122.11 General

In a claim of discharge based on conviction record, the employer proffered a non-discriminatory reason, namely, that it discharged the Complainant because he failed to present requested documentation about his conviction record in a timely fashion. The Complainant showed this reason was pretextual. The Complainant provided undisputed evidence that he told his employer that he attempted to obtain court transcripts requested by the employer but was told it would take 30 days to receive them. Nevertheless, the employer discharged the Complainant two days later. The employer’s testimony revealed its concern about the Complainant’s past conviction for sexual assault as a motivating factor and revealed inconsistent statements about the employer’s motivations. Johnson v. Rohr Kenosha Motors, Inc. (LIRC, 04/29/20), aff’d sub nom. Rohr Kenosha Motors, Inc. v. LIRC and Johnson (Kenosha Co. Cir. Ct., 02/04/21).

The Complainant's deferred prosecution agreements were not part of his "conviction record" but part of his "arrest record" and therefore the Respondent could independently investigate the facts of such offenses pursuant to Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984). Although the Respondent wrongfully discriminated against the Complainant on the basis of his conviction record by terminating him based on his status as a sex offender, the Respondent successfully showed it would have terminated the Complainant anyway based on his admissions during its investigation. Thus, the Complainant was not entitled to reinstatement or back pay as a remedy. Vega v. Preferred Sands of WI, LLC (LIRC, 01/17/20), reversed sub nom. Vega v. LIRC (Dunn Co. Cir. Ct., 11/19/20), reversed Vega v. LIRC, 2022 WI App 21, 402 Wis. 3d 233, 975 N.W.2d 249.

The statute does not provide separate protections for individuals with conviction records who are prison inmates, as opposed to those who are “civilians.” Lofton v. State of Wisc. – Dep't of Corr. (LIRC, 09/27/18).

An employer cannot deny an applicant a job based on an arrest record unless there are pending criminal charges. Where the Complainant had an arrest record, but no pending criminal charges at the time he applied for the job, the Respondent could not lawfully rescind its employment offer based upon his arrest record. Wiechert v. City of Shawano Hous. Auth. (LIRC, 07/22/15).

The only exception to the prohibition against arrest record discrimination applies if the individual is subject to a pending criminal charge that is substantially related to the job. The Commission rejected an argument that the term “subject to” indicates that an actual charge is not required under the WFEA. The exception does not apply unless there is actually a pending charge, meaning a charge that has already been filed but has not yet been fully resolved. Marcin v. Charter Commc'ns, LLC (LIRC, 07/14/15).

The Respondent’s suspension of the Complainant in reliance on a statement from a prosecuting attorney that charges were about to be filed and that a request was going to be made for a number of bond restrictions, including a request for an order forbidding the Complainant from contact with children, amounted to reliance on the Complainant’s arrest record. There was, then, a causal relationship between the arrest record and the suspension. The Respondent argued that there was a substantial relationship between the arrest record and the duties of the job, but the Complainant was only expected to have occasional, incidental contact with children, and at the time the Respondent suspended the Complainant there was not yet any order in place prohibiting contact with children. There was no substantial relationship between the arrest record and the duties of the job at the time of the suspension. The suspension decision, then, violated the WFEA. Once the no-contact order was in place, however, even incidental contact with children was prohibited, and the Respondent then had a non-discriminatory reason for maintaining the suspension, namely the court order prohibiting contact with minors. Months later the Respondent terminated the employment of the Complainant because the Complainant’s inability to come to work due to the no-contact rule left the Respondent short-handed. The termination, then, was not a discriminatory act. Moreno v. Cnty. of Racine (LIRC, 06/27/14).

With respect to a claim of termination based on conviction record, an employer’s past tolerance of a Complainant’s conviction record does not make it invulnerable to a claim. Each addition to an employee’s conviction record gives the employer a new opportunity to make an adverse decision based on the addition to the record. Monpas v. MRS Machining Co., Inc. (LIRC, 04/08/13).

The statutory exception allowing an employer to suspend an employee’s performance during an arrest only applies where the employer has pending charges against him that are substantially related to the job. In this case, it was undisputed that although the Complainant was arrested, he was never charged with a crime. It was unlawful for the employer to suspend his employment based upon the arrest. Kraemer v. County of Milwaukee (LIRC, 10/11/12), aff’d sub nom. Kraemer v. LIRC (Milwaukee Co. Cir. Ct., 08/13/13), aff’d (Ct. App. Dist. I, unpublished opinion, 05/20/14).

