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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 121-122.13     

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121 Age discrimination 

121.1 Age discrimination; coverage

121.11 Age discrimination; coverage; Lower age limit, comparative ages of employees

The Respondent was not immunized from a complaint of age discrimination because it replaced the Complainant with another person over the age of forty, where there was a significant difference in age between the Complainant and the individual who replaced the Complainant. Felsman v. Northwest Airlines (LIRC, 06/06/96)

A complaint alleging age discrimination does not state a cause of action where the complaining party is 36 years old. Gray v. Asbestos Workers, Local No. 19 (DILHR, 04/15/75).

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121.12 Age discrimination; coverage; Upper age limit

Sec. 111.33(2)(b), Stats., insofar as it prohibits age discrimination against persons over age 70, is pre-empted by the Employee Retirement Income Security Act of 1974 to the extent that it applies to employe benefit plans covered by ERISA. Dresser Industries v. DILHR, 619 F. Supp. 1310 (W.D. Wis. 1985). (Ed. note: The ADEA has since been amended to remove the age 70 upper age limit.]

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121.13 Age discrimination; coverage; Hazardous occupations

The Administrative Law Judge properly dismissed a complaint of age discrimination because the employment involved, firefighting, was a hazardous occupation which is exempt from the prohibition against discrimination based on age pursuant to sec. 111.33(2)(f), Stats. It is obvious that the legislature deemed age to be a bona fide occupational qualification reasonably necessary in jobs such as firefighting where the employe is exposed to physical danger or hazard. The Administrative Law Judge's dismissal of the case was appropriate even though the Respondent never raised the statute as a defense by motion or in its answer. James E. Johnson v. LIRC, 200 Wis. 2d 715; 547 N.W.2d 783 (Ct. App. 1996).

"Officer" positions at a camp for youthful offenders are covered by the hazardous occupations exception to the Act. Employes over age 55 were not discriminated against when they were denied transfers to those positions. Bunde v. LIRC (Dept. of Health and Social Services) (Dane Co. Cir. Ct., 07/09/81).

The age complaint of a firefighter did not state a cause of action because the Act specifically exempts hazardous occupations. Diedrich v. City of Kaukauna (DILHR, 12/01/76).

All law enforcement occupations are within the hazardous occupations exception, regardless of the degree of actual hazard in a particular position. Wold v. City of Eau Claire (DILHR, 11/26/76).

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121.14 Age discrimination; coverage; Preemption

Sec. 111.33(2)(b), Stats., insofar as it prohibits age discrimination against persons over age 70, is preempted by the Employe Retirement Income Security Act of 1974 to the extent that it applies to employe benefit plans covered by ERISA. Dresser Industries v. DILHR, 619 F. Supp. 1310 (W.D. Wis. 1985). (Ed. note: The ADEA has since been amended to remove the age 70 upper age limit.]

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121.2 Age discrimination; Hire

The Complainant, at age 59, was twice denied a job with the Respondent as a public works laborer. On both occasions, younger men in their early twenties were offered the job. There was testimony that the Public Works Committee wanted to hire a young man that they could train themselves and who would be there awhile. A comment was made that, given the Complainant’s age, "you kind of assume he is not going to be working real long anymore." One of the decision-makers testified that he viewed one of the younger men selected for the position as a desirable candidate because he was a "down-to-earth kid, young." This gives rise to an inference of unlawful age discrimination. Kalsto v. Village of Somerset (LIRC, 10/03/00).

The distribution of ages within the group of people who are moving into the job market and seeking entry-level positions is significantly skewed towards younger ages. Therefore, a pattern of hiring results that shows a tendency towards younger ages is not necessarily probative of discrimination based on age. Schmidt v. Zimpro Envtl. Sys. (LIRC, 01/30/98).

Rejection of a job applicant because of a genuine belief that he is overqualified for the position at issue is not age discrimination. Although "overqualification" might be correlated with advanced age, when an employer makes a decision on the basis of a criterion that is correlated with age, as opposed to age itself, the employer does not violate the laws against age discrimination. Schmidt v. Zimpro Envtl. Sys. (LIRC, 01/30/98).

Stray remarks, when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue. In this case, the comment by a regional vice president of the Respondent that he couldn't "get rid of [the Complainant] because [he was] too damn old" was not persuasive evidence that the Complainant's age was a factor in his failure to be hired. The remark was made at some unspecified time five years earlier, and the Complainant himself conceded that no other comments were made which implicated his age. Jacobs v. Glenmore Distilleries (LIRC, 07/27/95).

The Complainant failed to establish that there was probable cause to believe that he was discriminated against on the basis of age, even though it was undisputed that the Respondent failed to extend him an offer based upon his display of memory lapses during the interview process. It does not necessarily follow that the Respondent's decision was motivated by the Complainant's age. Harris v. Milwaukee County Mental Health Complex (LIRC, 05/13/94).

The Complainant failed to establish that he was discriminated against on the basis of age despite testimony from an individual within the Respondent's personnel department that the Complainant was rejected for a position because he was "part of the older management group." There was no evidence that this group was "older" by age. In fact, it was clear from the context of the testimony that what was meant was "older" simply in terms of being previous in time to the current management group. Roeseler v. E.R. Wagner Mfg. Co. (LIRC, 05/13/94).

The ultimate burden of persuading the trier of fact that age was a determining factor in a hiring decision remains at all times with the Complainant. Kurtz v. School Dist. of St. Croix Falls (LIRC, 06/10/93).

The Complainant failed to show that an employer's reasons for failing to hire him were a pretext for age discrimination where (1) the employer notified the job applicant that the position available was for both a custodial and a maintenance person, and (2) the employer allowed all of the candidates an unrestricted opportunity to discuss their qualifications during the interview. An employer is not required to list all of its hiring criteria in a one-paragraph job announcement. Kurtz v. School Dist. of St. Croix Falls (LIRC, 06/10/93).

The Complainant's use of the employer's data regarding the ages of people who had been hired for a custodial maintenance position during a seven-year period was insufficient to establish age discrimination since the statistical sample was too small to be of any significance and the Complainant failed to provide evidence of the number and distribution of older persons in the applicant pool. Kurtz v. School Dist. of St. Croix Falls (LIRC, 06/10/93).

The use of the term "new blood" by a manager for the Respondent was not evidence of age bias where the manager explained the term by saying that he thought that the company needed new theories and new ideas. The term "new blood" has been recognized as being nothing more than an expression of a desire to change employes, whether they be younger or older. Wygant v. Form Services North (LIRC, 04/29/93).

Evidence that an employer has more young people than old people, without more, will not support a claim of age discrimination. The only kind of statistic which could potentially carry any significant weight in this area would compare, not overall numbers of younger versus older persons hired, but overall success rates of younger versus older applicants. Here, given the proportion of applicants who were in the protected category, the low number of hires in that category is not significant. What is significant is that older workers were at least as successful, if not more successful, than younger workers in getting employment with the Respondent. Wygant v. Form Services North (LIRC, 04/29/93).

It was not proper for an ALJ to dismiss a claim of age discrimination on the grounds essentially that the Complainant could not show he was qualified for a sales manager position for a liquor company where the Complainant asserted, among other things, that he had informed the employer that he could have sold his tavern business within 30 days (state law essentially precluded the Complainant's owning a tavern if he were at the same time a liquor company sales manager), and that it appeared that the individual who had been hired was at least seventeen years younger than the Complainant. Jacobs v. Glenmore Distilleries Co. (LIRC, 11/25/92).

A Complainant who testified before the social security administration that he was permanently disabled and unable to perform the job duties of a printer/press operator on the date that the Complainant alleges the Respondent failed to hire him as a printer/press operator because of his age failed to prove a prima facie case of age discrimination. A prima facie case of age discrimination with respect to hire requires a Complainant to establish that he was qualified for the job which he alleges he was discriminatorily denied. Harrison v. Friends Professional Stationery, Inc. (LIRC, 09/18/92).

It was reasonable, and not evidence of age discrimination, for the Respondent to be concerned about the reliability of an applicant who, after an impressive start to his career, did not account in his job history for six of the twelve years prior to his application. Watson v. WPS (LIRC, 09/06/89).

Consideration of an applicant's recent gaps in teaching experience is not evidence of age or sex discrimination, unless it is shown that such a consideration actually has a disparate impact on women or people over the age of 40. Chandler v. UW- LaCrosse (Wis. Personnel Comm., 08/24/89).

