Boynton Cab Co. v. Department of Industry, Labor and Human Relations

• Decision Date: 13 May 1980
• Docket Number: No. 77-652,77-652
• Citation: 291 N.W.2d 850,96 Wis.2d 396
• Parties: , 28 Fair Empl.Prac.Cas. (BNA) 1360, 23 Empl. Prac. Dec. P 30,925, 1 A.D. Cases 173 BOYNTON CAB COMPANY, a Wisconsin Corporation, Petitioner-Appellant-Petitioner, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, a Wisconsin State Agency, Respondent.
• Court: Wisconsin Supreme Court

Page 850

291 N.W.2d 850

96 Wis.2d 396, 28 Fair Empl.Prac.Cas. (BNA) 1360,

23 Empl. Prac. Dec. P 30,925, 1 A.D. Cases 173

BOYNTON CAB COMPANY, a Wisconsin Corporation Petitioner-Appellant-Petitioner, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, a Wisconsin State Agency, Respondent.

No. 77-652.

Supreme Court of Wisconsin.

Argued March 3, 1980.

Decided May 13, 1980.

John J. Burke, Milwaukee (argued), for appellant-petitioner; Terrence J. Gaffney and Burke & Schoetz, Milwaukee, on the brief.

David C. Rice, Asst. Atty. Gen. (argued) for respondent; Bronson C. La Follette, Atty. Gen., on brief.

HEFFERNAN, Justice.

The complainant, Eli Godfried, applied for a job as a taxicab driver with Boynton Cab Company in Milwaukee on June 4, 1974. When Boynton refused to hire him because of his handicap, the congenital lack of the right hand and forearm from about three inches below the elbow, Godfried filed a handicap discrimination complaint with the Department of Industry, Labor and Human Relations.

After a hearing, the department examiner issued recommended findings of fact and conclusions of law that Boynton had discriminated against Godfried on the basis of his handicap in violation of the Wisconsin Fair Employment Act. The examiner recommended that Boynton be ordered to cease discriminating against Godfried, to instate him as a cab driver, and to give him back pay. The hearing examiner's recommendations were adopted in their entirety by the Department of Industry, Labor and Human Relations on April 14, 1977.

Boynton sought judicial review of the department's order, pursuant to ch. 227, Stats., in the Dane County Circuit Court. The circuit court affirmed the department's order. On appeal, the court of appeals, by a divided court, affirmed. ¹ This court granted review of the decision of the court of appeals.

The facts underlying this handicap discrimination case are essentially undisputed. Eli Godfried was a twenty-two year old part-time student when he applied for employment as a taxicab driver with Boynton (Yellow) Cab Company in Milwaukee. Godfried is missing his right hand and forearm due to a congenital birth defect. He owns and often uses a prosthetic device.

Godfried has held a valid Wisconsin driver's license since 1972. At the time he applied to Boynton, Godfried's license limited him to operating motor vehicles equipped with an automatic transmission, self-cancelling turn signals, and a wheel spinner. A wheel spinner is an inexpensive knob-like device which attaches to any vehicle's steering wheel. The device rotates freely, enabling the driver to turn the wheel easily with one hand. Godfried carried his own wheel spinner with him for use when he was driving. The cabs operated by Boynton at the time Godfried applied for employment were all equipped with automatic transmissions and self-cancelling turn signals.

Prior to applying for employment at Boynton, Godfried worked part-time for two Milwaukee cab companies for a combined period of approximately nine months. Neither company received any complaints about Godfried's driving, although the record contains evidence that at least one prospective customer refused to ride with Godfried when she noticed his handicap. Godfried left the employ of both companies for reasons unrelated to his handicap or the ability to perform adequately the work of a cab driver.

Godfried had been involved in two minor car accidents, neither of which was his fault, during the two years he held a driver's license before applying to Boynton for work. One of the accidents occurred while he was driving a cab.

Boynton concedes that it refused to hire Godfried as a cab driver solely because of his handicap. Because of the high degree of care required of a common carrier transporting passengers and because of the company's fear of civil liability, Boynton had adopted an unwritten policy against hiring one-handed drivers. Although the company granted Godfried a personal job interview, it made no attempt to test Godfried's physical ability to perform the duties of a cab driver.

