STANLEY DECK, Complainant,

VS.

HENKEL CORP., Respondent.

CONCLUSIONS OF LAW

1. The complaint, CP# 05-85-12982, was timely filed, processed, and the issues in the complaint are properly before the Administrative Law Judge and ultimately before the Commission.

2. In Iowa Code section 601A. 2(11), "disability" is defined as "the physical or mental condition of a person which constitutes a substantial handicap." IAC 161-8.26(l) provides that the term *substantially handicapped" shall mean any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

Section 161-8.26(5) further explains "is regarded as having an impairment" as:

a. Has a physical or mental impairment that does not substantially limit major life activities but that is perceived as constituting such a limitation;

b. Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

c. Has none of the impairments defined to be 'physical or mental impairments, " but is perceived as having such an impairment.

Complainant claims discrimination as the basis of *perceived mental disability. a

3. Deck was in and out of various hospitals after April 1983, when he had a mental breakdown. Over a year later, May 1984, Deck was still not capable of returning to work because of his mental impairment. Through a union/management agreement, Deck returned to work in August 1984, with continued psychiatric care indicated.

Beginning in October 1983, Deck became eligible for social security disability benefits and medicare based on his mental impairment. That entitlement continued as of the date of this Hearing. It is, therefore, concluded that Stanley Deck was, in fact, mentally impaired.

4. The administrative rules promulgated to implement the statutory prohibition of discrimination on the basis of disability provide that the duty of accommodation is owed to the otherwise qualified handicapped employee or applicant. 161 Iowa Admin. Code 8.27(6). Although that phrase is not further defined in the Iowa Administrative rules, "qualified handicapped person" is defined in the rules implementing the federal Rehabilitation Act, on which the Iowa rules are patterned. There, a "qualified handicapped employee" is defined as one who with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or other. 29 C.F.R. §1613.702(f)

The Commission rule, specifically 161-8.27(6), requires reasonable accommodation. That section provides as follows:

An employer shall make reasonable accommodation to the known physical or mental limitations of an otherwise gualified handicapped applicant or employee unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its program. [Emphasis added]

Not only is the rule quite clear and unambiguous in requiring reasonable accommodation to an *otherwise qualified" person, but the statute also emphasizes the same provision. Section 601A.6(l) (a) provides in part:

If a disabled person is qualified to perform a particular occupation, by reason of training or experience, the nature of that occupation shall not be the basis for exception to the unfair or discriminatory practices prohibited by this subsection.

"The essential functions of a job are those set forth in the position description. Thus, an individual is "qualified" if he can perform all of the functions of his job as outlined in the standard position description, even though because of a disability, he cannot perform additional duties that are performed by other persons holding the same job. Guinn v. Bolger, 598 F. Supp. 196 (D.C.D.C. 1984)

Furthermore, an individual need not be able to perform an of the duties of the position in question without modification. "It is sufficient if an individual can perform the essential limitations." Trimble v. Carlin, 633 F. Supp. 367 (D.C. Pa. 1986); Strathie v. Dept. of Transp., 716 F.2d 227 (3rd Cir. 1983).

Because no consideration was given to allow Deck more time to acclimate himself to the plant environment upon returning from his breakdown before subjecting him to additional demands, nor was consideration given to allowing Deck a more gradual training schedule which could have alleviated his anxiety, one cannot conclude that Deck would have been unable to perform the assistant operator function if he had been accommodated. Offering additional training at the end of the training period, after Deck's anxiety had been building to the point that he had become physically ill and unable to do any job was not an accommodation. Because the company made no accommodation to permit an assessment of whether Deck could perform the assistant operator functions, it is not necessary to determine whether that function is even essential to the supply position. The testimony was that the cross-training was required only so that trained substitutes would be available if the regular employee was ill or on vacation.

Having concluded that Dock was a qualified handicapped employee, Henkel owed Deck a duty to accommodate his handicap. Henkel made no effort to accommodate Deck's mental illness, but instead acted in accordance with its previously determined stipulation that upon an absence "due to a relapse of recurrence of illness he [would] be terminated..." Therefore, the termination on January 21, 1985, was illegal discrimination on the basis of disability.

6. The Complainant, Stanley Deck, has mitigated his lost earnings in that he has properly endeavored to secure other employment, although his endeavors have been unsuccessful.