The Respondent did not discriminate against the Complainant by failing to hire him as a sales manager because of age, since the Complainant was not interested in the sales manager position, said he would not have taken it if it had been offered to him, and failed to show that the Respondent's stated reasons for not offering that position were pretextual. Kumpf v. LIRC (Ct. App., Dist. IV, unpublished decision, 02/23/89).

Where the percentage of job applicants over age 40 matched the percentage of those who passed the initial screening, a 56 year old applicant did not show that his failure to pass was related to his age even though the screening procedure did not follow merit selection standards. Schleicher v. LIRC (City of Janesville) (Rock Co. Cir. Ct., 07/14/83).

Where two candidates were otherwise equally qualified, a 53 year old applicant did not prove that the Respondent's decision to hire an 18 year old was age discrimination, despite showing that the employer wanted someone who would remain for a long time, even if he was told that age would be the deciding factor. Protogere v. Appleton Mills (LIRC, 05/11/83).

A job applicant for a laborer position established a prima facie case of age discrimination in hire by showing that he had previously performed many of the job duties and that the two persons hired were not within the protected age group; but he was unable to rebut the employer's statement that his non-hire was based on his previous inability to properly operate motor vehicles. Hogenson v. City of Prairie du Chien (LIRC, 12/10/82).

It was not age discrimination to fail to select a job applicant who was over 40 who passed an exam and was certified for a number of positions where there were legitimate non-discriminatory reasons for each hiring decision and each decision was made separately. Markham v. Department of Health and Social Services (Wis. Personnel Comm., 02/09/82).

A 50 year old applicant for an accounting position established a prima facie case of age discrimination by showing that he applied and was qualified for the position, that a younger person was selected, and that the selecting official stated he was looking for a "long term investment" and had passed over another over age 40 applicant whom he could have selected on a competitive basis. Anderson v. Whitewater (LIRC, 12/03/80).

The employer prevailed in an age discrimination case where the job applicant for a pharmacist position did not have prior work experience in the preparation and use of intravenous drugs. Zimmerman v. Milwaukee County (LIRC, 01/16/80).

Subjective judgments about the relative merits of job applicants are a necessity but an employer's hire of four applicants under 40 years of age while bypassing a 55 year old applicant was discrimination where the older applicant was equally or better qualified than those hired and the job interviewer could not adequately explain his need to write in code the age of the 55 year old. Bjork v. Department of Health and Social Services (LIRC, 09/22/77).

An employer's refusal to hire a 47 year old job applicant with excellent office skills was age discrimination where the employer had indicated to the job placement office a preference for someone under age 40 because of problems with employe benefits and training programs caused by hiring an older person. Pierson v. Indus. Elec. Wire (LIRC, 08/25/77).

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121.3 Age discrimination; Compensation, benefits

Although an employer paid 90% of the insurance premiums, it did not discriminate against a 56 year old teacher who was rejected for the insurance program because of high blood pressure where the employer's only role was to pass out the insurance applications. King v. Wausau Schools (LIRC, 12/08/78).

The grant of a merit increase to all custodial workers except two who were close to retirement and "nonretainable" was age discrimination. Risler First Wisconsin National Bank (DILHR, 06/26/75).

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121.4 Age discrimination; Conditions of employment

A complaint was properly dismissed for failure to allege facts sufficient to support a claim for relief for age discrimination under the Wisconsin Fair Employment Act.  The Complainant indicated in his complaint that he was forty-two years old.  In correspondence to the Equal Rights Division, the Complainant asserted that he was at least twenty years older than individuals who called him “old man.”  At his deposition, the Complainant testified that being called an old man made it hard for him to work or have a good attitude.  The Complainant failed to establish a prima facie case of age-based hostile work environment because he did not allege the existence of some basis for liability on the part of the employer.  At no time did he allege or assert that he had complained to the Respondent about his co-workers calling him an old man.  Mroczkowski v. Belmark, Inc. (LIRC, 04/28/05).

Even if the Complainant's supervisor referred to the Complainant as an "old man" on one occasion, this would not be sufficiently severe or pervasive to support a conclusion that the Respondent engaged in illegal harassment on the basis of age. Josellis v. Pace Inds. (LIRC, 08/31/04), aff'd sub nom. Josellis v. LIRC (Sauk Co. Cir. Ct., 09/15/05).

The Complainant did not establish that she was discriminated against with respect to her terms and conditions of employment on the basis of age when the Respondent changed her teaching assignment from that of teaching fifth grade language arts and math to teaching seventh and eighth grade math. The school principal had made several comments to the Complainant inquiring about when she was going to retire. The principal’s asking the Complainant about her retirement plans on the last day of school, without more, was not evidence of age discrimination because the employer had a legitimate interest in learning of its employees’ plans for the future in order that the employer itself might plan for the future. In addition, the Complainant had herself initiated several conversations with management staff regarding retirement. Furthermore, the principal was a proponent of the benefits available under the retirement system, and he spoke to many teachers about the financial benefits available to them under the retirement system. The Complainant’s contention that her assignment change was an attempt to force her to resign was undermined by several factors. These included the school’s need for someone to teach eighth grade math, and the principal’s view that the Complainant was a good choice to fill the eighth grade position. Post v. Mauston School Dist. (LIRC, 08/28/02), aff’d. sub nom. Post v. LIRC (Juneau Co. Cir. Ct., 01/28/03).

In a case in which the Complainant alleged that he had been denied a promotion because of age, it was not significant that the Administrative Law Judge incorrectly found that the person hired instead of the Complainant was forty years old when the person was in fact thirty-nine years old when hired. Ryals v. Milwaukee County (LIRC, 2/5/88).

The Complainant established a prima facie case of age discrimination by showing that he was in a protected age class, that he had a reasonable expectation of promotion, and that the two persons promoted instead of him were in their twenties. Dreva v. Soo Line Rail Road (LIRC, 09/24/82).

Where a professor claimed that the use of student evaluations for merit increases favored teachers under age 40, the employer met its burden of proof by demonstrating that the evaluations were not the sole criterion and that the overall process of determining merit increases did not involve consideration of age. Pollnow v. LIRC (U.W.-Oshkosh) (Winnebago Co. Cir. Ct., 02/05/81).

An employer discriminated against a 57 year old assistant credit collection manager by hiring younger, less skilled people, putting them in a position to supervise him, requiring him to perform duties such as getting sandwiches for younger staff members, and discharging him without a legitimate reason. Pon v. Niss Furniture (DILHR, 09/14/76).

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121.5 Age discrimination; Termination

The Complainant was informed that his position was being eliminated because it was not essential. However, after the Complainant was discharged, his duties continued to be performed by significantly younger workers. The evidence indicated that the Respondent considered the retirement status of its older workers in deciding who to lay off, and that the Respondent erroneously designated the Complainant as someone who was planning to retire, (although he had never expressed an interest in retiring). The Complainant established that he was unlawfully discriminated against because of his age. Anchor v. Wisconsin Dept. of Workforce Development (LIRC, 01/04/12).

The Complainant was over the age of 40 when he was hired by the Respondent, just two years before his discharge. All of the individuals who participated in the decision to terminate the Complainant were over the age of 40 at the time. These circumstances tend to undermine the Complainant’s contention that the Respondent was motivated by a discriminatory animus based upon his age (47). Rudd v. Watson Pharmaceuticals (LIRC, 05/27/10).

The Complainant’s position was selected for layoff for reasons unrelated to his age.  The Respondent explained to the Complainant that his layoff would result in his forfeiture of a significant sick leave conversion benefit, but that he would not forfeit this benefit if he retired instead.  The forfeiture of sick leave policy was one which applied to all employees in state service, regardless of age or proximity to retirement.  The fact that the Complainant felt compelled to retire rather than be laid off was not a function of age discrimination.  Empereur v. Wis. Dept. of Admin. (LIRC, 09/23/05)

It is plausible that the Respondent would have chosen to time the Complainant's discharge with a larger layoff in order to conceal the fact of age discrimination in the Complainant's case. Two of the three decision-makers involved in the decision to discharge the Complainant had commented unfavorably about the Complainant's age and suitability for the job shortly before he was discharged. Under the circumstances in this case, these remarks were not mere "stray" remarks. The discriminatory remarks were directly related to the Respondent's decision to discharge the Complainant. Stern v. RF Technologies (LIRC, 02/06/04).

