Hutchinson Technology, Inc. v. Labor & Industry Review Commission

2004 WI 90, 682 N.W.2d 343, 273 Wis. 2d 394, 15 Am. Disabilities Cas. (BNA) 1235, 2004 Wisc. LEXIS 458

• Court: Wisconsin Supreme Court
• Decided: June 30, 2004
• Docket: 02-3328
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. Petitioner, Hutchinson Technology, Incorporated (HTI), seeks review of a court of appeals' decision, Hutchinson Technology, Inc. v. LIRC, No. 02-3328, unpublished slip op. (Wis. Ct. App. Sep. 18, 2003), affirming the decision of the Labor and Industry Review Commission (LIRC), which concluded that HTI discriminated against Susan Roytek (Roytek) on the basis of her disability. LIRC affirmed the decision by the administrative law judge and concluded that Roytek had a disability, as defined by the Wisconsin Fair Employment Act (WFEA), and that HTI failed to provide a reasonable accommodation that would have allowed her to continue her employment with HTI. The circuit court and the court of appeals affirmed LIRC's decision.

¶ 2. We conclude that Roytek is a person with a disability under the WFEA. Roytek met her initial burden of establishing the reasonableness of her proposed accommodations. HTI did not prove that it could not reasonably accommodate Roytek's disability, since it accommodated her disability for eight months. Moreover, HTI did not introduce any evidence that allowing Roytek to continue to work eight-hour shifts at HTI would cause hardship to the business. We are mindful that a business must have the right to set its own employment rules to encourage maximum productivity. We caution, however, that such rules do not exist in a vacuum, but must bend to the requirements of the WFEA. We, therefore, affirm the court of appeals' decision.

H-i

¶ 3. HTI is a Minnesota based corporation with a manufacturing plant located in Eau Claire, Wisconsin. The Eau Claire manufacturing plant produces suspension assemblies for computer hard disk drives. Since opening, the Eau Claire plant has used four crews to work rotating 12-hour shifts in its production facilities. HTI instituted the 12-hour shift model after studying production efficiency and determining employees' preferences. Employees generally work three days one week and four days the next, with every other weekend off. Thus, over the course of two weeks, an employee works seven 12-hour shifts totaling 84 hours. HTI has occasionally permitted an employee to work less than 12 hours per shift for a job assigned such hours, but these allowances have been temporary in nature.

¶ 4. Roytek began her employment as a production worker in HTI's photoetch department in June 1998. In the photoetch process, a pattern is photographically imprinted onto stainless steel sheets. The pattern is then etched with a chemical process, cleaned, inspected, sheared, and sent on to the next phase of processing. All of HTI's photoetch operators rotated into four areas during their shifts: inspection, shearing, bookwork, and bay. Each photoetch operator had a primary position in one of these four areas, and the majority of each shift was spent doing the work of such position. In inspection, an operator was required visually to inspect chemically etched steel sheets. Although the job description of the inspection position stated that it required long periods of sitting, adjustable tables were available, in order to permit standing inspection. The shearing position required the feeding of steel sheets into a machine and had to be performed while standing. The bookwork position was a desk job, and a person could stand or sit to perform such tasks. The requirements of the bay position varied. Roytek primarily worked in the inspection position and, at the time she was hired, understood that she would be required to work 12-hour days.

¶ 5. In September 1998, Roytek's personal physician, Paul M. Ippel, M.D. (Ippel), diagnosed Roytek with lower back pain¹ and concluded that she was temporarily unable to work. Roytek returned to work in November 1998, but with some restrictions. Roytek was limited to working six-hour days and prohibited from lifting anything over 20 pounds. In January 1999, Roytek increased her shifts to eight-hour days. At HTI's request Tuenis Zondag, M.D. (Zondag), performed a fitness for work evaluation on Roytek in August 1999. Based on the results of the evaluation, Roytek could work steadily on an eight-hour shift, five days per week. However, Roytek was incapable of working 12-hour shifts on a consistent basis. Roytek's last day of work was August 10, 1999, and she went on short-term disability leave beginning August 13, 1999. HTI terminated Roytek's employment on September 11, 1999, when her short-term disability pay ran out.

