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Recent Wisconsin Supreme Court Decision is Instructive Despite Leaving Questions Unanswered Regarding the Disability Discrimination Law

In a recent case, the Wisconsin Supreme Court chose NOT to answer significant legal questions arising in a case of alleged disability discrimination under the Wisconsin Fair Employment Act.  While the Court avoided addressing those legal questions, its decision nevertheless is instructive for employers struggling with the disability law.

The case is Stoughton Trailers v. LIRC, 2007 WI 105.  It presented legal issues including enforcement of an employer’s “no-fault” attendance policy where one or more of the absences charged against the employee are claimed to have been caused by an underlying disability, in this case an employee’s migraine headaches.  By not addressing those issues, the Court left standing decisions of the state’s Labor and Industry Review Commission (LIRC) and lower courts to the effect that an employee’s termination under a no-fault attendance policy would be unlawful where a dispositive number of the absences were alleged to have been attributable to disability.

In Stoughton Trailers, the Supreme Court seized upon a provision of the employer’s personnel policy stating that an employee who was absent due to a medical condition had to present certain medical evidence for the absence within 15 days in order for the absence not to be charged against the employee under the no-fault policy.  The Court found that the employer had not given the employee the amount of time the policy permitted for one of the disability related absences charged against the employee for purposes of the no-fault policy.  In particular, the employee had called in sick for three consecutive workdays complaining of migraine headaches.  The employer gave the employee its standard letter requesting medical documentation for the absences, but the employee submitted a doctor’s note which covered only two of the three absences.  The employer did not wait the full 15 days or give the employee further opportunity to submit medical evidence for the third day of absence before terminating the employee for exceeding the maximum number of absences allowed under the no-fault policy.

The Court concluded that the employer’s noncompliance with its own policy prevented it from claiming any protection under that policy.  Essentially, the high Court held that the employer’s failure to follow its own no-fault attendance policy was sufficient to give rise to an inference of an improper discriminatory motivation on the part of the employer.

Like many cases, the Court in Stoughton Trailers emphasized additional facts too numerous to cover here.  Also, the decision included a compelling dissent by Justices Prosser and Wilcox who believed the Court should have decided the tough issues before it.  In this area of law, it is advisable to seek legal counsel before taking a disciplinary action against an employee whom the employer knows is claiming disability status.

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