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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 122.19-122.9     

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122.19 Arrest or conviction record discrimination; Coverage, exceptions; Miscellaneous 

The Wisconsin Fair Employment Act does not require that an employer take affirmative steps to accommodate individuals convicted of felonies.  Holze v. Security Link (LIRC, 09/23/05)

A Respondent is not required to “accommodate” a Complainant’s criminal conviction by placing him in an assignment not substantially related to the circumstances of his conviction.  Sheridan v. United Parcel Serv. (LIRC, 07/11/05)

The Complainant’s suggestion that the Respondent engage in risk management by way of a fidelity bond or insurance, constitutes, in essence, an assertion that the Respondent could have taken steps to accommodate the Complainant’s felony convictions. A similar argument was rejected in Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998). There, the court found that there is nothing in the language of the Wisconsin Fair Employment Act which states that employers must take affirmative steps to accommodate individuals convicted of felonies. Accordingly, the Respondent was not obliged to engage in risk management by seeking a fidelity bond as a form of insurance against any monetary or property losses it may have incurred through the employment of the Complainant, who had been convicted of several felonies which included robbery, burglary, and theft. Jackson v. Summit Logistic Serv. (LIRC, 10/30/03).

The Complainant argued that the fact that he was issued a license to sell insurance by the Wisconsin Commissioner of Insurance established that the Commissioner of Insurance had made a determination that his convictions were not substantially related to the occupation at issue in the case. The Equal Rights Division was not required to give weight to the determination of the Commissioner of Insurance. It is the responsibility of the Equal Rights Division to determine whether the Wisconsin Fair Employment Act has been violated. Borum v. Allstate Ins. Co. (LIRC, 10/19/01).

The Respondent did not unlawfully discriminate against the Complainant where it reasonably concluded that it was unable to employ the Complainant while she was under court order to have no contact with two of her coworkers. The Respondent was under no legal obligation to consider alternate placements for the Complainant, nor was it required to determine whether the court would permit any exceptions to the "no contact" order. Schmid-Long v. Hartzell Mfg. (LIRC, 03/26/99).

The Wisconsin Fair Employment Act does not impose a duty upon employers to take affirmative steps to accommodate individuals with felony convictions. In this case, the Complainant was not qualified for the position of district agent with an insurance company because his felony conviction statutorily disqualified him from registration with the National Association of Securities Dealers (NASD). NASD requires that all employes who participate in a company’s registered securities business must be individually registered with NASD. The Respondent did not have a duty to allow the Complainant to pursue an alternate registration process which might have allowed him to become registered with NASD. Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998).

A statement by the Respondent’s executive director conceding that under certain circumstances the Respondent would not hire individuals with conviction records is nothing more than a layman’s statement of what is contained in the statute; i.e., that it is not employment discrimination because of conviction record to terminate from employment an individual if the circumstances of the conviction are substantially related to the circumstances of the employment. Konrad v. Dorchester Nursing Center (LIRC, 06/10/98).

If an applicant has a record of convictions that are substantially related to the job in question, the employer is not prohibited from treating the applicant differently from other applicants. In this case, the Respondent, a licensing agency, was entitled to test the Complainant's general knowledge more rigorously than it tested the knowledge of other applicants, once it determined that the Complainant had convictions which were substantially related to the position for which she sought a license (in this case, occupational therapist assistant). Deshon v. Department of Regulation and Licensing (LIRC, 01/12/96)

Where, one day prior to her scheduled initial appearance date on a shoplifting ordinance violation, the Complainant told her employer that she had been "arrested, convicted and paid a fine" for shoplifting, the subsequent action of the Respondent in terminating her was because of conviction record within the meaning of the Act. The Commission's conclusion, that because she had not yet actually been convicted the law on arrest record discrimination governed, was erroneous. It is reasonable for an employer to rely on information provided by the employe concerning the employe's own conviction record. Employers Ins. of Wausau v. LIRC (Marathon Co. Cir. Ct., 02/10/88), aff'd., Ct. App., Dist. III, unpublished decision, 10/11/88

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122 Arrest or conviction record discrimination; the "substantial relationship" defense; Generally

122.2 Arrest or conviction record discrimination; the "substantial relationship" defense

122.21 Arrest or conviction record discrimination; the "substantial relationship" defense; Generally

As a general rule, the circumstances of an offense are gleaned from a review of the elements of the crime, and an inquiry into the factual details of the specific offense is not required. However, this does not mean that it is never appropriate to look at the factual circumstances of the crime if doing so will help elucidate whether the crime is related to the job. For example, the decision-maker may take into account the fact that the criminal conduct at issue occurred in the context of a personal relationship or in a domestic setting, rendering it less likely to be repeated at the workplace. In this case, the Complainant was convicted of third-degree sexual assault, use of a dangerous weapon, first-degree recklessly endangering safety, and false imprisonment. The convictions were based upon a single incident with another individual with whom the Complainant had a personal relationship. The context of the Complainant's crimes was distinct from the context of his work environment. Moreover, the Complainant's job did not provide him with a significant opportunity to re-offend. The Respondent's warehouse provided little or no opportunity for even the most committed sex offender to engage in criminal activity. Knight v. Walmart Stores East (LIRC, 10/11/12).

The question in a conviction record case is whether the circumstances of the crime and the circumstances of the job are substantially related. The question is not whether the Complainant had a significant opportunity to engage in a crime which was identical to that for which he was previously convicted. In this case, the circumstances of the Complainant's three prior convictions for retail theft demonstrated an inclination to steal. These circumstances were substantially related to the circumstances of an associate systems analyst position. Lahey v. Kohler Co. (LIRC, 10/28/11).

The only exception to the injunction against discriminating against an individual with an arrest record is that an employer may not discriminate because of arrest record by refusing to employ or by suspending 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 particular job. Where a Complainant was discharged based upon his arrest record, the substantial relationship defense is unavailable. It is unlawful to discharge an employee based upon an arrest record, whether or not the circumstances of the charge are substantially related to the circumstances of the job. Kammers v. Kraft Foods (LIRC, 08/11/11).

As a general rule, the circumstances of the offense for which the Complainant was convicted are to be determined based upon a review of the elements of the crime. A detailed inquiry into the facts of the offense is not required. There may be times when the fostering circumstances of the crime require some factual exposition (e.g., in a disorderly conduct case where the type of offensive circumstances are not explicit). However, the fostering circumstances of a conviction such as public assistance fraud are fairly clear. The elements of that crime are set forth in the statute. Featherston v. Roehl Transp. (LIRC, 07/23/10).

An employer is not required to accommodate an employee's conviction record by placing him in an assignment which would not be substantially related to the circumstances of his conviction. The fact that it may have done so for others does not mean that it discriminated against the Complainant by refusing to do so for him. Lefever v. Pioneer Hi Bred International (LIRC, 05/14/10).

In County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), the Court stated that the purpose of the 'substantially related' test is to assess whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. The Court noted that it is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. The Court indicated that its definition of the proper 'circumstances' inquiry may be employed in situations arising under either the exception to the prohibition against conviction record or the prohibition against arrest record discrimination. Johnson v. Kelly Services (LIRC, 04/21/09), aff'd. sub nom Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

The amount of time which has elapsed since the Complainant's conviction is not relevant. The relevant concern is whether the circumstances of the conviction are substantially related to the circumstances of the particular job. Jackson v. Klemm Tank Lines (LIRC, 02/19/10).

The appropriate method for evaluating the substantially related question is to look first and foremost at the statutory elements of the offense involved. The rationale for this approach is that frequently the only person at the discrimination case hearing with any personal knowledge of the underlying factual circumstances of the offense is the person who was charged with or convicted of the offense. Frequently that person describes a version of the underlying factual circumstances that is self-exculpatory and inconsistent with the charge or the fact that the person was convicted. Johnson v. Kelly Services (LIRC, 04/21/09), aff'd. sub nom Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

The Complainant had a conviction record consisting of eight driving citations for speeding accrued over a four-year period. The Complainant spent much of his time on the road, logging at least 36,000 miles a year in company-owned vehicles, and the Respondent had an interest in employing safe drivers. The relationship of the offense to the job was clear. The Complainant argued that other people with poor driving records were not discharged. However, if the Complainant's conviction record was substantially related to the job then it was not discrimination to discharge him based upon that record, regardless of how other employees were treated. Lefever v. Pioneer Hi Bred International (LIRC, 05/14/10).

The Respondent placed the Complainant's job application on hold and did not continue the hiring process until the court made a determination on his pending arrest charges. This would have been a violation of the Wisconsin Fair Employment Act, except that the Complainant's arrest record in this case was substantially related to the position in question. Even assuming that the Respondent had hired the Complainant but had effectively suspended him from employment based on his arrest record, there would be no violation of the Act because the Complainant's arrest record is substantially related to the job in question. Johnson v. Kelly Services (LIRC, 04/21/09), aff'd. sub nom Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

The test in Milwaukee County v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), is not whether it is “likely” that the convicted person will re-offend, but whether there is an “unreasonable risk” of this occurring. That determination is not limited exclusively to concerns that the individual will commit another similar crime on the physical premises of the employer. The Court’s description of the relevant concern describes risks presented to “individuals” generally, and to “the community at large.” The impact of a further offense on the individuals victimized, and on the community at large, will be equally severe regardless of when or where any further crime takes place. This reading of the Court’s decision is supported by that decision’s description of the purpose of the “substantial relationship” test. The Court stated that, “[a]ssessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test.” In other words, the test is not limited to asking simply whether certain criminal behaviors will or will not recur in a workplace in which someone may find employment. Rather, it asks whether having that individual in that workplace will likely result in reappearance of the tendencies and inclinations to behave in a certain way. The cause for concern is that if such tendencies and inclinations do arise, another crime may be committed. It is that possibility that another crime may be committed, rather than the matter of exactly where and when it may be committed, that is significant. In analyzing whether the circumstances of a job would place a Complainant in a position where he could re-offend, a certain degree of speculation is involved. It is the very nature of the substantial relationship test that it involves speculation. Any assessment of risk necessarily does so. Matousek v. Sears Roebuck & Co., (LIRC, 02/28/07) (decision on remand from Sears Roebuck & Co. v. LIRC, Milw. Co. Cir. Ct., 09/29/06).

The Complainant's argument that the substantial relationship defense had not been established because none of the crimes for which he was convicted occurred in an employment setting was rejected. The substantial relationship test does not require any identity between the context in which the offenses were committed and the context in which the job duties are carried out. Weston v. ADM Milling (LIRC 01/18/06).