¶ 6. Roytek filed a complaint with the Equal Rights Division of the Department of Workforce Development (Department), alleging that HTI had discriminated against her on the basis of disability. After Roytek filed her complaint, Ippel informed the Department of further restrictions on Roytek's ability to work. Such restrictions included no sitting for longer than two hours, no static standing, no lifting more than 20 pounds, and no workdays longer than eight hours. While some testimony was presented by HTI before the Administrative Law Judge (ALJ) John L. Brown, presiding at the Department hearing on what these restrictions would mean in terms of performance of certain job functions, the determinations by the ALJ, and by LIRC, focused on the eight-hour day versus the 12-hour day issue.² HTI closed its photoetch department at the Eau Claire plant on June 17, 2000.

¶ 7. The ALJ concluded that Roytek had a disability, and that HTI had terminated her employment due to such disability. The ALJ concluded that, although HTI had demonstrated that Roytek's disability prevented her from performing certain job functions, HTI did not demonstrate that it attempted reasonably to accommodate her disability or that such accommodation would impose a hardship upon it. The ALJ con-eluded that HTI's evidence was too speculative to conclude that it had met its burden to prove hardship. Although HTI expressed fear that other employees would request reduced hours, that her fellow employees would experience a decline in morale, and that production would suffer, the ALJ concluded that HTI had presented no evidence that any of these scenarios had actually occurred. Thus, the ALJ reasoned that HTI violated the WFEA by terminating Roytek's employment. The ALJ then ordered HTI to reinstate Roytek to a position comparable to the position she had held in the photoetch department, unless Roytek stated that she did not want to be reinstated. The ALJ also ordered HTI to make Roytek whole for the losses of pay and benefits she suffered as a result of her termination.

¶ 8. HTI appealed the ALJ's decision to LIRC. LIRC affirmed the ALJ's decision.³ HTI sought review of LIRC's decision in circuit court. The Eau Claire County Circuit Court, Judge Benjamin D. Proctor presiding, affirmed LIRC's decision. The court concluded that HTI failed to meet its burden with respect to reasonable accommodation and hardship. HTI appealed.

¶ 9. In an unpublished per curiam opinion, Court of Appeals' Judges David G. Deininger, Margaret J. Vergeront, and Paul Lundsten affirmed the circuit court's judgment, stating that Roytek had a disability under Wisconsin's interpretation of "disability" as set forth in Wis. Stat. § 111.32(8)(a) (2001-02).⁴ The court further concluded that HTI did not proffer sufficient evidence to support its contention that accommodating Roytek's disability would impose a hardship upon it. Finally, the court concluded that HTI waived the issue of whether Roytek should be reinstated and receive back pay, since it did not raise such issues before LIRC.⁵

I — I HH

¶ 10. We now consider whether Roytek was an individual with a disability under the WFEA. The issue of whether Roytek was disabled under the WFEA presents a question of law. La Crosse Police Comm'n v. LIRC, 139 Wis. 2d 740, 755, 407 N.W.2d 510 (1987).⁶ We must decide whether there was a rational basis for LIRC's conclusion that Roytek was an individual with a disability.⁷ Id. at 756.

¶ 11. HTI contends that Roytek is not an individual with a disability under Wis. Stat. § 111.32(8). HTI asserts that Roytek's condition does not make achievement unusually difficult, as set forth in § 111.32(8). HTI claims that achievement is unusually difficult when there is "a substantial limitation on life's normal functions or substantial limitation on a major life activity." Id. at 761. HTI maintains that an employee must be restricted from a vast array of jobs in order to he deemed substantially limited in the major life activity of working. Simply because Roytek is limited in the number of hours she may work, HTI contends, does not mean that she has a disability under the WFEA. HTI asserts that La Crosse interpreted the "limits the capacity to work" language of § 111.32(8) too broadly, when it concluded that the language should be interpreted in light of a person's ability to perform the specific job in question. Instead, HTI maintains, this language should be interpreted so as to lead to the determination of whether an individual is limited in potential to work any job.

