Discrimination Based on Arrest/Conviction Record

Employment Law of the Month
The Wisconsin Fair Employment Act (“WFEA”) prohibits discrimination against protected classes not covered under federal employment statutes. Once such example is the WFEA’s prohibition against discrimination based on arrest and conviction record. This article will overview the WFEA’s prohibitions and exceptions for employment actions based on arrest or conviction record.

General Prohibition Against Discrimination
Section 111.321 of the Wisconsin Statutes prohibits employment discrimination based on arrest and conviction record. The phrase “arrest record” is defined to mean “information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.” The phrase “conviction record” is defined to mean “information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorable discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.”

The WFEA prohibits an employer from making an employment action that was motivated even in part by an arrest or conviction record. However, it is not discrimination on the basis of arrest or conviction record for an employer to discharge an employee for engaging in unlawful conduct, so long as the discharge was motivated by the underlying conduct itself, not by the fact that the employee was arrested or convicted for the conduct.

The Substantial Relationship Exception
The WFEA makes an exception to its general prohibition against discrimination based on arrest and conviction record when an employer can show that the circumstances of an individual’s arrest or conviction “substantially relate to the circumstances of the particular job.” This is an affirmative defense for the employer to prove. The exception as it relates to an arrest record only applies to refusing to employ/license or suspending the individual. The exception as it relates to criminal record only applies to refusing to employ/license or terminating the individual. Thus, while it is permissible to terminate an employee because of conviction record if the offense is substantially related to the job, it is never permissible to terminate an employee because of an arrest record even if the charge is substantially related to the job.

The vast majority of litigation under the arrest/conviction record exception to the WFEA relates to the circumstances that must exist for an offense to be substantially related to the circumstances of the job. In one such case, the Wisconsin Supreme Court has stated that employers must look to whether the job provides a context within which an arrested/convicted person will commit a similar crime by being placed in an employment situation offering temptations or opportunities for criminal activity similar to those present in the crimes for which he has been previously arrested/convicted. The Labor and Industry Review Commission – the governing body who reviews appeals of WFEA decisions by administrative law judges – also looks to the statutory elements of the underlying offense.

The “substantial relationship” test is an objective test to be applied after the fact by the administrative law judge. It is not a subjective test of the employer’s intent at the time of its decision.

The WFEA provides certain specific examples of when an arrest or conviction record is “per se” substantially related. For example, if an employee is arrested for conduct engaged in while the employee was on duty for the employer, the circumstances of the arrest are per se substantially related to the job. Similarly, the WFEA permits an employer to terminate or refuse to hire an individual on the basis of conviction record if the individual “is not bondable under a standard fidelity bond or equivalent bond where such bondability is required by state or federal law, administrative regulation, or established business practice of the employer.” There are other per se exceptions for certain security-related businesses and criminal background checks of care givers.

Employment Inquiries of Arrest/Conviction Record
With two exceptions, the WFEA expressly prohibits an employer from making any inquiry, on an application form or otherwise, regarding a person’s arrest record. The only two exceptions to this rule are inquiries about a charge that is still pending and inquiries where bondability is a requirement of the job.

In contrast, the WFEA does not restrict inquiries of conviction record. Inquiries about conviction records, however, are subject to the WFEA’s general provision against making “any inquiry in connection with prospective employment, which implies or expresses . . . discrimination” on the basis of any form of discrimination prohibited under the WFEA, including conviction record. Thus, when inquiring about an applicant’s conviction record, employers should state that a conviction record is not an automatic bar to employment.

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