An employer does not violate the Wisconsin Fair Employment Act when it discharges an age-protected employe because of a physical limitation. In this case, the Complainant could not perform some of the tasks required (such as lifting heavy loads) without assistance. Therefore, the Complainant was not "qualified for the job" and he did not establish a prima facie case of age discrimination. Harrison v. LIRC and Friends Prof. Stationery, 211 Wis. 2d 680, 565 N.W.2d 572 (Ct. App. 1997).

While one of the four workers hired after the Complainant was over the age of 40, this did not immunize the employer when the difference in age was significant. In this case, the Complainant was 63 years old, and the person hired to replace her was 41 years old. Rutherford v. J&L Oil (LIRC, 06/06/97).

Even if wages were used as a factor in selecting employes for layoff, the Complainant failed to establish that there was a correlation between length of service and one's wages. The Respondent established that some employes with less seniority earned more than those with greater seniority. Further, there was evidence that there were employes in their twenties who were being paid higher wages who were among those selected for layoff. Rose v. Independent Media Group (LIRC, 01/31/95).

The Respondent's president made a number of comments which, while evidence of possible age bias, did not inevitably lead to a conclusion that age was a factor in the decision to lay off the Complainant, who was 58 years old. His comment that, "they're just a bunch of old guys, we should get some young blood in - people that aren't set in their ways," did not establish age bias where there was no testimony about when the comment was made or the context in which the comment was made. Rose v. Independent Media Group (LIRC, 01/31/95).

The Complainant's age was a substantial factor in the Respondent's decision to discharge her where there was evidence that the Respondent desired to replace some of its older employes with younger employes in an effort to attract younger and more professional women as customers. Agents of the Respondent had made remarks relating to age as it affected the business of the store, specifically by their desire to gear the store toward younger women and to attract younger customers by replacing older employes with younger employes because the store was perceived as a store for older women and because younger employes were easier to deal with. Bormann's v. LIRC (Dane Co. Cir. Ct., 01/21/94).

The Respondent did not discriminate against the Complainant on the basis of age where the Complainant failed to prove that there was a correlation between years of service, salary level, and age. Sullivan v. Sacred Heart School Bd. (LIRC, 03/30/93).

The Respondent did not discriminate against the Complainant because of his age when, in response to a decision to eliminate 800 jobs outside of the Complainant's department, it ranked all supervisors and laid off the three lowest ranked supervisors, including the Complainant, who did not have special skills which the Respondent wished to retain. Murray v. General Electric Co. (LIRC, 08/07/92).

The Complainant's discharge was not because of age where the Respondent had a good faith belief that a position had to be eliminated because of a decline in work, and where the Respondent did not replace the Complainant. Gentilli v. Badger Coaches (LIRC, 07/12/90), aff'd. sub nom. Gentilli v. LIRC, (Dane Co. Cir. Ct. 01/15/91), aff'd., Ct. App. Dist. IV, unpublished decision, 10/24/91.

In age discrimination cases, the Complainant has the ultimate burden of proving that age was a determining factor in the employment decision complained of. The intent of the Wisconsin Fair Employment Act is to protect the right of individuals to be free from employment discrimination because of age. However, the Act is not a guarantee of tenure for the older worker. Hagberg v. Nordson Corp. (LIRC, 06/26/91).

The Complainant failed to establish that he stopped making derogatory remarks about the Respondent and its president after being warned that continuing to make such comments would result in his discharge, or that his subsequent discharge for continuing to make such comments was a pretext for age discrimination. Binder v. Nercon Engineering & Mfg. (LIRC, 12/18/90).

There is no legal significance, per se, under age discrimination laws, to the retention of less senior employes while more senior employes are laid off. Length of service with an employer is not necessarily an indicator of age. De Kalver v. Magna Graphics Corp. (LIRC, 03/20/90).

There was no probable cause to believe that the Respondent terminated the Complainant's employment because of age where: (1) there was a downturn in business which led the Respondent to consider staff reductions, (2) the Respondent's criticisms of the Complainant showed no age bias, (3) the Respondent's criticisms of the Complainant's performance were legitimate, and (4) the impact of the layoffs was heaviest on younger workers. De Kalver v. Magna Graphics Corp. (LIRC, 03/20/90).

The Complainant failed to prove he had been discharged because of age where the testimony established that: (1) he had problems with his performance, particularly with respect to cooperativeness and amount of supervision required; (2) he had received a final warning; (3) he resisted training on newer products; (4) he continued to call and question other management staff after stating he was ill; and (5) he serviced an important client in a fashion which was against the specific instructions of both the client and his supervisor. Klaffka v. TRW (LIRC, 02/16/90).

The Complainant's discharge was not because of age where the evidence indicated that the Complainant was in a position calling for greater expertise than he possessed, resulting in "below requirements" ratings at a time when the Respondent decided to cut back personnel by terminating the employment of people with "below requirements" ratings. Johnson v. Trane Co. (LIRC, 01/22/90).

Age was not a factor in the Complainant's discharge where: (1) a recession had a severe impact on the Respondent's business, (2) the Respondent had responded to that recession by a reduction in its work force which continued through the time the Complainant was discharged, (3) the Complainant's position was eliminated as part of an effort to save expenses, and (4) the Respondent made a reasonable and objective judgment that two younger individuals were more qualified than the Complainant to perform the positions that remained after the re-organization. Erickson v. DEC Int'l. (LIRC, 01/18/90).

The Complainant established she was discharged because of age where the supervisor who discharged her: (1) admitted having difficulty managing older employes, (2) believed older employes resisted her authority, (3) gave negative evaluations to the Complainant when she had a history of positive evaluations from her other supervisors, (4) was unable to identify specific instances of the Complainant's alleged failure to accept supervisory authority or to comply with company policies, and (5) criticized the Complainant for not completing her work when it had been recognized that the workload could not be completed by one person. Leick v. Menasha Corp. (LIRC, 08/17/89).

There was no probable cause to believe that the Respondent terminated the Complainant because of her age where the evidence showed that the Respondent had first hired the Complainant for one temporary job when she was 59 years old, that it hired her thereafter for a second job, and that it replaced her (after terminating her for unsatisfactory performance) with a woman in her fifties. Frederick v. Madison Metro. School Dist. (LIRC, 11/04/87).

The elements of a prima facie case in a reduction in workforce case are flexible. A Complainant may make such a showing by demonstrating that he was of an age protected by the Act at the time of his layoff and that his layoff was an adverse action taken by the Respondent, if he can also show some evidence from which age discrimination could be inferred. One typical way to raise the required inference is to show that the Complainant applied for a vacant position for which he was qualified, but the Respondent hired a younger person. Another method is to show that the Respondent engaged in a pattern of unfavorable treatment of workers in the protected age group. Fluekiger v. Mathey Constr. Co. (LIRC, 05/14/87).

In a claim of discriminatory discharge on the basis of age, the Complainant must show that she was in the protected age group, that she was discharged, that she was qualified for the job, and that she was replaced by someone not within the protected class or that others not within the protected class were treated more favorably. Schenck v. Northwest Fabrics (LIRC, 02/20/87).

In order to establish a prima facie case of age discrimination in her removal from one position and demotion to another, the Complainant must show that she was a member of a protected age group, that her removal and transfer to another position constituted a demotion, that she was qualified to remain in the position she was removed from, and that she was replaced by someone who was not in the protected age class. Hatlen v. Gizette Printing Co. (LIRC, 02/12/87).

The fact that a terminated Complainant was in the protected age group and that her replacement was not is not sufficient, standing alone, to support a finding of probable cause that age discrimination occurred. Sanrope v. Hillsboro Public Schools (LIRC, 08/22/86).

There was no discrimination in a review commission's decision to modify a supervisor's recommendation of discharge in favor of layoff, because four of the five commission members were themselves in the protected age group and there was evidence that the employe did not work well with co-workers. Pitschler v. Kohler (LIRC, 08/14/84); aff'd., Sheboygan Co. Cir. Ct., 10/08/85.

In a claim of discriminatory discharge on the basis of age, the Complainant must show that he was age 40 or older, that he was discharged, that he was qualified for the job, and that either he was replaced by someone not within the class or others not in the protected class were treated more favorably. Here, however, the fact that the Complainant was not replaced by a younger employer is not dispositive, as the necessary elements of a prima facie case are not fixed in stone but vary with the facts of each case. It is enough that the Complainant established facts which raise an inference of age discrimination. The Complainant did so in this case by establishing that he was laid off while a much younger and less experienced employe was retained in a position for which the Complainant was fully qualified and which was in fact essentially a sub-set of the position the Complainant had held. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

An employe in the protected group who was laid off from work and not recalled, in favor of two younger employes and two new hires, raised an inference of age discrimination. Graham Mfg. Corp. v. LIRC (Williams) (Wood Co. Cir. Ct., 02/23/84).