¶ 12. Roytek contends that she has demonstrated that she has a disability under Wis. Stat. § 111.32(8), because a back condition may be considered an actual or perceived handicap under the WFEA. Roytek also claims that she has proven that her disability limits her ability to perform her photoetch position. Based on the La Crosse decision, Roytek contends that she need only demonstrate her inability to perform the specific job in question. Roytek asserts that she also has demonstrated that her disability has interfered with major life activities, such as performing manual tasks, walking, and sitting. Roytek argues that she is further protected under § 111.32(8) because HTI perceived her back condition as a disability.

¶ 13. LIRC contends that this court should not give in to HTI's urgings to revisit and revise our La Crosse decision. LIRC asserts that the language "limits the capacity to work" should not be interpreted as referring to one's ability to work, in general. Instead, LIRC maintains that La Crosse's interpretation as referring to one's ability to work a particular job is correct.

¶ 14. The Wisconsin legislature defined "an individual with a disability" in Wis. Stat. § 111.32(8)(a). As noted previously, § 111.32 (8) (a) states, in relevant part, that an individual has a disability when a physical or mental impairment "makes achievement unusually difficult or limits the capacity to work ...

¶ 15. This court further explained this phrase in our La Crosse decision. In La Crosse, we concluded that a person claiming to be an individual with a disability under the WFEA must establish two things. First, the person must demonstrate that he or she has an actual or perceived impairment. Id. at 762. Second, the person must demonstrate that this impairment either makes, or is perceived as making, achievement unusually difficult or limits one's capacity to work. Id.

¶ 16. With respect to the first step, we defined an impairment as "a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or such bodily condition." Id. at 761. Roytek has established that she has damage to her normal bodily condition, as both Ippel and Zondag concluded that she had back pain related to disc problems, and that such problems restricted her ability to work a 12-hour shift, and engage in prolonged static standing or sitting.

¶ 17. Since we conclude that the first step is satisfied, we proceed to consider whether the impairment makes " 'achievement unusually difficult or limits the capacity to work.'" Id. (quoting Wis. Stat. § 111.32(8)(a) (emphasis added)). Either condition may be satisfied in order to establish that a person has a disability. With respect to the "achievement" criterion, we have concluded that "(t)he determination rests not with respect to a particular job, but rather to a substantial limitation on life's normal functions or a substantial limitation on a major life activity." Id. With respect to the "limits the capacity to work" phrase, we have concluded that it refers to the specific job at issue. Id.

¶ 18. We conclude that Roytek is limited in her capacity to work in her job. As discussed above, both Ippel and Zondag concluded that Roytek is limited in the amount of static standing and sitting she can endure before experiencing pain. Moreover, HTI claimed that there are certain positions in the photo-etch department that Roytek may no longer be able to perform, such as the shearing and bay positions.

¶ 19. Because Roytek has satisfied the criteria under Wis. Stat. § 111.32(8)(a), we conclude that Roytek is an individual with a disability. We are satisfied that there was a rational basis for LIRC's determination. We reject HTI's contention that La Crosse's interpretation of "limits the capacity to work" is too broad. We noted in Crystal Lake that "[t]he WFEA is a 'remedial statute ... [and] should be broadly interpreted to resolve the problem it was designed to address.' " Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, ¶ 46, 264 Wis. 2d 200, 664 N.W.2d 651 (quoting McMullen v. LIRC, 148 Wis. 2d 270, 275, 434 N.W.2d 830 (Ct. App. 1988)).

HH HH ( — I

¶ 20. We next consider whether LIRC's conclusion that HTI refused to reasonably accommodate Roytek's disability, and that HTI failed to demonstrate that making such accommodation would impose a hardship upon its business, can be upheld.

¶ 21. We will set aside a decision by LIRC only when " 'the agency's action depends on any finding of fact that is not supported by substantial evidence in the record.'" Crystal Lake, 264 Wis. 2d 200, ¶ 27 (quoting Wis. Stat. § 227.57(6)).⁸ The test for substantial evidence is whether reasonable minds could reach the same conclusion as the agency, given the evidence in the record. Id.

¶ 22. In this case, we give LIRC's decisions concerning reasonable accommodation great weight deference. Great weight deference is afforded to an agency's decision under the following circumstances:

"(1) the agency was charged by the legislature with the duty of administering the statute; (2) that the interpretation of the agency is one of long-standing; (3) that the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) that the agency's interpretation will provide uniformity and consistency in the application of the statute."

