Crystal Lake Cheese Factory v. Labor & Industry Review Commission

2003 WI 106, 664 N.W.2d 651, 264 Wis. 2d 200, 14 Am. Disabilities Cas. (BNA) 1033, 2003 Wisc. LEXIS 486

• Court: Wisconsin Supreme Court
• Decided: July 11, 2003
• Docket: 02-0815
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. This is a review of a decision of the Court of Appeals, District III,¹ which affirmed an order of the circuit court of Barron County, the Honorable James C. Eaton presiding. The circuit court affirmed a decision of the State of Wisconsin Labor and Industry Review Commission (LIRC), which reversed an order of Administrative Law Judge (ALJ) Gary Olstad. LIRC determined that Susan Catlin (Cat-lin) was an ■ individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31-.395 (1999-2000),² and that Crystal Lake Cheese Factory had discriminated against her based on her disability within the meaning of the WFEA. LIRC found that Crystal Lake's refusal to modify Catlin's job duties to exempt her from performing the heaviest physical tasks, and to make physical modifications to the work place, constituted the denial of a reasonable accommodation, which it could have provided without hardship.

¶ 2. We are presented with the following issues: (1) whether LIRC reasonably interpreted Wis. Stat. § 111.34(l)(b)³ and § 111.34(2)(a)⁴ of the WFEA, when it found there was a reasonable accommodation Crystal Lake could have provided its former employee, Catlin, without hardship; (2) whether Crystal Lake was denied due process by LIRC's failure to consult with the administrative law judge; (3) whether there was substantial and credible evidence to support the factual findings made by LIRC, upon which it based its decision that there was a reasonable accommodation Crystal Lake could have provided Catlin, without hardship, within the provisions of Wis. Stat. § 111.34(l)(b) and § 111.34(2)(a). '

¶ 3. We affirm the decision of the court of appeals. Accordingly, we hold that requiring Crystal Lake to modify the job duties of Catlin and make physical modifications to the workplace was not unreasonable. With such reasonable accommodations, she would have the ability to undertake, adequately, her job-related responsibilities.

¶ 4. Next, we hold that Crystal Lake was not denied due process when LIRC, prior to reversing the ALJ's holding, failed to consult with the ALJ. We hold that since LIRC's findings did not hinge on issues of witness credibility, LIRC was not required to confer with the ALJ, and that there was therefore no violation of Crystal Lake's due process rights.

¶ 5. Finally, we hold that there was substantial and credible evidence in the record to justify LIRC's findings. There was substantial evidence to show that Crystal Lake could have made reasonable accommodations for Catlin, and Crystal Lake has failed to meet its burden of establishing that such reasonable accommodations for Catlin would create hardship on it.

I. FACTUAL BACKGROUND

¶ 6. In August 1995 Catlin was hired by the Crystal Lake Cheese Factory to work in its wholesale department. The wholesale department consisted of four positions: department head, cheese cutter, cryo-vacer (shrink-wrapping or bagging and sealing the cheese), and labeler. The main duties of the wholesale department were to cut cheese into specified quantities and sizes according to orders. The cheese was then packaged and sealed, labeled, and boxed for shipping. Catlin was initially hired as a cheese cutter, but was later promoted to department head of the four-person department.

¶ 7. A typical day for Catlin started with her making calculations concerning the weight of the different cheeses that had to be cut, based on the orders. This took about an hour. Next, she made up labels and put them on the boxes that the orders went into. She would pull the boxes from the back, make the boxes up and put the labels on them. Meanwhile, the cutter would be cutting the cheese and placing it on the table. After the cheese was placed on the table, it was bagged and cryovaced. The cheese was bagged, sealed, and put in a basket. The basket then had to be dipped in a pot of hot water. The packages of cheese were then dried off and labeled, weighed on a scale, priced, and boxed.

¶ 8. All four workers in Crystal Lake's wholesale department were cross-trained in all four positions within the department, and all were capable of assisting one another when an employee fell behind or when the department was busier than usual. As the department head, Catlin was required to gather orders and create an order list specifying the sizes and types .of cheese that needed to be cut for that day. In addition to other administrative duties, Catlin was required to weigh, label, and box the cheese. She would also price boxes and packages, assist in the assembling of boxes, place the packages on pallets, and move them into the cooler for pickup. Catlin also assisted the other members of her department with their duties, as needed, to help control the flow of work.

¶ 9. In November 1996 Catlin was involved in a non-work related automobile accident that left her a quadriplegic, though she eventually regained partial use of both of her arms. She is now required to use a wheelchair to move around. During her hospitalization and ensuing rehabilitation period, Catlin filed for and received full disability benefits.

¶ 10. In September 1997 Catlin decided that she was ready to return to work, so she contacted Tony Curella (Curella), the president of Crystal Lake, to inquire about the circumstances of her resuming her position as department head. Crystal Lake subsequently hired David Johnson (Johnson), a management consultant of Genex Services, to determine what types of accommodations would be needed in order to allow a person confined to a wheelchair to perform the duties Catlin's position required. Curella had told Johnson that the department head had to be able to perform all of the functions in the wholesale department. Also, no one from Crystal Lake ever gave Johnson any information about Catlin, other than that she used a wheelchair. Ultimately, Johnson found that Catlin could not have been reasonably accommodated, as a person with Catlin's disability would be unable to perform all the tasks required of her as the department head (i.e., she was unable to perform all the functions of all four positions in the wholesale department). More specifically, Johnson noted that Catlin would have difficulty pulling and stocking inventory because of weight and the height of the storage area — up to seven feet above the floor. Crystal Lake therefore concluded, based on the report from Johnson, that it could make no reasonable accommodations for Catlin.

¶ 11. In October 1999 Catlin asked Crystal Lake to reconsider its decision, and in the meantime, she hired her own expert, Jeffery Annis (Annis) of the UW-Stout Assistive Technology and Assessment Center, to determine the feasibility of her returning to work as department head. At the time of this assessment, the wholesale department had been eliminated and Catlin's job no longer existed. Regardless, the assessment initiated by Catlin found that Catlin could have been accommodated, if certain physical changes had been made in the workplace, and if her job had been modified so that she would not have been required to perform those physical aspects of her job that she was no longer able to perform.