An employe failed to demonstrate that his discharge in a company reorganization was discriminatory by submitting statistical evidence that the employer dismissed a slightly higher percentage of older employes. Bentson v. Weathershield Mfg. (LIRC, 01/06/84).

Comments to an employe that his age would make it difficult for him to heal after an injury and to find other work show that his employer was encouraging him to quit, but the evidence as a whole, including the hiring of other persons over age 50, showed that the employe was discharged for poor performance and not his age. Michaud v. Midwest Breeder's Co-op (LIRC, 03/09/83); aff'd. sub nom. Michaud v. LIRC (Midwest Breeder's Co-op) (Dane Co. Cir. Ct., 01/19/84).

Where the employer showed that it did not replace a 54 year old truck driver who was transferred as part of a reorganization, and where one of its two remaining drivers was 61 years old, the 54 year old could not establish probable cause to support his claim that the transfer was related to his age. Reimann v. LIRC (Curative Rehabilitation Center) (Milwaukee Co. Cir. Ct., 06/17/83).

A person alleging that his discharge was caused by his age established a prima facie case by showing that he was over age 39, that he was performing at a level that met his employer's reasonable expectations and that, after his discharge, his employer sought a replacement. He does not have to show that the person hired to replace him was under age 40. (The Complainant was 62 years old and his replacement was 45). Wagner v. Rockford Mfg. Associates (LIRC, 12/20/82); also, St. Vincent De Paul Society v. MEOC (Dane Co. Cir. Ct., 03/30/83).

Although a discharged employe showed that he had consistently received above average performance ratings and never been disciplined, he did not prove age discrimination where the employer's general manager, who the employe called as a witness, genuinely believed he was not performing satisfactorily. Fellman v. Mercury Marine (LIRC, 12/10/82).

A discharged employe met his initial burden of proving age discrimination by showing that: (1) he was within the protected age group; (2) his work performance was satisfactory; (3) he was discharged despite his satisfactory performance; and (4) he was replaced by a younger person of equal or inferior qualification. However, the employer ultimately prevailed where the employe failed to show that the employer's concern for the age of its work force was not legitimate planning for the future. Henry v. Andrews Roofing and Siding (LIRC, 11/20/81).

There was no age discrimination where the employer told the laid off employe that he was seeking younger, more experienced men in order to avoid informing him that his skills were unsatisfactory. Lloyd v. Hoffman Constr. (LIRC, 08/05/80).

Age discrimination was found in the discharge of four teachers where the average age of the staff was lowered after the discharges and the assistant superintendent, who recommended the termination, made derogatory comments about older teachers. Melrose-Mindoro Area School Dist. v. DILHR (Ct. App., Dist. IV, unpublished decision, 05/27/80).

In order to establish a prima facie case of discharge based on age, the Complainant must show replacement by a person not in the protected age group. Dixon v. A & P (LIRC, 07/12/79).

Where the employer offers a non-discriminatory business justification for replacing a 58 year old employe with a 50 year old, a finding of age discrimination must be supported by a finding in the record that the 58 year old had superior qualifications and that the employer's business justification was a pretext. Ladish v. Department of Industry, Labor and Human Relations (Bode) (Milwaukee Co. Cir. Ct., 06/14/78).

A 58 year old employe established a prima facie case of age discrimination in his demotion and discharge by establishing that he was qualified to do the work, he was not considered for other engineering positions which were given to employes under age 40, and a company executive thought he was too old to adjust to a new company plan. The employer could not rebut his claim because it failed to show that the employe was unable to efficiently perform his job duties at the standards set by the employer. Michels v. Giddings and Lewis Machine Tool (DILHR, 12/06/77).

An employer has no duty to attempt to retain an employe who is unable to perform her duties because of age. Kronberg v. DILHR (Lakeshore Tech) (Dane Co. Cir. Ct., 09/13/76).

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121.6 Age discrimination; Retirement plans

Generally, an employer may offer eligible employes an incentive to retire without creating a prima facie case of age discrimination, provided that the incentive plan does not irrevocably alter the status quo for employes who reject the option. In this case, the risk to employes rejecting the incentive plan was that their jobs might be eliminated because of economic pressures. This is not sufficient to suggest constructive discharge or age discrimination. Thompson v. A.O. Smith Corp., ( Ct. App., Dist I, unpublished decision, 10/19/94).

Interpreting the Act as it existed in 1976, LIRC holds that Walker Mfg. v. Industrial Comm., 27 Wis. 2d 669 (1964) compels the conclusion that the Act allowed forced retirement of employes if there is a retirement policy or system which provides for payment of substantial benefits which are not in jeopardy. Kozlowski v. Doehler-Jarvis Division (LIRC, 06/29/81). [Ed. Note - Subsequent amendments have effectively reversed this holding; see, sec. 111.33(2)(b), Stats.]

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121.7 Age discrimination; Waivers

[See section 717 also]

The Complainant made a voluntary and knowing waiver of her right to bring an employment discrimination complaint against the Respondent under the Wisconsin Fair Employment Act.  There was no showing that she was induced to sign the agreement through any fraud.  The Complainant was aware of facts sufficient to lead her to suspect age discrimination at the time of her termination, and the release did not hide the fact that the Respondent was seeking to protect itself from any possible age discrimination claims.  Moreover, the Respondent did not obtain the Complainant’s termination in exchange for the benefits it was giving her under the agreement; the termination was something the employer (in the absence of any contractual right to a term of employment) had the power to carry out regardless of the agreement.  What the Respondent obtained was the release of claims in exchange for the benefits it gave the Complainant, and there was no fraud in connection with that exchange.  The Complainant had the opportunity to consult with an attorney of her own choosing.  She was given forty-five days to consider the release agreement.  Following execution of the agreement, she was given seven days to revoke her acceptance of the agreement.  Semandel v. Briggs & Stratton (LIRC, 02/24/05).

The Complainant’s refusal to sign a severance or termination agreement containing a release of any claims against the employer did not constitute "opposition" to a discriminatory practice. Nor did the Complainant’s contacting an attorney demonstrate that he opposed a discriminatory practice since the employer had encouraged him to do so before signing the release. Accordingly, the Complainant failed to establish that the employer had retaliated against him by refusing to enter into an independent contractual relationship with him because he had opposed a discriminatory practice under the Act. Weier v. Heiden, Inc. (LIRC, 02/05/98).

A Complainant's offer to return previously received pension benefits to the employer, even where the monies had not yet actually been returned, was sufficient to allow him to challenge the validity of a release of claims arising out of his employment including, but not limited to, any alleged violation of state or federal measures which prohibit employment discrimination. Grahl v. Mercury Marine (LIRC, 12/04/92).

The totality of the circumstances should be used in determining whether there has been a knowing and voluntary waiver of rights under the WFEA. Although giving an employe an opportunity to negotiate the terms of a release and encouraging the employe to consult with an attorney are factors to consider in determining whether a release was knowing or voluntary, such factors are not mandatory requirements and a release could be found valid even in their absence. In this case, a release was determined to have been knowing and voluntary where the release was clear in its language, where a reasonable amount of time was allowed to consider whether or not to sign it, where the consideration given exceeded the amount of pension benefits the employe was otherwise entitled to receive, and where the employe had a high school education and had been a management employe who had many years of business experience and who had signed or had been a party to numerous contracts. Grahl v. Mercury Marine (LIRC, 12/04/92).

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121.9 Age discrimination; Miscellaneous

There is no absolute rule that a Complainant cannot prevail on an age discrimination claim where the age difference between the Complainant and his comparator is only five years. However, a five-year age difference is not so significant that, standing on its own, it gives rise to an inference of age discrimination. Ebner v. Dura Tech (LIRC, 04/23/09).

Sec. 633(a) of the federal Age Discrimination in Employment Act (ADEA) provides that the commencement of an action under the ADEA "shall supercede any state action." The language of the statute, as well as the legislative history of the Act, makes it clear that state judicial review proceedings, as well as state agency proceedings, are to be stayed. Maynard v. LIRC, Brown Co. Cir. Ct., 07/13/04.