Brauneis v. State, 2000 WI 69, ¶ 16, 236 Wis. 2d 27, 612 N.W.2d 635 (citing Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995)).

¶ 23. In Crystal Lake, we cited with approval the court of appeals' conclusion in Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998), that LIRC's interpretation of "reasonable accommodation" should be afforded great weight deference. Crystal Lake, 264 Wis. 2d 200, ¶ 29 (citations omitted) (citing Target, 217 Wis. 2d at 13). In Crystal Lake, we con-eluded that LIRC's interpretation of reasonable accommodation should be accorded great weight deference for the following reasons:

"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. Fifth, this determination involves value and policy judgments about the obligations of employers and employees when an employee, or prospective employee, has a handicap.

Id. (Citations omitted).

¶ 24. Here, we reaffirm our conclusion in Crystal Lake that LIRC's determination regarding reasonable accommodation should be given great weight deference.⁹ We further conclude that LIRC's interpretation of hardship deserves great weight deference as well. In Crystal Lake, we stated that "[h]ere, 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," Id., ¶ 28 (citing Target, 217 Wis. 2d at 13), and specifically concluded that LIRC's findings regarding hardship are entitled to great weight deference. Id., ¶¶ 53, 79. We will uphold LIRC's interpretation of a statute, if it is reasonable and compatible with the plain meaning of the statute even if another interpretation may be more reasonable. Id., ¶ 30.

¶ 25. HTI contends that Roytek must prove whether an accommodation is reasonable or unreasonable under Wis. Stat. § 111.34(1).¹⁰ If the employee can prove that a reasonable accommodation exists, HTI asserts that the burden then shifts to the employer to demonstrate that such accommodation would impose a hardship on the employer.¹¹ HTI claims that the accommodations proposed here would not help Roytek perform her job but would, in fact, excuse her from performing it. HTI maintains that it is not required to shorten its shift length to accommodate Roytek and that it would suffer hardship if it was forced to do so. HTI contends that it did not offer statistical data regarding lost profits, production losses, and morale problems because the eight-hour shift was intended to be a temporary accommodation only. HTI asserts that forcing it to create an eight-hour shift for Roytek strips it of its management prerogative of setting its own policy with respect to shift schedules. Moreover, HTI contends that it may be forced to implement a part-time or job-share program, Roytek will have to work on two crews under two different supervisors, an additional person may need to be hired to deal with scheduling, and there will be uncertainty as to the shortest shift it will be required to accommodate.

¶ 26. HTI contends that simply because it could accommodate Roytek's condition for a short time, does not mean that it could do so permanently Aside from Roytek's hours restrictions, HTI claims that it would experience hardship if it were to accommodate all of Roytek's other physical issues, such as her inability to static stand or sit for a long period of time. Under her restrictions, HTI asserts that Roytek can fill only one of the four positions completely in the photoetch department and, regardless of the accommodation made, she will continue to experience pain on the job.¹² HTI maintains that courts should not second-guess the policy judgments of a business when the structure of a position serves a legitimate business purpose. HTI contends that requiring it, in effect, to create a new job to accommodate Roytek would result in hardship.

¶ 27. Roytek contends that, since she established that she had a disability under the WFEA, the burden then shifted to HTI to prove that the requested accommodation was unreasonable or would impose a hardship upon it. Roytek claims that she worked eight-hour shifts for eight months and never received complaints about her work. Moreover, Roytek maintains that no employees complained to management that they were overburdened due to Roytek's schedule, and no temporary workers were hired to compensate for the hours Roytek did not work. Roytek asserts that HTI has produced no credible evidence that it experienced hardship by accommodating her. Roytek contends that speculation as to problems that may arise in the future is not enough to establish hardship.