The Complainant's argument that there was not a substantial relationship between the crimes for which he had been convicted and his job because he had successfully performed the duties of the job without incident for a period of months was rejected. Prior satisfactory job performance is not germane to the inquiry that must be conducted in applying the substantial relationship test. Weston v. ADM Milling (LIRC 01/18/06).

The Complainant anticipated that the Respondent would raise the defense that his conviction was substantially related to the circumstances of the job.  The Complainant was not prejudiced by the Respondent’s failure to raise that defense in an answer.  Ward v. Home Depot (LIRC, 10/21/05)

The question is whether the circumstances of the employment provide a greater than usual opportunity for criminal behavior or a particular and significant opportunity for such criminal behavior.  It is inappropriate to deny a complainant employment opportunities based upon mere speculation that he might be capable of committing a crime in the workplace, absent any reason to believe that the job provides him with a substantial opportunity to engage in criminal conduct.  The mere possibility that a person could re-offend at a particular job does not create a substantial relationship.  Robertson v. Family Dollar Stores (LIRC, 10/14/05)

In evaluating whether there is a substantial relationship between a conviction and a particular job, it is useful to consider the question of what job would be suitable for the Complainant given his criminal record, if not the job at hand.  The substantial relationship provision of the statute seeks to strike a balance between society’s interest in rehabilitating those who have been convicted of a crime and its interest in protecting citizens.  The rehabilitative purpose of the statute is not furthered by a finding which suggests that a person with a conviction record can be excluded from future employment based upon the barest of possibilities that he could re-offend, when there is no reason to believe that the job in question presented any particular or significant opportunity to do so.  Robertson v. Family Dollar Stores (LIRC, 10/14/05)

The Respondent contended that the Complainant’s convictions were substantially related to the position of stocker at one of its retail stores.  The Respondent had the burden of establishing that such a substantial relationship existed.  Robertson v. Family Dollar Stores (LIRC, 10/14/05)

An Administrative Law Judge properly excluded a circuit court judge’s order as to the conditions of the Complainant’s probation.  According to the Complainant’s unrebutted testimony, this order permitted the Complainant to continue in his delivery driver position for the Respondent following his convictions for sexual assault of a child, causing mental harm to a child and misdemeanor to a child and misdemeanor with a child sixteen or older.  However, the circuit court judge was not interpreting the Wisconsin Fair Employment Act when he issued his probation order.  The legal issue of whether a substantial relationship exists between the convictions and the circumstances of the job is to be determined by the Equal Rights Division.  Sheridan v. United Parcel Serv. (LIRC, 07/11/05)

It was proper for an Administrative Law Judge to exclude the testimony of the Complainant’s treating psychologist as to the Complainant’s individual character traits and his likelihood of re-offending.  It is not the individual’s unique character traits which are relevant to determining whether the substantial relationship test is satisfied, but instead the character traits necessarily exhibited by an individual who commits a particular offense, as gleaned from an examination of the elements of the offense.  Moreover, the likelihood that an employee will re-offend is generally immaterial to this analysis.  Sheridan v. United Parcel Serv. (LIRC, 07/11/05)

The substantial relationship test is an objective one, and evidence regarding post-conviction actions is irrelevant to its application.  Sheridan v. United Parcel Serv. (LIRC, 07/11/05)

The substantial relationship affirmative defense as it relates to allegations of arrest record discrimination is only available to employers when a charge is pending at the time the subject action was taken. Rowser v. Upper Lakes Foods (LIRC, 10/29/04).

It is immaterial whether the Respondent failed to carefully consider whether the Complainant's conviction was substantially related to the job. The substantial relationship defense does not require the employer to demonstrate that it concluded at the time of the employment decision that the circumstances of the offense were substantially related to the circumstances of the job. To the contrary, the substantial relationship test is an objective legal test which is meant to be applied after the fact by a reviewing tribunal. Zeiler v. State of Wisconsin-Dept. of Corrections (LIRC, 09/16/04).

The appropriate method for evaluating the "substantially related" question is to look first and foremost at the elements of the statutory offense involved to determine the character traits revealed by violation of that criminal statute. Zeiler v. State of Wisconsin-Dept. of Corrections (LIRC, 09/16/04).

The substantially related defense to a claim of conviction record discrimination constitutes an affirmative defense. The substantially related defense does not depend on a denial of the claim of discrimination, but instead argues that new matter constitutes a defense even assuming the allegations of the complaint to be true. However, prior case law has established that the failure to raise the statute of limitations defense in a timely manner does not constitute a waiver of that defense if the failure to raise it was not unfair or prejudicial to the Complainant. The principal purpose of the rule concerning timely assertion of the defense is to assure that the Complainant against whom it is raised will have enough advance notice of the assertion of the defense to prepare to meet it at the hearing. The substantial relationship defense in this case, similarly, would not be waived because the Complainant was well aware of the defense and he was not prejudiced by the Respondent’s failure to raise the defense in the answer. Jackson v. Summit Logistic Serv. (LIRC, 10/30/03).

Although the quality of the Complainant’s work performance may be relevant to his ability to perform the job, the proper inquiry with respect to the substantial relationship test relates not to the Complainant’s ability to carry out the job, but instead to the nature of the assigned duties and responsibilities of the job, the setting in which they are to be carried out, and the opportunity that these duties and responsibilities provide for the Complainant to engage in criminal activities similar to those in which he engaged in carrying out the subject offense. Vanderkin v. Community Bio Resources (LIRC, 09/30/03).

The elements or contexts of the criminal offense and the job need not be identical, and a common sense approach is to be taken when determining whether the substantial relationship test has been satisfied. Vanderkin v. Community Bio Resources (LIRC, 09/30/03).

The "substantial relation" test is an objective, legal test, not a test of the employer’s motives. It is an affirmative defense. If it is demonstrated at hearing to have been applicable to a challenged decision as a matter of law, it operates as a bar to any finding of liability whether or not, at the time of the challenged decision, the employer had a conscious intention or belief that it was acting because of a "substantial relationship" between the offenses and the job. Wilson v. New Horizon Center (LIRC, 09/11/03).

The length of time that has elapsed since an offense is not relevant to deciding whether a conviction is "substantially related" to the job. Villereal v. S.C. Johnson and Son (LIRC, 12/30/02).

The length of time that has elapsed since an offense is not relevant to deciding whether a conviction is "substantially related" to the job. Borum v. Allstate Ins. Co. (LIRC, 10/19/01).

The substantial relationship defense does not require the employer to demonstrate that it concluded at the time of the employment decision that the circumstances of the offense were substantially related to the circumstances of the job. To the contrary, the substantial relationship test is an objective legal test which is meant to be applied after-the-fact by a reviewing tribunal. Thus, the relevant question is not whether the Respondent made an independent determination that the Complainant had engaged in conduct prohibited under its rules and policies, but whether there was an objective basis for the Administrative Law Judge to conclude that the circumstances of the offenses with which the Complainant was charged were related to the circumstances of his job. Schroeder v. Cottage Grove Coop. (LIRC, 06/27/01), aff’d. sub nom. Schroeder v. LIRC (Dane Co. Cir. Ct., 01/31/02).

A conviction for conduct which an employee has engaged in on the job is per se "substantially related" to that job. In such cases, the person’s own conduct evidences the fact that the job is apparently a circumstance predisposing him to commit the type of offense for which he was convicted. Murray v. Waukesha Memorial Hosp. (LIRC, 05/11/01).

In determining the substantial relatedness of the offense and the Complainant’s job duties, the Department need not consider the factual circumstances of the offense as asserted by the convicted person, since that would place the Department in the position of re-evaluating the question of criminal liability, which has already been resolved by the conviction. Young v. Wal-Mart Distrib. Center (LIRC, 10/27/00).

A general policy precluding consideration of all applicants with criminal records, without regard to the nature of the conviction or its relation to the job, is clearly contrary to the spirit of the Wisconsin Fair Employment Act’s prohibition of discrimination because of arrest or conviction record. However, in a particular case, if the circumstances of the individual’s conviction are substantially related to the circumstances of the job, there will be no basis for finding a violation of the law because the substantial relationship test is an objective legal test applied after the fact by a reviewing tribunal, not a test of the subjective intent of the decisionmaker at the time it made the decision. Lillge v. Schneider Nat’l. (LIRC, 06/10/98).

The appropriate method for evaluating the "substantially related" question is to look first and foremost at the statutory elements of the offense involved. The Department need not consider the factual circumstances of the offense as asserted by the convicted person. This would place the Department in the position of reevaluating the question of criminal liability, which has already been resolved by a conviction. The Department must be able to rely on the fact of conviction as establishing, beyond dispute, that the convicted person engaged in the elements of the crime and that there were no mitigating factors or circumstances which would have made a lesser charge (or no charge) more appropriate under the circumstances. Lillge v. Schneider Nat’l. (LIRC, 06/10/98).

A licensing agency is not required to determine whether a Complainant's conviction on pending criminal charges is likely before basing a licensure decision on those pending charges. Rathbun v. City of Madison (LIRC, 12/19/96)

The Complainant's argument that because his criminal conviction was based solely upon circumstantial evidence there was no evidence to determine whether it was substantially related to the circumstances of his job was without merit. A criminal conviction may be based upon circumstantial evidence. In determining whether a conviction is substantially related to the circumstances of a particular job, the statute does not contemplate an inquiry into the evidence presented at the criminal trial. Rather, the question to consider is whether the circumstances of the offense for which the employe has been convicted relate to the particular circumstances of the job. Harris v. Berlin Chamber of Commerce (LIRC, 12/04/96)

Where a complainant's arrest record is substantially related to his job, the employer does not violate the Wisconsin Fair Employment Act when it suspends the Complainant on the basis of such arrest record.  Ponto v. Grand Geneva Resort and Spa (LIRC, 08/22/96)

A Complainant's ability to successfully perform the job is not relevant in ascertaining whether his convictions are substantially related to the position. Nelson v. The Prudential Ins. Co. (LIRC, 05/17/96)

There is nothing in the statutory language of the conviction record provision which indicates that the length of time between a conviction record and the alleged discrimination is a relevant consideration. Nelson v. The Prudential Ins. Co. (LIRC, 05/17/96)

While a Complainant's post-conviction employment record may be a mitigating factor which an employer is entitled to consider in evaluating his suitability for the job, the law contains no affirmative requirement that an employer undergo such an assessment. It is the circumstances of the conviction and the circumstances of the position that are to be considered. Ford v. Villa Maria Home Health Nursing Services (LIRC, 11/17/95).

