122.21 Generally

In analyzing substantial relationship, a review solely of the negative character traits associated with the charged crimes is insufficient; one must consider other relevant and readily ascertainable circumstances of the offense such as the seriousness and number of offenses, how recent the conviction is, and whether there is a pattern of behavior. The substantial relationship test requires that the employer show that the facts, events, and conditions surrounding the convicted offense materially relate to the circumstances surrounding the job. (Citing Cree, Inc. v. LIRC (unavailable online), 400 Wis. 2d 827, 970 N.W.2d 837 (2022)). Lane v. Bellin Mem. Hosp. (LIRC, 03/16/23).

The substantial relationship test is applied to a domestic violence conviction the same way it is applied to any other conviction. In applying the substantial relationship test, a court must look beyond any immaterial identity between the circumstances – such as the domestic context of the offense or an intimate relationship with the victim – and instead examine the circumstances material to fostering criminal activity. In applying this framework, the first question is whether there are opportunities in a workplace that would allow a domestic violence perpetrator to recidivate, such as isolation of victims. The second question is the character traits revealed by the elements of a crime of domestic violence. In addition to character traits, a court will consider other relevant and readily ascertainable circumstances of the offense, such as the seriousness and number of offenses, how recent the conviction is, and whether there is a pattern of behavior. Applying this framework, the circumstances of the Complainant's domestic violence conviction substantially related to the circumstances of his job with Respondent. The nature of the challenges and demands of the employment position could cause the Complainant to react, consistent with past behavior, in a violent manner in order to exert his own power or control. In addition, the absence of regular supervision creates opportunities for violent encounters. Furthermore, the seriousness of the convictions, the recentness of the convictions, and the emerging pattern of the domestic violence all weigh in favor of finding a substantial relationship. Cree v. LIRC, 2022 WI 15, 400 Wis. 2d 827, 970 N.W.2d 837.

The test set out in County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987) does not require the employer to factor in the personal characteristics of the employee or applicant for employment, including characteristics that indicate personal rehabilitation from past offenses, in order to reach a conclusion about the relationship between the conviction record and the job. Billings v. Right Step, Inc. (LIRC, 06/10/20).

The substantial relationship defense 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).

A substantial relationship existed between a child abuse conviction and a cylinder driver position where the latter involved residential deliveries and deliveries to events where children were present. Specifically, the traits of the offenses (including a willingness to create a situation of unreasonable harm to a child) and the circumstances of the job (including unannounced and unscheduled deliveries to residences and gatherings where children were present) would provide the Complainant an opportunity to re-offend. Bechard v. Ferrellgas, Inc. (LIRC, 07/29/16).

In determining whether an employer could lawfully suspend an employee based upon her arrest record, events occurring after the suspension were not relevant to the question of whether a substantial relationship existed between the circumstances of the charge and the circumstances of the job. Just as prior satisfactory job performance is not germane to the inquiry that must be conducted in applying the substantial relationship test, neither are incidents occurring in the future. Nathan v. Wal-Mart (LIRC, 10/20/15).

As a general rule, the circumstances of an offense are gleaned from a review of the elements of the crime, and an inquiry into the factual details of the specific offense is not required. However, this does not mean that it is never appropriate to look at the factual circumstances of the crime if doing so will help elucidate whether the crime is related to the job. For example, the decision-maker may take into account the fact that the criminal conduct at issue occurred in the context of a personal relationship or in a domestic setting, rendering it less likely to be repeated at the workplace. In this case, the Complainant was convicted of third-degree sexual assault, use of a dangerous weapon, first-degree recklessly endangering safety, and false imprisonment. The convictions were based upon a single incident with another individual with whom the Complainant had a personal relationship. The context of the Complainant’s crimes was distinct from the context of his work environment. Moreover, the Complainant’s job did not provide him with a significant opportunity to re-offend. Knight v. Walmart Stores East (LIRC, 10/11/12) (unavailable online).