¶ 28. LIRC asserts that the employer has the burden of proving that a proposed accommodation is unreasonable. LIRC contends that the initial burden of proof as to the reasonableness of an accommodation should fall on the employee. Once the employee has met this initial burden of proof, LIRC maintains that the employer must show that the accommodation is unreasonable or that it would impose a hardship on the employer. LIRC contends that this court should not conclude that, as a matter of law, an employer can never be required to modify an employee's work schedule. LIRC concludes that it could reasonably find that HTI could accommodate Roytek without experiencing hardship. LIRC claims that the WFEA may require an employer to create modified work schedules as part of a reasonable accommodation, if the employer would not experience hardship. Moreover, LIRC maintains that HTI has failed to produce any evidence that its production has suffered due to Roytek's modified schedule.

¶ 29. We begin by recognizing the important role that management prerogatives play in the success of a business. This court has stated that "it is necessary to preserve the freedom of private enterprise to manage its business as it sees fit." Libby, McNeill & Libby v. WERC, 48 Wis. 2d 272, 280, 179 N.W.2d 805 (1970). See also Kelley Co. v. Marquardt, 172 Wis. 2d 234, 251, 493 N.W.2d 68 (1992).¹³ We are mindful that a business must have the right to set its own employment rules to encourage maximum productivity. We caution, however, that such rules do not exist in a vacuum, but must bend to the requirements of the WFEA.

¶ 30. Because our recent decision in Crystal Lake has direct bearing in this case, it is necessary to discuss it in some detail. In Crystal Lake, an employee of Crystal Lake Cheese Factory was injured in a non-work related automobile accident and became a quadriplegic. Crystal Lake, 264 Wis. 2d 200, ¶ 9. Before her accident, the employee was head of a four-person department that consisted of the following positions: department head, cheese cutter, cryovacer, and labeler. Id., ¶ 6. After her accident, the employee contacted Crystal Lake to state that she was ready to return to work. Id., ¶ 10. Crystal Lake hired a consulting firm to determine what accommodations would need to be made that would enable the employee to do her job. Id. The firm ultimately concluded that no reasonable accommodations could be made to enable the employee to do her job. Id. The employee hired her own assessor who concluded that she could be reasonably accommodated. Id., ¶ 11. At the time of this assessment, the employee's department had been eliminated, and her former job no longer existed. Id. The employee filed suit against Crystal Lake.

¶ 31. The administrative law judge concluded that Crystal Lake did not discriminate against the employee because there were no reasonable accommodations that could be made. Id., ¶ 14. The employee appealed to LIRC. LIRC concluded that reasonable accommodations could have been made, such as modifying her job duties to excuse her from doing more taxing physical tasks, without hardship befalling Crystal Lake. Id., ¶ 15. Both the circuit court and the court of appeals affirmed LIRC's decision. Id., ¶¶ 17-20.

¶ 32. We stated that, as an initial matter, a plaintiff must show that he or she is an "individual with a disability" under Wis. Stat. § 111.32(8) and that his or her employer took one of the several actions listed in Wis. Stat. § 111.322. Id., ¶ 42. Once the employee meets the initial burden of proving that he or she has a disability, we stated that the employer then has the burden of proving a defense under Wis. Stat. § 111.34. Id. We stated that "§ 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." Id., ¶ 32 (citation omitted). Since there was no dispute that the employee had a disability in Crystal Lake, we focused our analysis on whether reasonable accommodations could have been made for the employee without creating hardship for Crystal Lake. Id., ¶ 44.

¶ 33. We rejected Crystal Lake's contention that a reasonable accommodation need only be made if it enables the employee to perform all of his or her job functions.¹⁴ Id., ¶ 47. After discussing cases such as Target, McMullen, and Frito Lay, Inc. v. LIRC, 95 Wis. , 290 N.W.2d 551 (Ct. App. 1980), we ultimately concluded that "[a] change in job duties may be a reasonable accommodation in a given circumstance." Crystal Lake, 264 Wis. 2d 200, ¶ 52. We noted that the fact that two of the three other employees in the employee's department were willing to accommodate her change in job duties supported the argument that such accommodation would be a reasonable one. Id., ¶ 51.

¶ 34. With respect to our analysis of hardship in Crystal Lake, we noted that while there is some overlap, hardship and reasonable accommodation are" 'separate and distinct considerations that are to be addressed independently.'" Id., ¶ 75 (quoting McMullen, 148 Wis. 2d at 277). We concluded that Crystal Lake could have modified the employee's job site, as well as her job duties, without experiencing hardship.¹⁵ Id., ¶¶ 76-77.

