On March 11, 2010, Senator Taylor, with Representatives Parisi, Fields, Pasch, Gribsby, Sinicki, Turner, Roys and Kessler as co-sponsors, introduced Senate Bill 612 (2009-2010) to create an amendment to the Wisconsin Fair Employment Act (WFEA). The WFEA already prohibits discrimination based on an arrest or conviction record with certain exceptions when the conviction and job are substantially related, but the current version of the Act permits employers to make inquiries of applicants about convictions. Many applicants won’t know why they did not get an interview, and many times it can be due to a conviction record even though the job and the conviction are not substantially related. This bill would prohibit employers from asking applicants about a conviction record until after the employer selects an applicant for an initial interview. The proposal was sent to the Committee on Labor, Elections and Urban Affairs, and is still a long way from becoming law, if it can survive the legislative process. This amendment is similar to the law on disability discrimination in employment, which prohibits inquiries into any disabilities until after an applicant is offered a job. So the disabilities law is a bit more protective than even this proposed amendment to WFEA on conviction record discrimination. Still, the proposed bill would be a significant step towards stopping unlawful discrimination because of a conviction record. It may also help employers hire good employees that they would not otherwise have considered. To view the history of this bill, go to http://www.legis.state.wi.us/2009/data/SB612hst.html. Talk to your representatives in the state legislature about this bill if you support it. They need to know. You can find your state representative by visiting http://www.legis.wisconsin.gov/w3asp/waml/waml.aspx.
A new decision from the 7th Circuit Court of Appeals for the Federal courts illustrates the importance of information an employee must provide an employer about needed accomodations for physical or mental conditions that affect one’s ability to perform the essential functions of a job. In Ekstrand v. School District of Somerset, decided October 6, 2009, the Court of Appeals found that an employer did not have to accomodate an employee with a room with exterior windows for several months, despite her request, because she did not provide a doctor’s note or tell the employer that her doctor said that was necessary for her to minimize the effects of a seasonal affective disorder. She did eventually provide a letter from her doctor stating that the exterior windows were necessary. The court found that until that time, the school district would not be held accountable for failing to provide that form of accomodation. The court essentially said that the knowledge of the employer is dependent on what the employee tells it, when it comes to knowledge of the disability and medical needs for accomodation. Bottom line is, an employee with a physical or mental disability is best served by communicating his or her needs and providing a letter or medical note from the doctor endorsing that request. Then, the employee must continue to communicate with the employer in an effort to inform the employer of the condition and working towards finding a reasonable solution to the employee’s needs with regard to an accomodation that will permit the employee to perform the essential functions of the job. If the communication process breaks down, the party responsible for breaking the communication will be at fault.
Our federal congress recently took a look at how the courts have interpreted the Americans with Disabilities Act (“ADA”) to see if the courts were interpreting the law consistent with Congress’s intent. Congress said the courts were too restrictive, and it passed an amendment to the law in an attempt to open the courthouse
doors to so many individuals with disabilities that would otherwise be shut out by the courts’ restrictive reading of the law. Congress passed the ADA Amendments Act of 2008, which states among other things that the prior law was too restrictive and set too high standard in determining who should be protected:
the prior EEOC regulations defining the term ‘‘substantially limits’’ as ‘‘significantly restricted’’ set too high a standard, and that the holdings in a series
of U.S. Supreme Court and lower court decisions had failed to fulfill Congress’s expectation that the definition of disability under the ADA would be interpreted consistently with the broad interpretation of the term ‘‘handicapped’’ under section 504 of the Rehabilitation Act of 1973 and with the broad view of the ‘‘regarded as’’ prong of the definition of ‘‘disability, as first enunciated by the Supreme Court in Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273 (1987). Pursuant to the 2008 amendments, the definition of disability in this part shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA, and the determination of whether an individual has a disability should not demand extensive analysis. Statement of the Managers to Accompany S. 3406.
As an attorney that frequently represents employees in disability discrimination claims, this change in the law is a welcome relief.
Attorney Gordon Leech
Representing people with claims relating to credit reports, fraud, employment and other consumer matters.