The question in a conviction record case is whether the circumstances of the crime and the circumstances of the job are substantially related. The question is not whether the Complainant had a significant opportunity to engage in a crime which was identical to that for which he was previously convicted. In this case, the circumstances of the Complainant’s three prior convictions for retail theft demonstrated an inclination to steal. These circumstances were substantially related to the circumstances of an associate systems analyst position. Lahey v. Kohler Co. (LIRC, 10/28/11).

The only exception to the injunction against discriminating against an individual with an arrest record is that an employer may not discriminate because of arrest record by refusing to employ or by suspending from employment any individual who is subject to a pending criminal charge, if the circumstances of the charge substantially relate to the circumstances of the particular job. Where a Complainant was discharged based upon his arrest record, the substantial relationship defense is unavailable. It is unlawful to discharge an employee based upon an arrest record, whether or not the circumstances of the charge are substantially related to the circumstances of the job. Kammers v. Kraft Foods (LIRC, 08/11/11).

As a general rule, the circumstances of the offense for which the Complainant was convicted are to be determined based upon a review of the elements of the crime. A detailed inquiry into the facts of the offense is not required. There may be times when the fostering circumstances of the crime require some factual exposition (e.g., in a disorderly conduct case where the type of offensive circumstances are not explicit). However, the fostering circumstances of a conviction such as public assistance fraud are fairly clear. The elements of that crime are set forth in the statute. Featherston v. Roehl Transp. (LIRC, 07/23/10).

The Complainant had a conviction record consisting of eight driving citations for speeding accrued over a four-year period. The Complainant spent much of his time on the road, logging at least 36,000 miles a year in company-owned vehicles, and the Respondent had an interest in employing safe drivers. The relationship of the offense to the job was clear. The Complainant argued that other people with poor driving records were not discharged. However, if the Complainant’s conviction record was substantially related to the job then it was not discrimination to discharge him based upon that record, regardless of how other employees were treated. Lefever v. Pioneer Hi Bred Int'l (LIRC, 05/14/10).

An employer is not required to accommodate an employee’s conviction record by placing him in an assignment which would not be substantially related to the circumstances of his conviction. The fact that it may have done so for others does not mean that it discriminated against the Complainant by refusing to do so for him. Lefever v. Pioneer Hi Bred Int'l (LIRC, 05/14/10).

In County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), the Court stated that the purpose of the “substantially related” test is to assess whether the tendencies and inclinations to behave revealed. The Court noted that it is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. The Court indicated that its definition of the proper “circumstances” inquiry may be employed in situations arising under either the exception to the prohibition against conviction record or the prohibition against arrest record discrimination. Johnson v. Kelly Servs. (LIRC, 04/21/09), aff’d sub nom. Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

The appropriate method for evaluating the substantially related question is to look first and foremost at the statutory elements of the offense involved. The rationale for this approach is that frequently the only person at the discrimination case hearing with any personal knowledge of the underlying factual circumstances of the offense is the person who was charged with or convicted of the offense. Frequently that person describes a version of the underlying factual circumstances that is self-exculpatory and inconsistent with the charge or the fact that the person was convicted. Johnson v. Kelly Servs. (LIRC, 04/21/09), aff’d sub nom. Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

The Respondent placed the Complainant’s job application on hold and did not continue the hiring process until the court made a determination on his pending arrest charges. This would have been a violation of the Wisconsin Fair Employment Act, except that the Complainant’s arrest record in this case was substantially related to the position in question. Even assuming that the Respondent had hired the Complainant but had effectively suspended him from employment based on his arrest record, there would be no violation of the Act because the Complainant’s arrest record is substantially related to the job in question. Johnson v. Kelly Servs. (LIRC, 04/21/09), aff’d sub nom. Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