The proper inquiry in an arrest and conviction record case is what actually motivated the employer’s decision to take the action it did. In this case, the Respondent was aware of the Complainant’s conviction, but this was not the reason for her discharge. The Respondent continued to employ the Complainant for eight months after learning about the conviction and only terminated the employment relationship because of a sincere (if mistaken) belief that it was no longer permitted to employ the Complainant as a caregiver because of the law relating to Caregiver Background Checks. Williams v. Med. Coll. of Wis. (LIRC, 10/10/11).

The Wisconsin Fair Employment Act permits an employer to make employment decisions based upon an applicant’s conviction record if the circumstances of the offense are substantially related to the circumstances of the particular job. Therefore, it is not a violation of the Act to request conviction record information from a job applicant. A question about an applicant’s conviction record on an employer’s employment application would not, therefore, constitute prohibited discrimination within the meaning of sec. 111.322(2), Stats., which prohibits printing or circulating any statement, advertisement or publication or using any form of application for employment which implies or expresses any limitation or discrimination with respect to an individual. Lee v. LIRC (Ct. App., Dist. I, unpublished opinion, 05/27/10). Lee v. D.J.’s Pizza (LIRC, 05/20/09); Lee v. Wendy’s (LIRC, 05/20/09); Lee v. Speedway Super America (LIRC, 05/20/09).

An employer must 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 that the applicant seeks. Therefore, a question on an employment application asking if the applicant had ever been convicted of an offense or whether the applicant had charges pending does not violate the Wisconsin Fair Employment Act. Lee v. LIRC (City of Milwaukee) (Milwaukee Co. Cir. Ct., 03/02/09).

The WFEA permits an employer to make employment decisions based upon an applicant’s conviction record if the circumstances of the offense are substantially related to the circumstances of the particular job. Accordingly, it is implicit that it is not a violation of the WFEA to request conviction record information from an applicant. Lee v. City of Milwaukee (LIRC, 09/26/08), aff’d sub nom. Lee v. LIRC (Milwaukee Co. Cir. Ct., 03/02/09); Lee v. Milwaukee County (LIRC, 09/26/08), aff’d sub nom. Lee v. LIRC (Milwaukee Co. Cir. Ct., 03/31/09).

Because the Wisconsin Fair Employment Act permits an employer to make employment decisions based upon an applicant’s conviction record if the circumstances of the offense are substantially related to the circumstances of the particular job, it is implicit that it is not a violation of the Wisconsin Fair Employment Act to request conviction record information from an applicant. Therefore, a question on the Respondent’s employment application inquiring about the applicant’s conviction record did not constitute prohibited discrimination under sec. 111.322(2), Stats. Lee v. McDonald’s (LIRC, 12/26/08); Lee v. Office Depot (LIRC, 12/26/08).

Although the Wisconsin Fair Employment Act allows employers to suspend the employment of workers who are charged with, but not yet convicted of, certain offenses, it is illegal to discharge an employee because of an arrest. Nunn v. Dollar General (LIRC, 03/14/08).

A Complainant’s conviction for an offense estops him from subsequently trying to call into question his culpability in any of the material elements of the offense. Any alleged problems surrounding an individual’s criminal conviction must be addressed by way of an appeal from that conviction. Holze v. Security Link (LIRC, 09/23/05).

A question on an employment application asking if an applicant has been convicted of a felony in the preceding five years is not prohibited by the Wisconsin Fair Employment Act. The Act provides that it is not employment discrimination because of conviction record to refuse to employ any individual who has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job. The Act presupposes that an applicant’s criminal record is known to the employer and does not prohibit an employer from asking questions about criminal records. Also, nothing in the Act prohibits an employer from conducting background checks. Jackson v. Klemm Tank Lines (LIRC, 04/29/05).

Employers do not violate the Wisconsin Fair Employment Act by requiring job applicants to document that an arrest did not, in fact, result in a conviction. Wozniak v. Bank One (LIRC, 10/10/03).