The complaint was properly dismissed for failure to state a claim upon which relief could be granted where the Complainant alleged that his performance was criticized by the Respondent because the Respondent expected him to work as productively as younger employes. The Wisconsin Fair Employment Act guarantees the equality of opportunity to qualified workers over age forty, but nowhere does it suggest that individuals in the protected age group are entitled to more favorable treatment than younger workers. Dunn v. City of Burlington Eng'g. Dept. (LIRC, 07/28/95).

The prohibition on discrimination because of age did not enact a statutory seniority-based layoff system with "bumping" rights. De Kalver v. Magna Graphics Corp. (LIRC, 03/20/90).

Anecdotal evidence provided by former employes as to their own situations and their allegations that they were discharged because of their age, offered to prove a pattern of age discrimination, is generally not helpful. Evidence of such a pattern can more convincingly be shown by statistics that show unexplained disparities in the treatment of classes of employes apparently distinguished by age. Erickson v. DEC Int'l. (LIRC, 01/18/90).

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122 Arrest or conviction record discrimination

122.1 Arrest or conviction record discrimination; Coverage, exceptions

122.11 Arrest or conviction record discrimination; Coverage, exceptions; General

The statutory exception allowing an employer to suspend an employee's performance during an arrest only applies where the employer has pending charges against him that are substantially related to the job. In this case, it was undisputed that although the Complainant was arrested, he was never charged with a crime. It was unlawful for the employer to suspend his employment based upon the arrest. Kraemer v. County of Milwaukee (LIRC, 10/11/12).

The proper inquiry in an arrest and conviction record case is what actually motivated the employer's decision to take the action it did. In this case, the Respondent was aware of the Complainant's conviction, but this was not the reason for her discharge. The Respondent continued to employ the Complainant for eight months after learning about the conviction and only terminated the employment relationship because of a sincere (if mistaken) belief that it was no longer permitted to employ the Complainant as a caregiver because of the law relating to Caregiver Background Checks. Williams v. Medical College of Wisconsin (LIRC, 10/10/11).

An employer must be able to ascertain information on an applicant’s conviction record or pending charges in order to determine whether that conviction or pending charge substantially relates to the position that the applicant seeks. Therefore, a question on an employment application asking if the applicant had ever been convicted of an offense or whether the applicant had charges pending does not violate the Wisconsin Fair Employment Act. Lee v. LIRC (City of Milwaukee) (Milwaukee Co. Cir. Ct., 03/02/09).

The Wisconsin Fair Employment Act permits an employer to make employment decisions based upon an applicant’s conviction record if the circumstances of the offense are substantially related to the circumstances of the particular job. Therefore, it is not a violation of the Act to request conviction record information from a job applicant. A question about an applicant’s conviction record on an employer’s employment application would not, therefore, constitute prohibited discrimination within the meaning of sec. 111.322(2), Stats., which prohibits printing or circulating any statement, advertisement or publication or using any form of application for employment which implies or expresses any limitation or discrimination with respect to an individual. Lee v. LIRC (Ct. App., Dist. I, unpublished decision, 05/27/10). Lee v. D.J.’s Pizza (LIRC, 05/20/09); Lee v. Wendy’s (LIRC, 05/20/09); Lee v. Speedway Super America (LIRC, 05/20/09).

The WFEA permits an employer to make employment decisions based upon an applicant's conviction record if the circumstances of the offense are substantially related to the circumstances of the particular job.  Accordingly, it is implicit that it is not a violation of the WFEA to request conviction record information from an applicant.  Lee v. City of Milwaukee (LIRC, 09/26/08), aff'd sub nom. Lee v. LIRC (Milwaukee Co. Cir. Ct., 03/02/09);  Lee v. Milwaukee County (LIRC, 09/26/08), aff'd sub nom. Lee v. LIRC (Milwaukee Co. Cir. Ct., 03/31/09).

Because the Wisconsin Fair Employment Act permits an employer to make employment decisions based upon an applicant's conviction record if the circumstances of the offense are substantially related to the circumstances of the particular job, it is implicit that it is not a violation of the Wisconsin Fair Employment Act to request conviction record information from an applicant.  Therefore, a question on the Respondent's employment application inquiring about the applicant's conviction record did not constitute prohibited discrimination under sec. 111.322(2), Stats.  Lee v. McDonald's (LIRC, 12/26/08); Lee v. Office Depot (LIRC, 12/26/08).

Although the Wisconsin Fair Employment Act allows employers to suspend the employment of workers who are charged with, but not yet convicted of, certain offenses, it is illegal to discharge an employee because of an arrest.  Nunn v. Dollar General (LIRC, 03/14/08).

A Complainant’s conviction for an offense estops him from subsequently trying to call into question his culpability in any of the material elements of the offense.  Any alleged problems surrounding an individual’s criminal conviction must be addressed by way of an appeal from that conviction.  Holze v. ADT Security Serv. (LIRC, 09/23/05)

A question on an employment application asking if an applicant has been convicted of a felony in the preceding five years is not prohibited by the Wisconsin Fair Employment Act.  The Act provides that it is not employment discrimination because of conviction record to refuse to employ any individual who has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job.  The Act presupposes that an applicant’s criminal record is known to the employer and does not prohibit an employer from asking questions about criminal records.  Also, nothing in the Act prohibits an employer from conducting background checks.  Jackson v. Klemm Tank Lines (LIRC, 04/29/05).

Employers do not violate the Wisconsin Fair Employment Act by requiring job applicants to document that an arrest had not, in fact, resulted in any conviction. Wozniak v. Bank One (LIRC, 10/10/03).

The concept of conviction record under the Wisconsin Fair Employment Act is not limited only to situations where absolute proof exists that an actual conviction exists. An employment decision based on information indicating that an individual has a conviction record, even if the individual has no conviction record, is a decision based on conviction record within the meaning of the Act. Miles v. Regency Janitorial Serv. (LIRC, 05/31/01), rev'd on other grounds sub nom. Regency Janitorial Serv. v. LIRC (Milwaukee CO. Cir. Ct., 03/12/02).

Discharging someone because of negative publicity over a conviction is precisely what the prohibition on conviction record discrimination was intended to prevent. Murray v. Waukesha Memorial Hosp. (LIRC, 05/11/01)

The Complainant was arrested on a charge of criminal damage to property. The Respondent suspended the Complainant’s employment because one of the conditions of her bond was that she have no contact whatsoever with two of her fellow employees. The Respondent’s decision to suspend the Complainant’s employment was not based upon discriminatory animus or bias associated with the fact that the Complainant had pending criminal charges against her, but upon a legitimate assessment that, while the Complainant was subject to the "no contact" order, she was effectively barred from coming to work and performing her job. Schmid-Long v. Hartzell Mfg. (LIRC, 03/26/99).

The fact that criminal charges are dismissed, or that an employe is acquitted of the charges, does not prove that a prior action taken on the basis of an arrest for those charges was unlawful discrimination. In this case, the Respondent, a licensing authority, temporarily suspended the Complainant's taxicab driver's license pending the resolution of criminal charges against him. The charges against the Complainant (which included sexual assault and threatening to injure another while in possession of a dangerous weapon) were dismissed approximately two months later. The Respondent then re-issued the Complainant's taxicab driver's permit. While the Complainant provided evidence tending to show that he was damaged because of the denial of his taxicab driver's permit for two months based on criminal charges that were later dismissed, he did not establish probable cause to believe that the Respondent unlawfully discriminated against him under the Wisconsin Fair Employment Act. Rathbun v. City of Madison (LIRC, 12/19/96)

The fact that the Complainant was eventually acquitted of the charges against him had no bearing on the question of whether there was unlawful arrest record discrimination. Paxton v. Aurora Health Care (LIRC, 10/21/93)

An employer may reassign an employe who is arrested on a charge the circumstances of which substantially relate to the circumstances of the particular job, although the employer should not be allowed to try to evade the purpose of the law by reassigning an employe to onerous duties in an effort to induce that employe's resignation. In this case, the employer reassigned the Complainant, rather than suspending her outright, in order to preserve her employment. Delapast v. Northwoods Beach Home Caring Homes (LIRC, 02/17/93)

Although an individual had received a full and unconditional pardon from the Governor, an employer was not precluded from taking into account the historical facts of his criminal behavior and its consequences, including his dismissal from previous employment. Cieciwa v. County of Milwaukee (LIRC, 11/19/92)

An employer who had no knowledge that the reason an employe was absent for three days without calling work was due to the employe's incarceration did not discharge the employe because of his arrest record. The employer terminated the employe's employment due to the employe's failure to follow the employer's procedure that the employe notify the employer of the employe's absence before the employe's shift begins. The employer had no duty to call the employe to inquire about the employe's whereabouts. Kessner v. Dairy Systems (LIRC, 09/30/92)

An employer is entitled to know whether an applicant has a conviction record, so that the employer can determine if the conviction record is substantially related to the applicant's prospective job duties. An employer may lawfully refuse to hire an applicant who falsifies an employment application with respect to a conviction record. Haynes v. National School Bus Service (LIRC, 01/31/92).