Where an employer has discharged an employe not because of an arrest, but because the employe admitted engaging in unacceptable conduct, it is unnecessary to determine whether the Complainant's actions were substantially related to her employment. Lamb v. Happy Chef of Sparta (LIRC, 09/29/95).

The substantial relationship defense does not require that the employer show that it had concluded at the time of the employment decision that the circumstances of the offense were substantially related to the circumstances of the particular job. The failure of an employer to make its own inquiry into the existence of a substantial relationship is not relevant to the applicability of sec. 111.335(1)(c)1, Stats. Moore v. Overnite Transportation Co. (LIRC, 10/13/94).

An employer is not prohibited from considering the length of time that an applicant has remained crime free following his most recent conviction. The time elapsed since a person's conviction can be a significant factor in balancing the overall goal of preventing discrimination on the basis of conviction record against the goal of protecting the employer against unreasonable risks. Thomas v. DHSS (Wis. Personnel Comm., 04/30/93).

The Complainant's conviction for an offense estops her from subsequently trying to call into question her culpability in any of the material elements of the offense. Thayer v. Home Health United (LIRC, 04/08/93), aff'd., Dane Co. Cir. Ct., 04/19/94.

While post-conviction behavior may be relevant to one's ability to perform the job, post-conviction events are not relevant under sec. 111.335(1)(c)(1), Stats., in determining whether the substantial relationship test has been met. The circumstances of the conviction and the circumstances of the position are to be considered. Further, the law does not require the employer to prove that there is an unreasonable risk of the applicant repeating his criminal behavior. Collins v. LIRC (Ct. App., Dist. I, unpublished decision, 12/15/92).

Whether the circumstances of a criminal offense are substantially related to a particular job requires assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. Goerl v. Appleton Papers (LIRC, 10/05/92).

The substantial relationship test is an objective legal test applied after the fact by a reviewing tribunal. It is not a test of the subjective intent of the decision maker. Santos v. Whitehead Specialties (LIRC, 02/26/92).

Although the record in the hearing was devoid of any evidence as to the definition of the crime of burglary, the Administrative Law Judge may take official notice of the state statute which defines the crime of burglary when determining if the crime of burglary is substantially related to a particular job. Santos v. Whitehead Specialties (LIRC, 02/26/92).

Application of the "substantially related" exception does not require a detailed inquiry into the facts of the offense and the job. In this case, the Complainant's job as an assistant manager responsible for handling cash and depositing funds was substantially related to his conviction for grand theft. The Complainant's conviction indicates a propensity toward being untrustworthy when he has access to someone else's money. These traits are inconsistent with the reasonable expectation of responsibility and trustworthiness associated with managing a retail establishment. Neither the particular details of the behavior underlying the conviction nor the distinctions between the Complainant's employment as a "consultant" in the job leading to his conviction and his current job as an assistant manager, alter this conclusion. Jorgensen v. HMI, Ltd. (LIRC, 10/25/91).

An employer may rely on the "substantially related" exception in defense of a complaint of conviction record discrimination regardless of whether the employer considered that exception at the time when the employer denied employment to the Complainant because of a previous felony conviction. The "substantially related" exception is not a test by which one measures the subjective intent of the employer at the time it makes the challenged decision. It is, rather, a test by which the legal correctness of the employer's decision is measured by the reviewing tribunal. Jorgensen v. HMI, Ltd. (LIRC, 10/25/91).

The "substantially related" test is intended to be a legal test, applied after the fact by the reviewing tribunal, not a test of the subjective intent of the decision maker. The employer need not show that it had concluded at the time of the employment decision that the circumstances of the offense substantially related to the circumstances of the particular job. The failure of a Respondent to make its own inquiry into the existence of a "substantial relationship" is not relevant to the applicability of sec. 111.335(1)(c)(1), Stats. Collins v. Milwaukee County Civil Service Comm. (LIRC, 03/08/91), aff'd. sub nom. Collins v. LIRC (Ct. App., Dist. I, unpublished decision, 12/15/92).

The "substantial relationship" test is an objective, legal test, not a test of the employer's motives. It is an affirmative defense and if it is demonstrated at hearing to have been applicable as a matter of law to a challenged decision, it operates as a bar to any finding of liability whether or not, at the time of the challenged decision, the employer had conscious intention or belief that it was acting because of "substantial relationship" between certain offenses and the job. Black v. Warner Cable Communications Co. of Milw. (LIRC, 07/10/89).

The "substantial relationship" test in arrest and conviction discrimination cases does not require that the context of the offense and the job duties be identical. Benna v. Wausau Insurance (LIRC, 07/10/89).

An employer is not always required to consider those facts which would be found in a criminal information when considering whether to hire a person with a conviction record. Perry v. UW-Madison (Wis. Personnel Comm., 05/18/89).

The burden of showing a substantial relationship between the circumstances of a conviction and the circumstances of a particular job rests with the Respondent. Perry v. UW-Madison (Wis. Personnel Comm., 05/18/89).

In determining whether the substantially related standard is met, society's interest in rehabilitating a criminal must be balanced against its interest in protecting its citizens from an unreasonable risk that the convicted person will commit a similar offense if placed in an employment situation offering temptations or opportunities for criminal activity similar to that for which he was convicted. Halverson v. LIRC (Ct. App., District III, unpublished decision, 08/09/88).

It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. McClellan v. Burns Int'l. Security (LIRC, 03/31/88).

Whether an individual can perform a job up to the employer’s standards is not the relevant question.  This does not constitute a proper inquiry into the “circumstances” of the conviction and the job in question.  Milwaukee County v. LIRC (Serebin), 139 Wis. 2d 805, 407 N.W.2d 908 (1987).

The full assessment of what may be termed the “fostering” circumstances of a conviction may, at times, require some factual exposition.  Such factual inquiry would have as its purpose ascertaining the relevant, general, character-related circumstances of the offense or the job.  Milwaukee County v. LIRC (Serebin), 139 Wis. 2d 805, 407 N.W.2d 908 (1987).

Actions taken by an employer which might normally constitute discrimination are, by definition, deemed not to be “unlawful” if it can be shown that the circumstances of the offense substantially relate to the circumstances of the particular job.  By enacting this statutory exception, the legislature sought to balance society’s interest in rehabilitating one who has been convicted of crime and, on the other hand, society’s interest in protecting its citizens.  This law should be liberally construed to effect its purpose of providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have a “propensity” to commit similar crimes long recognized by courts, legislatures and social experience.  In balancing the competing interests, the legislature has had to determine how to assess when the risk of recidivism becomes too great to ask the citizenry to bear.  The test is when the circumstances of the offense and the particular job are substantially related.  This test does not, in all cases, require a detailed inquiry into the facts of the offense and the job.  Assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test.  The “circumstances” inquiry required under the statute refers to the circumstances which foster criminal activity e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person.  Milwaukee County v. LIRC (Serebin), 139 Wis. 2d 805, 407 N.W.2d 908 (1987).

An “essential concomitant” in an armed robbery case is the propensity of the robber to use force or the threat of force to accomplish one’s purposes, along with thievery.  This is the type of “circumstances” the court highlighted in Gibson v. Transp. Comm., 106 Wis. 2d 22, 315 N.W.2d 346 (1982), when it employed the so-called “elements only” test.  The “elements only” test is not a test distinct from the statutory test.  Rather, focusing on the elements helps to elucidate the circumstances of the offense.  Milwaukee County v. LIRC (Serebin), 139 Wis. 2d 805, 407 N.W.2d 908 (1987).

An applicant for a school social worker position was discriminated against because his non-hire was based on a conviction for manslaughter where the employer did not explore the extenuating circumstances which the applicant stated were involved in the conviction. Johnson v. Milwaukee Public Schools (LIRC, 06/28/83).

Arrest for or conviction for conduct which is engaged in by a person during the course of that person's employment is, as a matter of law, substantially related to the circumstances of the particular job or licensed activity. Kozlowicz v. Augie's Pizzaria (LIRC, 12/07/83).

In a case of armed robbery, the Act requires only that a licensing agency determine the elements of the criminal offense for which the applicant was convicted because that offense by itself constitutes circumstances substantially relating to the duties of school bus driver. An inquiry into the specific factual circumstances of a crime may sometimes be relevant to a licensing (or employment) decision. Gibson v. Transp. Comm., 106 Wis. 2d 22, 315 N.W.2d 346 (1982).

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122.22 Arrest or conviction record discrimination; the "substantial relationship" defense; circumstances not substantially related

The Complainant was arrested, but was never charged with a crime. Even if there had been pending charges against the Complainant based upon crimes involving child pornography or physical or sexual abuse of a child, the record would not establish a substantial relationship between those alleged crimes and the circumstances of the job of deputy director of operations/maintenance for an international airport. There was no evidence that the Complainant had any contact with the general public, let alone unaccompanied children. Kraemer v. County of Milwaukee (LIRC, 10/11/12).

The Complainant's conviction for third-degree sexual assault, use of a dangerous weapon, first-degree recklessly endangering safety and false imprisonment were not substantially related to the job as a lift driver in the Respondent's warehouse. The Complainant was not subject to direct, over-the-shoulder supervision. However, there were job coaches and others who went through the warehouse at random times during the day observing the performance of workers. The Complainant was required to log each completed task into a computer system that made the Respondent aware of his actions. The warehouse and employee parking lot were monitored by cameras, which served as a deterrent to criminal activity. While the majority of the plant was not covered by cameras, the evidence established that the employees did not know where all the cameras were located or what portions of the warehouse they covered. It is hard to envision a circumstance where the Complainant might re-offend in the workplace. The Respondent's warehouse provided little or no opportunity for even the most committed sex offender to engage in criminal activity. Knight v. Walmart Stores East (LIRC, 10/11/12).