¶ 35. Applying our decision in Crystal Lake, and the cases we relied on for that decision, and according great weight deference to the LIRC decision, we conclude that HTI did not meet its burden in rebutting the initial burden satisfied by Roytek. HTI failed to establish that no reasonable accommodations could be made to enable Roytek to perform her job, or that it would experience hardship in making such accommodations. We further conclude that we see no substantial difference in the positions of LIRC and HTI regarding which party has the burden of proof with respect to reasonable accommodation. We conclude that the initial burden is on the employee to prove that a reasonable accommodation is available, and, in this case, Roytek has satisfied that burden.¹⁶ Substantial and credible evidence is present in the record from which LIRC could hold as it did that HTI failed to reasonably accommodate Roytek. Clearly, a reasonable accommodation was available, since HTI accommodated Roytek's eight-hour shifts for eight months without any problems.

¶ 36. Moreover, HTI's assertions that any prolonged continuation of this schedule would create a hardship are unpersuasive.¹⁷ Over a two-week period, Roytek had the potential to work only four hours fewer than her fellow employees due to a possible schedule of five eight-hour days weekly.¹⁸ Although HTI hypothesized that certain problems could arise in the future, it presented no evidence that any ever did. For example, HTI did not submit any evidence that other employees sought to work reduced shifts, that morale problems had arisen among its other employees, or that production had decreased as a result of Roytek's arrangement. We agree with LIRC's conclusion that "[t]he hypothetical difficulties associated with permanent part-time status for the complainant are simply too speculative to meet the respondent's burden of proof in the matter. The respondent had ten months¹⁹ to determine that the complainant's shorter work shift caused production or profit losses, but failed to do so." We further agree with the court of appeals' conclusion that HTI was "unable to point to significant evidence in the record that demonstrates hardship in this particular situation, rather than speculation or theoretical complaints." Hutchinson, No. 02-3328, unpublished slip op., ¶ 5. We agree with these statements by LIRC and the court of appeals which concluded that HTI failed to meet its burden of proof on hardship and has failed to rebut Roytek's argument that a reasonable accommodation could have been made.²⁰ We reiterate our conclusion in Crystal Lake that reasonable accommodation and hardship are two distinct concepts that involve separate inquiries, since an accommodation may be reasonable, but nevertheless work a hardship upon a specific employer.²¹ Crystal Lake, 264 Wis. 2d 200, ¶ 75. See also McMullen, 148 Wis. 2d at 277. As the abovementioned analysis indicates, HTI failed both tests. HTI did not introduce any evidence, beyond mere conjecture, that accommodating Roytek would impose a hardship upon its business.

IV

¶ 37. We conclude that Roytek is a person with a disability under the WFEA, and that Roytek met her initial burden of establishing the reasonableness of her proposed accommodations. HTI did not establish that it could not reasonably accommodate Roytek's disability, since it accommodated her disability for eight months without any significant difficulties. Moreover, HTI did not introduce any evidence that allowing Roytek to continue to work eight-hour shifts at HTI would cause hardship to its business. We are mindful that a business must have the right to set its own employment rules to encourage maximum productivity. We caution, however, that such rules do not exist in a vacuum, but must bend to the requirements of the WFEA. We, therefore, affirm the court of appeals' decision.

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

1 Roytek was ultimately diagnosed with degenerative disk disease at L5-S1 with an annular tear at L5-S1.

2 During oral argument, the restrictions were discussed only in regard to an eight-hour day.

3 LIRC made only two amendments to the ALJ's decision, regarding attorney fees and the submission of a compliance report, neither of which are material to our review of this case. The dissent erroneously contends that "LIRC went directly to assessing whether HTI had shown a hardship under subsection (l)(b)." Dissent, ¶ 50. Indeed, LIRC addressed the issue of reasonable accommodation when it stated that "there was a reasonable accommodation that could have been provided for [Roytek] which would have enabled her to perform her job notwithstanding her disability, had [HTI] been willing to provide it."