Where an employe has been unlawfully discharged because of an arrest, his subsequent conviction for that offense is irrelevant. There are no exceptions to the illegality of discharging an employe because of arrest record. Maline v. Wisconsin Bell (LIRC, 10/30/89).

Where the employer terminated an employe because she had been arrested, it violated the Act. Neither the fact that the conduct for which the employe was arrested was substantially related to the circumstances of her job, nor the fact that she was subsequently convicted of the charges, save the termination from illegality. Under the Act, the only action that an employer may take in response to the arrest of an employe for acts substantially related to the employe's job is suspension pending the outcome of the criminal charges. Shipley v. Town & Country Restaurant (LIRC, 07/14/87).

The Personnel Commission lacks subject matter jurisdiction over a complaint filed by an inmate who alleged discrimination based on conviction record with respect to actions taken by the prison’s education director. Richards v. DHSS (Wis. Personnel Comm., 09/04/86).

The purpose of the prohibition against arrest and conviction record discrimination is to prevent employment decisions from being made based on the stigma of an arrest or conviction record. Miller Brewing Co. v. ILHR Dept., 103 Wis. 2d 496, 308 N.W.2d 922 (Ct. App. 1981).

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122.12 Arrest or conviction record discrimination; Coverage, exceptions; Definition of 'arrest record',  'conviction record'

With respect to arrest record discrimination, the legislature's primary concern was about employment decisions being made on the basis of an assumption about an individual's guilt merely on the basis of an individual's contact with law enforcement or military authorities. With respect to the term conviction record, however, the question of whether the individual convicted of an offense was actually guilty of committing the offense for which he or she was convicted would never arise. It appears that the legislature's concern in conviction record cases is whether or not the individual has been convicted of an offense that is substantially related to the job that an employer has to offer. Swanson v. Kelly Services (LIRC, 10/13/04).

The definition of conviction record suggests that there is coverage against discrimination on the basis of perceived conviction record. Stroede v. Federal Express (LIRC, 08/14/96).

The affirmative defense set forth in sec. 111.335(1)(b), Stats., provides that it is not employment discrimination because of arrest record to suspend from employment any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the job. That section is not applicable where the charge for which the Complainant was arrested is not a “criminal charge.” In this case, the Complainant was charged with driving while under the influence of alcohol, as defined by sec. 346.63, Stats. Case law provides that a first offense under that section is not a criminal offense. Gustafson v. C.J.W., Inc. (LIRC, 03/21/89).

Being questioned by police and then issued a civil citation charging damage to property in violation of a municipal code constituted an arrest record within the meaning of the Wisconsin Fair Employment Act. Levanduski v. Visiting Nurse Ass'n. of Sheboygan (LIRC, 02/10/88).

The affirmative defense contained in sec. 111.335(1)(b), Stats., allowing employment decisions where the individual is subject to a pending criminal charge which is substantially related to the job, is not available where the charge in question is not a criminal charge. Springer v. Town of Madison (LIRC, 9/22/87).

The affirmative defense set forth in sec. 111.335(1)(b), Stats., allowing suspension from employment of any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity, is not available to a Respondent in a case in which the employe in question is subject to a charge of a municipal ordinance violation, since such a violation is not criminal. Hart v. Wausau Ins. Companies (LIRC, 04/10/87).

An employe discharged because of the employer's belief that he was stealing from the company had not been "arrested" within the meaning of the Act where the employer questioned the employe on its own as part of an internal investigation. Holliday v. Trane Co. (LIRC, 04/21/83).

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122.13 Arrest record discrimination; Coverage, exceptions; 'Onalaska' rule: underlying act, rather than arrest, as reason

The Respondent decided not to hire the Complainant in this case because he pleaded guilty to a charge of having received stolen property, notwithstanding the fact that the charge was later dismissed and no conviction ever resulted. The Respondent argued that it did not make its decision based upon the Complainant's arrest record, but that it independently concluded that he had knowingly received stolen property and that he had been dishonest with the Respondent about the matter. This is the so-called 'Onalaska defense,' articulated in City of Onalaska v. LIRC, 120 Wis. 2d 363 (Ct. App. 1984), in which the court held that it is not arrest record discrimination for an employer to decide not to hire an applicant because it concludes from its own investigation and questioning of the individual that he or she has committed an offense. However, in this case the Respondent did not really conduct an independent investigation. The only information the Respondent reviewed prior to deciding not to hire the Complainant was the CCAP report, which merely confirmed the procedural facts about the Complainant's arrest record. When the fact of the arrest is the only source for the Respondent's belief in the employee's guilt, Onalaska does not apply. Lovejoy v. Auto-Wares Wisconsin (LIRC, 02/24/11).

The Respondent decided to terminate the Complainant's employment after receiving verification from the Complainant's wife that he had engaged in a violent assault upon her and a co-worker. The Complainant's termination was not because of his arrest record. The 'Onalaska defense' does not require that the Respondent have no knowledge or familiarity with an employee's arrest record, but instead requires that this not be the sole or primary basis upon which the Respondent formed its belief that the Complainant had engaged in the conduct underlying the arrest. The employer's reliance upon the alleged victims' verification of certain details set forth in the criminal complaint in this case did not constitute reliance upon the Complainant's arrest record per se. Sanford v. Luther Midelfort (LIRC, 10/01/10).

Under the 'Onalaska defense,' the employer's investigation is not required to be optimal or exhaustive. Although the Complainant is one possible source of independent information, it is not a required source. Sanford v. Luther Midelfort (LIRC, 10/01/10).

In applying the 'Onalaska defense,' the question is whether the belief formed by the employer after its investigation that the Complainant had in fact engaged in the underlying conduct had a factual basis other than the arrest record itself, and whether that belief was reasonably consistent with the information the employer obtained during its investigation. Sanford v. Luther Midelfort (LIRC, 10/01/10).

The evidence in this case failed to establish that the Respondent obtained a significant amount of information through its own investigation independent of the arresting authorities which led it to conclude that the Complainant had engaged in the conduct with which he was charged. The Complainant was discharged from his position as a supervising officer at the Milwaukee Secure Detention Facility of the Department of Corrections after he was arrested and charged with the sexual assault of a child. After the Complainant was discharged, the criminal charges against the Complainant were dismissed. The warden decided to terminate the Complainant based upon looking at everything that he could, which included matters defined as part of the Complainant’s arrest record. Given that the warden could not identify what was more or less important in his decision to discharge the Complainant, it is impossible to conclude that the decision would have taken place in the absence of the impermissible motivating factor of the Complainant’s arrest. Suttle v. Department of Corrections (LIRC, 05/22/09), aff’d. sub nom Department of Corrections and Suttle v. LIRC (Dane Co. Cir. Ct., 06/02/10).

Under the Onalaska defense, there is no discrimination on the basis of arrest record if an employer refuses to hire an individual because the employer concludes from its own investigation and questioning of the individual that he has committed an offense. In short, the employer has not acted on the basis of the individual’s arrest record. On the other hand, where an employer has acted on the basis of an individual’s arrest record, the employer may avoid liability if the circumstances of the individual’s pending criminal charge substantially relate to the circumstances of the job. It was error for an Administrative Law Judge to hold both that: (1) the employer did not act on the basis of the Complainant’s arrest record, and (2) the employer did act on the basis of his arrest record but that such action fell under the exception to the prohibition against discrimination on the basis of arrest record. Johnson v. Kelly Services (LIRC, 04/21/09), aff’d. sub nom Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

Where the Respondent elected to await a court’s determination on the Complainant’s pending criminal charges before it made a hiring decision on his application for employment, there was no basis to support a conclusion that the action the Respondent had taken was because it had determined from its own investigation and questioning of the Complainant that he had committed an offense. Johnson v. Kelly Services (LIRC, 04/21/09), aff’d. sub nom Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

A plant manager saw the Complainant operating a vehicle and reported him to the police for not having a valid driver's license, resulting in an officer pulling the Complainant over and fining him for operating a vehicle after his license had been revoked.  The Complainant's subsequent discharge was based on his underlying conduct, rather than his arrest record.  Where the information an employer relies on to draw its conclusion that an employee engaged in unacceptable conduct was information independent from that of the arresting authority, the employer does not rely on the employee's arrest record.  Αrdеll v. Alliant Energy (LIRC, 01/31/08).

