commission. Therefore, due weight should clearly be afforded in this case.
¶ 108. Under the due weight standard, "a court need not defer to an agency's interpretation which, while reasonable, is not the interpretation which the court considers best and most reasonable." Harnischfeger, 196 Wis. 2d at 660 n.4; see also Brauneis, 236 Wis. 2d 27, ¶ 20 ("Pursuant to due weight deference, an agency's statutory interpretation is accorded some weight, but is not conclusive."). This court is not bound by LIRC's statutory interpretation. See Brauneis, 236 Wis. 2d 27, ¶ 15. "The fact that the agency's interpretation is reasonable does not mean that its interpretation will necessarily be upheld. If a court finds an alternative interpretation more reasonable, it need not adopt the agency's interpretation." UFE, 201 Wis. 2d at 287. Therefore, if this court finds, by means of its own independent analysis, an alternative interpretation that is more reasonable, then it need not adopt the agency's interpretation.
¶ 109. By adopting an incorrect level of deference regarding LIRC's legal conclusion, this court has abdicated its role to define the law established under Chapter 111 and has passively allowed the establishment of a wholly less reasonable interpretation of the law. At a minimum, given the inconsistency of the administrative agencies addressing similar issues, and the lack of LIRC decisions addressing this precise issue, this court should have engaged in an independent review of what § 111.34 demands on this question.
III. PROPER APPLICATION OF WIS. STAT. § 111.34
¶ 110. The WFEA prohibits employment discrimination on the basis of disability. See Wis. Stat. §§ 111.321, 111.34. Accordingly, it is unlawful employ*252ment discrimination to "refus [e] to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer [] . . . Wis. Stat. § 111.34(b).
¶ 111. However, the legislature has provided affirmative defenses to a WFEA claim of employment discrimination based on disability. In the present case, we need only look at § 111.34(2)(a), which states:
Notwithstanding s. 111.322 [the prohibition against employment discrimination], it is not employment discrimination because of disability to refuse to hire, employ... to bar or terminate from employment . . . any individual... if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment....
Wis. Stat. § 111.34(2)(a) (emphasis added).
¶ 112. The majority quite accurately describes the relationship between §§ 111.34(l)(b) and 111.34(2)(a), stating: "Taken together, [the provisions] require an employer to prove that even with reasonable accommodations, the employee would not be able to perform his or her job responsibilities, or that, where reasonable accommodations would enable the employee to do the job, hardship would be placed on the employer." Majority op., ¶ 32 (citing Target Stores v. LIRC, 217 Wis. 2d 1, 17, 576 N.W.2d 545 (Ct. App. 1998)) (emphasis added). Unfortunately, the majority fails to apply the foregoing standard and, in the process, adopts LIRC's improper application of § 111.34. LIRC's approach rewrites the statute to generate a nonexistent requirement that employers retain or hire someone who is unable to perform the responsibilities of any existing job, even with reasonable physical accommodations.
*253¶ 113. Crystal Lake has met the requirements of § 111.34(l)(b) and § 111.34(2)(a), even under the formulation articulated by the majority. First, Catlin is unable to perform all her existing job responsibilities, much less perform them all adequately as required by § 111.34(2)(a). Second, Catlin is unable "to do the job" that she has been performing. Instead, she is only able to perform a new and more limited job — one that is substantively different from her prior position.
¶ 114. As discussed earlier, Catlin is now unable to do significant, daily elements of her job. In particular, she is now frequently unable to "step in" and assist other members of the department to keep production going smoothly. It is unreasonable to interpret § 111.34 to require Crystal Lake to retain an employee who, by virtue of her disability, is unable to perform these necessary elements of her job and to create a job devoid of these duties, when no such job previously existed.4
¶ 115. LIRC itself has argued as much, and in a situation much more favorable to an employee's protections under § 111.34. In LIRC's brief before the court of appeals in McMullen, a case that is discussed above, LIRC argued that "the duty to accommodate an employee's handicap under the WFEA. . . does not *254require an employer to transfer the employe to a different job." Brief of LIRC at 24, McMullen v. LIRC, 148 Wis. 2d 270.
¶ 116. To be sure, some job responsibilities may not be necessary, in that they do not fundamentally alter the job being performed. Nevertheless, as a general matter, the reasonable accommodations required under § 111.34(l)(b) must go to aiding the employee or applicant in performing the job responsibilities for which they are, or will be, hired. There will be times when an employer will have to endure additional costs to reasonably accommodate an individual so that the employee can perform all of his or her job duties. Because of the additional cost of employing this individual over someone who would not require accommodation, the employer would likely prefer, as a economic matter, not to hire the disabled person. The WFEA, however, has made this type of discrimination unlawful. It is this protection that is wisely provided by the WFEA.