4 Unless otherwise indicated, all references to Wisconsin Statutes are to the 2001-02 edition. Wisconsin Stat. § 111.32(8) states, in relevant part, as follows:

"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.

5 We agree with the court of appeals that HTI waived the issue of whether Roytek should be reinstated and receive backpay through the date of reinstatement since it failed to raise the issue in its brief before LIRC. Thus, we decline to further address this issue.

6 Wisconsin Stat. § 227.57(5) provides, in relevant part, as follows:

The court shall set aside or modify the agency action if it finds that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action, or it shall remand the case to the agency for further action under a correct interpretation of the provision of law.

See also School Dist. of Drummond v. WERC, 121 Wis. 2d 126, 132-33, 358 N.W.2d 285 (1984), which held that "[w]hen the legislature charges an administrative agency to apply and enforce a particular statute as it has with the commission and ch. Ill, Stats., the agency's construction and interpretation of the statute are entitled to great weight and any rational basis will sustain its practical interpretations." (Citations omitted).

7 We note that the phrase "individual with a disability," as set forth in Wis. Stat. § 111.32(8), has been substituted for "handicapped individual," which was the phrase at issue in La Crosse Police Comm'n v. LIRC, 139 Wis. 2d 740, 752, 407 N.W.2d 510 (1987).

8 Wisconsin Stat. § 227.57(6) states, in relevant part, the following:

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.

9 We strongly disagree with the dissent's statement that the appropriate standard of review is de novo. See dissent, ¶¶ 50-51. Our decision in Crystal Lake makes it clear that great weight deference is the appropriate standard of review for LIRC decisions regarding reasonable accommodation and hardship under the WFEA. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, ¶¶ 29, 53, 79, 264 Wis. 2d 200, 664 N.W.2d 651. Moreover, while the specific facts in this case may differ from the facts of previous cases of reasonable accommodation and hardship dealt with by LIRC, it does not follow that the issues of reasonable accommodation and hardship are one of first impression. If this were true, all decisions by LIRC would involve issues of first impression, because no two sets of facts are likely to be the same.

10 Wisconsin Stat. § 111.34(1) states, in relevant part, as follows:

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

(a) Contributing a lesser amount to the fringe benefits, including life or disability insurance coverage, of any employee because of the employee's disability; or

(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.

11 Wisconsin Manufacturers & Commerce, Inc. (WMC) filed an amicus brief in this case and also participated in oral arguments. WMC contends that LIRC erred in placing the burden on HTI to demonstrate that the accommodation was reasonable. Instead, WMC claims, Roytek should have had to prove that an accommodation was reasonable. In addition, WMC asserts that Roytek was required to prove that the accommodation was effective and that its burden was proportional to its benefits. WMC contends that Roytek failed to meet any of these burdens.

12 In Crystal Lake, 264 Wis. 2d 200, ¶ 52, n.19, we stated that the emphasis should be on the employee's ability to perform her job responsibilities adequately, not on terms that attempt to quantity the number of job responsibilities the employee can perform.

13 In Kelley Co. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992), which involved a different issue under the Family Medical Leave Act, we discussed the necessary balancing that must occur between management prerogatives and statutory rights of employees. We stated: "On one hand, businesses are not curtailed from making legitimate business decisions and changes, and on the other hand, an employee may take family or medical leave without the fear of losing his or her position in the work place which includes status, authority, and responsibility." Id. at 251.

14 The dissent contends that we fail to recognize the relationship between Wis. Stat. § 111.34(l)(b) and (2)(a). Dissent, ¶ 61. To the contrary, we recognized the connection between those provisions in Crystal Lake and reiterate our discussion of the connection here. The dissent incorrectly concludes that the accommodation was unreasonable "because it did not permit the employer to have the job-related responsibilities of Roytek's employment met, i.e., working for 12-hour shifts." Id., ¶ 62. It is important to note that HTI never demonstrated that Roytek's shift change adversely affected its production schedule or its employee morale. Moreover, we again emphasize our conclusion in Crystal Lake that: "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." Crystal Lake, 264 Wis. 2d 200, ¶ 52. The decisions in Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998) and McMullen v. LIRC, 148 Wis. 2d 270, 275, 434 N.W.2d 830 (Ct. App. 1988) were correctly cited by us as supporting that conclusion.

