Wisconsin Employer Learns That Employment Applications Can Be Discriminatory, Too

The Wisconsin Fair Employment Act (WFEA) prohibits employers from discriminating against individuals in employment based on arrest or conviction records. The prohibition extends beyond basing employment decisions on individuals’ arrest or conviction records. It also includes asking questions on application forms and printing or circulating discriminatory statements on advertisements or other publications. In a recent case, the issue was the WFEA’s prohibition on using an application form that implies or expresses a limitation or specification on or discriminates against individuals with an arrest or conviction record, or an intent to make a limitation or specification or to discriminate based on an arrest or conviction record.

Facts

Ruan Transportation Management Systems transports merchandise for customers. On April 19, 2012, Rick Jackson, an experienced tractor-trailer driver, saw an online advertisement for a driver position at Ruan’s Wisconsin Rapids location. The ad offered an opportunity to apply online, but Jackson elected to write a letter to Ruan indicating he wanted to apply for the job. In the letter, he explained that he had been convicted of home invasion, two counts of armed robbery, two counts of unlawful restraint, two counts of aggravated battery, residential burglary, and armed violence. He asked Ruan to send him a job application or, if he was considered unqualified because of his conviction record, to send him confirmation of that fact because he was receiving unemployment benefits and needed to show he was looking for work.

Roxana Meyers, a qualifications specialist at Ruan, received Jackson’s letter on April 23, 2012. The same day, she mailed him a job application at the address he provided in his letter. The application form contained a list of “Driver Qualification Guidelines” specifying types of disqualifying conduct related to driving positions. The guidelines stated:

• Drivers must have no felony or aggravated misdemeanor convictions in the previous seven years. (Other criminal history records would be reviewed and could be disqualifying.)
• Pending charges and less-than-honorable discharges from the military would be evaluated and reviewed.
• Frequent or severe misdemeanor convictions would be evaluated and reviewed by the employer and could result in disqualification.
• Applicable state laws could limit the consideration of offenses.

Jackson never received the job application Meyers sent. He did not contact Ruan to follow up, and he did not apply online. He was not hired for the driver position.

Discrimination Complaint

Jackson filed a complaint with the Wisconsin Equal Rights Division. After an administrative law judge dismissed the complaint, Jackson appealed to the Wisconsin Labor and Industry Review Commission (LIRC). In his complaint, he alleged that Ruan barred him from employment based on his conviction record. The LIRC dismissed the allegation because of a lack of evidence to establish the claim. First, Jackson presented insufficient evidence that he was an individual with a conviction record. The only evidence he presented was his letter requesting a job application, which listed a number of convictions. He failed to present any testimony or supporting evidence for the statements he made in the letter.

The LIRC found that even if Jackson had met his initial burden of establishing that he was an individual with a conviction, he presented no evidence that he was barred from employment on that basis. Ruan sent a job application in response to his letter, and no evidence suggested that the company prevented him from applying or that it would have been unwilling to consider his application if he submitted one. Jackson did not receive the application, but that did not change the essential fact that Ruan attempted to provide him an opportunity to apply. Also, he had the opportunity to apply online, which he did not do, and he could have followed up when he did not receive a response to his letter.

In addition, Jackson’s complaint alleged that Ruan printed and circulated a discriminatory policy contrary to the WFEA. Specifically, he claimed that Ruan had a blanket policy of not hiring individuals with a felony regardless of the nature of the crime or the amount of time that had elapsed since the sentence was completed. He attached a copy of the job advertisement to his complaint, inferring that he was referring to a statement in the document. However, he did not specify where the alleged “no-felony” policy was printed or published. He also failed to provide any testimony to support the allegation at the hearing. He did not even provide a copy of the job advertisement to which he responded. Instead, he provided an incomplete copy of an ad for a different job posted by Ruan.

Employer Makes a Case for the Employee

Ruan introduced a copy of its job application as evidence to prove that it had sent Jackson an application and gave him an opportunity to apply for employment. The introduction of the job application as evidence proved to be fatal.

The LIRC acknowledged that it was unusual that Jackson did not actually see the application until the hearing and that the application was introduced by the company, but the commission concluded that those facts should not defeat the claim. The LIRC stated that for purposes of a printing or circulating claim, it is not necessary for the employee to be directly affected by the discriminatory conduct. Instead, a violation occurs when the policy is put in place and is printed or circulated. The LIRC also referenced complainants’ role as private attorneys general under the WFEA in enforcing the public’s rights and implementing public policies the legislature considers to be of major importance.

After concluding that it was appropriate to consider the application as evidence of a WFEA violation, the LIRC examined the content of the application to determine whether it expressed an intent to discriminate. The commission found fault with the statement “No Felony and/or Aggravated Misdemeanor convictions in the last 7 years.” The LIRC found that the statement indicated that even individuals with convictions that were not substantially related to the job would be disqualified. This constituted a violation of the WFEA’s prohibition on discrimination based on conviction records by refusing to employ an individual who has been convicted of a crime that is not substantially related to the particular job.

Given the circumstances, the only remedy available for the violation was a cease-and-desist order. Attorneys’ fees could not be awarded because Jackson was not represented by legal counsel. Also, it could not be said that Jackson would have applied for the job but for the discriminatory statement on the application because he never saw the application. Finally, there was no evidence to indicate that the disqualification of individuals convicted of a felony would have applied to him. Consequently, Jackson did not have a claim for back pay as a result of Ruan’s violation of the statute. Jackson v. Ruan Transportation Management Systems, Inc., ERD Case No. CR201201421 (LIRC, June 21, 2017).

Bottom Line

This case is a reminder of the importance of conducting regular legal reviews of hiring materials, including advertisements, applications, and other materials or employment policies that are published and circulated for distribution. As this case demonstrates, ads and publications can form the basis of a discrimination claim, even when no one has suffered an actual injury as a result of the statement. A violation occurs once the policy is in place and has been printed and circulated.

This article, slightly modified to note recent updates, was featured in the October 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.