The Complainant’s conviction of the offenses of first-degree sexual assault of a child and bail jumping were not substantially related to the position of assistant manager of a store. The Complainant’s crime was one of opportunity, and there was nothing in the record to suggest that the sporadic or incidental presence of children in the workplace was a circumstance that would cause him to re-offend. Fink v. Sears Roebuck & Co. (LIRC, 03/01/07), aff'd. sub. nom. Fink v. LIRC (Sheboygan Co. Cir. Ct., 02/29/08)

The Complainant’s conviction for second-degree recklessly endangering safety was not substantially related to the position of order puller at the Respondent’s home improvement store.  There was no evidence in the record as to the specific duties and responsibilities of an order puller; the type of equipment used; the proximity and frequency of contact with other employees or with customers; the level of supervision; the degree of independence; or other factors relevant to determining the circumstances of the subject position.  Moreover, it is not necessary to conclude that the elements of the defense of second-degree recklessly endangering safety (i.e., reckless disregard for the physical safety of others) bears a substantial relationship to any and all positions working with customer orders in a retail home improvement establishment.  For example, a position which does not utilize potentially dangerous equipment or materials and which has closely supervised contact with others would probably not satisfy the substantial relationship test here.  Ward v. Home Depot (LIRC, 10/21/05)

The Complainant was convicted of second-degree sexual assault.  The statutory definition of second-degree sexual assault encompasses a wide range of offenses which could reflect a variety of character traits, depending in part upon which portion of the statute was violated.  The record contained no evidence as to which subsection of the statute was violated, and nothing about the fostering circumstances of the crime, other than it occurred in the Complainant’s home and involved his girlfriend.  There was no evidence as to the severity of the assault, whether it involved the use or threat of force, or whether the Complainant’s girlfriend was a minor or otherwise presumed incapable of consent.  While there are some common character traits evidenced by having violated any of the enumerated statutory subsections (including, most obviously, a willingness to engage in a non-consensual sexual act), it cannot be assumed based upon a mere reading of the statutory elements that the character traits revealed by having committed an act of second-degree sexual assault include an inclination to engage in sexual conduct by use of force or threat, or an inclination to prey upon individuals who are especially vulnerable, and it is difficult to arrive at any general conclusions as to the dangerousness of the individual who has committed such a crime.  The mere fact of the Complainant’s conviction for second-degree sexual assault did not warrant the Respondent’s conclusion that he might lure a female customer or co-worker into a stockroom and assault her.  Even assuming that the Complainant had such inclinations, the mere fact that there could conceivably be a scenario in which he could assault someone without being heard does not warrant a conclusion that the job presented a substantial opportunity to do so.  The work environment, in which a manager and armed security guard were always present and where there were security cameras, offered no significant opportunity for criminal behavior.  Robertson v. Family Dollar Stores (LIRC, 10/14/05)

The Complainant’s conviction for possession with intent to deliver a controlled substance indicated a propensity to unlawfully possess and sell illegal drugs.  This conviction was not substantially related to the position of stocker at a store.  The evidence indicated that the Complainant was never alone in the workplace, and that the Respondent always had a security guard and a manager present.  In addition, the Respondent’s stores were monitored by security cameras, and the Respondent failed to explain how the Complainant would know how to engage in illegal acts outside the range of the cameras.  This was not an environment which was particularly conducive to criminal activity.  Robertson v. Family Dollar Stores (LIRC, 10/14/05)

The Complainant's conviction for misdemeanor disorderly conduct/domestic abuse, was not substantially related to the duties and responsibilities of a driver hired to deliver food products to fast food restaurants. Although drivers have unsupervised access to the employer's assets and customers, the elements of the offense for which the Complainant was convicted do not include theft or destruction of property, or violence towards individuals with whom the Complainant has no personal relationship. Rowser v. Upper Lakes Foods (LIRC, 10/29/04).

The Complainant’s non-criminal conviction for disorderly conduct (which resulted from a domestic violence case where she defended herself against the father of her child with a knife) was not substantially related to a position as a certified nursing assistant at a long-term care nursing home facility with clients who are elderly and defenseless, and who cannot care for themselves. McKnight v. Silver Spring Health and Rehabilitation (LIRC, 02/05/02).

The Complainant’s conviction for injury by conduct regardless of life (which resulted from his throwing a pan of hot grease at his girlfriend and severely burning the girlfriend’s 20-month old daughter, who was standing between them) was not substantially related to the Complainant’s job as Boiler Attendant Trainee in a public school. The criminal traits displayed by the Complainant’s conviction included a lack of concern for the safety and well-being of others, a disregard for human life, and extremely poor judgment. While it is conceivable that an individual with a tendency to act recklessly and without regard to the consequences of his actions could engage in harmful behavior in virtually any job, there was nothing about a janitorial position that poses a greater than usual opportunity for criminal behavior. Further, while sec. 48.65, Wis. Stats., prohibits persons convicted of injury by conduct regardless of life from being able to operate licensed daycare facilities in Wisconsin or from working in regular contact with children at a licensed daycare center, that statute does not bar such individuals from employment at elementary schools. Moore v. Milwaukee Bd. of School Directors (LIRC, 07/23/99), aff'd. sub nom. Milwaukee Bd. of School Dirs. v. LIRC (unpublished opinion, Ct. App. Dist. 1, 06/12/01).

The Complainant’s conviction for second degree sexual assault of a child was not substantially related to the position of machine operator. Thorson v. Rockwell Int’l. (LIRC, 08/13/98).

The Complainant’s conviction for possession of marijuana was not substantially related to her position as a stocker. That position provided little opportunity for the Complainant to distribute drugs or to use drugs at the workplace. If the Complainant is considered unsuitable for the stocker position based upon the potential to distribute drugs, then it would appear that she could be lawfully excluded from essentially every job which placed her in contact with other workers or with the public. Such a result would be inconsistent with the goals of the Wisconsin Fair Employment Act. Herdahl v. Wal-Mart Distribution Center (LIRC, 02/20/97), aff'd sub nom. Wal-Mart Stores v. LIRC (unpublished opinion, Ct. App., Dist. IV, 06/04/98).

The mere fact that an employe works somewhere in the vicinity of potentially dangerous equipment or machinery is insufficient to warrant a finding that a drug-related arrest or conviction record is substantially related to the circumstances of the job, absent other evidence establishing an actual safety risk. Herdahl v. Wal-Mart Distribution Center (LIRC, 02/20/97), aff'd sub nom. Wal-Mart Stores v. LIRC (unpublished opinion, Ct. App., Dist. IV, 06/04/98).

There was probable cause to believe that the Complainant was discriminated against on the basis of conviction record where there was evidence that his job as a resident caretaker/manager of the Respondent's housing units was not substantially related to the circumstances of his conviction for driving while intoxicated. The Respondent had not documented that a driver's license was a necessity for the job. The previous caretaker/ manager did not possess a driver's license. Further, the Complainant's wife performed job duties for the Respondent, including driving the Complainant between job sites. Valla v. Augusta Housing Co. (LIRC, 02/28/90).

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122.23 Arrest or conviction record discrimination; the "substantially related" defense; circumstances substantially related

The Complainant's conviction for felony child abuse was substantially related to her job as an associate professor of teacher education, a position in which she instructed college students in the best methods for teaching reading to elementary and middle school students, as well as supervising the students in elementary/middle school settings with children under 12 years of age. Character traits associated with the Complainant's conviction included an inability to control anger, frustration, or other emotions towards children; disregard and failure to accept responsibility for the health and safety of children; poor self-control; lack of judgment; lack of trustworthiness with children; and the use of violence to achieve control over children or to resolve conflicts with them. Although the Complainant's crime took place in a domestic setting, that does not mean that the character traits associated with that crime disappear outside of the domestic context. Another factor is that a college professor may serve as a role model for her students. In this case, the Complainant placed herself in the position of teaching her students to "do as I say, not as I do," which is an inappropriate message from a college professor as it relates to conduct towards children her students are learning to teach. Hoewisch v. St. Norbert College (LIRC, 08/14/12).

There is a substantial relationship between the job of truck driver and the Complainant's convictions, which include home invasion, armed robbery, and residential burglary. The Complainant's conviction record is substantially related to the job of hauling freight for the Respondent, a trucking company, either as an over-the- road driver or as a "house haul" driver. Jackson v. W.H. Transportation (LIRC, 11/30/12).

The Complainant's convictions for retail theft were substantially related to the circumstances of the position as an associate systems analyst for the Respondent. Although associate systems analysts are subject to a high degree of supervision, they are not constantly monitored and they have opportunities to access confidential information without the employer's knowledge. The Respondent has security measures in place. Some of those measures are designed to make it more difficult for an employee to engage in fraud; however, others appear to be aimed at only detecting fraud after the fact. The focus of the statute is not whether an individual with a criminal record would be easily caught if he were to re-offend in the course of the job, but whether he would be likely to re-offend in the first place. Here, the Complainant would have had access to all of the software applications used by the Respondent. He would also have had the ability to print out customer credit card numbers undetected. Such credit card numbers in the hands of one inclined towards theft could pose a significant opportunity for criminal behavior. Lahey v. Kohler Co. (LIRC, 10/28/11).

The Complainant's convictions for possession of an illegal substance with intent to deliver and sell that substance, as well as two convictions for driving while intoxicated, were substantially related to the position of a relationship manager for the Respondent, which was in the business of providing credit card processing services and payroll processing services to small and medium-sized businesses throughout the United States. The relationship manager position required the employee to work out of his home, to use his personal vehicle, and to develop sales leads to find business clients who would buy the Respondent's services. This job involved an unusual lack of supervision, an enormous amount of freedom and discretion in scheduling and traveling, and access to business locations with the potential for encountering many members of the public. This job would provide a greater than usual opportunity for criminal behavior, and therefore, a substantial relationship exists between these circumstances and the Complainant's drug conviction. Further, the large amount of unsupervised and unstructured time spent driving from business to business would provide a greater than usual opportunity and temptation for a relationship manager to drink alcohol, to become intoxicated, and to drive while intoxicated (something for which the Complainant has demonstrated an inclination, having been convicted of driving while intoxicated on two separate occasions). Thus, there is also a substantial relationship between the circumstances of the relationship manager position and the Complainant's two convictions for driving while intoxicated. Mamayek v. Heartland Payment Systems (LIRC, 08/22/11).

A conviction for fraud or theft is substantially related to virtually any job which provides the employee an opportunity for new acts of fraud or theft. Although the Complainant's job in this case did not entail handling money, he did have access to identity information, and this is equivalent to money in the hands of individuals who are inclined to engage in fraudulent activity. Featherston v. Roehl Transp. (LIRC, 07/23/10).

The Complainant's conviction for public assistance fraud was substantially related to a job which entailed checking the previous employment and criminal backgrounds of applicants for driver positions for the Respondent. The elements of public assistance fraud are set forth in sec. 49.95, Stats. The circumstances of the criminal offense of public assistance fraud are, basically, dishonesty and a willingness to engage in fraud for financial gain. In this case, the Respondent was concerned about identity theft. The Complainant would have access to Social Security numbers, birth dates, driver's license numbers and other personal identification information in circumstances that could facilitate criminal activity by someone predisposed to engage in fraud for economic gain. Featherston v. Roehl Transp. (LIRC, 07/23/10).