The Respondent in this case had some information that the Complainant had been arrested. The Respondent also had a copy of an arrest report containing what purported to be information provided by a law enforcement officer to the effect that the Complainant had made certain admissions in the jail. Such information coming from an arresting authority would not constitute information independent of the arrest and of the arresting authorities, but would be part and parcel of the Complainant’s “arrest record.” However, the fact that the Respondent had this information did not in and of itself prove that there was a violation of the prohibition against discrimination because of arrest record. The evidence showed that the Respondent had obtained a significant amount of information through its own investigation, independent of the arresting authorities, which led it to conclude that the Complainant had used illegal drugs and had been dishonest with the Respondent in a number of respects relating to or arising out of that drug use. The Respondent’s beliefs and conclusions regarding this conduct by the Complainant were the result of the information the Respondent had obtained independent of the arresting authorities and the fact of the arrest. The actions the Respondent took because of its beliefs and conclusions, including its discharge of the Complainant, were thus not “because of” the Complainant’s arrest record. Betters v. Kimberly Area Schools (LIRC, 11/28/07).

The underlying rationale in City of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 22 (Ct. App. 1984), does not extend beyond arrest record cases to conviction record cases.  Sheridan v. United Parcel Serv. (LIRC, 07/11/05)

The Respondent failed to show that it discharged the Complainant because it concluded from its own investigation and questioning of him that he had committed an offense.  The evidence indicated that the Respondent’s “own investigation” primarily consisted of consideration of the criminal complaint against the Complainant, and that the limited questioning it undertook of him was insufficient to support a conclusion that he had committed the offense of marijuana possession.  Evidence of the Respondent’s primary reliance on the criminal complaint was apparent, based upon its repeated requests for the Complainant to furnish it with the paperwork documenting what he was arrested for.  It was also apparent based on the statement in the termination letter that the Complainant had admitted to the possession of marijuana, which was a conclusion which could only be drawn from the criminal complaint against the Complainant.  During the investigation conducted by the Respondent, the Complainant was never asked if the marijuana in question was his, and he never admitted to possession of marijuana on the date in question.  None of the Complainant’s statements constituted an admission that he had committed the offense of possession of marijuana.  The Respondent, therefore, violated the prohibition against termination on the basis of arrest record.  However, the employee (who ultimately pleaded guilty to the charge) was still not entitled to any remedy for that violation because the circumstances of the charged offense substantially related to the employment such that suspension of the employee would have been legal.  Blunt v. Dept. of Corrections (LIRC, 02/04/05).

In arrest record cases it can be concluded that an employer "does not rely on information indicating the individual has an arrest record" because the employer has concluded from its own investigation and questioning of the individual that the individual has committed an offense. In all but the most unusual case, in a conviction record case the question of whether an individual that has been convicted of an offense was actually guilty of committing the offense for which he has been convicted would never arise. Even if such a case were to arise, an employer that learned through its own investigation and questioning of the individual that the individual was convicted of some offense would not properly be held to have made an unwarranted assumption regarding the individual's guilt. An employer cannot escape liability under the Wisconsin Fair Employment Act merely by undertaking its own investigation and by questioning the individual if he has committed the offense for which he was convicted. An employer that had the unfettered authority to decide for itself that an individual's conviction is substantially related to the particular job just because it concluded from its investigation and questioning of the individual that the individual committed the offense for which the individual was convicted would be to subject such individuals to the very arbitrary treatment the WFEA was enacted to prevent. Swanson v. Kelly Services (LIRC, 10/13/04).

Where the information which the employer relied to draw its conclusion that the employee engaged in unacceptable conduct was information that came from the arresting authority, this does not constitute information independent of the arrest and of the arresting authorities. Things such as police reports from the arresting authority, the criminal complaint, and statements made by or other information provided by the arresting or prosecuting authority, are all part and parcel of an "arrest record" itself. "Independent" sources of information which an employer may use to form a belief that an employee engaged in an offense of some kind which is also the subject of an employee's arrest include: (1) an admission by the employee; (2) statements to the employer by others who witnessed the conduct; (3) direct observations made by the employer while joining in a police search; or (4) an investigation by the employer that made use of information obtained from a contemporaneous police investigation. The Labor and Industry Review Commission no longer chooses to be guided by its prior decisions in Ponto v. Grand Geneva Resort & Spa (LIRC, 08/22/96), or Springer v. Town of Madison (LIRC, 09/22/87), where it concluded that the employer had not violated the WFEA when it made employment decisions based upon information that the employee engaged in unacceptable conduct that came from the arresting authority. Rather, the question to be resolved is whether the employer's conclusion that the employee had engaged in unacceptable behaviors was based on information "independent of the arrest and of the arresting authorities." Betters v. Kimberly Area Schools (LIRC, 07/30/04).

The critical question which needs to be answered to properly apply the Onalaska principle in a case where an employer has both learned about an employee's arrest from the arresting authorities, and learned things about the employee's conduct independently of the arresting authorities, is the question of the employer's motivation. The question is whether the employer made the decision to discharge the employee because of the information it acquired from the arrest and the arresting authorities, or because of the information it acquired through its own investigation independent of the arresting authorities. The employer's subjective intent and motivation in arriving at the challenged decision is a question of ultimate fact. Betters v. Kimberly Area Schools (LIRC, 07/30/04).

It is not arrest record discrimination if an employer undertakes its own investigation and bases the subject employment decision on the results of that investigation. In this case, it was not until the employer received a final investigative report concluding that the Complainant had used his work computer to access and download pornography that he was terminated. There was no probable cause to believe that the Complainant was discriminated against based on arrest record. Speltz v. Trane Div. of American Standard (LIRC, 05/25/04).

The Respondent failed to establish that it discharged the Complainant because she violated its alcohol and drug abuse policy, rather than because she was arrested for knowingly keeping and maintaining a dwelling which is resorted to by persons manufacturing controlled substances, contrary to sec. 961.42(1), Stats. The Complainant informed management that she had been arrested, and that she had known that an individual living in her home was growing hallucinatory mushrooms in his room. The Complainant’s statements to management did not constitute an admission that the Complainant had violated the Respondent’s alcohol and drug abuse policy, which provided, in part, that "the use, possession, sale, transfer, acceptance, or purchase of illegal drugs at any time is strictly prohibited." The Respondent simply assumed that the Complainant was guilty of possessing illegal drugs in violation of company policy, and that assumption was based entirely on the fact of her arrest record. Garton v. Wal-Mart Stores (LIRC, 01/27/00), aff’d sub nom. Wal-Mart Stores v. LIRC (Dane Co. Cir. Ct., 08/21/00).

The Respondent suspended and then discharged the Complainant after reading two newspaper articles stating that he had been charged with second degree sexual assault of a child and exposing a child to harmful materials and had allegedly admitted the conduct to the police. The newspaper articles were based on information obtained from the police, including the application for a search warrant and the criminal complaint. The suspension was not unlawful arrest record discrimination, because the offense charged here was substantially related to the employee's job as director of the fitness center at a resort.  While the WFEA does not provide a "substantially related" exception for discharge because of arrest, the discharge was not unlawful since the reason that the employer discharged the employee was that it believed, based on what it read in the newspaper articles, that the employee had confessed to the conduct involved. Ponto v. Grand Geneva Resort & Spa (LIRC, 08/22/96). [Ed. note: LIRC has expressly stated, in Betters v. Kimberly Area Schools (LIRC, 07/30/04), that it no longer chooses to be guided by the Ponto decision.]

Although the Complainant's general manager and the area supervisor were aware of her arrest, the Complainant had also admitted to the Respondent during its investigation that she had been involved with the conduct of selling controlled substances. It was this admission of unacceptable conduct that led to the Complainant's discharge. Since the Respondent discharged the Complainant because she admitted to having engaged in conduct unacceptable to the employer, and not because of her arrest record, the question of whether the Complainant's actions were substantially related to her employment did not have to be addressed. Lamb v. Happy Chef of Sparta (LIRC, 09/29/95).

