Appeal from a judgment of the Circuit Court for Dane County: William L. Jackman, Reserve Judge, Presiding.
Petition to Review Granted.
Foley, P.j., Dean and Cane, JJ.
The opinion of the court was delivered by: Cane
American Motors Corporation (AMC) appeals from a judgment affirming the Labor and Industry Review Commission's (LIRC) finding of fact, Conclusions of law, and order holding that AMC unlawfully discriminated against Sharon Basile on the basis of handicap when it refused to hire her. AMC contends that (1) Basile's physical statute is not a handicap under the Wisconsin Fair Employment Act; *fn1 (2) if her stature is a handicap under those provisions, AMC did not discriminate against her because of her handicap; (3) LIRC's failure to consult with the hearing examiner for the Department of Industry, Labor and Human Relations (DILHR) before rejecting the examiner's determinations deprived AMC of due process. Because we conclude that LIRC and the circuit court erroneously concluded that Basile's stature is a handicap under the Fair Employment Act, we reverse.
In 1972, Basile applied for a job at AMC as an unskilled hourly employee. At that time, Basile was four feet, ten inches tall, weighed 105 pounds and was in good health. AMC had no height or weight requirements for unskilled hourly employees when Basile applied.
Under a union contract then in effect at AMC, all unskilled workers were required to complete a probationary period of sixty working days during which they could be assigned to any entry level job in the plant. The entry level jobs were characterized as the least desirable. Several of the jobs involved reaching and lifting heavy loads. During the probationary period, employees had no right to request a particular job.
After Basile applied, James Madden, AMC's supervisor of employee services, interviewed her. Based on her application and interview, he recommended that she have a physical examination with Dr. Seidl, the medical director of AMC's plants. Seidl examined Basile on July 7, 1972. He characterized the examination as a routine physical that is given to all AMC employees. The examination lasted approximately ten minutes and included blood, urine, and hearing tests. Seidl also asked Basile to touch her toes, lift her arms above her head and stretch her arms to the side. Basile was not asked to lift weights during the examination, nor was she given tests to determine grip strength.
After Basile completed the examination, Seidl recommended Basile not be hired for the position for which she had applied. He noted on the medical examination form that Basile had scoliosis *fn2 and a lack of muscular development. Seidl later testified that he did not recommend Basile for employment because he believed she was too small to perform the entry level jobs.
Based on Seidl's recommendation, Raymond Martin, director industrial relations, Raymond Paul, manager of employee benefits and services, and Seidl held a meeting during which they decided not to hire Basile. Basile later testified that in October, 1972, Madden informed her that she was too small and would not be hired.
Basile filed a complaint with the federal Equal Employment Opportunity Commission, which was deferred to the Equal Rights Division of DILHR. Basile alleged that AMC had discriminated against her on the basis of sex. After DILHR found no probable cause on the issue of sex discrimination, Basile filed an amended complaint in 1975. She alleged that AMC had discriminated against her on the basis of handicap and on the basis of sex in violation of the Wisconsin Fair Employment Act.
In December, 1975, the examiner for DILHR issued recommended findings of fact, Conclusions of law, and an order finding no discrimination on the basis of sex. Although the examiner found that scoliosis was not a factor in Basile's rejection for employment at AMC, she also found that AMC had not hired Basile because of her height and weight. The examiner concluded that Basile is handicapped and that AMC had unlawfully discriminated against her on the basis of handicap. LIRC affirmed with minor modifications on December 3, 1976. AMC appealed LIRC's decision to the circuit court, which reversed and remanded to DILHR for investigation and an initial determination whether there was probable cause to believe AMC had discriminated against Basile on the basis of handicap.
DILHR made an initial determination of probable cause and held a hearing on the merits of the handicap discrimination charge on December 6, 1978. The examiner issued a decision in which she concluded that Basile is handicapped within the meaning of the Fair Employment Act because of her height and weight, and that AMC rejected her for employment because of her handicap. The examiner also concluded, however, that Basile was unable to effectively perform AMC's entry level job duties at the standards AMC set, and that AMC did not discriminate against Basile on the basis of handicap in violation of the Act.
LIRC subsequently set aside the examiner's decision and remanded for a further evidentiary hearing to determine whether Basile's handicap was reasonably related to her ability to adequately perform the duties to which she would have been assigned at AMC. After the hearing on remand, the examiner issued a decision similar to her prior one. LIRC reversed the examiner's decision and concluded that AMC had discriminated against Basile on the basis of handicap in violation of the Act. The circuit court affirmed LIRC's decision and order.
In reviewing a circuit court order affirming an order of an administrative agency, we must decide whether the court erred in its determination. Dairy Equipment Co. v. DILHR, 95 Wis. 2d 319, 326, 290 N.W.2d 330, 333-34 (1980). If the agency's action depends on any fact found by the agency in a contested proceeding, we may not substitute our judgment for that of the agency concerning the weight of the evidence. Section 227.20(6), Stats. We must remand or set aside the agency's ...