15 The dissent incorrectly concludes that our holding in this case "goes far beyond our conclusions in Crystal Lake. ..." Dissent, ¶ 64. Rather, our decision in this case is absolutely consistent with our holding in Crystal Lake. As explained above, we concluded that the employer in Crystal Lake did not demonstrate that it would experience hardship in providing a reasonable accommodation to its disabled employee. Crystal Lake, 264 Wis. 2d 200, ¶¶ 76-77. Similarly, HTI has failed to produce any evidence, beyond mere speculation, that it would experience hardship if it accommodated Roytek. Both cases boil down to the failure by each of these employers, HTI and Crystal Lake, to satisfy the requisite burden of proof.

16 Inexplicably, the dissent claims that we ignore a claimant's initial burden to demonstrate that a reasonable accommodation is available. See dissent, ¶ 62. We have plainly stated that Roytek has the initial burden of establishing that a reasonable accommodation exists, and has met that burden.

17 While Wis. Stat. § 111.34(l)(b) states that a business must demonstrate "hardship," the Americans with Disability Act (ADA) refers to "undue hardship." The provision, 42 U.S.C. § 12112(b)(5)(A) states, in relevant part, as follows:

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 in the operation of the business of such covered entity....

Based on our decision in Crystal Lake, 264 Wis. 2d 200, ¶ 46, it appears quite clear that there is no real difference in the terms "hardship" and "undue hardship," since the "hardship" referred to in Wis. Stat. § 111.34(l)(b) must be substantial in nature, and definitely something more than mere speculation. The dissent is absolutely wrong when it states that we "import" the undue hardship test from the ADA into the standard set forth in § 111.34(l)(b). See dissent, ¶ 59, n.6. We merely point out the differences in the language and indicate that there is no substantial difference between the two terms, since "hardship" under § 111.34(l)(b) certainly must be something more than a slight inconvenience. In Crystal Lake, we concluded that the employer faded to prove that it would experience hardship if it were required to modify its employee's jobsite and responsibilities, since it performed a generic evaluation of what limitations a wheelchair-bound person would experience while performing the job, and avoided talking with the employee to find out what her actual limitations were. Crystal Lake, 264 Wis. 2d 200, ¶¶ 76-80.

18 In the AU's memorandum, he stated that HTI refused to put Roytek on a five-day per week schedule because they claimed that it would be problematic if she worked on two different crews and for two different supervisors. Although HTI stated that problems would arise if Roytek worked on two different crews and for two different supervisors, it never explained in detail the difficulties it claimed this would impose. While Roytek never worked a five-day per week schedule, it is certainly not the case that she offered "to continue working only two-thirds of her shift.. .." Dissent, ¶ 45. In fact, she "offered" to work 40-hour weeks, but HTI declined such arrangement without offering any evidence of the difficulties that this modified schedule would impose upon it. Rather, it offered nothing but speculation in support of its position.

19 The ten months refers to the two months Roytek worked six-hour shifts, from November 1998 to January 1999, and the eight months that she worked eight-hour shifts, from January 1999 to August 1999.

20 While the dissent lists a parade of horribles that may occur as a result of this decision, such an alarmist approach is without merit. See dissent, ¶¶ 65, 68, 70-71. Our decision in this case hinges on the fact that HTI was unable to provide any proof that providing a reasonable accommodation to Roytek would work hardship upon its business. Had HTI provided anything beyond mere speculation as to the problems that might arise if it were forced to accommodate Roytek, the evidence could then have been evaluated to determine if such accommodation would have, indeed, imposed hardship. Nevertheless, the dissent fails to acknowledge that HTI has not proved that it would experience hardship and, instead, resorts to hyperbole to reach its conclusion.

21 Contrary to the dissent's contention, we do not conflate the applicable statutory provisions in this case. See dissent, ¶ 54. We have analyzed, in detail, whether Roytek met her initial burden of demonstrating that a reasonable accommodation exists and whether HTI rebutted that showing and met its burden of demonstrating hardship, if it were forced to accommodate Roytek.