Wisconsin Statutes

Wis. Stat. § 111.34 (2026)

Disability; exceptions and special cases

✓ current as of July 2026

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111.34111.34 Disability; exceptions and special cases.

111.34(1)(1) Employment discrimination because of disability includes, but is not limited to:

111.34(1)(a)(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

111.34(1)(b)(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.

111.34(2)(2)

111.34(2)(a)(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 licensure.

111.34(2)(b)(b) In evaluating whether an individual with a disability can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity, the present and future safety of the individual, of the individual’s coworkers and, if applicable, of the general public may be considered. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities.

111.34(2)(c)(c) If the employment, membership or licensure involves a special duty of care for the safety of the general public, including but not limited to employment with a common carrier, this special duty of care may be considered in evaluating whether the employee or applicant can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities.

111.34 HistoryHistory: 1981 c. 334; 1997 a. 112.

111.34 AnnotationThe utilization of federal regulations as a hiring standard, although not applicable to the employing taxi company, demonstrated a rational relationship to the safety obligations imposed on the employer, and its use was not the result of an arbitrary belief lacking in objective reason or rationale. Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980).

111.34 AnnotationAn employee handicapped by alcoholism was properly discharged under former s. 111.32 (5) (f), 1973 stats., (a predecessor to this section) for inability to efficiently perform job duties. Squires v. LIRC, 97 Wis. 2d 648, 294 N.W.2d 48 (Ct. App. 1980).

111.34 AnnotationSmall stature is not a handicap. American Motors Corp. v. LIRC, 114 Wis. 2d 288, 338 N.W.2d 518 (Ct. App. 1983).

111.34 AnnotationAffirmed. 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

111.34 AnnotationPhysical standards for school bus operators established under s. 343.12 (2) (g) are not exempt from the requirements of sub. (2) (b). Bothum v. DOT, 134 Wis. 2d 378, 396 N.W.2d 785 (Ct. App. 1986).

111.34 AnnotationThe duty to reasonably accommodate under sub. (1) (b) is to be broadly interpreted and may involve the transfer of an individual from one job to another. What is reasonable will depend on the facts of the case. McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 270 (Ct. App. 1986).

111.34 AnnotationTo avail itself of the defense under sub. (2) that an ostensibly safety-based employment restriction is job-related, an employer bears the burden of proving to a reasonable probability that the restriction is necessary to prevent harm to the employee or others. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

111.34 AnnotationTemporary forbearance of work rules while determining whether an employee’s medical problem is treatable may be a reasonable accommodation under sub. (1) (b). The purpose of reasonable accommodation is to enable employees to adequately undertake job-related responsibilities. Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998), 97-1253. See also Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477, 04-1550.

111.34 AnnotationWhether an employee’s mental illness caused him to react angrily and commit the act of insubordination that led to the termination of his employment was sufficiently complex and technical that expert testimony was required. Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633, 99-2632.

111.34 AnnotationA complainant must show that the complainant is handicapped and that the employer took one of the prohibited actions based on that handicap. The employer then has a burden of proving a defense. Sub. (1) (b) does not require an employer to make a reasonable accommodation if the accommodation will impose a hardship on the employer, but if the employer is not able to demonstrate that the accommodation would pose a hardship there is a violation. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651, 02-0815.

111.34 AnnotationA reasonable accommodation is not limited to that which would allow the employee to perform adequately all of the employee’s job duties. A change in job duties may be a reasonable accommodation in a given circumstance. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651, 02-0815.

111.34 AnnotationAn interstate commercial driver need not seek a determination of medical qualification from the federal Department of Transportation (DOT) prior to filing a disability discrimination claim under this chapter. When medical and physical qualifications to be an interstate driver are material to a claim, and a dispute arises concerning those qualifications that cannot be resolved by facial application of DOT regulations, the dispute should be resolved by DOT under its dispute resolution procedure. The employer must seek a determination of medical and physical qualification from DOT if the employer intends to offer a defense that the driver was not qualified for medical reasons. Szleszinski v. LIRC, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111, 04-3033.

111.34 AnnotationThere are two separate statutory sections, this section and s. 111.322, that identify different prohibited acts of employment discrimination on the basis of disability, and those sections include two distinct theories of disability-based employment discrimination: 1) disparate treatment under s. 111.322 (1); and 2) refusal to accommodate under sub. (1) (b). Under a disparate-treatment-based theory, the crux of the claim is that the employer treated the employee less favorably than others because the employee has a disability. By contrast, under an accommodation-based theory, the crux of the claim is that the employer could have reasonably accommodated the employee’s disability but refused to do so. Proof of discriminatory motive is not required in refusal-to-accommodate cases under sub. (1) (b). Wingra Redi-Mix Inc. v. LIRC, 2023 WI App 34, 408 Wis. 2d 563, 993 N.W.2d 715, 21-2028.

