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Wisconsin Supreme Court Provides Clarity to the Test for Arrest and Conviction Discrimination

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On March 10, 2022, the Wisconsin Supreme Court handed down a decision in Cree, Inc. v Labor and Industry Review Com’n, 2022 WI 15, that directly impacts how employers must understand their obligations to avoid arrest and conviction discrimination under Wis. Stat. § 111.335(3)(a)1.

In 2015 Cree, Inc., interviewed Derrick Palmer for the position of Applications Specialist. Following his interview they offered him a job, contingent on passing their routine criminal background check. The background check showed that Palmer had been convicted of eight counts of domestic violence against his live-in girlfriend in 2013. The alleged facts included physical and sexual assault in their place of residence. As a result of the incident, Palmer pled no contest to eight counts, including felony strangulation and suffocation, misdemeanor battery, fourth degree sexual assault, and criminal damage to property. He also had a 2001 conviction related to domestic violence.

The job Palmer was being considered for was an Applications Specialist. In that capacity, he would be responsible for designing and recommending lighting systems to customers, including at their sites. He would operate without close supervision and would travel to trade shows, including unsupervised overnight hotel stays. Cree determined that the facts of his criminal convictions were substantially related to the job responsibilities he was required to fulfill. Therefore, Cree rescinded his job offer.

In general, Wisconsin law prohibits arrest and conviction discrimination in employment. However, one of the exceptions to the law provides that employers do not discriminate where there is a “substantial relationship” between the conviction and the employee’s specific job. “Substantial relationship” has been defined in Wisconsin law to apply “if the individual has been convicted of any felony, misdemeanor, or other offense the circumstances of which substantially relate to the circumstances of the particular job.” Wis. Stat. § 111.335(3)(a)1. The Court found that substantial relationship requires that “the employer show that the facts, events, and conditions surrounding the convicted offense materially relate to the facts, events, and conditions surrounding the job.” Cree at ¶ 14.

Historically, the Labor and Industry Review Commission has analyzed “substantial relationship” in the context of domestic violence offenses as less likely to be relevant to the job because the nature and circumstances of the offense are unique to an independent partner and while the offender may reoffend, it is unlikely to affect the workplace.

As such, the path Cree took to the Supreme Court is indicative of the complexity and confusion surrounding domestic violence convictions. The case was heard first by the Wisconsin Equal Rights Division, which found that there was no employment discrimination. The Labor and Industry Review Commission subsequently found that the employer had unlawfully discriminated against Palmer. The Circuit Court found no discrimination and the Court of Appeals found that there was discrimination. Now the Supreme Court has finally decided that there was no unlawful discrimination by the employer given the facts in this case.

In analyzing this particular application of the law, the Supreme Court relied on multiple factors. The question presented was whether the domestic violence convictions met the substantial relationship test as outlined in statute. The Court first identified that “substantial relation” by its plain language does not require identical circumstances between the conviction conduct and the workplace, but does require a comparison of the facts, events, and conditions. The purpose of the substantial relationship 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.” Milwaukee County v. LIRC, 139 Wis.2d 805 (1987).

In that context, domestic violence offenses had previously been considered almost immaterial in a substantial relationship analysis because the circumstances are unique and unlikely to recur in the workplace. In Cree, the Court essentially questioned the basic premise that domestic violence offenses are unique and that violence in the home is not likely to translate to violence at work.

The result is that the Court concluded such domestic violence incidents must be considered according to whether the material circumstances of the workplace may foster similar criminal activity. The Court found no reason to create a special exemption for domestic violence and instead determined that such convictions must be considered by the same standard as any other convictions.

The Court considered two questions in discussing the circumstances of the convictions: 1) Are there opportunities that would allow the domestic violence offender to recidivate in the workplace, such as the opportunity to isolate victims? 2) Does the conduct of the conviction indicate a character trait of willingness to use violence or exert power over another individual? Reviewing the elements and circumstances of the offenses, the Court concluded that the convictions showed a propensity for Palmer to violently exert his power to control others, a trait considered a threat in this particular workplace. The Court also considered the seriousness and number of offenses, how recent the conviction is and whether there is a pattern of similar behavior. These particular offenses, with their potential for future violence in the workplace, raise a legitimate question of liability to the employer.

When comparing the circumstances of the offenses with the circumstances of the job, the Court found at least two substantial relationships. One factor was his history of violently exerting power over another individual, which was concerning in light of the independent and interpersonal nature of the job. Additionally, the lack of close supervision over Palmer provides opportunity for violent encounters. The seriousness and recent timing of the offenses also weighed in favor of finding a substantial relationship.

Key Takeaway:

Rather than assuming domestic violence offenses cannot be considered in employment decisions, employers should perform the fact and circumstance intensive analysis that they would perform in regard to other criminal convictions. When the facts of the conviction and the job substantially relate, an employer may now more clearly exclude an employee based upon their domestic violence arrests or convictions.

If you have any questions about this Legal Update or have specific questions regarding the hiring process as it pertains to arrest and conviction records, please contact Attorney Lauren Burand at 262-364-0258 or lburand@buelowvetter.comor Attorney Saveon Grenell at 262-364-0313 or sgrenell@buelowvetter.com or your Buelow Vetter Attorney.

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