¶ 12. Like Johnson, Annis found that Catlin would be unable to perform some of the duties of her position that required climbing, lifting, or performance in a standing position. For example, she could not lift 40-pound blocks of cheese or reach cheese stored on a high shelf. Nevertheless, the assessment stated that she was still capable of performing most of her job-related duties. Due to the inability to modify some of the above job duties, the assessment suggested that an easier way to accommodate Catlin would be to make her job more clerical, and eliminate many of the physical duties. The assessment recommended that Catlin's job duties be modified so that as a lead person she need do only the paperwork and final packaging, along with filling out invoices, receipts, and packing lists. Both before Catlin's accident and at the time she attempted to return to work, her mother and her sister were employed in the wholesale department as part of the same team that Catlin led.

¶ 13. When Catlin realized that she would not be allowed to resume her position as the department head at Crystal Lake Cheese Factory, she filed a charge of disability discrimination with the United States Equal Employment Opportunity Commission, and the charge was cross-filed with the Equal Rights Division of the Wisconsin Department of Workforce Development. This occurred in March of 1998. Catlin alleged that Crystal Lake violated the WFEA by terminating her employment, and by refusing to permit her to return to work because of her disability. The federal filing was subsequently dismissed by notice sent on April 27, 1998.

II. PROCEDURAL BACKGROUND

A. Administrative Law Judge's Decision

¶ 14. An Equal Rights Division hearing was held before the ALJ on January 25, 2000. At the hearing, Phillip Robertson, Crystal Lake's operations manager, testified to some of the costs in modifying the factory to accommodate Catlin. Crystal Lake asserted that these costs were unreasonable. In October 2000 Olstad determined that Crystal Lake had not discriminated against Catlin in refusing to allow her to return to work following her automobile accident. He found there were no reasonable accommodations that Crystal Lake could have made, without imposing on it a hardship. Consequently, Olstad determined that Crystal Lake had not violated the WFEA.

B. Labor and Industry Review Commission's Decision

¶ 15. Catlin appealed the ALJ decision to LIRC. In July 2001 LIRC reviewed the case and reversed the ALJ's ruling. LIRC did not consult with the ALJ regarding the credibility of the witnesses because LIRC believed that its reversal of the examiner's decision was not based upon any differing assessment of witness credibility. It found that Crystal Lake could have made reasonable accommodations in the factory and modifications to Catlin's duties that would have allowed Catlin to return to work as the department head. LIRC found that as of the day that Catlin sought reinstatement she was physically able to perform most of the jobs in the wholesale packing department; LIRC, Fair Employment Decision, Finding 14, p. 3 (May 5, 2000), but that she could not perform some of the heaviest physical tasks. Id., Finding 15, p. 4. More specifically, LIRC found that Crystal Lake could have altered Catlin's job duties and exempted her from certain activities that she was no longer physically capable of performing, and that doing so was well within the bounds of reasonable accommodation. LIRC determined that the refusal to modify Catlin's job duties to exempt her from performing the heavier physical tasks, constituted a denial of a reasonable accommodation that Crystal Lake could have provided without hardship. Id., Finding 16, p.4. In a memorandum opinion explaining its findings, LIRC stated in part: LIRC has "previously found that it is reasonable to require an employer to restructure the physical demands of the job in order to accommodate a disabled employee, provided this can be achieved without hardship to the employer." Fields v. Cardinal TG Co., ERD Case No. 1997-02574 (LIRC, Feb. 16, 2001).

¶ 16. LIRC also found that, in order to perform her job duties, Catlin needed some physical modifications to the workplace. LIRC, Fair Employment Decision, Findings 17-18, pp. 4-5 (May 5, 2000). LIRC determined that Crystal Lake's refusal to make physical modifications also constituted denial of a reasonable accommodation that Crystal Lake could have provided without hardship. Id., Finding 19, p. 5. Furthermore, LIRC found that at the time Catlin sought to return to work she did not even need an accessible bathroom.⁵ Thus, the cost of putting in an accessible bathroom, even if it was $47,000 as the employer claimed, was not a basis upon which Catlin could lawfully be denied reinstatement. LIRC ordered Crystal Lake to reinstate Catlin, provide "make whole" remedies⁶ to her, and pay reasonable attorney's fees and costs.

C. The Circuit Court Decision

¶ 17. On August 16, 2001, Crystal Lake filed for judicial review of LIRC's decision, and on February 7, 2002, the circuit court affirmed LIRC's decision. It found that LIRC had reasonably interpreted the WFEA, and that there was substantial and credible evidence in the record to support LIRC's findings.

D. The Court of Appeals' Decision

¶ 18. Crystal Lake appealed to the Wisconsin Court of Appeals, District III. On October 8, 2002, the court of appeals affirmed and, thus, upheld LIRC's decision.

¶ 19. Applying the great weight standard of review, the court of appeals concluded that LIRC's interpretation of Wis. Stat. § 111.34(l)(b) was acceptable when it found that Crystal Lake's refusal to modify Catlin's duties to exempt her from the heaviest physical tasks constituted a denial of reasonable accommodation. The court of appeals concluded that LIRC reasonably interpreted the reasonable accommodation provision of the WFEA to mean that an employer may be required to modify some job responsibilities of a disabled employee who can perform some or most (but not all) job-related functions, unless the employer can show that such modifications would cause a hardship.

¶ 20. The court of appeals found that Crystal Lake had presented no evidence showing that accommodating Catlin's disability would create a hardship. The court of appeals also concluded that LIRC did not deny Crystal Lake due process when it rejected some of the ALJ's factual findings and failed to consult with him. Finally, the court of appeals declined to remand the case in order to give Crystal Lake the opportunity to show hardship.

¶ 21. Crystal Lake petitioned for review of the decision of the court of appeals and we granted review on February 19, 2003.

III. ISSUES

¶ 22. As noted, we are presented with the following issues: (1) whether LIRC reasonably interpreted Wis. Stat. § 111.34(l)(b) and Wis. Stat. § 111.34(2)(a) of the WFEA when it found that there was a reasonable accommodation Crystal Lake could have provided its former employee, Catlin, without hardship; (2) whether Crystal Lake was denied due process by LIRC's failure to consult with the administrative law judge; (3) whether there was substantial and credible evidence to support the factual findings made by LIRC, upon which it based its decision that there was a reasonable accommodation Crystal Lake could have provided Catlin, without hardship within the provisions of Wis. Stat. § 111.34(l)(b) and § 111.34(2)(a).