111.34 AnnotationUnder sub. (1) (b), an employee need not provide medical evidence of a disability alongside an accommodation request in order to put the employer on notice that it has a duty of reasonable accommodation under the Wisconsin Fair Employment Act. It is sufficient if the factual information known by the employer would reasonably lead the employer to recognize that the employee likely has a disability, as that term is defined by s. 111.32 (8) and case law. Wingra Redi-Mix Inc. v. LIRC, 2023 WI App 34, 408 Wis. 2d 563, 993 N.W.2d 715, 21-2028.

111.34 AnnotationA person suffering from a contagious disease may be handicapped under the federal Rehabilitation Act of 1973. School Board v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 (1987).

111.34 AnnotationHidden Handicaps: Protection of Alcoholics, Drug Addicts, and the Mentally Ill Against Employment Discrimination Under the Rehabilitation Act of 1973 and the Wisconsin Fair Employment Act. Nold. 1983 WLR 725.

111.34 AnnotationCrystal Lake Cheese Factory v. Labor and Industry Review Commission: A Reasonable Turn Under the Wisconsin Fair Employment Act? Haas. 2004 WLR 1535.

111.34 AnnotationDisability Law in Wisconsin Workplaces. Vergeront & Cochrane. Wis. Law. Oct. 2004.

111.34 AnnotationADA and WFEA: Differing Disability Protections. Backer & Mishlove. Wis. Law. Oct. 2004.

111.34 AnnotationOut of Office: Extended Leave Is Not a Required ADA Accommodation. McClurg. Wis. Law. Oct. 2018.

Notes of Decisions

Cited in 23 cases (2 in the last 5 years), 1983–2025 · leading case: Crystal Lake Cheese Factory v. Labor & Indus. Review Comm'n, 2003 WI 106 (Wis. 2003).

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Crystal Lake Cheese Factory v. Labor & Indus. Review Comm'n, 2003 WI 106 (Wis. 2003). · cites it 226× “We are presented with the following issues: (1) whether LIRC reasonably interpreted Wis. Stat. § 111.34 (1)(b) [3] and § 111.”

Hutchinson Tech., Inc. v. Labor & Indus. Review Comm'n, 2004 WI 90 (Wis. 2004). · cites it 160× “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.”

Wis. Bell, Inc. v. Labor & Indus. Review Comm'n, 914 N.W.2d 1 (Wis. 2018). · cites it 28× “" See Wis. Stat. § 111.34 (2)(a). ¶32 Mr. Carlson's claim of employment discrimination under Wis.”

Est. of Szleszinski v. Labor & Indus. Review Comm'n, 2007 WI 106 (Wis. 2007). · cites it 75× “LIRC reversed the hearing examiner's decision, concluding that the medical evaluation of the physician who recommended disqualifying Szleszinski was sufficiently "individualized" under Wis. Stat. § 111.34 (2)(b) and (c) (2005-06) [4] of the WFEA, and that Szleszinski could have…”

Stoughton Trailers, Inc. v. Labor & Indus. Review Comm'n, 2007 WI 105 (Wis. 2007). · cites it 32× “("Stoughton") seeks review of a published decision of the court of appeals [1] affirming a decision of the Labor and Industry Review Commission ("LIRC"), which concluded that Stoughton refused to reasonably accommodate Douglas Scott Geen's ("Geen") disability, migraine…”

Stores v. Labor & Indus. Review Comm'n, 576 N.W.2d 545 (Wis. Ct. App. 1998). · cites it 45× “34(2)(a) it is not a violation of the WFEA to take an employment action based on an individual's handicap "if the handicap is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employ *10 ment. ..."…”

Wingra Redi-Mix Inc. v. Labor & Indus. Review Comm'n, 2023 WI App 34 (Wis. Ct. App. 2023). · cites it 35× “”8 That section applies generally to all of the 7 See WIS. STAT. § 111.321 (“Subject to ss.”

McMullen v. Labor & Indus. Review Comm'n, 434 N.W.2d 830 (Wis. Ct. App. 1988). · cites it 18× “If it is not job-related, the inquiry ends and there is no discrimination under sec. 111.34, Stats. The pertinent part of sec.”

Racine Unified Sch. Dist. v. Labor & Indus. Review Comm'n, 476 N.W.2d 707 (Wis. Ct. App. 1991). · cites it 18× “The Job-Relatedness Defense We turn now to the third and final component of a viable handicap discrimination claim: whether the District justified its actions under the "job-relatedness" exception found in sec. 111.34, Stats. Section 111.34(2), Stats.”

DeBoer Transp., Inc. v. Swenson, 2011 WI 64 (Wis. 2011). · cites it 14× “Specifically, pursuant to Wis. Stat. § 111.34 (1)(b), "[ejmployment discrimination because of disability" includes "[Refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation *624 would pose a…”

Stoughton Trailers, Inc. v. Labor & Indus. Review Comm'n, 2006 WI App 157 (Wis. Ct. App. 2006). · cites it 14× “Following our past decisions interpreting Wis. Stat. § 111.34 , including Geen , we begin our analysis by noting that Geen's disability discrimination claim involves three elements of proof.”