The Respondent continued to employ the Complainant long after his manager learned of his conviction record, and even after other employees began complaining that the Complainant was stealing tips from them. The eventual discharge decision was made by a regional manager who was unaware of the Complainant's conviction record. That decision was based on the Respondent's belief, formed after investigation, that the Complainant was indeed stealing tips from other employees. Thus, the Complainant failed to demonstrate that his conviction record played any role in the Respondent's decision to discharge him. Bradley v. Exel Inn of America (LIRC, 02/02/95).

The employer did not discharge the Complainant because of arrest record where its belief as to the Complainant's guilt was based on its own investigation and was independent of the mere fact of his arrest. When the employer interviewed the Complainant, he admitted that he had marijuana in his car (which was the offense for which he was arrested). Additionally, when the Complainant was arrested he told the employer that he would not be able to get to work on time due to "car problems." The Respondent subsequently learned that the Complainant had been untruthful and that the real reason that he was unable to report to work on time was because he was incarcerated. Both of these contacts were independent of the arrest and of the arresting authorities because they were communications directly from the employe to the employer. Greene v. Air Wisconsin (LIRC, 02/02/95), aff'd. sub nom. Greene v. LIRC (Monroe Co. Cir. Ct., 08/25/95).

Where a Complainant was discharged because of the Respondent's reasonable, good faith belief (based upon its own investigation) that he had engaged in conduct for which he was arrested, it is immaterial whether the Complainant in fact engaged in that behavior. What matters is the question of the employer's motivation, not whether the employer was objectively correct. Here, the Complainant was eventually acquitted of the charges against him however this has no bearing on the question of whether there was unlawful arrest record discrimination. The employer came to a good faith belief based on its investigation that the Complainant had committed some type of sexual assault against a co-worker. It is irrelevant that a jury, which may have heard different evidence, and which was required to apply a stringent burden of proof, arrived at a different conclusion. Paxton v. Aurora Health Care (LIRC, 10/21/93).

An employer's decision to discharge an employe is not because of an arrest when it is motivated by the employer's belief that the employe has in fact engaged in certain unacceptable conduct and when that belief arises from some source other than the mere fact of the arrest. Delapast v. Northwoods Beach Home Caring Homes (LIRC, 02/17/93)

The Complainant was arrested on charges of aggravated battery for throwing acid in a woman's face. The day after the arrest, the Respondent received information from a brother of the victim that the Complainant had claimed that he got the acid from his workplace. The employer spoke to both the victim and her brother in investigating the matter. Through its own investigation, the Respondent concluded that the Complainant had committed the offense, using materials obtained from the workplace, and it discharged him. Since the Respondent made its decision based upon what it came to believe about the facts of the incidents through its own investigation, there was no violation of the prohibition on arrest record discrimination. Redmon v. Dept. of City Devel. (LIRC, 02/22/90).

The Respondent violated the Act when a significant and determining factor in its decision to discharge the Complainant was its belief that the employe had sold illegal drugs out of a company vehicle, a belief that was based solely on the Complainant's arrest on those charges. Maline v. Wisconsin Bell (LIRC, 10/30/89).

Where an employe has told the employer that he engaged in the conduct for which he was arrested or convicted, the situation must be analyzed to determine whether the subsequent action taken by the employer was taken because of the employer's belief about the conduct or because of the arrest or conviction itself. Here, the termination of the Complainant's employment was based on his arrest record, despite the Complainant's admission of the underlying conduct, because the Respondent's general manager stated that the Complainant was being discharged because the employer did not want anyone working for it who had a "driving while intoxicated" offense on his record. Gustafson v. C.J.W., Inc. (LIRC, 03/21/89).

Employers are not prohibited from taking an adverse employment action against an employe for improper actions on the job simply because the employe has also been arrested as a result of those actions. However, if the employer is motivated even in part by the arrest itself (as opposed to the underlying job-related misconduct) this should result in a finding of liability. Ames v. UW-Milwaukee (Wis. Personnel Comm., 12/23/88).

An employer's decision to terminate the Complainant based on the Complainant's admission to a violent incident involving her estranged husband was not based on her arrest record, even though her admission was verified by looking at the police report. Levanduski v. LIRC (Sheboygan Co. Cir. Ct., 09/13/88).

Where the employe, after having been arrested for unlawful damage to property in connection with a domestic disturbance at her home, admitted to her employer that she had engaged in the violent conduct in question, and the employer thereafter terminated her, the termination was not because of "arrest record," but was because of the employer's beliefs about the Complainant's conduct. Levanduski v. LIRC (Sheboygan Co. Cir. Ct., 09/15/88).

The employer did not make its employment decision because of the Complainant's arrest record where it made its decision because of a conclusion, based on an investigation which involved contacting law enforcement authorities and obtaining a copy of the citation, accident report, and other information from them, and questioning of the employe, that the employe had committed an offense. Springer v. Town of Madison (LIRC, 09/22/87), aff'd., Jefferson Co. Cir. Ct., 06/13/88.[Ed. note: LIRC has expressly stated, in Betters v. Kimberly Area Schools (LIRC, 07/30/04), that it no longer chooses to be guided by the Springer decision.]

The purpose of the prohibition on discrimination because of arrest record is to prevent an employer from making an employment decision solely on the basis of an employee's contact with the criminal justice system, not to prevent an employer from acting on the employee's own admission of conduct inimical to the employer's interests.  Therefore, where, as here, the evidence showed that the employer discharged the employee, not because of the fact that he had been charged with an offense, but because of the employee's subsequent direct admission to the Respondent that he had engaged in the conduct with which he had been charged, there was no violation on the prohibition against discrimination because of arrest record.  Mielke v. Orkin Exterminator Co. (LIRC, 04/11/88).

The Complainant, a nuclear plant security guard, was charged with misdemeanor possession of marijuana for having five marijuana plants growing near his residence. He pled guilty and was convicted and fined. Upon learning of this through the newspaper, the Respondent began an investigation, obtaining written and oral statements from the Complainant. Under the Respondent's policies, which called for discharge of employees convicted of a felony, the Complainant's conviction for misdemeanor possession would not necessarily require his discharge. In his initial statements to the Respondent, the Complainant admitted that he had marijuana plants growing near his home. He was not discharged at that time. In a subsequent interview with the Respondent, the Complainant disclosed that in addition to having grown marijuana plants at his residence, he used marijuana during off-duty hours and had done so for some time. He was then discharged. It was the Complainant's admitted possession and use of marijuana, rather than his conviction record, which caused his discharge. The Complainant was discharged only after the Respondent's investigation disclosed that he had been using marijuana for a number of years. Even if the discharge was considered to have been "because of" the Complainant's conviction record, the offense was substantially related to the job, considering the nature of the Complainant's duties as a guard at a nuclear power plant. McClellan v. Burns Int'l Security (LIRC, 03/31/88).

If an employer discharges an employee because it concludes from its own investigation and questioning of the employee that the employee had committed an offense, the employer does not discriminate because of an arrest record within the meaning of the Wisconsin Fair Employment Act. In this case, the Respondent learned of certain conduct the Complainant had been involved in (stealing a vehicle and stealing a flag) through information provided to it by a co-worker of the Complainant who had also been involved. The Respondent learned more about the incident by questioning the Complainant himself, who admitted to the conduct. It also eventually came to learn through the Complainant that he had been arrested and charged in connection with the incident. The Complainant was not discharged because of the arrest, but was discharged only because the Respondent believed on the basis of what it learned from the admissions of the involved co-employee and the Complainant himself during its investigation, that the Complainant had engaged in acts of theft which the Respondent equated with dishonesty. Himmel v. Copps Corp. (LIRC, 10/29/86).

To discharge an employee because of information indicating that the employee has been questioned by a law enforcement or military authority is to rely on an assertion by another person or entity. If the employer discharges an employee because the employer concludes from its own investigation and questioning of the employee that he has committed an offense, the employer does not rely on information indicating that the employee has been questioned, and therefore does not rely on an arrest record. In this case, the Complainant was a police trainee. The Complainant's brother-in-law was arrested for speeding, eluding a police officer, and racing. In response to a question by an officer, the Complainant said that he supposed he was the person with whom his brother-in-law was racing. The police chief told the Complainant that if he did not agree to resign he would be fired immediately. The Complainant was subsequently charged with racing, and was found not guilty. The Complainant's discharge was not discrimination. City of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984).

An employe was not terminated on the basis of his "arrest" where his employer discharged him because he brought a concealed weapon to work, not because he was arrested at work based on the employer's call to police. Buller v. University of Wisconsin (Wis. Personnel Comm., 10/14/82).

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