City of La Crosse Police & Fire Commission v. Labor & Industry Review Commission

385 N.W.2d 516, 129 Wis. 2d 430, 1986 Wisc. App. LEXIS 3260

• Court: Court of Appeals of Wisconsin
• Decided: February 20, 1986
• Docket: 85-1890
• Status: Published

Opinions

EICH, J.

The City of La Crosse appeals from an order affirming a decision of the Labor and Industry Review Commission. The commission concluded that Daniel Rusch, an applicant for a position in the La Crosse police department, was physically handicapped and that the City's failure to hire him for the position was discriminatory. The dispositive issue is whether Rusch was a "handicapped individual" as defined in the Wisconsin Fair Employment Act, sec. 111.31 to 111.37, Stats. We conclude that Rusch was not handicapped within the meaning of the law, and we therefore reverse.

At the conclusion of the City's application process, Rusch was offered employment as a police officer, subject to physical testing and examination. One of the tests administered was a "Cybex" test which is intended to measure the strength and flexibility of the flexor and extender muscles of the back. The test results compare the relative strengths and weaknesses of the subject's muscles with those of others who have taken the test over time. The City considers an "A" rating on the test to mean that an individual is "qualified for any work." Rusch received a "B" rating with the following notation: "Qualified for work with the following restrictions: 1. Back conditioning exercise program advisable before undertaking heavy labor." The City informed Rusch that he could not be hired as a police officer because of the test results.

In succeeding weeks, the La Crosse Police and Fire Commission reconsidered Rusch's application and decided not to hire him because the Cybex rating "indicated back deficiencies which possibly would not permit him to adequately perform physical duties required of a La Crosse Police Officer."

Rusch filed a handicap discrimination complaint with the Department of Industry, Labor & Human Relations. At the hearing, La Crosse Police and Fire Commission president Robert Hackner testified that the City uses the Cybex test "to determine if people have back deficiencies or. . . the possibility of back deficiencies which would prohibit them from operating properly as a police officer" and that Rusch was denied employment because of his low test rating. Rusch offered the testimony of a nurse who stated that the correlation between Cybex test results and possible future back injuries has not been proven. Rusch, at the suggestion of the City's personnel director, took the test a second time and received an "A" rating. The parties concede that Rusch is in perfect health, with no physical disability or impairment of any kind.

The commission ruled that Rusch was discriminated against because of a "perceived handicap." The ruling was based on the commission's determination that the city had declined to hire Rusch because of its belief that he had a "weak back," which the city "speculated was a predictor of future back problems [Rusch] might experience under the stress of police work."

Under sec. 111.32(5)(f)l, Stats. (1979),¹ an employer who refuses to hire an individual "because of handicap" is guilty of discrimination unless the handicap is "reasonably related to the individual's ability adequately to undertake the job-related responsibilities." Section 111.32(8) defines "handicapped individual" as one who has "a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work" or one who "[i]s perceived as having such an impairment."

The commission's determination that Rusch was discriminated against because of a "perceived handicap" within the meaning of the Act is a conclusion of law which we review independently. Boynton Cab Co. v. ILHR Department, 96 Wis.2d 396, 405, 291 N.W.2d (1980); Chicago, M., St. P. & P. RR. Co. v. ILHR Dept., 62 Wis.2d 392, 396, 215 N.W.2d 443, 445 (1974).

A handicap within the meaning of the Act is "a mental or physical disability or impairment that a person has in addition to his or her normal limitations that makes achievement not merely difficult, but unusually difficult, or that limits the capacity to work.” (Emphasis in original.) American Motors Corp. v. LIRC, 119 Wis.2d 706, 714, 350 N.W.2d 120, 124 (1984).² In that case the complainant, a four-foot-ten-inch woman, was rejected for employment on an automobile plant assembly line solely because of her height. The supreme court affirmed the determination that the employee was not handicapped, stating:

We conclude that Basile's stature is not a disability or impairment that makes achievement unusually difficult or that limits her capacity to work. Although Basile's height and weight are below the norm, and may impose some limitations on her general ability to achieve and work, a person with her stature is capable of a wide range of achievements, including many that a taller and heavier person could not do. Thus, Basile's stature does not constitute such a significant deviation from the norm that it makes achievement unusually difficult, or limits her capacity to work. (Emphasis in original.) Id. at 714, 350 N.W.2d at 124.