¶ 117. What the WFEA does not make unlawful is an employer's decision not to hire or retain an employee who, because of his or her disability, cannot perform the necessary duties of the job, even with all reasonable accommodations.
¶ 118. The questionable reasoning of LIRC's interpretation is seen in the circularity of the majority's holding, in which it states, "we hold that requiring Crystal Lake to modify the job duties of Susan Gatlin and make physical accommodations to the workplace, was not unreasonable. With such reasonable accommodations, she would have the ability to undertake, adequately, her job-related responsibilities." Majority op., ¶ 3. Assuming that "job duties" and "job responsibilities" are synonymous, how can Catlin undertake her *255job-related responsibilities, "adequately" or otherwise, if she does not need to perform those responsibilities? LIRC and the majority use "modify" as a euphemism so as to require Crystal Lake to eliminate multiple, basic duties of the job for which Catlin was hired. Even worse, the majority endorses the nebulous notion that an employee or applicant need only perform "some" or "most" of his or her job duties.5
¶ 119. Catlin and LIRC also misconstrue the well-expressed legislative intent of the WFEA. The WFEA does not mandate the full employment of people with disabilities per se. It encourages the full employment of properly qualified persons with disabilities. Wis. Stat. § 111.31(3). Catlin and LIRC consistently argue for— and the majority apparently grants them — an interpretation of § 111.34 that effectuates a purpose in the WFEA whereby Crystal Lake is required to give Catlin some job — any job — even one that does not fit within the structure of the business enterprise. This outcome is not what the WFEA intends for persons who are unable to perform a job. By virtue of her injuries, Catlin was not properly qualified to perform the job for which she was hired; nor could she have been reassigned to another job that was open for which she was qualified.
¶ 120. Catlin does not argue that reasonable physical accommodations would adequately and reasonably compensate for her disability and thereby allow her to perform the necessary functions of her job. Therefore, even if the court finds that the physical accommodations demanded by Catlin and LIRC are not *256unreasonable and do not impose a hardship,6 § 111.34 (2) (a) still requires that the employee be able to actually do the necessary functions of the job with those accommodations. Again, it is conceded that Catlin is unable to do many of the necessary duties of her job that she had performed daily.
¶ 121. The inescapable effect of LIRC's ruling is that Crystal Lake must either (1) have nobody perform the duties that Catlin used to do, and thereby decrease productivity; (2) hire a new employee to do these duties and incur unnecessary costs7; or (3) have other existing employees undertake the duties that Catlin can no longer perform, thereby taking these employees away from the duties they would otherwise be performing. Each of these options necessarily imposes hardship on an employer in a manner that § 111.34(2)(a) expressly states need not occur.
¶ 122. Businesses must worry about profit, which is achieved through efficiency. Crystal Lake assigned specific job duties to the individuals in Catlin's department, presumably to increase efficiency. Indeed, all the members of the department were cross-trained in all the other jobs in order to be more efficient and diverse in their roles in the production process. Take away one of the components in this process, and an intimate, *257finely tuned, production process loses the level of productivity set by the employer for this four-person unit.
¶ 123. As the majority admits, all four workers in Crystal Lake's wholesale department were cross-trained in all four positions, "and all were capable of assisting one another when an employee fell behind, or when the department was busier than usual." Majority op., ¶ 8.8 This "assistance" is a requirement of each person's job, not a matter of mere "capability." By virtue of Catlin's disability, which confines her to a wheelchair, she is now frequently incapable of assisting other employees in the department as needed. How, then, can she perform these necessary elements of her job?
¶ 124. Remarkably, LIRC and the majority twist the significance of this cross-training to make much out of the not-so-surprising testimony that Catlin's mother and sister would "help" with the job duties that Catlin could not do.9 Majority op., ¶¶ 70, 78. This discussion is irrelevant and inappropriate. Section 111.34(2)(a) addresses the ability of the employee or applicant at issue to "adequately undertake the job-related responsibilities of that individual's employment." In addition, it *258ignores the fact that such "accommodation" necessarily diverts Catlin's mother and sister from their own duties.
¶ 125. Finally, there has been much ado about nothing related to Crystal Lake's method of determining if Catlin could have been accommodated. It is not necessary in this case that Crystal Lake, when it assessed whether Catlin could be reasonably accommodated to perform her job, talk with Catlin or inform the professional evaluator anything more about her disability than that she was confined to a wheelchair. In some instances, such as this case, there are certain realities in what a person confined to a wheelchair is physically unable to do, even with all reasonable physical accommodation.
¶ 126. It is telling that the majority offers no authority to directly support the reasonableness of LIRC's interpretation of § 111.34. Contrary to what the majority asserts, the cases it cites do not hold "that a reasonable accommodation [is] not limited to only an accommodation that would permit the employee to perform all of his or her job responsibilities." Majority op., ¶ 47.