The concept of conviction record under the Wisconsin Fair Employment Act is not limited only to situations where absolute proof exists that an actual conviction exists. An employment decision based on information indicating that an individual has a conviction record, even if the individual has no conviction record, is a decision based on conviction record within the meaning of the Act. Miles v. Regency Janitorial Serv. (LIRC, 05/31/01), Rev. on other grounds sub nom. Regency Janitorial Serv. v. LIRC (Milwaukee Co. Cir. Ct., 03/12/02).

Discharging someone because of negative publicity over a conviction is precisely what the prohibition on conviction record discrimination was intended to prevent. Murray v. Waukesha Mem'l Hosp. (LIRC, 05/11/01).

The Complainant was arrested on a charge of criminal damage to property. The Respondent suspended the Complainant’s employment because one of the conditions of her bond was that she have no contact whatsoever with two of her fellow employees. The Respondent’s decision to suspend the Complainant’s employment was not based upon discriminatory animus or bias associated with the fact that the Complainant had pending criminal charges against her, but upon a legitimate assessment that, while the Complainant was subject to the “no contact” order, she was effectively barred from coming to work and performing her job. Schmid-Long v. Hartzell Mfg. (LIRC, 03/26/99).

The fact that criminal charges are dismissed, or that an employee is acquitted of the charges, does not prove that a prior action taken on the basis of an arrest for those charges was unlawful discrimination. In this case, the Respondent, a licensing authority, temporarily suspended the Complainant's taxicab driver’s license pending the resolution of criminal charges against him. The charges against the Complainant (which included sexual assault and threatening to injure another while in possession of a dangerous weapon) were dismissed approximately two months later. The Respondent then re-issued the Complainant's taxicab driver’s permit. While the Complainant provided evidence tending to show that he was damaged because of the denial of his taxicab driver’s permit for two months based on criminal charges that were later dismissed, he did not establish probable cause to believe that the Respondent unlawfully discriminated against him under the Wisconsin Fair Employment Act. Rathbun v. City of Madison (LIRC, 12/19/96).

The fact that the Complainant was eventually acquitted of the charges against him had no bearing on the question of whether there was unlawful arrest record discrimination. Paxton v. Aurora Health Care (LIRC, 10/21/93).

An employer may reassign an employee who is arrested on a charge the circumstances of which substantially relate to the circumstances of the particular job, although the employer should not be allowed to try to evade the purpose of the law by reassigning an employee to onerous duties in an effort to induce that employee's resignation. In this case, the employer reassigned the Complainant, rather than suspending her outright, in order to preserve her employment. Delapast v. Northwoods Beach Home Caring Homes (LIRC, 02/17/93).

Although an individual had received a full and unconditional pardon from the Governor, an employer was not precluded from taking into account the historical facts of his criminal behavior and its consequences, including his dismissal from previous employment. Cieciwa v. County of Milwaukee (LIRC, 11/19/92).

An employer who had no knowledge that the reason an employee was absent for three days without calling work was due to the employee's incarceration did not discharge the employee because of his arrest record. The employer terminated the employee's employment due to the employee's failure to follow the employer's procedure that the employee notify the employer of the employee's absence before the employee's shift begins. The employer had no duty to call the employee to inquire about the employee's whereabouts. Kessner v. Dairy Sys. (LIRC, 09/30/92).

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. Nat'l Sch. Bus Serv. (LIRC, 01/31/92).

Where an employee 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 employee because of arrest record. Maline v. Wis. Bell (LIRC, 10/30/89).

Where the employer terminated an employee because she had been arrested, it violated the Act. Neither the fact that the conduct for which the employee was arrested was substantially related to the circumstances of her job, nor the fact that she was subsequently convicted of the charges, save the termination from illegality. Under the Act, the only action that an employer may take in response to the arrest of an employee for acts substantially related to the employee's job is suspension pending the outcome of the criminal charges. Shipley v. Town & Country Rest. (LIRC, 07/14/87).

The Personnel Commission lacks subject matter jurisdiction over a complaint filed by an inmate who alleged discrimination based on conviction record with respect to actions taken by the prison’s education director. Richards v. DHSS (Wis. Pers. Comm’n, 09/04/86).

The purpose of the prohibition against arrest and conviction record discrimination is to prevent employment decisions from being made based on the stigma of an arrest or conviction record. Miller Brewing Co. v. DILHR, 103 Wis. 2d 496, 308 N.W.2d 922 (Ct. App. 1981).