122.19 Miscellaneous

An employer's perception that an employee has an arrest or conviction record is not covered by the WFEA. A temporary restraining order is not an arrest or conviction record because it is not an action taken pursuant to any "law enforcement or military authority." Immel v. Arbor Vitae Woodruff Sch. Dist. (LIRC, 06/27/19), aff'd sub. nom, Immel v. LIRC (Marathon Co. Cir. Ct. 07/31/20).

The substantial relationship defense in arrest or conviction record cases may not be based upon an offense that has been expunged from the Complainant's record. Expungement allows offenders to wipe the slate clean, and an expunged offense may not be used as a reason to deny the Complainant future employment opportunities. Staten v. Holton Manor (LIRC. 01/30/18).

Where the Complainant never applied for the job in question and made no effort to follow up with the Respondent when he did not receive a reply to his letter requesting an application, there is no basis to conclude that he was "barred from employment" based upon conviction record. Jackson v. Ruan Transp. (LIRC, 06/21/17).

An employer may not discriminate simply because some third-party urges or pressures it to do so. An employer may be liable for discrimination if: (1) it knew, or believed, that a third party either had or would have a negative attitude about an employee based on that employee's protected status under the WFEA; and (2) even though the employer had the ability to not acquiesce to the perceived discriminatory animus by the third party, the employer submitted to the pressure by the third party by taking an adverse action against the employee. Sloan v. Human Dev. Ctr. (LIRC, 08/29/14).

The Complainant’s prima facie case of discrimination because of conviction record went unrebutted where the employer’s only witness could offer no details about the hiring decision and provided no explanation for it. In addition, the Respondent’s concession that it would not have considered the Complainant for certain jobs because of conviction record was direct evidence of discrimination. Zunker v. RTS Distrib. (LIRC, 06/16/14).

The Wisconsin Fair Employment Act does not require that an employer take affirmative steps to accommodate individuals convicted of felonies. Holze v. Security Link (LIRC, 09/23/05).

A Respondent is not required to “accommodate” a Complainant’s criminal conviction by placing him in an assignment not substantially related to the circumstances of his conviction. Sheridan v. United Parcel Serv. (LIRC, 07/11/05).

The Complainant’s suggestion that the Respondent engage in risk management by way of a fidelity bond or insurance, constitutes, in essence, an assertion that the Respondent could have taken steps to accommodate the Complainant’s felony convictions. A similar argument was rejected in Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998). There, the court found that there is nothing in the language of the Wisconsin Fair Employment Act which states that employers must take affirmative steps to accommodate individuals convicted of felonies. Accordingly, the Respondent was not obliged to engage in risk management by seeking a fidelity bond as a form of insurance against any monetary or property losses it may have incurred through the employment of the Complainant, who had been convicted of several felonies which included robbery, burglary, and theft. Jackson v. Summit Logistics Serv. (LIRC, 10/30/03).

The Complainant argued that the fact that he was issued a license to sell insurance by the Wisconsin Commissioner of Insurance established that the Commissioner of Insurance had made a determination that his convictions were not substantially related to the occupation at issue in the case. The Equal Rights Division was not required to give weight to the determination of the Commissioner of Insurance. It is the responsibility of the Equal Rights Division to determine whether the Wisconsin Fair Employment Act has been violated. Borum v. Allstate Ins. Co.. (LIRC, 10/19/01).

The Respondent did not unlawfully discriminate against the Complainant where it reasonably concluded that it was unable to employ the Complainant while she was under court order to have no contact with two of her coworkers. The Respondent was under no legal obligation to consider alternate placements for the Complainant, nor was it required to determine whether the court would permit any exceptions to the “no contact” order. Schmid-Long v. Hartzell Mfg. (LIRC, 03/26/99).

The Wisconsin Fair Employment Act does not impose a duty upon employers to take affirmative steps to accommodate individuals with felony convictions. In this case, the Complainant was not qualified for the position of district agent with an insurance company because his felony conviction statutorily disqualified him from registration with the National Association of Securities Dealers (NASD). NASD requires that all employees who participate in a company’s registered securities business must be individually registered with NASD. The Respondent did not have a duty to allow the Complainant to pursue an alternate registration process which might have allowed him to become registered with NASD. Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998).

A statement by the Respondent’s executive director conceding that under certain circumstances the Respondent would not hire individuals with conviction records is nothing more than a layman’s statement of what is contained in the statute; i.e., that it is not employment discrimination because of conviction record to terminate from employment an individual if the circumstances of the conviction are substantially related to the circumstances of the employment. Konrad v. Dorchester Nursing Ctr. (LIRC, 06/10/98).

If an applicant has a record of convictions that are substantially related to the job in question, the employer is not prohibited from treating the applicant differently from other applicants. In this case, the Respondent, a licensing agency, was entitled to test the Complainant's general knowledge more rigorously than it tested the knowledge of other applicants, once it determined that the Complainant had convictions which were substantially related to the position for which she sought a license (in this case, occupational therapist assistant). Deshon v. Dep’t of Regulation & Licensing (LIRC, 01/12/96).

Where, one day prior to her scheduled initial appearance date on a shoplifting ordinance violation, the Complainant told her employer that she had been “arrested, convicted and paid a fine” for shoplifting, the subsequent action of the Respondent in terminating her was because of conviction record within the meaning of the Act. The Commission’s conclusion, that because she had not yet actually been convicted the law on arrest record discrimination governed, was erroneous. It is reasonable for an employer to rely on information provided by the employee concerning the employee’s own conviction record. Employers Ins. of Wausau v. LIRC (Marathon Co. Cir. Ct., 02/10/88), aff’d, (Ct. App., Dist. III, unpublished opinion, 10/11/88).