Geen v. Labor & Indus. Review Comm'n, 2002 WI App 269 (Wis. Ct. App. 2002). · cites it 20× “Complainant's disability (migraine headaches) was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment with Respondent within the meaning of Wis. Stat. § 111.34 (2)(a). 5. Respondent did not refuse to reasonably accommodate…”

Show all 23 citing cases →

— Wis. Stat. § 111.34(1) — 4 cases

Hutchinson Tech., Inc. v. Labor & Indus. Review Comm'n, 2004 WI 90 (Wis. 2004). “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.”

Crystal Lake Cheese Factory v. Labor & Indus. Review Comm'n, 2003 WI 106 (Wis. 2003). “We are presented with the following issues: (1) whether LIRC reasonably interpreted Wis. Stat. § 111.34 (1)(b) [3] and § 111.”

Stores v. Labor & Indus. Review Comm'n, 576 N.W.2d 545 (Wis. Ct. App. 1998). “34(2)(a) it is not a violation of the WFEA to take an employment action based on an individual's handicap "if the handicap is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employ *10 ment. ..."…”

Stoughton Trailers, Inc. v. Labor & Indus. Review Comm'n, 2006 WI App 157 (Wis. Ct. App. 2006). “Following our past decisions interpreting Wis. Stat. § 111.34 , including Geen , we begin our analysis by noting that Geen's disability discrimination claim involves three elements of proof.”

— Wis. Stat. § 111.34(1)(B) — 1 case

— Wis. Stat. § 111.34(1)(b) — 8 cases

Wingra Redi-Mix Inc. v. Labor & Indus. Review Comm'n, 2023 WI App 34 (Wis. Ct. App. 2023). “”8 That section applies generally to all of the 7 See WIS. STAT. § 111.321 (“Subject to ss.”

McMullen v. Labor & Indus. Review Comm'n, 434 N.W.2d 830 (Wis. Ct. App. 1988). “If it is not job-related, the inquiry ends and there is no discrimination under sec. 111.34, Stats. The pertinent part of sec.”

— Wis. Stat. § 111.34(2) — 4 cases

Racine Unified Sch. Dist. v. Labor & Indus. Review Comm'n, 476 N.W.2d 707 (Wis. Ct. App. 1991). “The Job-Relatedness Defense We turn now to the third and final component of a viable handicap discrimination claim: whether the District justified its actions under the "job-relatedness" exception found in sec. 111.34, Stats. Section 111.34(2), Stats.”

Est. of Szleszinski v. Labor & Indus. Review Comm'n, 2007 WI 106 (Wis. 2007). “LIRC reversed the hearing examiner's decision, concluding that the medical evaluation of the physician who recommended disqualifying Szleszinski was sufficiently "individualized" under Wis. Stat. § 111.34 (2)(b) and (c) (2005-06) [4] of the WFEA, and that Szleszinski could have…”

Bothum v. State, Dep't of Transp., 396 N.W.2d 785 (Wis. Ct. App. 1986).

Wingra Redi-Mix Inc. v. Labor & Indus. Review Comm'n, 2023 WI App 34 (Wis. Ct. App. 2023). “”8 That section applies generally to all of the 7 See WIS. STAT. § 111.321 (“Subject to ss.”

— Wis. Stat. § 111.34(2)(a) — 10 cases

Wis. Bell, Inc. v. Labor & Indus. Review Comm'n, 914 N.W.2d 1 (Wis. 2018). “" See Wis. Stat. § 111.34 (2)(a). ¶32 Mr. Carlson's claim of employment discrimination under Wis.”

Wardlow v. Great Lakes Express Co., 339 N.W.2d 670 (Mich. Ct. App. 1983).

— Wis. Stat. § 111.34(2)(b) — 4 cases

Wingra Redi-Mix Inc. v. Labor & Indus. Review Comm'n, 2023 WI App 34 (Wis. Ct. App. 2023). “”8 That section applies generally to all of the 7 See WIS. STAT. § 111.321 (“Subject to ss.”

— Wis. Stat. § 111.34(2)(b)(c) — 1 case

Samens v. Labor & Indus. Review Comm'n, 345 N.W.2d 432 (Wis. 1984).

— Wis. Stat. § 111.34(2)(c) — 1 case

— Wis. Stat. § 111.34(l)(a) — 2 cases

— Wis. Stat. § 111.34(l)(b) — 8 cases

DeBoer Transp., Inc. v. Swenson, 2011 WI 64 (Wis. 2011). “Specifically, pursuant to Wis. Stat. § 111.34 (1)(b), "[ejmployment discrimination because of disability" includes "[Refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation *624 would pose a…”

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