111.34 Annotation Affirmed. 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

111.34 Annotation Physical standards for school bus operators established under s. 343.12 (2) (g) are not exempt from the requirements of sub. (2) (b). Bothum v. DOT, 134 Wis. 2d 378, 396 N.W.2d 785 (Ct. App. 1986).

111.34 Annotation The duty to reasonably accommodate under sub. (1) (b) is to be broadly interpreted and may involve the transfer of an individual from one job to another. What is reasonable will depend on the facts of the case. McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 270 (Ct. App. 1986).

111.34 Annotation To avail itself of the defense under sub. (2) that an ostensibly safety-based employment restriction is job-related, an employer bears the burden of proving to a reasonable probability that the restriction is necessary to prevent harm to the employee or others. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

111.34 Annotation Temporary forbearance of work rules while determining whether an employee’s medical problem is treatable may be a reasonable accommodation under sub. (1) (b). The purpose of reasonable accommodation is to enable employees to adequately undertake job-related responsibilities. Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998), 97-1253. See also Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477, 04-1550.

111.34 Annotation Whether an employee’s mental illness caused him to react angrily and commit the act of insubordination that led to the termination of his employment was sufficiently complex and technical that expert testimony was required. Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633, 99-2632.

111.34 Annotation A complainant must show that the complainant is handicapped and that the employer took one of the prohibited actions based on that handicap. The employer then has a burden of proving a defense. Sub. (1) (b) does not require an employer to make a reasonable accommodation if the accommodation will impose a hardship on the employer, but if the employer is not able to demonstrate that the accommodation would pose a hardship there is a violation. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651, 02-0815.

111.34 Annotation A reasonable accommodation is not limited to that which would allow the employee to perform adequately all of the employee’s job duties. A change in job duties may be a reasonable accommodation in a given circumstance. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651, 02-0815.

111.34 Annotation An interstate commercial driver need not seek a determination of medical qualification from the federal Department of Transportation (DOT) prior to filing a disability discrimination claim under this chapter. When medical and physical qualifications to be an interstate driver are material to a claim, and a dispute arises concerning those qualifications that cannot be resolved by facial application of DOT regulations, the dispute should be resolved by DOT under its dispute resolution procedure. The employer must seek a determination of medical and physical qualification from DOT if the employer intends to offer a defense that the driver was not qualified for medical reasons. Szleszinski v. LIRC, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111, 04-3033.

111.34 Annotation There are two separate statutory sections, this section and s. 111.322, that identify different prohibited acts of employment discrimination on the basis of disability, and those sections include two distinct theories of disability-based employment discrimination: 1) disparate treatment under s. 111.322 (1); and 2) refusal to accommodate under sub. (1) (b). Under a disparate-treatment-based theory, the crux of the claim is that the employer treated the employee less favorably than others because the employee has a disability. By contrast, under an accommodation-based theory, the crux of the claim is that the employer could have reasonably accommodated the employee’s disability but refused to do so. Proof of discriminatory motive is not required in refusal-to-accommodate cases under sub. (1) (b). Wingra Redi-Mix Inc. v. LIRC, 2023 WI App 34, 408 Wis. 2d 563, 993 N.W.2d 715, 21-2028.

111.34 Annotation Under sub. (1) (b), an employee need not provide medical evidence of a disability alongside an accommodation request in order to put the employer on notice that it has a duty of reasonable accommodation under the Wisconsin Fair Employment Act. It is sufficient if the factual information known by the employer would reasonably lead the employer to recognize that the employee likely has a disability, as that term is defined by s. 111.32 (8) and case law. Wingra Redi-Mix Inc. v. LIRC, 2023 WI App 34, 408 Wis. 2d 563, 993 N.W.2d 715, 21-2028.

111.34 Annotation A person suffering from a contagious disease may be handicapped under the federal Rehabilitation Act of 1973. School Board v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 (1987).

111.34 Annotation Hidden Handicaps: Protection of Alcoholics, Drug Addicts, and the Mentally Ill Against Employment Discrimination Under the Rehabilitation Act of 1973 and the Wisconsin Fair Employment Act. Nold. 1983 WLR 725.

111.34 Annotation Crystal Lake Cheese Factory v. Labor and Industry Review Commission: A Reasonable Turn Under the Wisconsin Fair Employment Act? Haas. 2004 WLR 1535.

111.34 Annotation Disability Law in Wisconsin Workplaces. Vergeront & Cochrane. Wis. Law. Oct. 2004.

111.34 Annotation ADA and WFEA: Differing Disability Protections. Backer & Mishlove. Wis. Law. Oct. 2004.

111.34 Annotation Out of Office: Extended Leave Is Not a Required ADA Accommodation. McClurg. Wis. Law. Oct. 2018.

111.345 111.345 Marital status; exceptions and special cases. Notwithstanding s. 111.322, it is not employment discrimination because of marital status to prohibit an individual from directly supervising or being directly supervised by his or her spouse.

111.345 History History: 1981 c. 334.

111.345 Annotation A work rule intended to limit extramarital affairs among coemployees was not discrimination because of marital status. Federated Rural Electric Insurance Co. v. Kessler, 131 Wis. 2d 189, 388 N.W.2d 553 (1986).

111.35 111.35 Use or nonuse of lawful products; exceptions and special cases.

111.35(1) (1) 

111.35(1)(a) (a) Notwithstanding s. 111.322, it is not employment discrimination because of use of a lawful product off the employer’s premises during nonworking hours for a nonprofit corporation that, as one of its primary purposes or objectives, discourages the general public from using a lawful product to refuse to hire or employ an individual, to suspend or terminate the employment of an individual, or to discriminate against an individual in promotion, in compensation or in terms, conditions or privileges of employment, because that individual uses off the employer’s premises during nonworking hours a lawful product that the nonprofit corporation discourages the general public from using.

111.35(1)(b) (b) Notwithstanding s. 111.322, it is not employment discrimination because of nonuse of a lawful product off the employer’s premises during nonworking hours for a nonprofit corporation that, as one of its primary purposes or objectives, encourages the general public to use a lawful product to refuse to hire or employ an individual, to suspend or terminate the employment of an individual, or to discriminate against an individual in promotion, in compensation or in terms, conditions or privileges of employment, because that individual does not use off the employer’s premises during nonworking hours a lawful product that the nonprofit corporation encourages the general public to use.

111.35(2) (2) Notwithstanding s. 111.322, it is not employment discrimination because of use or nonuse of a lawful product off the employer’s premises during nonworking hours for an employer, labor organization, employment agency, licensing agency or other person to refuse to hire, employ, admit, or license an individual, to bar, suspend or terminate an individual from employment, membership or licensure, or to discriminate against an individual in promotion, in compensation or in terms, conditions or privileges of employment or labor organization membership if the individual’s use or nonuse of a lawful product off the employer’s premises during nonworking hours does any of the following:

111.35(2)(a) (a) Impairs the individual’s ability to undertake adequately the job-related responsibilities of that individual’s employment, membership or licensure.

111.35(2)(b) (b) Creates a conflict of interest, or the appearance of a conflict of interest, with the job-related responsibilities of that individual’s employment, membership or licensure.

111.35(2)(c) (c) Conflicts with a bona fide occupational qualification that is reasonably related to the job-related responsibilities of that individual’s employment, membership or licensure.

111.35(2)(d) (d) Constitutes a violation of s. 254.92 (2).