IV STANDARD OF REVIEW

¶ 23. Crystal Lake argues that a de novo standard of review is appropriate for LIRC's decision. In support of the de novo standard, Crystal Lake contends that the issue of whether reasonable accommodation under the WFEA includes a duty to create a new job for a disabled employee is one of first-impression for LIRC. Alternatively, Crystal Lake argues that LIRC's decision in this case is inconsistent with its previous decisions on other matters. Accordingly, based on Kannenberg v. LIRC, Crystal Lake maintains that if an issue is one of first-impression before the agency, or the agency's position is inconsistent with other decisions on the matter, de novo is the appropriate standard of review. Kannenberg v. LIRC, 213 Wis. 2d 373, 385-86, 571 N.W.2d 165 (Ct. App. 1997). Crystal Lake also maintains that LIRC's interpretation is in direct conflict with decisions from the Wisconsin Personnel Commission and federal courts interpreting analogous federal anti-discrimination laws.

¶ 24. The respondents, LIRC and Catlin,⁷ disagree and argue that LIRC's determination that Crystal Lake could have made reasonable accommodations that would have allowed Catlin to continue working as the department head, is entitled to "great weight" deference, and must be affirmed if it is reasonable and not contrary to the clear meaning of the statute. See Target Stores v. LIRC, 217 Wis. 2d 1, 13-14, 576 N.W.2d 545 (Ct. App. 1998). This is true even if the court were to conclude that another interpretation was more reasonable. See id.

¶ 25. Catlin argues that if LIRC's interpretation is reasonable, then the reviewing court must affirm its decision under the great weight standard of review. In support of this argument Catlin maintains that the weight and credibility of the evidence are matters for the agency, and not for the reviewing court, to evaluate. See Bucyrus-Erie Co. v. ILHR Dep't., 90 Wis. 2d 408, 418, 280 N.W.2d 142 (1979); Wis. Stat. § 227.57(6). Even when more than one inference can reasonably be drawn, the finding of the agency is conclusive. See Vocational Tech. & Adult Educ. Dist. 13 v. ILHR Dep't., 76 Wis. 2d 230, 240, 251 N.W.2d 41 (1977).

¶ 26. Moreover, Catlin argues that if an agency's decision depends on any fact found by the agency, the court shall not substitute its own judgment as to the weight of the evidence of any finding of fact for that of the agency. Wis. Stat. § 227.57(6). Additionally, relying on Wis. Stat. § 227.57(10),⁸ Catlin argues that great weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved.

¶ 27. According to Wis. Stat. § 227.57(6),⁹ LIRC's decision may be reviewed by a court and will only be set aside or remanded to the agency "if [the court] finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record." "Substantial evidence does not mean a preponderance of the evidence. Rather, the test is whether, taking into account all the evidence in the record, 'reasonable minds could arrive at the same conclusion as the agency.'" Madison Gas & Elec. Co. v. Public Serv. Comm'n, 109 Wis. 2d 127, 133, 325 N.W.2d 339 (1982) (citing Sanitary Transfer & Landfill, Inc. v. DNR, 85 Wis. 2d 1, 15, 270 N.W.2d 144 (1978)). The reviewing court may not substitute its judgment for that of an agency in a contested case as to the weight of evidence on any disputed finding of fact.

¶ 28. A reviewing court must first determine what level of deference to accord an agency decision. If the agency's determination is entitled to great weight, a court will sustain it unless it directly contravenes a statute, is clearly contrary to legislative intent, or lacks a rational basis. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 662, 539 N.W.2d 98 (1995). Here, any decision made by LIRC will be given great weight due to the agency's knowledge and experience in application of Wis. Stat. § 111.34. Target, 217 Wis. 2d at 13.

¶ 29. In Target the court of appeals determined that LIRC's interpretation of reasonable accommodation should be given great weight. Id. The court stated that "[w]e give LIRC's interpretation of a statute varying degrees of deference depending on its obligations with respect to administering the statute, its experience in doing so, and the nature of the determinations." Id. The court then went on to explain why it concluded great weight should be given to LIRC's interpretation of reasonable accommodation:

First, LIRC is charged with adjudicating appeals from the hearing examiner's decision on complaints under the WFEA, § 111.39(5), Stats., which includes complaints under § 111.322, Stats., for handicap discrimination. Second, § 111.34(1), Stats., was enacted in 1981 and LIRC has developed experience and expertise in interpreting this section. ... Third, by according great deference to these determinations, we will promote greater uniformity and consistency than if we did not do so. Fourth, this determination is intertwined with factual determinations, see McMullen v. LIRC, 148 Wis. 2d 270, 276, 434 N.W.2d 830, 833 (Ct. App. 1988) (what is reasonable accommodation depends on the facts in each case). Fifth, this determination involves value and policy judgments about the obligations of employers and employees when an employee, or prospective employee, has a handicap. See Kannenberg, 213 Wis. 2d at 385, 571 N.W.2d at 171.

Id., (some citations omitted).

¶ 30. We agree with the standard of review set forth in Target, and hold that LIRC's interpretations, including its determination of reasonable accommodation in this case, should be given "great weight" deference.¹⁰ In doing so, we reject Crystal Lake's contention that the issue was one of first impression, or that its position is inconsistent with other decisions on the matter. LIRC has had many opportunities to address this issue of what reasonable accommodation is under the WFEA. "Under the great weight standard of review, we uphold LIRC's interpretation of the statute if it is reasonable and not contrary to the clear meaning of the statute, even if we conclude that another interpretation is more reasonable." Id. at 13-14.

V ISSUE ONE — LIRC'S INTERPRETATION OF REASONABLE ACCOMMODATION WITHOUT HARDSHIP AND ABILITY TO UNDERTAKE JOB RESPONSIBILITIES

¶ 31. As noted previously, Wis. Stat. § 111.34 states:

Disability; exceptions and special cases

(1) Employment discrimination because of disability includes, but is not limited to:

(b) Refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business.

(2) (a) Notwithstanding s. 111.322, it is not employment discrimination because of disability to refuse to hire, employ, admit or license any individual, to bar or terminate from employment, membership or licensure any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment, membership or licen-sure.

¶ 32. The statutory language of Wis. Stat. § 111.34 requires that an employer must show the individual's disability "is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment . . .." Wis. Stat. § 111.34(2)(a). However, an employer violates the WFEA if it refuses to reasonably accommodate an employee's disability without demonstrating that the accommodation would be a hardship on it. Wis. Stat. § 111.34(l)(b). Taken together, § 111.34(l)(b) and (2)(a) require an employer to prove that even with reasonable accommodations, the employee would not be able to perform his or her job responsibilities adequately or that, where reasonable accommodations would enable the employee to do the job, hardship would be placed on the employer. Target, 217 Wis. 2d at 17.