Rusch's "condition" as revealed by the Cybex test results — somewhat weaker-than-average back muscles — like the comparatively short stature of the employee in American Motors, is outside the definition of "handicap." Rusch argues, however, that he was nonetheless discriminated against because, while free from any physical impairment, the City "perceived" him as handicapped within the meaning of sec. 111.32(8), Stats., and denied him employment on that basis, as the commission determined.³

Under the statute, a person who has a "physical . . . impairment which makes achievement unusually difficult or limits the capacity to work" — or one who is perceived as having "such an impairment" — is considered to be handicapped. (Emphasis added.) The Cybex test, as we have said, showed only that the flexor and extender muscles in Rusch's back were comparatively weaker than those of others who have taken the test over time. As the police and fire commission president testified, the City interpreted the test results as evidence of a possible inability on Rusch's part to perform the physical tasks sometimes demanded of police officers. Here, too, we see no distinction between Rusch and the short-statured employee in American Motors. Nor do we share the view expressed in the dissent that a slightly-shorter-than-average woman suffers from an "impairment" — any more than we believe that a man in excellent health and physical condition, with, perhaps, slightly-weaker-than-average back muscles, is "impaired" within the meaning of the handicap discrimination law.

In response, Rusch contends that Dairy Equipment, supra, note 2, and Brown County v. LIRC, 124 Wis.2d 560, 369 N.W.2d 735 (1985), compel the opposite conclusion. We disagree.

In Dairy Equipment, the applicant had only one kidney, and he was turned down for employment— even though he was able to perform the duties of the job to the employer's satisfaction — because the employer concluded that the job would expose him to an undue risk of injury. The job carried with it the risk of falling in an area where protruding machinery presented a possible danger of perforation injuries. The employer reasoned that should the applicant fall and receive such an injury to his remaining kidney, the consequences would be unusually (and unacceptably) serious. The court held that the employee was "handicapped" because the employer perceived his physical condition as a handicap — a "perceived sensitivity to injury in the future" — which limited his capacity to work. Dairy Equipment, 95 Wis.2d at 330, 290 N.W.2d at 335.

In American Motors, the court explained its ruling in Dairy Equipment as follows:

Thus, because the employee in Dairy Equipment had a disability or impairment (one kidney) which did not actually make achievement unusually difficult or limit the capacity to work but which the employer perceived as a handicap that limited his capacity to work, this court concluded that the employee was handicapped under the Act. This court did not hold, however, that an employer's belief that an applicant or employee is unqualified and cannot perform a particular job because of a mental or physical attribute necessarily renders that person handicapped within the meaning of the Act, or that the employer's failure to hire that person constitutes handicap discrimination.

American Motors, 119 Wis.2d at 716, 350 N.W.2d at 125. The American Motors court went on to distinguish Dairy Equipment, and we quote at length from the court's opinion because we believe the same considerations are applicable here.

Unlike the employee's physical condition in Dairy Equipment, Basile's [short] stature is not a disability or impairment. Although her stature may impose certain limitations on her ability to perform every possible job, it is not an injury, deterioration or lessening that impedes her normal functioning. Nor is her stature such a substantial deviation from the norm that it makes achievement unusually difficult or limits her capacity to work.. . . This case is therefore distinguishable from Dairy Equipment. In Dairy Equipment, the employee had a disability or impairment that did not actually make achievement unusually difficult or limit his capacity to work. However, because the employer perceived the employee's disability or impairment as limiting his capacity to work, this court held that the employee was handicapped under the Act. Here, Basile does not even have a disability or impairment about which a perception could have been made that the disability or impairment made achievement unusually difficult or limited her capacity to work. (Emphasis added.) American Motors, 119 Wis.2d at 716-17, 350 N.W.2d at 125.