The circumstances of the Complainant's pending charges were substantially related to the job of an Eligibility Specialist. The Complainant had pending charges for disorderly conduct, battery to law enforcement officers, and resisting or obstructing arrest at the time he applied to work for the Respondent. The character traits revealed by these charges included a tendency to become engaged in conflict with others, to become violent, to exhibit poor self-control, lack of judgment, and a refusal to follow orders. The qualifications for the Eligibility Specialist position for which the Complainant had applied included the ability to handle stress and conflict, the ability to implement decisions that one might disagree with, and the ability to follow directions. Johnson v. Kelly Services (LIRC, 04/21/09), aff'd. sub nom. Johnson v. LIRC, (Milwaukee Co. Cir. Ct., 04/06/10).

The Complainant was discharged based upon his conviction record for multiple instances of speeding, some of which occurred while on the job. The circumstances of the Complainant's conviction record were substantially related to the circumstances of a job requiring a great deal of driving. Lefever v. Pioneer Hi Bred International (LIRC, 05/14/10).

The Complainant's conviction record included armed robbery, aggravated battery, home invasion, residential burglary, unlawful restraint and armed violence. The Complainant's convictions were substantially related to the job of a tanker truck driver for the Respondent. Jackson v. Klemm Tank Lines (LIRC, 02/19/10), aff'd. sub nom. Jackson v. LIRC (Rock Co. Cir. Ct., 07/23/10).

The Respondent did not consider the Complainant for employment because it found him to be very belligerent, rude and threatening during a telephone call, because he did not meet the Respondent's required minimum 250,000 driving mile requirement, because he had no significant tanker experience, and because of a concern about the Complainant's 'job hopping' history. Further, there was a substantial relationship between the Complainant's conviction record and the circumstances of the tanker driver job. The Complainant had been convicted of armed robbery, aggravated battery, home invasion, residential burglary, unlawful restraint and armed violence. The Respondent has to deal with concerns regarding driver theft of petroleum (which is difficult to track) and a driver having access to customer sites 24 hours per day, often making deliveries when there is only one gas station attendant present at the location. Jackson v. Klemm Tank Lines (LIRC, 02/19/10), aff'd. sub nom. Jackson v. LIRC (Rock Co. Cir. Ct., 07/23/10).

The Complainant’s conviction on one count of repeated sexual assault of a child in violation of sec. 948.025(1), Wis. Stats., was substantially related to the direct customer service position in a retail establishment patronized by members of the general public. The particular circumstances of this job presented too great a risk that the Complainant’s tendencies and inclinations to behave in a certain way would be likely to reappear if he were employed in those circumstances. The evidence regarding the physical layout of the store indicated that there were a number of locations in the store where a child, and an adult bending over or kneeling down beside them, would be out of the line of sight of others in the store. It would be entirely possible that the Complainant would expose himself to a child or have improper physical contact with a child in such a shielded location. Similarly, the Complainant could engage in such contact out of the sight of others if he was able to induce a child to go with him through the doors to the warehouse space adjacent to the sales floor. This could occur in a very brief period of time. The law does not require that it is “likely” that a convicted person will re-offend, but rather that there is an “unreasonable risk” of this occurring. Matousek v. Sears Roebuck & Co. (LIRC, 02/28/07) (decision on remand from Sears Roebuck & Co. v. LIRC, Milw. Co. Cir. Ct., 09/29/06).

Concern over the risk of recidivism by child sexual offenders has expressed itself in legislative action and in the jurisprudence of the Wisconsin courts. The Supreme Court has upheld the constitutionality of the “two-strikes” law pertaining to serious sexual offenders. Legislative concern regarding recidivism and the need to protect the community from sexual offenders is also embodied in the creation of the Sex Offender Registry and the enactment of ch. 980, Stats. The courts also grant “greater latitude” for proof regarding similar acts in cases involving sexual assault, particularly those involving children. All of these considerations should serve to alert the Labor and Industry Review Commission and the Equal Rights Division to the degree of concern and attention appropriate when considering the risk of recidivism by child sexual offenders. There is no indication in Wisconsin law reflecting an inclination to elevate society’s interest in the rehabilitation of offenders above that of protecting children. LIRC’s decision in this case failed to reference the elements of child sexual assault and especially the issue of recidivism inherent in an offense that requires proof of repeated acts. The case was remanded to LIRC for further proceedings where the record failed to reflect consideration of the elements of the crime, and consideration of what an extraordinarily long period of probation may reveal about the sentencing court’s concerns regarding recidivism by the Complainant. Further, the LIRC decision did not address the most salient and dangerous character traits revealed by the Complainant’s sexual assault of a prepubescent child. That is that child sexual assault of young children is rooted in an unhealthy, perverse attraction that is often pathological, and that the damage to its victims is frequently profound and lifelong. Sears Roebuck & Co. v. LIRC (Milwaukee Co. Cir. Ct., 09/29/06).

The Complainant's convictions for second-degree sexual assault, aggravated battery and felony theft were substantially related to the position of pack and load employee at a large production facility which produced corn meal, flour and other products. The elements of the crime of second-degree sexual assault are the commission of a non-consensual sexual act through the use of force or violence. The elements of the crime of aggravated battery are the intentional infliction of bodily harm on another person. The elements of the crime of felony theft are the taking of the property of another without their knowledge or consent. There is a substantial relationship between the elements of these crimes, and the traits associated with them, and the circumstances of the pack and load position, which entailed unrestricted access to unsecured property of significant value; work with little supervision in close proximity to others (including female employees); and location in a vast facility with many possible hiding places and with a high noise level which could prevent detection. Weston v. ADM Milling (LIRC 01/18/06).

The Complainant’s conviction for possession of child pornography was substantially related to a job which required him to service burglar alarm systems in homes, day care centers, and schools.  These are all places where children would be present.  Holze v. Security Link (LIRC, 09/23/05)

The Respondent discharged the Complainant only after learning of media publicity and customer complaints relating to the Complainant’s convictions for second degree sexual assault of a child, causing mental harm to a child and misdemeanor with a child sixteen or older.  The Complainant’s termination on that basis was “because of” the convictions.  However, although the Complainant was terminated because of his conviction record, the Respondent was not liable for discrimination because the circumstances of the Complainant’s convictions were substantially related to the circumstances of his delivery driver position.  In regard to the offense of second degree sexual assault of a child, the character traits revealed by having engaged in this crime are untrustworthiness with children, lack of judgment, inability to accept responsibility over children, and placing of one’s own selfish desires ahead of the welfare of children.  These traits, considered in conjunction with the fact that the Complainant had unsupervised contact with children in his delivery driver position (including children alone in their homes), establishes the existence of a substantial relationship within the meaning of sec. 111.335(1)(c), Stats.  Sheridan v. United Parcel Serv. (LIRC, 07/11/05)

The circumstances of the Complainant’s pending criminal charge for possession of marijuana were substantially related to the circumstances of his job as a youth counselor.  There was evidence that approximately seventy-five percent of the youth offenders at the facility had drug and alcohol problems.  Clearly, the Complainant was in no position to credibly provide leadership and training to other counselors, or to provide instruction and training to the youthful offenders at the institution, many of whom had problems with drugs.  Thus, the Respondent could legally suspend the Complainant from employment for his arrest on the criminal charge of felony possession of marijuana.  When the Complainant eventually pled guilty to the possession of marijuana charge, the Respondent could have legally terminated his employment because his conviction demonstrated that he was unwilling to accept the responsibility of obeying the law and his behavior was not conducive to that of serving as a role model or providing counseling to young people who had been adjudicated as juvenile offenders by the court system.  Blunt v. Dept. of Corrections (LIRC, 02/04/05).

The Complainant's conviction for possession of a controlled substance under sec. 961.41(3g)(c), Stats., was substantially related to the position of teacher's assistant in a medium security prison. The character traits revealed by violation of this criminal statute include a tendency to possess illegal drugs, and, presumably, to engage in unlawful drug use. It might be said that a conviction for such an offense demonstrates an unwillingness to comply with laws and rules. The job the Complainant sought would have put her in unsupervised contact with inmates. The question to ask then, was whether, given the character traits demonstrated by the Complainant's conviction for possession of a controlled substance, the circumstances of the job of teacher's assistant would provide a potential temptation and a significant opportunity for her to re-offend. A high percentage of prison inmates have a history of drug abuse and are likely to have a strong incentive and desire to manipulate and obtain favors from staff members. This would be a circumstance that could foster a repeat offense for an individual with a demonstrated propensity to possess illegal drugs. Zeiler v. State of Wisconsin-Dept. of Corrections (LIRC, 09/16/04).

The Complainant was convicted of possession with intent to deliver a controlled substance. She was subsequently hired as a teacher at a facility which provides child care for children between the ages of six weeks and twelve years of age. Given the availability of prescription drugs at the Respondent's daycare facility (including Ritalin, which is a drug that is valued among illegal drug users and drug dealers), plus the Complainant's opportunity for after-hours access to the Respondent's daycare facility, her conviction for possession with intent to deliver a controlled substance is substantially related to her employment with the Respondent. The Complainant's discharge did not violate the WFEA. Flores v. Kindercare Learning Centers (LIRC, 05/27/04).

The Complainant’s convictions for home invasion, two counts of aggravated battery, two counts of residential burglary and misdemeanor theft and robbery were substantially related to the position as a truck driver for the Respondent. Drivers for the Respondent drive alone and have access to the freight they are hauling. They are not closely supervised. Drivers also have access to the company office where various office equipment, including computers, printers and pagers, are located. The Complainant had no legal authority to support his contention that the recidivism rates of former prisoners with particular characteristics are relevant to the substantial relationship test. The length of time that has passed since an offense is not relevant in deciding the substantial relationship test. Jackson v. Summit Logistic Serv. (LIRC, 10/30/03), aff'd. sub nom. Jackson v. LIRC (Rock Co. Cir. Ct., 03/02/04).

There is a substantial relationship between the circumstances of the Complainant’s conviction for theft in a business setting and the circumstances of a job as a phlebotomist. In the phlebotomist position, the Complainant would have relatively easy access to a large amount of cash, providing him an opportunity to engage again in the same type of criminal activity which led to his conviction. Opportunity and access, even without control, are sufficient, given the circumstances present here, to provide the required nexus between the offense and the job. Vanderkin v. Community Bio Resources  (LIRC, 09/30/03).