A. Arguments

¶ 33. Crystal Lake argues that LIRC's interpretation of reasonable accommodation under the WFEA is unreasonable and erroneous. The WFEA does not define reasonable accommodation or the extent to which an accommodation may be required for a disabled employee. Moreover, Crystal Lake contends that there is little guidance from Wisconsin's appellate courts regarding the scope of reasonable accommodation under the WFEA. See id. at 17. Relying on Target,¹¹ Crystal Lake argues that eliminating the duties of an employee's position is not an accommodation that enables the disabled employee to "adequately undertake job-related responsibilities" of her employment.

¶ 34. Crystal Lake maintains that neither LIRC, nor Catlin's expert, suggests that there is any such accommodation that would have allowed Catlin to do her job. Instead, Crystal Lake claims that LIRC required Crystal Lake to excuse Catlin from those duties she could no longer perform, essentially creating a new job. Under the statutory language of the WFEA, Crystal Lake argues that an employee must be able to "adequately undertake the job-related responsibilities of [the] individual's employment. ... " Wis. Stat. § 111.34(2)(a).

¶ 35. Next, Crystal Lake argues that the legislature's use of the definite article, "the" in Wis. Stat. § 111.34(2)(a), without modification, can only be reasonably interpreted to mean all of the functions that make up the job. The use of the article "the," Crystal Lake contends, is contrary to the interpretation adopted by the court of appeals in this case, where the court found that as long as the employee could perform "some" of the job-related responsibilities, the employer is obligated reasonably to accommodate the employee by eliminating those tasks which the employee can no longer do. Crystal Lake Cheese Factory v. LIRC, 2002 WI App 290, ¶ 26, 28-29, 258 Wis. 2d 414, 654 N.W.2d 286.

¶ 36. Crystal Lake contends that this court should look to analogous federal statutes and the Wisconsin Personnel Commission in interpreting reasonable accommodation, even though neither the court, nor LIRC, is bound by those decisions in interpreting Wis. Stat. § 111.34(l)(b) and (2)(a). See Target, 217 Wis. 2d at 18-19; Kannenberg, 213 Wis. 2d at 387. In support of its argument, Crystal Lake points out that federal courts have routinely held that reasonable accommodation does not require an employer to eliminate job duties, create a new job, or employ others to perform functions that a disabled employee cannot perform. Peters v. City of Mauston, 311 F.3d 835, 845-846 (7th Cir. 2002); Watson v. Lithonia Lighting, 304 F.3d 749, 752 (7th Cir. 2002). Consequently, Crystal Lake asks us to find that the WFEA's reasonable accommodation provision does not require an employer to create a new position for a disabled employee.

¶ 37. Catlin disagrees and argues that the court should not read federal legislation into the intent of Wisconsin's legislators. Instead, Catlin maintains that the WFEA should be interpreted in accordance with "our legislature's intention rather than with the intention of other jurisdictions." McMullen v. LIRC, 148 Wis. 2d 270, 275-76, 434 N.W.2d 830, 833 (Ct. App. 1988). Wisconsin has determined that while federal and other states' cases applying similar legislation may be enlightening to the WFEA cases, they are not binding upon Wisconsin courts. Id. Thus, Catlin argues that while this court may consider how federal courts have dealt with the question of reasonable accommodation under the Americans with Disability Act (ADA), since the WFEA is similar, but not identical, guidance is limited as to the determination of what is reasonable under the WFEA. In support of its position, Catlin argues that there are significant differences in statutory language between the WFEA and the ADA. See McMullen, 148 Wis. 2d at 275. Catlin points out that the ADA requires an employer to make reasonable accommodations only to the disability, of a "qualified individual with a disability" and a "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds. . .." See 42 U.S.C §§ 12111(8)¹² and 12112(5)(A).¹³ The WFEA, Catlin contends, requires an employer reasonably to accommodate an employee's disability, but an "individual with a disability" is not limited to an individual who can perform the "essential functions" of the employment position with or without accommodation. See Wis. Stat. §§ 111.32(8)¹⁴ and 111.34(l)(b).

¶ 38. Moreover, Catlin argues that under the ADA analysis, it is not even clear that the tasks that Catlin could no longer perform were considered essential functions of her position. Catlin points out that as the department head, her primary responsibility was to process orders and do inventory sheets — tasks which she could still perform. Furthermore, Catlin asserts that Crystal Lake has offered no case law, under the ADA, that says an individual must be able to perform all functions of four different positions, or they will not be considered a qualified individual with a disability entitled to protections under the law.

¶ 39. Catlin argues that even if the ADA is considered when applying the WFEA, it makes no difference since the ADA requires an employer to engage in an interactive process with an employee to determine a reasonable accommodation, and that in the present case, no such process was undertaken.

To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

29 C.F.R. § 1630.2(o)(3) 1995.¹⁵ Again, no such interactive process took place here. Catlin points out that Crystal Lake never inquired of her as to what accommodations she needed. Catlin argues that this failure violated the intent of the WFEA as well. Furthermore, Catlin argues that under the ADA, determining whether a function is essential includes determining whether removing the function would fundamentally alter that position if the position exists to perform a particular function, if there are other employees available to perform that function, and the amount of time spent performing the function. Americans With Disabilities Act Handbook, p. 1-38, U.S. Equal Employment Opportunity Commission and U.S. Department of Justice (1992). Even under this analysis, Catlin contends, it is not clear whether the few tasks Catlin was no longer able to do, even with accommodations, qualified as essential functions or marginal functions. Her position was not the cutter position nor was it the cryovacer position.

¶ 40. Crystal Lake argues that all Catlin's job functions were essential, and that not only is Catlin required to perform all the functions of her position, but it is also essential that she be able to perform all the functions of all the other employees in the department, no matter what their primary role is. Catlin argues that Crystal Lake's comment that nothing in the WFEA's legislative history "suggests an intent to construe the duty of 'reasonable accommodation' differently than under the ADA" is similarly unpersuasive, given that the WFEA's disability provisions predate the ADA by almost ten years.

¶ 41. In summary, Catlin argues that Crystal Lake is inappropriately attempting to move this case from the protections of the WFEA, and instead apply an analysis used under the ADA. The ADA distinguishes between essential and marginal functions, but the term "essential functions" has no particular meaning under the WFEA. Target, 217 Wis. 2d at 16-17 n.9.

¶ 42. Under the WFEA a complainant must first show that he or she is an "individual with a disability" within the meaning of Wis. Stat. § 111.32(8), and that the employer took one of the actions enumerated in Wis. Stat. § 111.322.¹⁶ Target, 217 Wis. 2d at 9.

