The Wisconsin Labor and Industry Review Commission (LIRC or Commission) has described two distinct ways in which an employee can prove employment discrimination under the Wisconsin Fair Employment Act (WFEA). The first method is to show an employer took an adverse action based on an animus against the employee because of his or her disability. The second method is to show an adverse action was based on dissatisfaction with an employee’s behavior or a performance deficiency that was caused by his or her disability. While the former method of proof is common to cases at the administrative, state, and federal levels, the latter method is unique to the WFEA and repeatedly has been rejected by the Seventh Circuit Court of Appeals in the context of the Americans with Disabilities Act. See, e.g., Spath v. Hayes Wheels International-Indiana, Inc., 211 F.3d 392, n.5 (7th Cir. 2000).  In other words, federal law says employers may discharge an individual based on misconduct, even if that misconduct is related to a disability. This is not true under the WFEA, and Wisconsin employers must consider whether the misconduct itself is the result of a disability.

In a Fair Employment Decision issued on June 28, 2013, the Commission acknowledged the continuing availability of claims for discrimination based on an employee’s behavior or performance deficiency that is caused by a disability, but also placed limitations on such claims. The decision, Steven John Maeder v. University of Wisconsin-Madison, ERD Case No. CR 200501824 (LIRC June 28, 2013), involved a campus police officer who had bipolar disorder. The officer was discharged for failing to comply with direct supervisory orders to provide certain monthly updates. Because there was no evidence of direct animus against the officer based on his disability, the Commission examined whether the officer’s insubordinate behavior was the reason for his termination, and if so, whether the behavior was caused by his bipolar disorder.

The Commission agreed with the Administrative Law Judge (ALJ) that the officer’s behavior was the reason he was terminated by his supervisor. The more difficult question was whether the behavior was caused by the officer’s mental illness, or simply the result of poor decisions. The Commission succinctly described the difficulty in making this type of determination: “making poor decisions is not exclusive to persons with mental illnesses” because any person “may, in the exercise of their own native powers of judgment and their own moral agency, make poor decisions.” 

In order to decide whether the officer’s behavior was related to his bipolar disorder or just bad judgment, the Commission relied on testimony from several medical experts. None of the experts offered the specific opinion that the officer’s failure to comply with his supervisor’s order was caused by his bipolar disorder. The Commission also considered the effects of the officer’s medication, but found the officer’s insubordinate behavior continued for several months after he stopped taking the medication. The Commission found that the officer’s decision not to comply with his supervisor’s order was his own choice, and not the result of a disability.

While this case highlights a legal quirk that Wisconsin employers must remain aware of, it also serves as a reminder that even Wisconsin’s broader standards for showing disability discrimination have limits. For example, an employer may be required to embrace more lenient attendance and disciplinary polices for an employee who takes unexcused breaks due to symptoms of a mental disorder, but does not need to tolerate direct insubordination that is not a result of the disability.  It is wise to exercise caution and carefully consider the specific nature of any negative behavior or unsatisfactory performance before taking action against an employee with a disability, and in some instances consultation with a medical expert may be necessary. However, Wisconsin employers are not required to overlook the consequences of bad decisions or poor judgment unrelated to whether or not an employee has a disability.