In Wisconsin Bell v. Labor and Industry Review Commission, et al., decided on June 26, 2018, the Wisconsin Supreme Court made substantial changes to the burden of proving employment discrimination under the Wisconsin Fair Employment Act (“WFEA”). In doing so, the Court departed from a long line of cases that allowed disabled employees to prove discrimination cases without proving that their employer actually engaged in intentional discrimination.

Charles Carlson, a former call center representative for Wisconsin Bell, alleged that his employer violated the WFEA, Wis. Stat. § 111.322(1), which prohibits employers from discriminating against an employee “because of” a disability. Carlson suffered from bipolar disorder, a mental illness, which has symptoms of irritability, racing thoughts, and impulsive behaviors that can be triggered by stress, changes in environment, and conversations. Carlson was terminated after it was discovered that he used a call-blocking “health code” for 38 minutes (so that he would not receive incoming customer calls) when he learned that he had failed a test that would have made him eligible for promotion, and used this time to message approximately 15 of his co-workers to discuss his frustration with his test results. Mr. Carlson claimed that his bipolar disorder caused his behavior, but had not provided Wisconsin Bell with information from his health care provider definitively attributing the specific behavior to the condition. (He had only provided information from his doctor which generally described his condition.)

Prior to this decision, the Labor and Industry Review Commission (“LIRC”) applied one of two methods to determine whether an employee had been terminated “because of” a disability: (1) a showing of actual discriminatory animus against an employee because that employee was an individual with a disability; or (2) an “inference method,” which found an intent to discriminate when an employer based its adverse action on “a problem with that employee’s behavior or performance which is caused by the employee’s disability” (regardless of whether the employer actually knew that the disability caused the problem with behavior or performance.)

On the heels of its decision the same week in Tetra Tech EC, Inc. v. Wisconsin Department of Revenue, which eliminated deference to administrative agency legal determinations, the Court reviewed LIRC’s “inference method” de novo, and found that this method was structurally flawed and inconsistent with the requirements of Wis. Stat. § 111.322. The Court found the “inference method” leaves out the important step of requiring the employee to prove that the employer knew of the connection between the disability and the conduct for which the employee was terminated. The Court found that Carlson had failed to present evidence that Wisconsin Bell knew of a causal connection between his disability and the behavior that led to his termination. Rather, it found that “when Wisconsin Bell terminated Mr. Carlson’s employment, it knew nothing more than that its employee claimed his bipolarism caused his conduct.” The Court concluded “that an employer does not engage in intentional discrimination when it bases an adverse employment action on the employee’s conduct unless the employee proves the employer knew his disability caused his conduct.”

Justice Bradley, joined by Justice Abrahamson, dissented, arguing that this is no small change either: “[b]y tossing out the long-established inference method of proof in employment discrimination cases, the majority places an untenable burden on all employees with disabilities, and those with mental health disabilities in particular.”

Employers should be aware that alleged violations of discrimination under the Wisconsin Fair Employment Act will now require a more exacting standard. The Labor and Industry Review Commission will no longer be allowed to use the “inference method” of proof of discrimination. Employees will now be required to prove that their employer knew of a causal link between a disability and the conduct or performance problems leading to an adverse employment action (such as discipline or termination), rather than relying upon an inference that the two are related.