¶ 43. Once a disability has been proven by the employee, the burden then shifts to the employer to prove a defense under Wis. Stat. § 111.34. Id.

¶ 44. In this case, there is no dispute among the parties that Catlin was disabled within the meaning of the WFEA, or that she was not allowed to return to work because of her disability. Also, it is uncontested that Catlin's disability was reasonably related to her adequately performing her job responsibilities, unless reasonable accommodations were made. The question remains whether, with reasonable accommodations Catlin must then be able to perform all of the job-related responsibilities adequately. Also left in question is whether or not there was a reasonable accommodation that Crystal Lake could have provided Catlin without hardship. Under LIRC's interpretation of "reasonable accommodation," it found that Crystal Lake could have modified Catlin's job duties to accommodate her disability. Catlin contends that a reviewing court may not make an independent determination of the facts,¹⁷ and that the decision of LIRC should not be set aside unless it can be shown that the decision was not supported by substantial evidence. Id. at 11 (citing Hamilton v. ILHR Dept., 94 Wis. 2d 611, 617, 288 (1980)). Crystal Lake, however, contends that this interpretation is unreasonable because it is being forced to create a new job to accommodate a disabled employee.

¶ 45. LIRC determined that Crystal Lake should modify Catlin's job duties and make physical modifications to the plant as a reasonable accommodation. Crystal Lake argues that, in this case, LIRC's interpretation of reasonable accommodation is unreasonable. Under Crystal Lake's alternate interpretation, an employer would only be required to assist an employee with his or her job responsibilities if there is some reasonable accommodation that will enable the employee to undertake all of his or her job duties. Crystal Lake argues that an employer would not be required to modify an employee's duties, or to exempt an employee from having to perform certain duties. Crystal Lake relies heavily on federal court decisions under the ADA in support of its interpretation. The basis for using the ADA in interpreting reasonable accommodation is, according to Crystal Lake, due to the similarity in language and purpose of the federal statute to the WFEA. Crystal Lake asserts that physical modifications to the plant and/or modification to Catlin's duties would have posed a hardship for the company. Catlin takes the position that Crystal Lake failed in meeting its burden of proving hardship.

B. Analysis

¶ 46. Though this court may look to federal law for guidance in determining if LIRC's interpretation of "reasonable accommodation" was reasonable, we are not bound by those casés in interpreting the WFEA. Id. at 18-19; McMullen, 148 Wis. 2d at 275-76. See also American Motors Corp. v. ILHR Dep't, 101 Wis. 2d 337, , 305 N.W.2d 62 (1981). The WFEA is a "remedial statute .. . [and] should be broadly interpreted to resolve the problem it was designed to address." McMullen, 148 Wis. 2d at 275. Also,

the statutory language and scheme contained in the analogous .. . federal legislation differ [s], sometimes significantly, from that found in sec. 111.34(l)(b). . .. Our [The Wisconsin] legislature has established its own scheme for dealing with employment discrimination based on handicap and has articulated the specific policy considerations underlying that scheme. Therefore, we will construe sec. 111.34(1) (b) in accordance with our legislature's intention rather than with the intention of other jurisdictions.

McMullen, 148 Wis. 2d at 275-276. Clearly, this court is not bound by federal law in determining whether LIRC's interpretation of "reasonable accommodation" was appropriate.

¶ 47. The court of appeals has previously addressed the issue of interpretation of reasonable accommodation in both Target and McMullen. In each case, the court of appeals held that a reasonable accommodation was not limited to only an accommodation that would permit the employee to perform all of his or her job responsibilities.

¶ 48. In Target, the court upheld a decision by LIRC to "temporarily refrain from enforcing a disciplinary rule" against an employee as a reasonable accommodation. Target, 217 Wis. 2d at 18. The employee was unable, due to sleep apnea, to stay awake at times while performing her job duties. Id. at 5-6. LIRC determined that it was unreasonable to fire the employee without allowing time to see if treatment of the condition would correct the problem. Id. at 8-9. The employee's sleep apnea was reasonably related to her ability to perform adequately her job responsibilities. However, the court upheld LIRC's decision as a reasonable accommodation, even though it did not immediately allow her to perform adequately her job duties. Id. at 16-18.

¶ 49. Similarly, in McMullen, the court of appeals required an employer to transfer an employee to a different position as a reasonable accommodation of the employee's disability. The court held that a" 'reasonable accommodation' may include a transfer of a handicapped employee to another position for which he is qualified, depending on the facts of each individual case." McMullen, 148 Wis. 2d at 271. This accommodation also did not allow the employee to perform his current job duties, but instead placed him in a job better suited to his current abilities. It was essentially a change or modification in the employee's job-related responsibilities.

¶ 50. In Frito Lay, Inc. v. LIRC, despite the fact that it was decided before the legislature added the reasonable accommodation requirement to the WFEA, the court of appeals held that arrangements made among other employees to accommodate one employee's disability, negated the employer's claim of an exception to the law against employment discrimination based on disability. Frito Lay, Inc. v. LIRC, 95 Wis. 2d 395, 407-08, 290 N.W.2d 551 (Ct. App. 1980). In that case, Frito Lay employed drivers, including the complainant, to make both interstate and intrastate deliveries from its warehouse in Beloit. Id. at 399. The complainant was a truck driver whose lack of visual acuity barred him because Wisconsin and Federal requirements differed for interstate, but not intrastate deliveries. Id. Delivery runs were allocated based on seniority, and all drivers senior to the complainant agreed to ensure that he had only intrastate runs. Id. The court held that this accommodation did not allow the employer to discharge the complainant for failing to meet the federal (interstate) vision requirements. Id. at 408.

¶ 51. In this case, at least two of the three other employees in Catlin's department agreed that it would be feasible for them to accommodate a change in Catlin's duties because of her disability. This further supports the reasonableness, under Frito Lay and the current WFEA, of such a job modification.¹⁸

¶ 52. Based on the prior decisions in Target, McMullen, and Frito Lay, we hold that LIRC's interpretation of "reasonable accommodation" is not unreasonable, but rather is a reasonable one. A reasonable accommodation is not limited to that which would allow the employee to perform adequately all of his or her job duties. A change in job duties may be a reasonable accommodation in a given circumstance. See Target, 217 Wis. 2d 1; McMullen, 148 Wis. 2d 270. As we have determined LIRC's interpretation to be reasonable, under the "great weight" standard of review, we must, therefore, defer to LIRC's conclusion.¹⁹

¶ 53. While we are satisfied that LIRC's finding of no hardship also deserves great weight deference, and is correct, we reserve a thorough discussion of the hardship issue for our review of issue three.