Boynton admits that, in the absence of sec. 111.32(5)(f), Stats. (1973), ² its failure to hire Godfried because of his handicap would have been an act of unlawful discrimination. That statute provided:

"Sec. 111.32(5)(f). The prohibition against discrimination because of handicap does not apply to failure of an employer to employ or retain as an employe any person who because of a handicap is physically or otherwise unable to efficiently perform, at the standards set by the employer, the duties required in that job. . . ."

Boynton presented the testimony of several witnesses at the initial hearing to prove that its refusal to hire Godfried because of his handicap was lawful under sec. 111.32(5)(f), Stats. Boynton's vice president testified that he had talked with the representative of a Pittsburgh taxicab company at a convention and was sold that the other company had once hired a one-handed driver who was later involved in two accidents which could have been avoided had the driver not been handicapped.

Additionally, Boynton subpoenaed a Milwaukee judge to testify at the hearing. He stated that, if a personal injury action came before him involving a one-handed taxicab driver, he would instruct the jury that, as a matter of law, the cab company by hiring such driver had not exercised the requisite high degree of care imposed on a common carrier.

Boynton also presented evidence at the hearing that the company was a self-insurer but that it had contracts of reinsurance for liability over $25,000. The policy application with the company's reinsurer included a specific question asking whether any of the company's drivers had a physical deficiency or impairment. An employee of the reinsurer testified that insurance companies generally charge higher premiums for handicapped drivers because of a higher loss ratio involving such drivers. However, Boynton did not attempt to prove at the hearing, and does not contend on appeal, that hiring Godfried would have increased its insurance rates.

Boynton also referred the hearing examiner to a Wisconsin statute and two federal regulations which the company claimed justified its refusal to hire Godfried. The state statute, sec. 343.12(2)(f) Stats. (1973), prohibits the operation of a school bus in Wisconsin by a driver who does not have the use of both hands. The company also relied heavily, and essentially justified its hiring policy, on 49 C.F.R. secs. 391.41 and 391.49 of the Federal Motor Carrier Safety Regulations, which provide, in essence, that a person is not physically qualified to drive a motor vehicle carrying passengers for a motor carrier engaged in interstate commerce if the person lacks the use of a hand or arm. Although Boynton introduced some evidence that it carried customers across the state line into Illinois on an average of twice a week, the company conceded that the federal regulations did not specifically apply to its operation.

The opinion of the court of appeals held that the record contained no credible evidence that Godfried would be unable to satisfactorily perform the duties required of a Boynton cab driver. The majority opinion refused to accept, without proof, the idea that one-handed persons were, as a class, incapable of safely operating taxicabs. The opinion found that Boynton failed to prove that there was a causal relationship between Godfried's handicap and his inability to drive taxicabs, and, although Boynton may promulgate and enforce legitimate driver standards, that it must individually test each applicant against the standards.

The concurring opinion rejected the trial court's rationale that handicapped job applicants must be considered upon their individual abilities rather than the generalized ability of similarly handicapped persons because the foundation question under either an individual approach or a general approach is whether the employer has established that the discrimination was lawful.

The concurring opinion stated that the federal regulations were the only relevant evidence produced by Boynton and must be accorded some weight in determining whether Boynton's rationale for barring one-handed drivers from its employ was reasonable. The concurrence stated that it could not agree with the lead opinion that the regulations were inapplicable and also disagreed with the dissent that the federal regulations alone were determinative of the issue. The concurrence viewed the question as whether those regulations standing alone were sufficient to meet the employer's burden to prove that its discrimination against one-handed drivers was lawful. Concluding that such regulations were not sufficient, because they were promulgated to protect the public from dangers other than, or additional to, those to which passengers in taxicabs are subject, it agreed with the principal opinion that Boynton had not met its burden of proof.

The dissenting opinion reasoned that Boynton should be entitled to rely on driver qualifications established by the Federal Highway Administration, the federal agency entrusted with regulating the safety of motor carriers. The dissenting judge contended that it was reasonable for Boynton to rely on the physical qualifications of drivers established by the federal agency, regardless of whether the cab company was required to comply with those qualifications.

The basic question on this appeal is whether Boynton Cab Company's refusal to hire a one-handed cab driver because he did not meet the physical standards set by the company constitutes discrimination against a handicapped person prohibited by secs. 111.31-111.36, Stats. (1973). We conclude that it did not constitute prohibited discrimination, and therefore we reverse.

To answer the basic question, however, two other issues are posed: Did the department, the circuit court, and the court of appeals err in imposing upon Boynton the...