There was a substantial relationship between the Complainant’s convictions for being a party to possession with intent to deliver/manufacture controlled substances and his job as a counselor at a group home residential center for youth that have criminal, emotional or mental health problems. Wilson v. New Horizon Center (LIRC, 09/11/03).

The Complainant’s conviction for conspiracy to possess with intent to distribute in excess of 500 grams of cocaine, and possession with intent to distribute cocaine are related the position of general factory worker. It is immaterial that ten years have passed since the offense. In fact, the Complainant had been released from prison less than six months at the time he sought rehire at the Respondent. The Respondent’s work environment would present a substantial opportunity for the Complainant to engage in criminal behavior similar to that present in the crimes for which he had been previously convicted. Villarreal v. S.C. Johnson & Son (LIRC, 12/30/02).

The circumstances of the Complainant’s convictions for armed robbery, aggravated battery, unlawful restraint, home invasion and residential burglary were substantially related to the job of a truck driver. The connection between the Complainant’s convictions and the likelihood of recidivism are obvious. Were he to be hired, he would routinely be given dominion and control over valuable assets to be freighted; he would be given special ingress and egress privileges to facilities of customers where valuable property is warehoused; and he would be given a truck from which to operate and in which to conceal criminal activity. Jackson v. Transport America (LIRC, 05/06/02); aff’d sub. nom. Jackson v. LIRC (Rock Co. Cir. Ct., 01/07/03), aff'd. (unpublished opinion, Ct. App., Dist. IV, 07/01/04).

The Complainant’s convictions for theft, armed robbery, unlawful restraint, aggravated battery, residential burglary, armed violence and home invasion are substantially related to the job of a truck driver, whether over-the-road or local. Jackson v. Transport America (LIRC, 05/06/02).

The Complainant’s conviction of felony theft in violation of sec. 943.20, Stats., involved a calculated course of alteration and misuse of records and documents through which money was stolen by fraud. This conviction was substantially related to the occupation of selling insurance and investment products for an insurance company. Borum v. Allstate Ins. Co. (LIRC, 10/19/01).

The Complainant was arrested and charged with the manufacture of a controlled substance; possession with intent to manufacture, distribute or deliver a controlled substance; and knowingly keeping and maintaining a dwelling which was resorted to by persons using controlled substances. The circumstances of these criminal charges were substantially related to the Complainant’s job, which entailed driving a bulk fuel truck containing up to 2,800 gallons of gasoline, diesel fuel or kerosene, and delivering and loading this fuel into private residences. The hazardous nature of the job, with its attendant risk of explosion and contamination, requires a degree of alertness and care which renders it unsuitable for an individual with a propensity to use unlawful drugs. Moreover, work which entails unsupervised, door-to-door contact with the public offers an opportunity for criminal behavior and presents a potential temptation for a person with an inclination to engage in conduct such as the sale of illegal drugs. Schroeder v. Cottage Grove Coop. (LIRC, 06/27/01), aff’d sub nom. Schroeder v. LIRC (Dane Co. Cir. Ct., 01/31/02).

The circumstances of the Complainant’s conviction for uttering a forged document in violation of sec. 943.38(2), Stats., was substantially related to the circumstances of her position as break pack order filler at a retail distribution center. Forgery requires a lie relating to the genuineness of a document. One convicted of forgery exhibits the character traits of dishonesty and deceitfulness. Although somewhat limited, employment at the Respondent’s distribution center does present the opportunity for an employee to forge documents. The most significant opportunity for this to occur is presented in connection with an employee’s timekeeping responsibilities. Further, forgery is just a variation of theft. Based on the character trait of dishonesty exhibited by her forgery conviction, employment for Respondent certainly offered the Complainant temptations or opportunities for criminal activity similar to the crime of forgery. Young v. Wal-Mart Distrib. Center (LIRC, 10/27/00).

The circumstances of the Complainant’s convictions for bail jumping and communicating with jurors were substantially related to the circumstances of the licensed activity of a certified public accountant. Farr v. Wisconsin Dept. of Regulation and Licensing (LIRC, 11/15/99).

The Complainant’s conviction for aiding and abetting a felon was substantially related to the position of store clerk at the Milwaukee County House of Corrections, a position which required regular contact with inmates. Yokofich v. LIRC (Milw. Co. Cir. Ct., 12/08/99).

A Complainant’s convictions for violation of the law on tavern closing hours and for obstructing a police officer were substantially related to the position of truck driver in interstate commerce. The "hours of operation" offense demonstrated an inclination to disregard applicable safety-related regulations. The conviction of obstructing an officer had a very distinct relationship to situations the Complainant would likely confront as a truck driver. Truck drivers encounter regulatory authority frequently in the process of complying with weighing requirements and they are more likely to encounter police authority on the job than most employes are because the activity of driving is routinely patrolled by police. Lillge v. Schneider Nat’l. (LIRC, 06/10/98).

The Complainant’s conviction for forgery and being party to a crime were substantially related to her prospective job duties as a direct mail specialist. Jackson v. Direct Supply, Inc. (LIRC, 07/08/98).

The elements of the crimes with which the Complainant was charged (sexual assault and threatening to injure another while in the possession of a dangerous weapon) were substantially related to the Complainant's position as a cab driver. A cab driver obviously has the opportunity to commit such acts while transporting a passenger, if the two are alone in a vehicle the cab driver controls. Rathbun v. City of Madison (LIRC, 12/19/96).

The Complainant's criminal conviction for mail fraud, bank fraud and interstate transportation of forged securities was substantially related to the circumstances of the position of coordinating promotional activities for the Respondent, which was a job that entailed fund raising and the collection of dues. Harris v. Berlin Chamber of Commerce (LIRC, 12/04/96).

The Complainant's conviction for illegally possessing a firearm was substantially related to the circumstances of his employment as a line specialist in the assembly department of a company engaged in the business of making and distributing pizzas. The Respondent was aware that the possession of a firearm was unlawful for the Complainant because he was a felon. Perhaps in the case of an employe in the Complainant's job who had good relations with his co-workers, there would be some question with the connection between the job and a conviction for illegal possession of a firearm. However, in this case, the Complainant himself made his firearms possession conviction particularly related to the circumstances of his employment, because the circumstances of his employment included his simmering anger against and his threats of physical violence against co-workers. Kort v. Tombstone Pizza (LIRC, 10/23/96).

The Complainant's arrest for second degree sexual assault of a child and exposing a child to harmful material, was substantially related to his job as fitness center director at a hotel and resort complex.  The employee had responsibility over a staff of 6, including one person under age 18, and would occasionally have contact with members of the fitness center, some of whom were under 16, and he had responsibility over recreational facilities that could be used by hotel guests and their children.  Because the offenses for which the complainant was arrested were substantially related to his job, the decision to suspend his employment because of the arrest was not unlawful.  Ponto v. Grand Geneva Resort and Spa (LIRC, 08/22/96).

A conviction for lewd and lascivious behavior is substantially related to the job of courier. The position of courier requires a high degree of responsibility and trustworthiness. A conviction for lewd and lascivious behavior demonstrates a lack of good judgment and concern for the welfare of others. The Respondent's electronic monitoring system only meant that the Complainant would be caught after the fact, not that it would prevent the conduct from occurring or that it would decrease the circumstances that foster criminal activity. Stroede v. Federal Express (LIRC, 08/14/96).

The Complainant's convictions for forgery and burglary were substantially related to the circumstances of the job of a district agent for an insurance company. This job would require the Complainant to handle funds in the form of checks and cash and to regularly deal with forms that could be subjected to forgery for personal gain. Nelson v. The Prudential Ins. Co. (LIRC, 05/17/96).

The Complainant's felony conviction for knowingly permitting a motor vehicle to be used for delivery of a controlled substance is substantially related to the circumstances of the position of district agent for an insurance company. Knight v. Prudential Ins. Co. of Am. (LIRC, 10/31/95), aff'd sub nom. Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998).

The Complainant's conviction for delivering cocaine was substantially related to his employment as a youth counselor for emotionally disturbed juveniles, many of whom have problems related to chemical dependency. Sellars v. Sunburst Youth Homes (LIRC, 07/18/95).

Circumstances of a charge for possession of a controlled substance substantially relate to the job of school bus driver. Motel v. Lake Shore Buses (LIRC, 10/21/93).

A conviction for arson was substantially related to the position of Food Service Worker at a juvenile offender institution, where the employe would have responsibilities for the safety, direction and discipline of juvenile offenders. Even in a job where the circumstances are not particularly conducive to committing the particular crime of which the employe has been convicted, the employer may consider the incompatibility between the personal traits important for a particular job and the personal traits exhibited in connection with the criminal activity in question. Here, the commission of the crime of arson indicates a disregard of the welfare of people who may be unable to protect themselves, which is inconsistent with the expectations of responsibility associated with the position in question. Thomas v. DHSS (Wis. Personnel Comm., 04/30/93).

Application of the substantially related test does not require a detailed inquiry into the facts of the offense and the job. The Complainant was convicted for knowingly maintaining a dwelling which was used for keeping controlled substances in violation of sec. 161.42, Stats. The specific facts of the offense were never developed in the Complainant's criminal trial because she pled no contest. However, a violation of sec. 161.42, Stats., shows an inclination towards trafficking in controlled substances as a way of earning an income. This was substantially related to the Complainant's position as a home health aide, which provided her with unsupervised access to the homes of impaired adults with numerous potent prescription drugs, thereby providing a clear opportunity for drug trafficking. Thayer v. Home Health United (LIRC, 04/08/93), aff'd., Dane Co. Cir. Ct., 04/19/94

An allegation of felony delivery of controlled substances is clearly substantially related to a job caring for dependent adults which includes responsibility for access to, and control and distribution of medication and prescription drugs. Delapast v. Northwoods Beach Home Caring Homes (LIRC, 02/17/93).

It was not unlawful conviction record discrimination to remove the name of an individual--who had received a full and unconditional Governor's pardon--from an eligibility list for deputy sheriff's vacancies where it was established that the employer's action was because the individual had been dismissed from a previous public service job and because the employer had concluded that the individual's conduct exhibited during previous employment as a police officer with respect to truthfulness made him unsuitable for the position of deputy sheriff. Cieciwa v. County of Milwaukee (LIRC, 11/19/92).

The Complainant's conviction of a crime involving the delivery of drugs was substantially related to his employment as a machine operator at a paper mill where the opportunity for criminal behavior was significant in light of the large amount of free time available to the employe, the presence of only intermittent supervision, and the enormity of the workplace. In addition, the Complainant's reaction to responsibility and character traits revealed by the conviction made it reasonable to conclude that the workplace would provide a potential temptation for a person with a demonstrated inclination to engage in conduct such as the illegal sale of drugs. Goerl v. Appleton Papers (LIRC, 10/22/92).