¶ 127. Target Stores, 217 Wis. 2d 1, involved a temporary and treatable disability. The court of appeals held in favor of the complainant, even though the accommodation would not allow the complainant to perform all her job duties immediately. Id. at 14. However, the complainant's disability (sleep apnea) was a temporary one that was treatable. After a short treatment period, the employee would have likely been able to perform all her job duties. Id. at 7. It is unlikely that Catlin's rehabilitation will ever allow her to per*259form all her job duties, in either the short-term or long-term future. Target Stores is clearly distinguishable.
¶ 128. In McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988), the complainant was seeking a transfer to an open position for which he was qualified. The court held that a reasonable accommodation may include a transfer to an open position for which the employee is qualified, though, depending upon the facts of each individual case, such transfer may also be considered a hardship. Id. at 271. The majority's assertion that Catlin's required accommodation is similar to what occurred in McMullen and "was essentially a change or modification in the employee's job-related responsibilities," majority op., ¶ 49, is inaccurate. In McMullen there was a transfer to a different, vacant position that the company needed to fill anyway. Catlin is not requesting a transfer to an existing, open position for which she is qualified: She is asking for her old job back, with certain daily job responsibilities eliminated because she can no longer adequately perform them, even with accommodation. This is a critical distinction from McMullen.
¶ 129. Finally, in Frito Lay, Inc. v. LIRC, 95 Wis. 2d 395 (Ct. App. 1980), the issue of accommodation was not one in which any new job was created; rather the complainant was once again reassigned to a position that he was qualified to fill — namely, driving intrastate trucking routes rather than driving interstate routes, which his disability prevented him from doing.
¶ 130. In all, unlike Target Stores, McMullen, and Frito Lay, the position that LIRC and the majority opinion claim that Catlin should "fill" did not exist at the time of her injuries, did not exist when Crystal Lake *260was assessing whether Catlin could be adequately accommodated to do her job, and exists now only by fiat of LIRC.
¶ 131. In all, LIRC's interpretation of § 111.34, as adopted by the majority, is highly questionable and imposes an unreasonable burden on Wisconsin businesses. Section 111.34 cannot be read to require that an applicant or employee only be able to perform "some" or "most" of the necessary responsibilities of the job. See majority op., ¶ 63. Rather, a reasonable accommodation under § 111.34(l)(b), when read together with § 111.34(2)(a), is one that permits an employee to perform adequately all of his or her necessary job duties or, in some instances, to perform all the necessary job duties of another existing job. Under the facts of this case, Crystal Lake has fully met its burden under § 111.34 (2) (a) of demonstrating that Catlin's disability is reasonably related to her ability to adequately undertake the job responsibilities of her employment.
IV DUE PROCESS & SUBSTANTIAL EVIDENCE
¶ 132. The majority opinion concludes by rejecting Crystal Lake's contention that LIRC improperly reached its decision by failing to confer with the ALJ regarding evidence submitted before the ALJ. The majority states that LIRC's findings did not "hinge on issues of witness credibility," and therefore LIRC was not required to consult with the ALJ. Majority op. ¶¶ 4, 54.
¶ 133. The majority errs, however, in suggesting that the only element of credibility at issue was that of Crystal Lake's operations manager, Phillip Robertson, regarding the cost of constructing a wheelchair-accessible bathroom. This is incomplete. The credibility *261assessments required for LIRC to reach its conclusions involved other matters. Of primary importance are the conflicting findings regarding the frequency by which Catlin had performed the job responsibilities that she could not perform after her accident. LIRC's factual findings regarding which job responsibilities the complainant could or could not perform after her accident, even with physical accommodation, were based almost completely on testimony from the complainant. See majority op., ¶ 63 ("Catlin felt that she would be able to perform most tasks that were part of her job with little or no accommodation."). From this, LIRC concludes that Catlin could perform "most" of her duties. See majority op., ¶ 63.
¶ 134. The problem is that this ultimately disposi-tive factual finding, which is of questionable reliability and is based on credibility assessments, is then applied to LIRC's new and incorrect interpretation of § 111.34. It is telling that even the majority seems tentative on this conclusion, stating "Crystal Lake could have accommodated Catlin's disability [ ] by modifying her responsibilities. This is an accommodation, we hold, that appears to be reasonable under the circumstances and within the purview of the WFEA." Majority op., ¶ 78 (emphasis added).
