In a recent case (Wisconsin Bell, Inc. v. Labor and Industry Review Commission), the Wisconsin Court of Appeals has found that an employer disciplining an employee for misconduct caused by his disability was discrimination in violation of the Wisconsin Fair Employment Act (WFEA). Rather than terminating an employee, the Court found that there are circumstances under the WFEA where an employer may be required to excuse the employee’s misconduct that could be caused by a known disability as a reasonable accommodation.
This case involved employee at a call center who had a known disability (bipolar disorder). His primary job duties included answering phone calls and responded to incoming emails. After discovering that the employee had disconnected eight consecutive calls over a period of nine minutes without any explanation, the employee was suspended. During the disciplinary meeting to discuss the suspension, the employee provided the employer with letters from his psychiatrist and psychotherapist wherein it was disclosed that this employee suffered from a bipolar disorder.
Following his suspension, the employee started using a “health code,” which allows employees to go offline temporarily and stops incoming customer calls from going to that employee. During the activation of the health code, he sent the following message to his manager:
“TTYL. Thank you. Talk to you later and thanks for being there as one of my lesbian friends.”
When the operations manager responded, the employee replied, “[s]orry wrong window.”
Based on this email communication to his manager, the employer had reasonable suspicion that the employee had been chatting with coworkers while the health code was activated. This suspicion was later confirmed by the employer following a review of the employee’s online chats, which proved the employee had been misusing the “health code”.
The employer held another disciplinary meeting to discuss the online chat incident. At this meeting, the employee submitted more documentation from his psychiatrist and explained his actions were again related to his disability. Despite this explanation, the employee was terminated for ignoring customer calls.
As a result of the termination, the plaintiff filed a discrimination claim that suggested he was discharged because of his disability.
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 and these are as follows:
- The court 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
- The court found that expert testimony may be required to establish the link when it is beyond the expertise of laypersons.
Takeaways for Employers
Although federal precedent under the ADA, generally upholds that employers can terminate employees for misconduct even if the misconduct is caused by a disability this case suggests otherwise. Employers in Wisconsin should give strong consideration to the Wisconsin Court of Appeals’ interpretation of the Wisconsin Fair Employment Act, which may require employers to reasonably accommodate or even excuse misconduct that can be caused by disability.