The Complainant's welfare fraud conviction was substantially related to the Complainant's job as automotive department manager, which involved access to all cash registers, maintaining inventory, stocking shelves, watching for shoplifters and recording price markdowns on merchandise. Mullikin v. Wal-Mart Stores (LIRC, 08/27/92).

A trucking company did not discriminate against a prospective employe when it refused to consider him for future employment because he was convicted of a felony. The company was able to prove at the hearing that the prospective employe's burglary conviction was substantially related to being a truck driver for the company. Santos v. Whitehead Specialties (LIRC, 02/26/92).

The Complainant had an extensive criminal record which included convictions for forgery, theft, and resisting or obstructing an officer. The circumstances of the Complainant's employment as a janitor working in the offices of a police department were such as to create great opportunities for theft, because of the unsupervised nature of the work. Additionally, multiple convictions for resisting or obstructing an officer raised questions about the wisdom of allowing the Complainant to have unsupervised access to offices of a police department. Davidson v. Town of Madison Police Dept. (LIRC, 10/15/91).

The circumstances of the offense of armed robbery are substantially related to the circumstances of the position of Juvenile Correctional Worker. The characteristics of extreme patience, levelheadedness and avoidance of the use of force are necessary in what is in effect a job as a prison guard for juvenile detainees. Collins v. Milwaukee County Civil Service Commission (LIRC, 03/08/91), aff'd. sub nom. Collins v. LIRC, (Ct. App., Dist. I, unpublished decision, 12/15/92).

Even if LIRC accepted the Complainant's argument that the Respondent was aware of his conviction record before it discharged the Complainant, the Respondent would not have violated the Wisconsin Fair Employment Act because the circumstances of the Complainant's conviction for theft were substantially related to the circumstances of his job as a bartender. Sherwood v. 306 Pearl, Inc. (LIRC, 05/10/91).

The offenses of possession of cocaine with intent to distribute and distribution of cocaine are substantially related to the occupation of being a door-to-door salesman not merely because both the offenses and the job involved selling activity, but principally because the circumstances of the job are such that it would present a particular opportunity, and thus a potential temptation, for a person with a demonstrated inclination to engage in conduct such as the sale of illegal drugs. This finding is based on a consideration of the offense and the job which focuses on the circumstances that may foster criminal activity, e.g., the opportunity for criminal behavior, the reaction to responsibility, and the character traits of the person. Black v. Warner Cable Communications Co. of Milw. (LIRC, 07/10/89).

A conviction for shoplifting substantially relates to the position of processing and distributing payment checks, the job duties of which include the exercise of supervisory control and the expenditure of large amounts of money for an employer and its clients. Benna v. Wausau Ins. (LIRC, 7/10/89).

A conviction for retail theft is substantially related to the job of relief security person, where the employe is unsupervised most of the time and where he has access to campus buildings. Perry v. UW-Madison (Wis. Personnel Comm., 05/18/89).

The offense of shoplifting was substantially related to the employe's position as a customer representative for a power company, which involved the employe going on residential and commercial customers' premises at times when the customers were not there, presenting temptations and opportunities similar to those present in his shoplifting conviction. Halverson v. LIRC (Ct. App., District III, unpublished decision, 08/09/88).

The offense of possession of marijuana, a misdemeanor, was substantially related to the circumstances of the Complainant's job as a security guard at a nuclear power plant. Part of the Complainant's job responsibilities included the detection and prevention of possession or use of contraband, including illegal drugs, at the plant.  Respondent had ample reason to doubt his devotion to those responsibilities. McClellan v. Burns Int'l. Security (LIRC, 03/31/88).

Conviction of a municipal ordinance violation for shoplifting was substantially related to the employe's job as a group insurance claims technician, where she processed claims under group insurance policies and had authority to release up to $15,000.00 in payment of medical claims without supervisory approval. Employers Ins. of Wausau v. LIRC (Marathon Co. Cir. Ct., 02/10/88).

The substantial relationship inquiry does not turn on superficial matters such as the distinctions between an administrative job and a “direct care” job.  In this case, the Complainant was apparently unwilling to accept his legal and professional responsibility for an extremely vulnerable population.  The responsibilities of his job as an administrator of a nursing home and his subsequent job as a crisis intervention specialist were such that the circumstances of his misdemeanor convictions for patient neglect while he was an administrator were substantially related to the crisis intervention specialist job.  Milwaukee County v. LIRC (Serebin), 139 Wis. 2d 805, 407 N.W.2d 908 (1987).

The Complainant was convicted of shoplifting in 1979 and was warned by his employer that if a similar event occurred his position might be in jeopardy. In 1981 the Complainant engaged in four incidents of theft from his employer, and was a given a warning that he might thereafter be terminated for any "unsatisfactory conduct of a serious nature." In 1982, the Complainant admitted to an offense of shoplifting, off duty, and was discharged. Although the Complainant's conviction for shoplifting in 1982 was a factor in the Respondent's decision to discharge him, his previous history of on and off duty offenses were part of the circumstances of his final offense of shoplifting and, accordingly, the circumstances of the shoplifting offense in 1982 were "substantially related" to the circumstances of the Complainant's job, since the circumstances of the Complainant's job involved a warning that he not engage in conduct such as that for which he was terminated. Halverson v. Northern States Power Co. (LIRC, 10/02/86).

A history of four convictions for speeding in less than a two year period was substantially related to the circumstances of a job in a body shop which would require the employe involved to drive customer's cars on a daily basis in the course of his employment. Gumbert v. Ken Loesch Oldsmobile-Pontiac-Cadillac- Buick (LIRC, 07/09/85).

The circumstances surrounding a job applicant's pending arrest for false representa-tion on medical assistance claims were substantially related to the children's probation officer position which she sought because those circumstances suggested she would not convey to youthful offenders the necessity of reforming their conduct. McVicker v. Milwaukee County (LIRC, 06/28/83).

The Complainant had been convicted of armed robbery under Indiana law.  A conviction under that law required that the person be found to have participated in the taking of another person’s property by threatening to harm him with a dangerous weapon.  This indicated a disregard for both the personal and property rights of other persons.  It also indicated a propensity to use force or the threat of force to accomplish one’s purposes.  The armed robbery conviction indicated personal qualities which were contrary to the extreme patience, level-headedness,and avoidance of the use of force which are essential in a school bus driver.  Because the Complainant’s conviction for armed robbery was substantially related to the position of school bus driver, the Respondent did not violate the Wisconsin Fair Employment Act when it refused to grant the Complainant a school bus driver’s license.  Gibson v. Transp. Comm., 106 Wis. 2d 22, 315 N.W.2d 346 (1982).

A licensing board's refusal to certify an applicant as a law enforcement officer because of a previous felony conviction for falsifying traffic citations did not constitute discrimination because the circumstances of that offense substantially relate to the office of Chief of Police. Common sense dictates that a conviction of the felony of misconduct in public office for falsifying traffic tickets bears a substantial relationship to the duties of a police officer who is called upon to issue traffic citations.  Law Enforcement Standards Bd. v. Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981).

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122.3 Arrest or conviction record discrimination; Other affirmative defenses

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).

The licensing committee's denial of a bartender's license did not violate the Act where the applicant's convictions for operating a motor vehicle while intoxicated, for resisting and obstructing an officer, and for vandalism and disorderly conduct are substantially related to the circumstances of bartending and to the statutory requirement of good moral character. Gulbrandson v. City of Franklin (LIRC, 07/02/81).

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122.4 Arrest or conviction record discrimination; Bondability

The Respondent failed to prove that bondability was a factor that actually motivated it to refuse to hire the Complainant. The bonding requirements for the Respondent's drivers provided that coverage was not available to individuals who have committed dishonest acts. The Complainant's conviction record does not establish that he ever committed a dishonest act. (The Complainant had been convicted of misdemeanor disorderly conduct/domestic abuse). Furthermore, the Respondent failed to prove that the bonding company would have concluded that the Complainant was not bondable under its standard fidelity bond or that, if it had, no other equivalent bond would have been available from that bonding entity or some other bonding entity. Rowser v. Upper Lakes Foods (LIRC, 10/29/04).

The Complainant’s suggestion that the Respondent engage in risk management by way of a fidelity bond or insurance, constitutes, in essence, an assertion that the Respondent could have taken steps to accommodate the Complainant’s felony convictions. A similar argument was rejected in Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998). There, the court found that there is nothing in the language of the Wisconsin Fair Employment Act which states that employers must take affirmative steps to accommodate individuals convicted of felonies. Accordingly, the Respondent was not obliged to engage in risk management by seeking a fidelity bond as a form of insurance against any monetary or property losses it may have incurred through the employment of the Complainant, who had been convicted of several felonies which included robbery, burglary, and theft. Jackson v. Summit Logistics Serv. (LIRC, 10/30/03), aff'd. sub nom. Jackson v. LIRC (Rock Co. Cir. Ct., 03/02/04).

The Respondent has the burden of proving the affirmative defense that the Complainant is not bondable because of a conviction record. Regency Janitorial Serv. v. LIRC (Milwaukee Co. Cir. Ct., 03/12/02).

The Respondent has the burden to establish the affirmative defense of lack of bondability established by sec. 111.335(1)(c), Stats. That particular exception does not turn on the question of whether or not a particular employe is no longer covered under a particular blanket bond which an employer may have in force; rather it turns on whether or not the employe is bondable, which means capable or worthy of being bonded. Where the Respondent made no effort to determine whether or not the Complainant was bondable under some other equivalent bond, after her bondability under the company's blanket bond ceased, the Respondent failed to establish that the Complainant was not bondable within the meaning of the affirmative defense. Therefore, that defense was unavailable to the Respondent. Hart v. Wausau Ins. Co. (LIRC, 04/10/87), reversed on other grounds sub nom. Employers Ins. of Wausau v. LIRC (Marathon Co. Cir. Ct., 02/10/88), aff'd. Ct. App., Dist. III, unpublished decision, 10/11/88.

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122.5 Arrest or conviction record discrimination; Falsification of employment application with respect to prior conviction

122.5 There was probable cause to believe that the Respondent had violated the Wisconsin Fair Employment Act where it failed to hire the Complainant after he provided credible evidence that he reasonably understood that having his conviction expunged meant that it had been removed. There was reason to believe that the Respondent violated the Act by basing its decision not to hire the Complainant on his criminal record and not on his lack of candor in filling out his employment application. Hogans v. Milwaukee Board of School Directors (LIRC, 06/19/12).

