American Motors Corp. v. Labor and Industry Review Com'n

• Decision Date: 28 June 1984
• Docket Number: No. 82-389,82-389
• Citation: 119 Wis.2d 706,350 N.W.2d 120
• Parties: , 47 Fair Empl.Prac.Cas. (BNA) 1325, 36 Empl. Prac. Dec. P 34,936, 1 A.D. Cases 611 AMERICAN MOTORS CORPORATION, Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 120

350 N.W.2d 120

119 Wis.2d 706, 47 Fair Empl.Prac.Cas. (BNA) 1325,

36 Empl. Prac. Dec. P 34,936, 1 A.D. Cases 611

AMERICAN MOTORS CORPORATION, Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent-Petitioner.

No. 82-389.

Supreme Court of Wisconsin.

Argued April 23, 1984.

Decided June 28, 1984.

Maureen McGlynn, Asst. Atty. Gen., argued, for respondent-petitioner; Bronson C. La Follette, Atty. Gen., on briefs.

Mary Pat Ninneman, argued, Milwaukee, for petitioner-appellant; L.C. Hammond, Jr. and Quarles & Brady, Milwaukee, on brief.

WILLIAM A. BABLITCH, Justice.

The Labor and Industry Review Commission (LIRC) seeks review of a decision holding that Sharon Basile, who is four feet, ten inches tall, and who American Motors Corporation (AMC) did not hire for a particular job because of her small stature, is not handicapped under the Wisconsin Fair Employment Act (Act). The issue for review is whether Basile is handicapped within the meaning of the Act because of her small stature.

Because Basile's stature is not a disability or impairment that makes achievement unusually difficult or that limits her capacity to work, and because AMC did not perceive her as having such a disability or impairment, we hold that she is not handicapped under the Act. We affirm the decision of the court of appeals.

In 1972, Sharon Basile applied for employment with AMC as an unskilled hourly production worker. At that time, Basile was four feet, ten inches tall, weighed 105 pounds and was in good health. Under a union contract then in effect at AMC, all unskilled workers were required to complete a probationary period during which they could be assigned on a daily basis to any entry level job in the plant. Several entry level jobs required considerable reaching and lifting substantial weights.

Basile subsequently was interviewed by James Madden, who was AMC's supervisor of employee services at that time. Based on Basile's application and interview, Madden recommended that she have a physical examination with Dr. Seidl, medical director of AMC's plants. On July 7, 1972, Dr. Seidl gave Basile the routine physical examination that had been given to all AMC employees. The examination lasted approximately ten minutes and included urine, blood and hearing tests. Dr. Seidl also asked Basile to touch her toes, lift her arms above her head and stretch her arms to the side. Through this procedure, Dr. Seidl attempted to determine Basile's reach. Dr. Seidl subsequently recommended that Basile not be hired. He later testified that he did not recommend Basile for employment because he believed she was too small to perform the jobs that were available.

AMC did not hire Basile. Basile later testified that in October, 1972, Madden informed her that she was too small and would not be hired. Raymond Paul, AMC's manager of employee benefits and services, testified that the decision not to hire Basile was based both on the medical evaluation made by Dr. Seidl, and on past experience with regard to individuals between five feet and five feet, six inches tall who had transferred into the production department where Basile would have worked had she been hired.

On October 19, 1972, Basile filed a complaint against AMC with the Department of Industry, Labor and Human Relations (DILHR). Although Basile originally alleged that AMC had discriminated against her on the basis of sex, she amended her complaint in 1975 to allege that AMC also had discriminated against her on the basis of handicap, in violation of the Fair Employment Act.

On December 29, 1980, after numerous hearings and proceedings before DILHR, a hearing examiner for DILHR concluded that Basile was handicapped within the meaning of the Act, but that AMC had not unlawfully discriminated against her. LIRC reversed, holding that Basile was handicapped under the Act, and that AMC had failed to demonstrate that her handicap was reasonably related to her ability to adequately perform the required job duties.

AMC appealed LIRC's order to the circuit court, which affirmed the order. AMC subsequently appealed to the court of appeals. In a published decision, cited below, ¹ the court of appeals reversed, holding that Basile was not handicapped within the meaning of the Act. LIRC filed a petition for review with this court, which was granted.