¶ 135. Even if LIRC's interpretation of § 111.34 were correct, the ALJ based his assessment not solely upon an adoption of Crystal Lake's theory of law, but also on his findings that the job duties that Catlin could not now perform were ones she used to do "regularly." Therefore, LIRC needed to consult with the ALJ to determine the basis upon which it reached a different *262factual conclusion on this matter.10 See Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617, 583 N.W.2d 662 (Ct. App. 1998); Hoell v. LIRC, 186 Wis. 2d 603, 614, 522 N.W.2d 234 (Ct. App. 1994). Again, even under LIRC's interpretation of § 111.34, this factual determination was critical. Furthermore, Catlin, LIRC, and the majority have each relied on testimony from Catlin's mother and sister, who happen to be two of the three other employees in the wholesale department, who claimed that they could "pick up the slack" and cover Catlin's job duties as needed. Majority op., ¶ 29. The credibility of these statements is also at issue.
*263¶ 136. These findings, it seems to me, are undoubtedly based on credibility assessments. Therefore, I disagree that it was permissible for LIRC to reach factual conclusions without having conferred with the administrative law judge, whom LIRC ultimately reversed. At a minimum, this case should be remanded so that LIRC can be required to consult with the ALJ and to determine why. LIRC and its administrative law counterpart reached two different assessments regarding the nature of the duties Catlin could and could not do and to determine if the ALJ's conclusion was based on more than merely an adoption of a different rule of law.
¶ 137. I am authorized to state that JUSTICES JON E WILCOX and DIANE S. SYKES join this dissent.This pickup truck loading process apparently took place primarily, though not exclusively, at Christmas time.
One duty that LIRC "found" Catlin able to do was "train." Catlin testified that there was a man who was not cross-trained when she began in the wholesale department. Because Catlin was the lead worker, it is assumed that she took on the cross-training of this individual. This is the only instance in which Catlin indicated that she may have previously engaged in training, and even this is an assumption. Yet "training" is one of LIRC's findings of what Catlin could do after her injury. To be sure, it was also found that Catlin could no longer aid in loading and unloading trucks. There is some testimony that she only needed to do this occasionally, especially around December. It would seem that these two, relatively minor functions would cancel each other out.
According to Jeffrey Annis, the rehabilitation technologist who conducted an assessment of Catlin's job site and job capabilities for Catlin:
As far as I can see, the only opportunity [Catlin] would have had to return to that position is if there would have been numerous accommodations put in place. The easier option would be to make modifications to her job description so she would be required, as lead person, to only do the paper work, final packaging, and filling out invoices, receipts, and packing lists.
(Emphasis added.)
Would this court have reached the same decision if Crystal Lake declined to hire someone for the wholesale department's lead position because that applicant suffered from Catlin's disability and was unable to do the same elements of the job that Catlin was unable to perform? The WFEA applies equally to applicants as it does to current employees. Wis. Stat. § 111.32(1). After today's decision, a Wisconsin employer must be prepared to post job openings in which it may ultimately be required to hire someone who, even with accommodations, will not be able to perform the duties attributed to that position.
This answer is inconsistent with the majority's formulation of the primary issue in this case, which it describes as: "whether, with reasonable accommodations Catlin must then be able to perform all of the job-related responsibilities adequately." Majority op., ¶ 44.
I do not concede that Crystal Lake has failed to establish hardship based on the physical accommodations required of the facility to handle Catlin's needs.
LIRC stated in its Memorandum Opinion that Crystal Lake failed to establish that it would have needed to hire additional help if Catlin was permitted not to perform all her duties. However, before the ALJ, Phillip Robertson, Crystal Lake's operations manager, directly testified that the company would have been required to hire additional help in this situation.
We would add to these circumstances assisting each other at times when an employee was absent, either due to illness or to other demands of the job.
In fact, the majority states that Catlin argued that "[t]he other department members did not object even if [performing Catlin's heavy physical tasks] meant they would get disproportionate share of those duties." This appears to be an overstatement, as only two of the three other members (Catlin's mother and sister) testified that they would agree to do so. In addition, this testimony, besides being inherently biased, is speculative, because by the time of the hearing in this case, Crystal Lake had apparently eliminated the wholesale department at which these employees worked.
As but one example of Catlin's testimony that undermines LIRC's "not very frequently" finding is the following:
[ATTORNEY GROISS]: Now you indicated ... that the cutting of the cheese was a cutter's responsibility, and you say you didn't— you rarely had to cut the cheese, but you took it upon yourself to do that; is that correct?
[CATLIN]: Yes.
[GROISS]: And when you're talking about this — this—this cutting of the cheese, when you say ''rarely,11 you would be cutting cheese several times during the course of the week, would you not, as a normal course of your job function?
[CATLIN]: Not several, no.
[GROISS]: What, once a week? You have no answer?
[CATLIN]: It's a hard question to answer.
[GROISS]: And that's because you're always doing these various functions; is that correct?
[CATLIN]: If we get busy, yeah.
[GROISS]: You're always being asked to fill in this instance and do these various jobs; is that correct?
[CATLIN]: Yeah.