Employer Discriminated by Not Hiring Job Applicant Based on Conviction Record

January 5, 2021

Wisconsin prohibits discrimination in employment decisions based on criminal convictions. One defense to such claims is that the circumstances of the crime the applicant or employee was convicted of are “substantially related” to the job duties. The Wisconsin Court of Appeals recently considered the substantial-relationship test when the conviction was for domestic violence crimes and the job was a lighting application specialist. It ruled in the applicant’s favor, finding the employer—which declined to hire him based on the criminal convictions—hadn’t met its burden of establishing the defense.

What Wisconsin Law Says

As all employers are keenly aware, various federal, state, and local laws prohibit discrimination in employment decisions based on a variety of characteristics, such as gender, race, age, and disability. While federal law doesn’t specifically include conviction of a crime as a protected class, the Wisconsin Fair Employment Act (WFEA) does. “Conviction records” is defined broadly as:

[Including, but not limited to,] information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.

Although Wisconsin law generally prohibits discrimination against any applicant or employee based on conviction record, there are a number of exceptions. Perhaps the primary exception is what is frequently referred to as the substantial-relationship exception—i.e., the circumstances of the crime or offense the individual was convicted of substantially relate to the circumstances of the particular job.

Facts

Derrick Palmer applied for the position of lighting schematic layout application specialist with Cree, Inc. The company offered him the job, subject to a drug test and background check.

The background check showed Palmer had been convicted of strangulation/suffocation, fourth-degree sexual assault, battery, and criminal damage to property, all related to a domestic incident with his live-in girlfriend. After learning the information, Cree rescinded the job offer because of the criminal convictions.

Palmer filed an administrative complaint with the Wisconsin Equal Rights Division (ERD), alleging criminal conviction discrimination. The ERD, in its initial determination, found probable cause to believe Cree had discriminated against him in violation of the WFEA. After an evidentiary hearing, the administrative law judge (ALJ) concluded the company hadn’t unlawfully discriminated against him.

The next step in the appeal process is asking the Labor and Industry Review Commission (LIRC) to review the ALJ’s decision, which Palmer did. The LIRC reversed the judge’s decision and concluded the applicant had proved he was unlawfully discriminated against.

Cree appealed the LIRC’s decision to the Racine County Circuit Court, the first appeal step in the court system. The court agreed with the employer and reversed the LIRC’s decision. Palmer then appealed to the Wisconsin Court of Appeals.

Appeals Court’s Decision

The court of appeals disagreed with the circuit court and ruled in Palmer’s favor. It concluded there was no question the sole reason Cree rescinded the job offer was because of his domestic violence conviction. Although the employer had approximately 500 female employees at its facility he could come in contact with, the appellate court said it would be speculative to assume he would have a live-in relationship with any of them.

The court noted:

  • There was no evidence Palmer would be performing job duties in private homes or in isolated areas. (There was evidence of isolated areas in the workplace where no camera coverage would be monitoring the activity.)
  • Palmer’s job would have included attending out-of-state trade shows, but there was no evidence he would be traveling with females or staying in the same hotel as female employees attending the shows.
  • Most customer interactions were by telephone or e-mail, though some meetings could take place at Cree’s or the customers’ facilities.

In analyzing whether there was a substantial relationship between the circumstances of the criminal behavior (domestic violence) and the job duties, the appellate court took a narrow view of the circumstances of the crime. Rather than look more generally at the crime as one of violence, or even violence toward women generally, the court’s analysis focused on the circumstances of the crime relating to domestic violence.

Cree could ask Wisconsin Supreme Court to review the matter.  Supreme Review review is discretionary—i.e., it can choose whether or not to hear the case. Cree, Inc. v. Labor and Industry Review Commission, No. 2109AP1671, (Wis. Ct. App., Dec. 9, 2020).

Bottom Line

In making employment decisions, it’s generally best to avoid making the decision based solely on a criminal conviction. Some substantial-relationship issues are easy: sexual assault of a child by a person applying for a school bus driver position. Most situations, however, aren’t so simple, and the employer bears the burden of proving it has satisfied the test.

The Wisconsin legislature has made a policy decision to generally prohibit discrimination based on an individual’s criminal conviction. The policy decision may appear to conflict with an employer’s genuine interest in wanting to keep its employees safe from criminal behavior, particularly violent behavior.

When the substantial-relationship issue arises in your employment decision-making, it’s best to consult with your legal counsel. There’s a significant body of law, most at the agency level, on the issue, and the answer of when the test is met often isn’t intuitive, unlike most issues in discrimination situations.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.