VI. ISSUE TWO — DUE PROCESS

¶ 54. Crystal Lake argues that it was denied due process when LIRC rejected the hearsay testimony of Phillip Robertson, regarding the cost of constructing a wheelchair accessible bathroom. Crystal Lake contends that LIRC should have consulted with the ALJ regarding Robertson's credibility. Catlin, however, argues that Crystal Lake was not denied due process by LIRC's failure to consult with the ALJ regarding credibility issues, since LIRC's decision did not depend on the credibility of the witness. Because credibility was not the basis upon which the commission's decision hinged, the commission and the examiner were not required to consult. Rather, the testimony of Robertson was dismissed because it was uncorroborated hearsay. Catlin, therefore, asserts that LIRC was correct to reject the finding of the ALJ, since crucial findings cannot be based on hearsay testimony alone. Village of Menomonee Falls v. DNR, 140 Wis. 2d 579, 610, 412 N.W.2d 505 (Ct. App. 1987).

¶ 55. In support of her position, Catlin points out LIRC reached its decision because of its interpretation of how Wis. Stat. § 111.34 should be applied to the case, and that credibility was not a factor in reaching that decision. Crystal Lake had an opportunity to present its argument at the hearing and the ALJ ruled in its favor. Catlin argues that the fact that LIRC reached a result different than thé ALJ does not mean that Crystal Lake's due process rights were violated. Simply put, there were reasonable alternative conclusions one could draw from the testimony and LIRC chose one that was different than the ALJ's. Consequently, Crystal Lake's due process rights were not violated by LIRC's decision.

¶ 56. Crystal Lake maintains that it was denied due process not only when LIRC failed to confer with the ALJ on issues of credibility, but when LIRC rejected evidence that was admitted without objection at the hearing. More specifically, Crystal Lake points out that while the ALJ determined that Catlin had to regularly perform the functions of the other positions in the department, LIRC determined the opposite without ever conferring with the ALJ. Crystal Lake argues that due process would have required LIRC to confer with the ALJ before reversing the ALJ's determination.

¶ 57. Essentially, Crystal Lake argues that LIRC's failure to consult with the ALJ prior to reversing the decision, as well as its rejection of Robertson's testimony on hearsay grounds, constituted a denial of due process and ultimately led to LIRC's finding that there was a reasonable accommodation that Crystal Lake could have provided without hardship.

¶ 58. Catlin argues that the LIRC decision did not depend on the credibility of witness testimony, but rather that LIRC interpreted the testimony in a different way. For example, rather than accepting the ALJ's determination that Catlin regularly assisted others in the wholesale department, LIRC only noted that the record did not indicate the "frequency" with which she assisted the other workers. Catlin argues that there were reasonable alternative conclusions one could draw from the same testimony, and just.because LIRC happened to reach a conclusion that was different from the ALJ, and against Crystal Lakes' interest, does not imply that Crystal Lakes' due process rights were violated.

¶ 59. Essentially, Catlin argues that LIRC reached its decision because of its interpretation of how Wis. Stat. § 111.34 should be applied to the case, and that credibility was not a factor in reaching that decision. As a result, LIRC did not violate Crystal Lake's due process rights.

¶ 60. We agree and hold that Crystal Lake was not denied due process by LIRC's failure to consult with the ALJ regarding credibility since LIRC's findings were not based upon the credibility of the operation manager's testimony. Rather, LIRC reached its decision because of its interpretation of how Wis. Stat. § 111.34 should be applied to this case. Put differently, the facts of the case and LIRC's interpretation of the statute were the real reasons for LIRC's decision. Thus, we hold that since LIRC's decision did not hinge upon witness credibility,²⁰ LIRC was not required to consult with the ALJ and, therefore, Crystal Lake was not denied due process.

VII. ISSUE THREE — SUBSTANTIAL EVIDENCE-REASONABLE ACCOMMODATION WITHOUT HARDSHIP

¶ 61. Crystal Lake argues that LIRC's factual findings lacked evidentiary support in the record. In holding that Crystal Lake could have accommodated Catlin without hardship, LIRC found that Catlin could still perform most of her duties. Crystal Lake counters that this finding is against the evidence in the record. It maintains its position that Catlin regularly performed several activities, which LIRC found Catlin did only infrequently. Crystal Lake maintains that it is critical that Catlin should be able to perform not only her regular tasks, but all tasks for all positions in the department.

¶ 62. Additionally, Crystal Lake asserts that the record does not support LIRC's finding that neither physical modifications to the plant, nor modifications to Catlin's duties, would have posed a hardship to the company. It points to the $47,000 estimate for a wheelchair-accessible restroom, as well as the other plant modifications, as proof of hardship. Crystal Lake points out that the court of appeals acknowledged that modifying Catlin's duties may lead to production slowdowns. Crystal Lake disagrees, however, with the court of appeals that Crystal Lake fell short of proving hardship when it failed to go further and ensure there was evidence in the record of the consequences of such slowdowns.

¶ 63. Catlin maintains that LIRC, in this instance, has determined that there was substantial evidence to support its determination that reasonable accommodations were appropriate for Crystal Lake to make. LIRC found that Catlin could perform most of her duties, and that the duties Crystal Lake argues Catlin could not perform were not her regular responsibilities. Under LIRC's interpretation of the statutes, as long as Catlin could perform some of her duties, which the record indicated she could, then there were reasonable accommodations that could and should have been made. Catlin felt that she would be able to perform most tasks that were part of her job with little or no accommodation.

¶ 64. Catlin asserts that Crystal Lake had no knowledge regarding what duties she was capable of performing, and never asked her what accommodations she thought she might need. Catlin contends that the WFEA has been found to include a duty to gather sufficient information from the employee and from qualified experts, as needed, to determine what accommodations are necessary. Keller v. UW-Milwaukee, No. 90-0140-PC-ER, (Wis. Personnel Comm'n. Mar. 19, 1993). Catlin argues that Crystal Lake failed to satisfy this duty. Crystal Lake was aware that Catlin had a disability and would require some sort of accommodation, but never approached her to inquire about what job duties she was capable of performing. Additionally, Catlin contends that Crystal Lake did not look at the possibility of transferring her to another position if it felt she could not adequately perform her job. She argues that such a transfer may also be a reasonable accommodation under the WFEA. Wis. Stat. § 111.34(l)(b).