Rusch, like the short-statured woman in American Motors, has no "actual impairment" — such as a single kidney, as in Dairy Equipment, or a ninety-seven percent loss of distance vision in each eye, as in Brown County. As much as may be said is that some of the muscles in Rusch's back are comparatively weak. Indeed, he concedes that he is in excellent physical condition.

The Brown County court itself characterized American Motors as holding that, "for there to be a perceived handicap, there must be an actual impairment." Brown County, 124 Wis.2d at 568-69, 369 N.W.2d at 739. The court footnoted that statement, however, with the seemingly contradictory comment: "American Motors and Dairy Equipment both recognized that a job applicant would also be perceived as handicapped if he had no physical limitation or condition at all but was erroneously thought by the employer to have an impairment that limited his capacity to work." Brown County, 124 Wis.2d at 569 n.9, 369 N.W.2d at 739.

Rusch characterizes the latter statement as a declaration of law which controls the outcome of this appeal. We disagree. The statement in Dairy Equipment referred to by the Brown County court was simply describing the holding in Barnes v. Washington Natural Gas Co., 591 P.2d 461, 465 (Wash. Ct. App. 1979). The Washington Court of Appeals there ruled that the protections of that state's handicap discrimination law should extend to persons who are "only thought to have handicaps." The Dairy Equipment court did not adopt the Barnes statement, nor did it state anywhere in the opinion that a person who had "no physical limitation or condition at all" could be considered handicapped within the meaning of the Act. In fact, Dairy Equipment did not involve a healthy applicant at all; he was "impaired" in that he had but one kidney, as the court itself noted in American Motors, 119 Wis.2d at 716, 350 N.W.2d at 125. Moreover, if, as the Brown County footnote asserts, American Motors stands for the proposition that an employee with "no physical limitation or condition at all" could still be considered handicapped if he or she were so perceived by the employer, the result of that case is difficult to understand. The employee in American Motors was in no way impaired. And even though she was perceived by the employer as unfit for employment because of one of her physical characteristics — her short stature — the court nonetheless held that she was not handicapped within the meaning of the Act.

For the commission's argument to prevail, we would have to consider Brown County as overruling American Motors. We cannot so conclude, however, for the Brown County court nowhere suggests that its decision was designed to have such an effect.⁴

American Motors remains intact, and we consider it to be controlling. Rusch, a healthy job applicant, was rejected by the City simply because his "physical. . . characteristic [somewhat weaker back muscles than the norm], which is not and could not be perceived as a disability or impairment, failed to meet the requirements of a particular job.. . . [He] is not handicapped within the meaning of the Act." American Motors, at 718, 350 N.W.2d at 126.

We conclude, therefore, that the commission's determination that Rusch was handicapped lacks a rational basis.

By the Court. — Order reversed.

1 The Act has since been revised and renumbered, and these provisions, in somewhat modified form, appear at sec. 111.321, 111.322, 111.325 ánd 111.34(2), Stats. (1983-84).

2 American Motors was tried prior to the enactment of sec. 111.32(8), Stats., defining "handicap." The statute, however, is simply a codification of the definition — including the notion of "perceived" handicaps — adopted by the court in several cases, notably Chicago, M., St. P. & P. RR. Co. v. ILHR Dept., 62 Wis.2d at 398, 215 N.W.2d at 446, and Dairy Equipment Co. v. ILHR Department, 95 Wis.2d 319, 330, 290 N.W.2d 330, 334-35 (1980).

The definition used by the court in American Motors is, for all intents and purposes, identical to the statutory definition. Id., 119 Wis.2d at 714, 350 N.W.2d at 124. The only perceptible difference is that the statute deletes the words "disability or" from the phrase "a mental or physical disability or impairment" as it appears in the prior decision.

3 As the dissent points out, the commission designated this determination as a finding of fact. It is, however, the commission's ultimate conclusion of law: that Rusch was denied employment because of a "perceived handicap" in violation of sec. 111.32(8), Stats.

4 The concurring opinion in Brown County pointed out the seeming inconsistencies and suggested withdrawal of certain language in American Motors to clarify the matter.