The amount of time which has elapsed since the Complainant’s conviction is not relevant. The relevant concern is whether the circumstances of the conviction are substantially related to the circumstances of the particular job. Jackson v. Klemm Tank Lines (LIRC, 02/19/10). [Ed. Note: LIRC expressly stated that it no longer chooses to be guided by this decision in 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 test in Milwaukee County v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), is not whether it is “likely” that the convicted person will re-offend, but whether there is an “unreasonable risk” of this occurring. That determination is not limited exclusively to concerns that the individual will commit another similar crime on the physical premises of the employer. The Court’s description of the relevant concern describes risks presented to “individuals” generally, and to “the community at large.” The impact of a further offense on the individuals victimized, and on the community at large, will be equally severe regardless of when or where any further crime takes place. This reading of the Court’s decision is supported by that decision’s description of the purpose of the “substantial relationship” test. The Court stated that, “[a]ssessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test.” In other words, the test is not limited to asking simply whether certain criminal behaviors will or will not recur in a workplace in which someone may find employment. Rather, it asks whether having that individual in that workplace will likely result in reappearance of the tendencies and inclinations to behave in a certain way. The cause for concern is that if such tendencies and inclinations do arise, another crime may be committed. It is that possibility that another crime may be committed, rather than the matter of exactly where and when it may be committed, that is significant. In analyzing whether the circumstances of a job would place a Complainant in a position where he could re-offend, a certain degree of speculation is involved. It is the very nature of the substantial relationship test that it involves speculation. Any assessment of risk necessarily does so. Matousek v. Sears Roebuck & Co., Decision on remand from Milwaukee Co. Circuit Court (LIRC, 02/28/07); appealed to circuit court, appeal dismissed 06/04/07.

The Complainant’s argument that the substantial relationship defense had not been established because none of the crimes for which he was convicted occurred in an employment setting was rejected. The substantial relationship test does not require any identity between the context in which the offenses were committed and the context in which the job duties are carried out. Weston v. ADM Milling (LIRC, 01/18/06).

The Complainant’s argument that there was not a substantial relationship between the crimes for which he had been convicted and his job because he had successfully performed the duties of the job without incident for a period of months was rejected. Prior satisfactory job performance is not germane to the inquiry that must be conducted in applying the substantial relationship test. Weston v. ADM Milling (LIRC, 01/18/06).

The Complainant anticipated that the Respondent would raise the defense that his conviction was substantially related to the circumstances of the job. The Complainant was not prejudiced by the Respondent’s failure to raise that defense in an answer. Ward v. Home Depot (LIRC, 10/21/05).

In evaluating whether there is a substantial relationship between a conviction and a particular job, it is useful to consider the question of what job would be suitable for the Complainant given his criminal record, if not the job at hand. The substantial relationship provision of the statute seeks to strike a balance between society’s interest in rehabilitating those who have been convicted of a crime and its interest in protecting citizens. The rehabilitative purpose of the statute is not furthered by a finding which suggests that a person with a conviction record can be excluded from future employment based upon the barest of possibilities that he could re-offend, when there is no reason to believe that the job in question presented any particular or significant opportunity to do so. Robertson v. Family Dollar Stores (LIRC, 10/14/05).

The question is whether the circumstances of the employment provide a greater than usual opportunity for criminal behavior or a particular and significant opportunity for such criminal behavior. It is inappropriate to deny a Complainant employment opportunities based upon mere speculation that he might be capable of committing a crime in the workplace, absent any reason to believe that the job provides him with a substantial opportunity to engage in criminal conduct. The mere possibility that a person could re-offend at a particular job does not create a substantial relationship. Robertson v. Family Dollar Stores (LIRC, 10/14/05).

The Respondent contended that the Complainant’s convictions were substantially related to the position of stocker at one of its retail stores. The Respondent had the burden of establishing that such a substantial relationship existed. Robertson v. Family Dollar Stores (LIRC, 10/14/05).

It was proper for an Administrative Law Judge to exclude the testimony of the Complainant’s treating psychologist as to the Complainant’s individual character traits and his likelihood of re-offending. It is not the individual’s unique character traits which are relevant to determining whether the substantial relationship test is satisfied, but instead the character traits necessarily exhibited by an individual who commits a particular offense, as gleaned from an examination of the elements of the offense. Moreover, the likelihood that an employee will re-offend is generally immaterial to this analysis. Sheridan v. United Parcel Serv. (LIRC, 07/11/05).

The substantial relationship test is an objective one, and evidence regarding post-conviction actions is irrelevant to its application. Sheridan v. United Parcel Serv. (LIRC, 07/11/05).

