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Monday, 05 August 2013 20:41

Differences Between the Federal and State Disability Laws

Employers know that both Wisconsin and federal laws protect their employees from workplace discrimination.  While these laws cover the same relative ground, employers may be surprised to know that the standards utilized under each are different.  For example, a reasonable accommodation under the Americans with Disabilities Act ("ADA") may not be reasonable under the Wisconsin Fair Employment Act ("WFEA").  This article will highlight some of the major differences between the two laws.


Who is Disabled?


When compared to the ADA, the WFEA includes a much larger spectrum of employees who may fall within its disability protections.  The WFEA does not include "per se" exclusions, while the ADA automatically excludes from protection individuals who use controlled substances or are transvestites, gamblers, pyromaniacs, etc.  Yet these same individuals may still pursue relief under the WFEA.


Another significant difference between the WFEA and the ADA is in the definition of "disabled" under each law.  the ADA defines "a qualified individual with a disability" as an employee with a physical or mental impairment that substantially limits one or more major life activities.  Under the WFEA, an "individual with a disability" is defined as an employee who has a physical or mental impairment that makes achievement unusually difficult or limits the capacity to work in their current position.  The "limits the capcity to work" language has no counterpart in the ADA.


Disability Discrimination


Both the ADA and WFEA prohibit employers from taking adverse actions against their employees "because of" a disability.  However, the language is interpreted differently between the state and federal courts and tribunals.  The federal courts interpret this "because of" language as requiring an employee to prove that the disability was the "but-for" cause of the adverse employment action.  In other words, the employee must prove that the employer would not have taken the adverse action "but for" the employee's disability.


While the WFEA contains the same "because of" language as the ADA, the phrase is interpreted much differently.  The state courts and tribunals utilize what is known as the "motivating factor" standard, which is more employee friendly when compared to the "but for" standard utilized by the ADA.  Under the "motivating factor" standard, an employee can prove discrimination by showing that the employee's disability was simply a motivating factor in the adverse employment action, not necessarily the primary factor.  


What is a "Reasonable" Accommodation?


Under the ADA, a reasonable accommodation must enable the employee to perform essential functions of his or her job.  It has been found that an employer may restructure the employee's job by reallocating or redistributing nonessential marginal functions, but is not necessarily required to reallocate essential functions.


Under the WFEA, state courts and tribunals have held that a reasonable accommodation is not limited to that which would allow the employee to adequately perform all of his or her job duties, and a change in job duties may be a reasonable accommodation in a given circumstance.  With this standard, the "essential functions" analysis is not necessarily a consideration.




With such marked differences between the ADA and WFEA as it relates to the WFEA's disability discrimination protections, employers should carefullyl assess their rights and responsibilities when faced with a disabled employee.


For more information about this or any labor and employment law question, please contact Attorney Peter J. Culp or another employment law attorney with the Dempsey Law Firm. 

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