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Wisconsin Court Holds Discharging Employee Because of Misconduct Caused by Disability Can Be Discrimination

The Wisconsin Court of Appeals has affirmed a decision holding that a call center employee with bipolar disorder proved that he was discharged “because of” his disability by establishing he was discharged for misconduct—i.e., avoiding calls—that was caused by his disability. In light of this case, Wisconsin employers dealing with employee misconduct that could be caused by a known disability may want to proceed with caution because, in some cases, the Wisconsin Fair Employment Act may require them to excuse the misconduct as a reasonable accommodation. Wisconsin Bell, Inc. v. Labor and Industry Review Commission, No. 2016AP355 (March 28, 2017).

Factual Background

The plaintiff worked at a call center answering phone calls and responding to electronic messages. He was suspended after he disconnected eight consecutive calls over a period of nine minutes without explanation. At a meeting to review the suspension, he presented letters from his psychiatrist and psychotherapist describing his bipolar disorder and its symptoms, such as “extreme moods” that can come on quickly and may be triggered by a “relatively minor frustration.”

After his return to work after the suspension, the plaintiff activated a “health code,” which employees could use to go temporarily offline and to stop receiving incoming customer calls. While the health code was active, he sent an inadvertent email to his manager that said “TTYL.  Thank you.  Talk to you later and thanks for being there as one of my lesbian friends.” When the operations manager responded, he replied “[s]orry wrong window.”

Based on the inadvertent email to his manager, the employer suspected that he had been chatting with coworkers during the health code, which was confirmed. Based on the tone and content of these online chats, the employer concluded that the plaintiff had inappropriately activated the health code. 

At an internal review meeting regarding this incident, the plaintiff submitted another letter from his psychiatrist, noting that his medication had been increased recently. He also explained that he had put himself into the health code after he learned that he had failed a test, which caused him to be upset. The plaintiff said he had been chatting online with other employees for support, as had been suggested by his therapist. The employer nevertheless terminated his employment for avoiding customer calls.

The plaintiff filed a discrimination complaint alleging that he was discharged because of his disability. The Labor and Industry Review Commission held that the employer had discharged the plaintiff because of his disability based on evidence that established that the misconduct was caused by his disability and the employer was aware of his disability and its effects. 

The Wisconsin Court of Appeals’ Decision

The Wisconsin Court of Appeals held that under the “inference method,” if an employee is discharged because of conduct that was a direct result of his or her disability, the discharge is, “in legal effect, because of that disability.” The court did, however, add two important qualifications to the inference method. First, it noted that for the inference method to apply, the employee must provide evidence that the employer knew of the link between the employee’s disability and the conduct that resulted in the adverse employment action. Second, it found that expert testimony may be required to establish the link when it is beyond the expertise of laypersons.

Key Takeaways

As the employer pointed out to no avail, the court’s decision is inconsistent with federal precedent under the Americans with Disabilities Act, which generally holds that employers can discharge employees for misconduct even if the misconduct is caused by a disability. Unless the Wisconsin Supreme Court reviews and reverses this holding, employers in Wisconsin may want to take into account the Wisconsin Court of Appeals’ interpretation of the Wisconsin Fair Employment Act, which may require employers to reasonably accommodate (i.e., excuse) misconduct when the misconduct is caused by a disability.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VII, Number 105

About this Author

Mark Johnson, Labor, Employment Attorney, Ogletree Deakins Law Firm
Of Counsel

Mark A. Johnson has a wide range of experience representing businesses in matters involving labor and employment law. Mark has represented employers in hundreds of cases in federal and state courts and before federal and state administrative agencies in Wisconsin and throughout the country. His practice also includes advising employers on how to avoid litigation. Mark is a frequent speaker on topics related to litigation and labor and employment law.

Mark has extensive experience defending employers against claims of employment discrimination and retaliation under federal and state...

Brian Radoff, Employment Litigator, Ogletree Deakins Law Firm

Brian has been practicing labor and employment law since 2000.  His practice focuses on employment litigation arising under Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act, Fair Labor Standards Act, Family Medical Leave Act, and the Wisconsin Fair Employment Act; labor arbitrations; non-compete agreements, and general labor and employment law matters all from a management perspective.

Brian represents companies before state and federal courts in Wisconsin as well as administrative agencies such as the Equal Employment Opportunity Commission, the...