An Administrative Law Judge properly excluded a circuit court judge’s order as to the conditions of the Complainant’s probation. According to the Complainant’s unrebutted testimony, this order permitted the Complainant to continue in his delivery driver position for the Respondent following his convictions for sexual assault of a child, causing mental harm to a child and misdemeanor to a child and misdemeanor with a child sixteen or older. However, the circuit court judge was not interpreting the Wisconsin Fair Employment Act when he issued his probation order. The legal issue of whether a substantial relationship exists between the convictions and the circumstances of the job is to be determined by the Equal Rights Division. Sheridan v. United Parcel Serv. (LIRC, 07/11/05).

The substantial relationship affirmative defense as it relates to allegations of arrest record discrimination is only available to employers when a charge is pending at the time the subject action was taken. Rowser v. Upper Lakes Foods (LIRC, 10/29/04).

The appropriate method for evaluating the “substantially related” question is to look first and foremost at the elements of the statutory offense involved to determine the character traits revealed by violation of that criminal statute. Zeiler v. DOC (LIRC, 09/16/04).

It is immaterial whether the Respondent failed to carefully consider whether the Complainant’s conviction was substantially related to the job. The substantial relationship defense does not require the employer to demonstrate that it concluded at the time of the employment decision that the circumstances of the offense were substantially related to the circumstances of the job. To the contrary, the substantial relationship test is an objective legal test which is meant to be applied after the fact by a reviewing tribunal. Zeiler v. DOC (LIRC, 09/16/04).

The “substantially related” defense to a claim of conviction record discrimination constitutes an affirmative defense. The failure to raise the statute of limitations defense in a timely manner does not constitute a waiver of that defense if the failure to raise it was not unfair or prejudicial to the Complainant. In this case, the Complainant was well aware of the defense and he was not prejudiced by the Respondent’s failure to raise the defense in its answer. Jackson v. Summit Logistic Serv. (LIRC, 10/30/03).

The elements or contexts of the criminal offense and the job need not be identical, and a common sense approach is to be taken when determining whether the substantial relationship test has been satisfied. Vanderkin v. Community Bio Resources (LIRC, 09/30/03).

Although the quality of the Complainant’s work performance may be relevant to his ability to perform the job, the proper inquiry with respect to the substantial relationship test relates not to the Complainant’s ability to carry out the job, but instead to the nature of the assigned duties and responsibilities of the job, the setting in which they are to be carried out, and the opportunity that these duties and responsibilities provide for the Complainant to engage in criminal activities similar to those in which he engaged in carrying out the subject offense. Vanderkin v. Community Bio Resources (LIRC, 09/30/03).

The “substantial relation” test is an objective, legal test, not a test of the employer’s motives. It is an affirmative defense. If it is demonstrated at hearing to have been applicable to a challenged decision as a matter of law, it operates as a bar to any finding of liability whether or not, at the time of the challenged decision, the employer had a conscious intention or belief that it was acting because of a “substantial relationship” between the offenses and the job. Wilson v. New Horizon Ctr. (LIRC, 09/11/03).

The length of time that has elapsed since an offense is not relevant to deciding whether a conviction is substantially related to the job. Villereal v. S.C. Johnson & Son (LIRC, 12/30/02).

The substantial relationship defense does not require the employer to demonstrate that it concluded at the time of the employment decision that the circumstances of the offense were substantially related to the circumstances of the job. To the contrary, the substantial relationship test is an objective legal test which is meant to be applied after-the-fact by a reviewing tribunal. Thus, the relevant question is not whether the Respondent made an independent determination that the Complainant had engaged in conduct prohibited under its rules and policies, but whether there was an objective basis for the Administrative Law Judge to conclude that the circumstances of the offenses with which the Complainant was charged were related to the circumstances of his job. Schroeder v. Cottage Grove Coop. (LIRC, 06/27/01), aff’d sub nom. Schroeder v. LIRC (Dane Co. Cir. Ct., 01/31/02).

The length of time that has elapsed since an offense is not relevant to deciding whether a conviction is “substantially related” to the job. Borum v. Allstate Ins. Co. (LIRC, 10/19/01). [Ed. Note: LIRC expressly stated that it no longer chooses to be guided by this decision in 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).]