¶ 65. She argues that with minor changes to the building and some assistive technology, she could have performed her job. Catlin asserts, and the Annis assessment points out, the easiest way to accommodate Catlin would have been to modify her job duties so that Catlin did not have to perform the more physically demanding tasks. Everyone in the department was cross-trained, and at least two of the three other team members acknowledged that they could make up for Catlin's restricted duties.

¶ 66. Based on the evidence contained in the record, Catlin argues that there was clearly a sufficient amount of credible evidence to support the findings of LIRC.

¶ 67. The complainant in a disability discrimination, under the WFEA, must show that: (1) he or she is handicapped under WFEA, and (2) that the employer has taken one of the enumerated, proscribed actions under the WFEA. Target, 217 Wis. 2d at 9. Once the complainant has made these two showings, the employer may proffer a defense that the accommodations named by the complainant would impose a hardship on the employer. Id. In such a case the employer has the burden of proving that hardship. Id. at 9-10. If the employer fails to prove this defense, it is in violation of WFEA.

A. Wisconsin Stat. § 111.34(1)(B) Hardship

¶ 68. Although Crystal Lake argues that reasonably accommodating Catlin would have resulted in a hardship for it, Catlin argues that Crystal Lake did not meet its burden of proving hardship pursuant to Wis. Stat. § 111.34(l)(b), nor did it meet its burden under Wis. Stat. § 111.34(2)(a). Target, 217 Wis. 2d at 10.

[I]f an employer refuses to reasonably accommodate an employee's (or prospective employee's) handicap and is unable to demonstrate that the accommodation would pose a hardship, then the employer violates the WFEA. Wis. Stat. § 111.34(l)(b). Reading the two paragraphs of § 111.34 together, once the employee has met the first two showings, the employer must show either that a reasonable accommodation would impose a hardship —§ 111.34(l)(b), or that, even with a reasonable accommodation, the employee cannot "adequately undertake the job-related responsibilities" — § 111.34(2)(a).

Id.

¶ 69. In support of her argument, Catlin points out that Crystal Lake did not offer any evidence showing that accommodating her would be a hardship for it. More specifically, Catlin points out that Crystal Lake offered no evidence showing that by exempting her from duties she could not perform it would suffer a hardship. Moreover, Catlin contends that Crystal Lake did not even explore accommodations it could have made for her, let alone show that any particular accommodation would impose a hardship upon it. Catlin states that the owner of Crystal Lake Cheese Factory, Curella, admitted as much in his testimony. Curella testified that he "didn't make any effort whatsoever for what might be appropriate accommodations for [Catlin] to return to work . . . ." (R. 14:4).

¶ 70. Furthermore, Catlin argues that restructuring her job duties would not have imposed a hardship on Crystal Lake since everyone in the four-person department was cross-trained in all tasks in the department, and that other members of the department were willing to perform the heavy physical tasks that Catlin could not do. The other department members did not object even if this meant they would get a disproportionate share of those duties. As noted previously, the other team members included Catlin's sister who already had the heaviest job as cutter, and Catlin's mother. Both of them were willing to perform the heavy physical tasks that Catlin could not do. LIRC found Crystal Lake could have accommodated Catlin without hardship by exempting her from performing the heavy physical tasks that were beyond her capabilities, and by making some physical modifications to the workplace. LIRC, Fair Employment Decision, Findings 16, 19, p. 4-5 (May 5, 2000).

¶ 71. In regard to the hearsay testimony that a new wheelchair accessible bathroom would cost $47,000, Catlin contends that Crystal Lake provided no documentation to support this figure. Moreover, Catlin argues that there was no evidence as to what Crystal Lake's financial resources were like. As a result, Catlin argues that it is possible that the $47,000 may not have been a significant cost for Crystal Lake, in relation to its financial situation. There was no evidence showing that Crystal Lake could not reasonably afford such an expense. While Crystal Lake argues that the alleged cost of the new bathroom would be three times Catlin's wages, Catlin contends that there is no legal basis for such an argument. Catlin points out that a new bathroom could be used by all employees. As such, Catlin argues that Crystal Lake failed to prove that accommodating her would impose a hardship on it.

¶ 72. Lastly, Catlin argues that the other necessary physical modifications that would be needed in order to accommodate her were relatively inexpensive. One modification included addressing the three-inch threshold on the entry door, something she claims could easily be remedied with a small ramp. Other modifications dealt with changes that could be made to the factory such as the lowering of tables and other items, and, where necessary, the widening of aisles.

¶ 73. In summary, Catlin agues that Crystal Lake did not meet its burden of proof that an accommodation would impose a hardship pursuant to Wis. Stat. § 111.34(l)(b).

¶ 74. In the present case, neither party disputes that Catlin is handicapped or that Crystal Lake took termination action based on that handicap. The issues, therefore, are whether the record supports, with substantial and credible evidence, LIRC's conclusion that reasonable accommodations were available to Crystal Lake, accommodations that would allow Catlin to perform her job duties, and that Crystal Lake has failed to demonstrate that those reasonable accommodations would create a hardship for Crystal Lake.

¶ 75. In determining whether an employer is required, under the WFEA, to accommodate a disabled employee, the questions of reasonableness of the accommodation and hardship to the employer, while overlapping, are two "separate and distinct considerations that are to be addressed independently." McMullen, 148 Wis. 2d at 277. Thus, in examining the record for evidence to support each, we will also treat the two as distinct determinations.

¶ 76. In this case there is substantial evidence in the record to support LIRC's conclusion that, hardship notwithstanding, there were reasonable accommodations Crystal Lake could have taken in order to keep Catlin as an employee. Crystal Lake could have modified the jobsite to allow Catlin full access, and let her continue to perform those tasks she is still able to perform. Among the accommodations that could and should have been considered: a ramp, installed at the entrance, would allow wheelchair access; the tables and other fixtures could be lowered; the bathroom could be modified; and, where necessary, aisles could be widened.

¶ 77. When the state legislature modified the WFEA in 1981, it added provisions that require employers dealing with handicapped employees or applicants to evaluate the individual in order to determine whether he or she can meet the requirements of the job in question. Wis. Stat. § 111.34. Crystal Lake in this case failed to investigate what Catlin herself could still do despite her disability. Johnson, the job analysis evaluator from Genex, was told only that he was to examine the job and job site with regard to a person in a wheelchair. At no time did Crystal Lake contact Catlin; in fact, there is evidence in the record that Crystal Lake managers avoided her phone calls. This failure by Crystal Lake appears to have been a violation of the intent of the WFEA.