In a handicap discrimination case arising under the Fair Employment Act, a complainant alleging such discrimination has the burden of proving that he or she is handicapped within the meaning of the Act, and that an employer's discrimination was on the basis of handicap. See Boynton Cab Co. v. ILHR Department, 96 Wis.2d 396, 406, 291 N.W.2d 850 (1980); Chicago, M., St. P. & P.R.R. Co. v. ILHR Dept., 62 Wis.2d 392, 396, 215 N.W.2d 443 (1974). If the complainant meets that burden of proof, the burden shifts to the employer to prove that the complainant is "... physically or otherwise unable to efficiently perform, at the standards set by the employer, the duties required in that job." Section 111.32(5)(f), Stats.1973. ² See Chicago, 62 Wis.2d at 398, 215 N.W.2d 443.

The issue in this case centers on whether Basile met her threshold burden of proving that she is handicapped within the meaning of the Act. Whether Basile's stature constitutes a handicap under the Act is a conclusion of law. Chicago, 62 Wis.2d at 396, 215 N.W.2d 443. Under sec. 227.20(5), Stats., a reviewing court must set aside or modify an agency action if the agency has erroneously interpreted a provision of law, or it may remand to the agency for further action under a correct interpretation of the provision of law. Thus, under that subsection, questions of law are always reviewable by this court. Dairy Equipment Co. v. ILHR Department, 95 Wis.2d 319, 326, 290 N.W.2d 330 (1980). Although this court is not bound by an agency's conclusion of law, we hesitate to substitute our judgment for that of the agency on a question of law if the agency's conclusion has a rational basis. 95 Wis.2d at 327.

LIRC argues that Basile is handicapped within the meaning of the Act because AMC perceived her physical stature to be a handicap that would prevent her from efficiently performing the duties of the job for which she applied. AMC contends, however, that Basile has no physical or mental disability or impairment, and that she is not handicapped under the Act merely because she was rejected for a particular job with AMC due to her stature.

The provisions of the Fair Employment Act in effect at the time Basile filed her amended complaint with DILHR in which she alleged discrimination on the basis of handicap did not define "handicap" or "handicapped individual." ³ In Chicago, this court accorded the word "handicap" its meaning in common usage, and defined it as " 'a disadvantage that makes achievement unusually difficult; esp.: a physical disability that limits the capacity to work.' " 62 Wis.2d at 398, 215 N.W.2d 443, quoting Webster's New International Dictionary 1027 (3d ed.1961). In applying this definition to the facts in Chicago, this court concluded that "... handicap ... must be defined as including such diseases as asthma which make achievement unusually difficult." 62 Wis.2d at 398, 215 N.W.2d 443. This court therefore held that an employee who had a history of asthma was handicapped within the meaning of the Act.

In Dairy Equipment Co. v. ILHR Department, 95 Wis.2d 319, 290 N.W.2d 330 (1980), this court elaborated on the definition of "handicap" under the Act. In that case, an employee was terminated because he had only one kidney. Although his employer conceded that the employee had the present ability to perform the required job duties and had satisfactorily performed those duties, the employer nevertheless believed that continued employment presented too great a risk of future injury to his remaining kidney. The employee subsequently commenced a handicap discrimination action against the employer.

The employer argued that the employee was not handicapped under the Act because his having only one kidney did not make "achievement unusually difficult." 95 Wis.2d at 329, 290 N.W.2d 330. Although this court acknowledged that the employee was not actually limited in his capacity to work, and that achievement was not unusually difficult, we nevertheless concluded that he was handicapped because the employer perceived the employee's physical condition (one kidney) as a handicap that limited his capacity to work. 95 Wis.2d at 331, 290 N.W.2d 330. The decisions in Chicago and Dairy Equipment therefore indicate that in order to be considered handicapped within the meaning of the Act, a person must actually have a physical or mental disability that makes achievement unusually difficult or limits the capacity to work, or the person must be perceived as having such a disability. ⁴

One definition of "disability" is an "... inability to pursue an occupation because of physical or mental impairment." Webster's New Collegiate Dictionary 324 (1977). "Impairment" is defined as "the act of impairing or the state of being impaired: INJURY ...: DETERIORATION ... LESSENING ...." Webster's Third New International Dictionary 1131 (1961). "Impair" is defined as "... Deterioration, injury." Id. These definitions indicate that a "handicap" is an injury, deterioration or lessening that could impede a person's normal functioning in some manner and preclude the full and normal use of one's sensory, mental or physical faculties. Thus, a handicap within the meaning of the Act is a physical or mental condition that imposes limitations on a person's ability to achieve and capacity to work beyond the normal limitations that might render a person unable to make certain achievements or perform every possible job. All persons given their individual characteristics and capabilities, have inherent limitations on their general ability to achieve or to perform certain jobs. All persons have some...