A conviction for conduct which an employee has engaged in on the job is per se “substantially related” to that job. In such cases, the person’s own conduct evidences the fact that the job is apparently a circumstance predisposing him to commit the type of offense for which he was convicted. Murray v. Waukesha Mem’l Hosp. (LIRC, 05/11/01).

In determining the substantial relatedness of the offense and the Complainant’s job duties, the Department need not consider the factual circumstances of the offense as asserted by the convicted person, since that would place the Department in the position of re-evaluating the question of criminal liability, which has already been resolved by the conviction. Young v. Wal-mart Distrib. Ctr. (LIRC, 10/27/00).

The appropriate method for evaluating the “substantially related” question is to look first and foremost at the statutory elements of the offense involved. The Department need not consider the factual circumstances of the offense as asserted by the convicted person. This would place the Department in the position of reevaluating the question of criminal liability, which has already been resolved by a conviction. The Department must be able to rely on the fact of conviction as establishing, beyond dispute, that the convicted person engaged in the elements of the crime and that there were no mitigating factors or circumstances which would have made a lesser charge (or no charge) more appropriate under the circumstances. Lillge v. Schneider Nat’l (LIRC, 06/10/98).

A general policy precluding consideration of all applicants with criminal records, without regard to the nature of the conviction or its relation to the job, is clearly contrary to the spirit of the Wisconsin Fair Employment Act’s prohibition of discrimination because of arrest or conviction record. However, in a particular case, if the circumstances of the individual’s conviction are substantially related to the circumstances of the job, there will be no basis for finding a violation of the law because the substantial relationship test is an objective legal test applied after the fact by a reviewing tribunal, not a test of the subjective intent of the decision-maker at the time it made the decision. Lillge v. Schneider Nat’l (LIRC, 06/10/98).

A licensing agency is not required to determine whether a Complainant’s conviction on pending criminal charges is likely before basing a licensure decision on those pending charges. Rathbun v. City of Madison (LIRC, 12/19/96).

The Complainant’s argument that because his criminal conviction was based solely upon circumstantial evidence there was no evidence to determine whether it was substantially related to the circumstances of his job was without merit. A criminal conviction may be based upon circumstantial evidence. In determining whether a conviction is substantially related to the circumstances of a particular job, the statute does not contemplate an inquiry into the evidence presented at the criminal trial. Rather, the question to consider is whether the circumstances of the offense for which the employee has been convicted relate to the particular circumstances of the job. Harris v. Berlin Chamber of Commerce (LIRC, 12/04/96).

Where a Complainant’s arrest record is substantially related to his job, the employer does not violate the Wisconsin Fair Employment Act when it suspends the Complainant on the basis of such arrest record. Ponto v. Grand Geneva Resort & Spa (LIRC, 08/22/96).

A Complainant’s ability to successfully perform the job is not relevant in ascertaining whether his convictions are substantially related to the position. Nelson v. The Prudential Ins. Co. (LIRC, 05/17/96).

There is nothing in the statutory language of the conviction record provision which indicates that the length of time between a conviction record and the alleged discrimination is a relevant consideration. Nelson v. The Prudential Ins. Co. (LIRC, 05/17/96). [Ed. Note: LIRC expressly stated that it no longer chooses to be guided by this decision in 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).]

While a Complainant’s post-conviction employment record may be a mitigating factor which an employer is entitled to consider in evaluating his suitability for the job, the law contains no affirmative requirement that an employer undergo such an assessment. It is the circumstances of the conviction and the circumstances of the position that are to be considered. Ford v. Villa Maria Home Health Nursing Servs. (LIRC, 11/17/95).

Where an employer has discharged an employee not because of an arrest, but because the employee admitted engaging in unacceptable conduct, it is unnecessary to determine whether the Complainant’s actions were substantially related to her employment. Lamb v. Happy Chef of Sparta (LIRC, 09/29/95).

The substantial relationship defense does not require that the employer show that it had concluded at the time of the employment decision that the circumstances of the offense were substantially related to the circumstances of the particular job. The failure of an employer to make its own inquiry into the existence of a substantial relationship is not relevant to the applicability of sec. 111.335(1)(c)1, Stats. Moore v. Overnite Transp. Co. (LIRC, 10/13/94).