¶ 78. Another way Crystal Lake could have accommodated Catlin's disability is by modifying her responsibilities. This is an accommodation, we hold, that appears to be reasonable under the circumstances here and within the purview of the WFEA. The other employees could divide among themselves those physical tasks Catlin is now unable to do, and she could focus just on the many job responsibilities that she can do. As noted, other employees have testified that they would be willing and able to do this.

¶ 79. Having found substantial and credible evidence in the record to support LIRC's finding that Crystal Lake could have reasonably accommodated Catlin, we now turn to the issue of hardship for Crystal Lake. As noted previously, we are satisfied that LIRC's determinations are entitled to great weight deference on this issue as well. Since Catlin has made the required showings that she is handicapped and that the employer has taken a proscribed action under the WFEA, the employer has the burden of showing hardship. Target, 217 Wis. 2d at 9.

¶ 80. As to physical and job modifications, Crystal Lake has failed in its burden to prove hardship. Further, we agree with the court of appeals that this matter should not be remanded to allow Crystal Lake to attempt now to make a new showing of hardship. Crystal Lake chose to rely on what it argued was an erroneous interpretation of the WFEA by LIRC. Failed trial strategy is not grounds for remand. See State v. McDonald, 50 Wis. 2d 534, 538, 184 N.W.2d 886, 888 (1971).

VIII. CONCLUSION

. ¶ 81. We affirm the decision of the court of appeals. Accordingly, we hold that requiring Crystal Lake to modify the job duties of Susan Catlin and make physical modifications to the workplace is not unreasonable and would be a reasonable accommodation. With such accommodations, she would have the ability to adequately undertake her job-related responsibilities.

¶ 82. Next, we hold that Crystal Lake was not denied due process when LIRC, prior to reversing the ALJ's holding, failed to consult with the ALJ regarding witness credibility issues. We hold that since LIRC's findings did not hinge on issues of credibility, LIRC was not required to confer with the ALJ, and that there was, therefore, no violation of Crystal Lake's due process rights. LIRC reached its decision here based on its interpretation of the proper application of Wis. Stat. § 111.34 to the facts presented.

¶ 83. Finally, we hold that there was substantial and credible evidence in the record to justify LIRC's findings. There was substantial evidence to show that Crystal Lake could have made reasonable accommodations for Catlin, and Crystal Lake has failed to meet its burden of establishing that such reasonable accommodations for Catlin would create hardship on it.

By the Court. — The decision of the court of appeals is affirmed.

1 Crystal Lake Cheese Factory v. LIRC, 2002 WI App 290, 258 Wis. 2d 414, 654 N.W.2d 286.

2 All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

3 Wisconsin Stat. § 111.34(l)(b) provides:

(1) Employment discrimination because of disability includes, but is not limited to:

Ob) Refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business.

4 Wisconsin Stat. § 111.34(2)(a) provides:

Notwithstanding s. 111.322, it is not employment discrimination because of disability to refuse to hire, employ, admit or bcense any individual, to bar or terminate from employment, membership or licensure any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment, membership or licen-sure.

5 Catlin was "catheterized" when she first sought reinstatement, but by the time of LIRC's review she was using a bathroom. LIRC, Fair Employment Decision, Finding 18, p. 5 (May 5, 2000).

6 LIRC ordered Crystal Lake to pay Catlin the sum she would have earned as an employee from the date she sought reinstatement until she resumed employment with Crystal Lake, refused a valid reinstatement offer, or it was shown that reinstatement was not feasible.

7 Hereinafter, the respondents will usually be referred to collectively as Catlin.

8 Wisconsin Stat. § 227.57(10) states:

Upon such review due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it. The right of the appellant to challenge the constitutionality of any act or of its application to the appellant shall not be foreclosed or impaired by the fact that the appellant has applied for or holds a license, permit or privilege under such act.

9 Wisconsin Stat. § 227.57(6) provides:

If the agency's action depends on any fact found by the agency in a contested case proceeding, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record.

10 The dissent argues for application of the due weight deference standard of review, which it characterizes as one which allows the reviewing court to accept "an alternative interpretation that is more reasonable." Dissent, ¶ 108. While we believe that great weight deference is appropriate here, even under a due weight deference standard, our approval of LIRC's interpretations of the statutory sections involved would not change. Its interpretations are "more reasonable" than the alternatives offered by Crystal Lake.

11 In Target, the court of appeals held that "the purpose of reasonable accommodation is to enable employees to adequately undertake job-related responsibilities." Target Stores v. LIRC, 217 Wis. 2d 1, 17, 576 N.W.2d 545 (Ct. App. 1998).

12 42 U.S.C. § 12111(8) states:

The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

13 42 U.S.C. § 12112(5)(A), states:

As used in subsection (a) of this section, the term "discriminate" includes: not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.

14 Wisconsin Stat. § 111.32(8) provides:

"Individual with a disability" means an individual who:

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

(b) Has a record of such an impairment; or

(c) Is perceived as having such an impairment.

15 EEOC Regulations to Implement the Equal Employment Provisions of the ADA, 29 C.F.R. § 1630.2(o)(3) (1995).

16 Wisconsin Stat. § 111.322 provides:

Discriminatory actions prohibited.

Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:

(1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because, of any basis enumerated in s. 111.321.

17 See Hixon v. PSC, 32 Wis. 2d 608, 629, 146 N.W.2d 577 (1966).

18 This court upheld the court of appeals' decision in Frito Lay by an evpnly divided court. We recognize that the facts in Frito Lay are distinguishable from the case at bar. In Frito Lay the drivers chose their own truck routes based on seniority, and voluntarily left the intrastate routes to the complaintant in that case. In this case the job duties of Catlin's sister and mother are not determined by them, but rather, set by the employer, Crystal Lake. However, we still find Frito Lay persuasive in demonstrating that, even prior to the current version of the WFEA, this court upheld a voluntary re-arrangement of job responsibilities by the employees as reasonable. Frito-Lay, Inc. v. LIRC, 95 Wis. 2d 395, 290 N.W.2d 551 (Ct. App. 1980).

19 The dissent attempts to lead us into a trap, involving the employee's ability to perform "some" as opposed to "most" or "all" job responsibilities. Dissent, ¶ 89, 113, 118, 127. The proper emphasis is on the employee's ability to perform her or his job responsibilities adequately, rather than on terms such as "some" or "most" or "all."

20 We strongly disagree with the dissent's attempt to turn LIRC's statutory interpretations into "credibility assessments." Dissent, ¶¶ 90, 133-136.