The employment application that the Complainant filled out specified that failure to honestly, completely and accurately provide the information requested would result in a denial of employment. The Complainant checked the box 'no' when asked if she had been convicted of a misdemeanor in the last ten years, although in fact she had been convicted of a misdemeanor four years earlier. It was not credible that the Complainant was unaware of her conviction record, particularly given her testimony that she served ten days in jail for unpaid traffic citations and driving without a license. Moreover, even if it could be found that the Complainant did not deliberately lie on her application, the fact that the Respondent genuinely believed that she had done so provided a legitimate, non-discriminatory reason for its refusal to hire her. The Complainant's complaint was appropriately dismissed. Bonds v. Roundy's Supermarkets (LIRC, 09/30/11).

Falsification of an employment application by failing to disclose one's criminal history constitutes misconduct sufficient for discharge from employment. As explained in Miller Brewing Co. v. DILHR, 103 Wis. 2d 496, 308 N.W.2d 922 (Ct. App. 1981), the Wisconsin Fair Employment Act does not prohibit an employer from asking questions about criminal records. Nor does it create a license in the employee to lie about those records. Lee v. LIRC (Ct. App., Dist. I, unpublished decision, 05/25/10).

The Wisconsin Fair Employment Act allows discrimination on the basis of conviction record or pending criminal charges which substantially relate to the position.  An employer must legally 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 sought by the applicant.  The Wisconsin Supreme Court has stated that, 'the WFEA prohibits arbitrary discrimination.  It does not prohibit an employer from asking questions about criminal records; it does not create a license in the employee to lie about those records.'  (Citing Miller Brewing Co. v. DILHR, 103 Wis. 2d 496, 504, 308 N.W.2d 922 (Ct. App. 1981).  Lee v. LIRC (Milwaukee Co. Cir. Ct., 03/02/09).

There was enough evidence in the record to support a finding that the Complainant provided misleading information about the circumstances surrounding his conviction, or that the Respondent believed in good faith that he had done so, and that he was discharged for that reason. However, there was also evidence that, even in the absence of misleading information from the Complainant, the Complainant’s employment would nonetheless have ended when the Respondent learned about his conviction. The Respondent began its investigation of the Complainant based solely on the knowledge of his conviction record, before it was aware of any issue involving the Complainant’s honesty. Thus, it was clear that the fact of the conviction record alone was of concern to the Respondent. Therefore, the Complainant’s criminal conviction record played a part in the decision to discharge the Complainant. Because the decision to discharge the Complainant was made “in part” because of a discriminatory motive (and because the Respondent did not establish that the circumstances of the crimes for which the Complainant was convicted were substantially related to the circumstances of his job) a finding of discrimination was made in this case. Fink v. Sears Roebuck & Co. (LIRC, 03/01/07), aff'd. sub. nom. Fink v. LIRC (Sheboygan Co. Cir. Ct., 02/29/08).

Where it is the Respondent’s policy to terminate an individual for falsification of their employment application, it does not matter whether the Complainant actually falsely stated that he had no conviction record on the application. The Complainant cannot prevail if the Respondent had a good faith belief that the Complainant had a conviction record. Miles v. Regency Janitorial Service (LIRC, 09/26/02).

If the Respondent genuinely believed that the Complainant had concealed his criminal convictions, this would be a legitimate non-discriminatory reason for the Complainant’s discharge. Even if the Complainant had no crimes on his record, the critical question is whether the Respondent believed that he did. Turner v. Manifold Services (LIRC, 01/31/02).

The Complainant was discharged because he failed to report all of his convictions in response to a question on his employment application asking whether he had ever been convicted of a crime. The Complainant argued that he did disclose his criminal convictions, but that he was not required to report other civil adjudications for disorderly conduct because they are not considered to be crimes. Yet, disorderly conduct is a Class B misdemeanor, and a misdemeanor is considered to be a crime. The Complainant also failed to indicate his motor vehicle convictions for speeding, operating a motor vehicle while a license was suspended, failure to return suspended license plates, and improper use of vehicle registration. Sec. 343.44, Wis. Stats., which addresses driving after license suspension or revocation, provides for penalties for habitual traffic offenders which include fines and imprisonment. This suggests that in certain circumstances this offense is considered to be a crime. Accordingly, the Respondent did not violate the Wisconsin Fair Employment Act when it discharged the Complainant because he failed to truthfully complete his employment application. Turner v. Manifold Services (LIRC, 01/31/02).

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).

The Complainant failed to establish that he had been discharged by the Respondent because of conviction record where the evidence showed that the Respondent believed that the Complainant had falsified his employment application by indicating that he had no prior convictions when it received reliable evidence that he did in fact have prior convictions. Luckman v. Western-Southern Life (LIRC, 02/16/90), aff'd. sub nom. Luckman v. LIRC (Milwaukee Co. Cir. Ct., 09/04/90).

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122.6 Arrest or conviction record discrimination; Remedies

The Wisconsin Fair Employment Act makes it unlawful to discharge an individual based upon arrest record. The Respondent in this case argued that it did not discharge the Complainant based on the fact of his arrest record, but because he violated its Use of Technologies Policy. However, while the Complainant's alleged violation of the policy was a factor in the discharge, the evidence also indicated that the Respondent was unhappy about the Complainant's arrest and the attendant publicity and that a decision to discharge the Complainant was made before the Respondent discovered inappropriate material on the Complainant's computer. The Respondent's actions were in violation of the Wisconsin Fair Employment Act. However, the Respondent was genuinely concerned about inappropriate materials it found on the Complainant's computer and his employment would have been terminated once those materials were discovered, even in the absence of the Complainant's arrest record. Because the Complainant was discharged both for an impermissible reason (his arrest record) and a permissible reason (his violation of the Use of Technologies Policy), the only remedy awarded to the Complainant was an order for payment of reasonable attorney's fees. Kraemer v. County of Milwaukee (LIRC, 10/11/12).

The Respondent violated the Wisconsin Fair Employment Act by discharging the Complainant because of his arrest record. However, the Respondent established that it would have discharged the Complainant in any event based upon the fact that his driver's license was suspended and a valid driver's license was a requirement for the job. This was, therefore, a 'mixed motive' case. The Complainant would have been discharged even absent the Respondent's consideration of his arrest record. He was only entitled to a cease and desist order. He was not entitled to reinstatement or back pay. Kammers v. Kraft Foods (LIRC, 08/11/11).

The Respondent violated sec. 111.322(2), Stats., when it posted a job advertisement that specific 'no felonies,' because this expressed an intention to discriminate against individuals with conviction records. However, in this case, there was no basis to conclude that the Complainant would have received the job at issue but for the Respondent's unlawful publication of a discriminatory advertisement. The evidence established that the Respondent ultimately never filled this job. Under the circumstances, the appropriate remedy was an order requiring the Respondent to cease and desist from printing or circulating such advertisements. Jackson v. Dedicated Logistics (LIRC, 07/29/11).

The Respondent was found to have violated the Wisconsin Fair Employment Act by discharging the Complainant because of arrest record; however because the underlying criminal charges against the Complainant were not yet resolved, the Complainant was not entitled to a monetary remedy. The Respondent could have suspended the Complainant without pay or other benefits until the charges against him were resolved. The appropriate remedy was to order the Complainant reinstated to "suspended" status. Maline v. Wisconsin Bell (LIRC, 10/30/89).

Where the employer violated the Act by terminating an employe because of arrest, but where the acts the employe was arrested for were substantially related to her job so that suspension of the employe would have been permitted, and where the employer permanently went out of business prior to the resolution of the charges against the Complainant, no remedy of any sort was granted. No back pay was appropriate since the Complainant would have appropriately been on suspension for all time periods up to the closing of the business, and neither reinstatement nor a cease and desist order would be appropriate since the Respondent was permanently out of business. Shipley v. Town & Country Restaurant (LIRC, 07/14/87).

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122.9 Arrest to conviction record discrimination; Miscellaneous

The Respondent engaged in an act of employment discrimination in violation of sec. 111.322(2), Stats., when it posted a job advertisement that specified 'no felonies,' because this expressed an intention to discriminate against individuals with conviction records. Jackson v. Dedicated Logistics (LIRC, 07/29/11).

It is not employment discrimination because of arrest record to suspend an employee pending the outcome of criminal charges where the circumstances of the pending charges substantially relate to the circumstances of the employee's position. The Complainant's argument that it would have been possible for the Respondent to change his schedule so that he would not come in contact with his wife (who was also an employee of the Respondent and who had a restraining order against him) was rejected. The arrest record law does not impose a duty to accommodate pending charges upon employers. Sanford v. Luther Midelfort (LIRC, 10/01/10).

There is nothing in the language of the Wisconsin Fair Employment Act which states that employers must take affirmative steps to accommodate individuals convicted of felonies. The Complainant's argument that the Respondent could have shielded itself from liability by engaging in risk management through a bonding program to eliminate concerns regarding the substantial relatedness of his criminal activity to the job was rejected. Jackson v. Klemm Tank Lines (LIRC, 02/19/10).

Sec. 111.335(1)(cm), Stats., provides that it is not employment discrimination because of conviction record to refuse to employ a person who has been convicted of a felony as an installer of burglar alarms unless that person has been pardoned for that felony.  In this case, the Complainant had been convicted of felony possession of child pornography.  He had not been pardoned.  The Respondent did not violate the law when it refused to hire him to the position of banking service technician, which was a position that involved providing security systems, including burglar alarms for banks.  Holze v. ADT Security Serv. (LIRC, 09/23/05)

The Complainants established that their arrest records played a role in the Respondent's decision to discharge them where, among other things, a representative of the Respondent testified at the Complainants' unemployment compensation hearing that her decision to discharge the Complainants was based upon the fact of their arrest records and upon her beliefs about the behavior leading up to the arrests. Further, the Respondents' own personnel records indicate that the reason for the Complainants' termination was "jail." Finally, the fact that the Respondent did not discharge other employes who had arrest records does not mean that it did not discriminate against the Complainants, where the arrests were for different types of offenses. Schneider v. Stoughton Trailers (LIRC, 02/24/95).

The fact that an employer may choose to retain one individual with a conviction record, the circumstances of which substantially relate to a particular job, but to discharge another does not violate the Act's prohibition against arrest or conviction record discrimination. Mullikin v. Wal-Mart Stores (LIRC, 08/27/92).

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