In a recent opinion, the Supreme Court of Wisconsin rejected the "inference method" of causation that the Labor and Industry Review Commission has used for more than two decades to find liability in cases in which an employer takes adverse action against an employee for conduct that the employee claims was caused by a disability. The court concluded that the inference method of causation is inconsistent with the Wisconsin Fair Employment Act (WFEA) because it relieves the employee of the burden of proving discriminatory intent. Wisconsin Bell, Inc. v. Labor and Industry Review Commission, No. 2016AP355 (June 26, 2018).    


The plaintiff in this case worked in a call center. After he disconnected eight consecutive calls, he was suspended. At a meeting to review the suspension, the plaintiff presented letters from his psychiatrist and psychotherapist describing his bipolar disorder and its symptoms in general terms. As a condition of returning to work after the suspension, the employee entered into a last chance agreement in which he agreed that certain conduct would be just cause for terminating his employment. 

One day after his return to work, the plaintiff activated a "health code," which employees could use to go offline and stop receiving incoming customer calls. While the health code was active, he sent a message to an operations manager, saying "TTYL. Thank you. Talk to you later and thanks for being there as one of my lesbian friends." When the manager responded, the plaintiff replied "[s]orry wrong window." He then notified the help desk he was leaving for the day. The employer concluded the plaintiff had not really been ill and had improperly used the health code to avoid taking customer calls. 

At a meeting regarding this incident, the plaintiff submitted another letter from his psychiatrist, noting that his medication had recently been increased. He also explained that he had activated the health code after he learned that he had failed a test, which caused him to be upset. The plaintiff said he had been chatting online with other employees for support, as had been suggested by his therapist. The employer nevertheless terminated the plaintiff's employment for avoiding customer calls.

The plaintiff then filed a discrimination complaint alleging that he was terminated because of his disability. The Wisconsin Labor and Industry Review Commission held that the employer had discharged the plaintiff because of his disability based on evidence that established the misconduct was caused by his disability and the employer was aware of his disability and its effects. On appeal, the Wisconsin Court of Appeals held that under the "inference method," if an employee is discharged due to conduct that was a direct result of his or her disability, the discharge was because of his or her disability. Applying this standard, the court of appeals concluded that Wisconsin Bell, Inc. violated the WFEA by discharging the plaintiff because of his disability. 

The Wisconsin Supreme Court's Decision

The Supreme Court of Wisconsin reversed and rejected the inference method of causation as impermissibly permitting employees to prove disability discrimination without proof that the employer had actual knowledge of a connection between the conduct and the disability. The inference method therefore improperly relieved the plaintiff of his burden of proving discriminatory intent. The court's decision incorporated and applied its holding in a companion case issued the same day in which the court decided to end as unconstitutional Wisconsin courts' practice of deferring to administrative agencies' conclusions of law.  Courts will now review such questions de novo while giving "'due weight' to an administrative agency's experience, technical competence, and specialized knowledge" when interpreting statutes and deciding other questions of law.       

Interpreting the WFEA, the court concluded that an employer does not discriminate against an employee because of his or her disability when it takes an adverse action against the employee because of his or her conduct unless it knows the disability caused the conduct in question. Applying this standard to the facts of the case, the court held that the record lacked substantial proof that the employer knew at the time it decided to discharge the plaintiff that his disability caused the conduct for which he was discharged. At most, the record showed a possible correlation between his conduct and his bipolar disorder. Therefore, the employer did not violate the WFEA.

Key Takeaways 

As the court noted, even after expert testimony and an administrative hearing, the causal connection between the employee's misconduct and his disability was not clear. Employers, however, must make decisions about misconduct in real time and the court's decision requires proof of actual discriminatory intent.  Employers and employees should benefit from this decision, which permits even-handed, nondiscriminatory enforcement of rules regarding conduct.

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