An employer is not prohibited from considering the length of time that an applicant has remained crime free following his most recent conviction. The time elapsed since a person's conviction can be a significant factor in balancing the overall goal of preventing discrimination on the basis of conviction record against the goal of protecting the employer against unreasonable risks. Thomas v. DHSS (Wis. Pers. Comm’n, 04/30/93).

The Complainant’s conviction for an offense estops her from subsequently trying to call into question her culpability in any of the material elements of the offense. Thayer v. Home Health United (LIRC, 04/08/93), aff’d, Dane Co. Cir. Ct., 04/19/94.

While post-conviction behavior may be relevant to one’s ability to perform the job, post-conviction events are not relevant under sec. 111.335(1)(c)(1), Stats., in determining whether the substantial relationship test has been met. The circumstances of the conviction and the circumstances of the position are to be considered. Further, the law does not require the employer to prove that there is an unreasonable risk of the applicant repeating his criminal behavior. Collins v. LIRC (Ct. App., Dist. I, unpublished opinion, 12/15/92).

Whether the circumstances of a criminal offense are substantially related to a particular job requires assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. Goerl v. Appleton Papers (LIRC, 10/05/92).

The substantial relationship test is an objective legal test applied after the fact by a reviewing tribunal. It is not a test of the subjective intent of the decision maker. Santos v. Whitehead Specialties (LIRC, 02/26/92).

Although the record in the hearing was devoid of any evidence as to the definition of the crime of burglary, the Administrative Law Judge may take official notice of the state statute which defines the crime of burglary when determining if the crime of burglary is substantially related to a particular job. Santos v. Whitehead Specialties (LIRC, 02/26/92).

Application of the “substantially related” exception does not require a detailed inquiry into the facts of the offense and the job. In this case, the Complainant's job as an assistant manager responsible for handling cash and depositing funds was substantially related to his conviction for grand theft. The Complainant's conviction indicates a propensity toward being untrustworthy when he has access to someone else's money. These traits are inconsistent with the reasonable expectation of responsibility and trustworthiness associated with managing a retail establishment. Neither the particular details of the behavior underlying the conviction nor the distinctions between the Complainant's employment as a “consultant” in the job leading to his conviction and his current job as an assistant manager, alter this conclusion. Jorgensen v. HMI, Ltd. (LIRC 10/25/91).

An employer may rely on the “substantially related” exception in defense of a complaint of conviction record discrimination regardless of whether the employer considered that exception at the time when the employer denied employment to the Complainant because of a previous felony conviction. The “substantially related” exception is not a test by which one measures the subjective intent of the employer at the time it makes the challenged decision. It is, rather, a test by which the legal correctness of the employer's decision is measured by the reviewing tribunal. Jorgensen v. HMI, Ltd. (LIRC 10/25/91).

The “substantially related” test is intended to be a legal test, applied after the fact by the reviewing tribunal, not a test of the subjective intent of the decision maker. The employer need not show that it had concluded at the time of the employment decision that the circumstances of the offense substantially related to the circumstances of the particular job. The failure of a Respondent to make its own inquiry into the existence of a “substantial relationship” is not relevant to the applicability of sec. 111.335(1)(c)(1), Stats. Collins v. Milwaukee County Civil Serv. Comm’n (LIRC, 03/08/91), aff’d sub nom. Collins v. LIRC (Ct. App., Dist. I, unpublished opinion, 12/15/92).

The “substantial relationship” test is an objective, legal test, not a test of the employer's motives. It is an affirmative defense and if it is demonstrated at hearing to have been applicable as a matter of law to a challenged decision, it operates as a bar to any finding of liability whether or not, at the time of the challenged decision, the employer had conscious intention or belief that it was acting because of “substantial relationship” between certain offenses and the job. Black v. Warner Cable Communications Co. of Milwaukee (LIRC, 07/10/89).

The “substantial relationship” test in arrest and conviction discrimination cases does not require that the context of the offense and the job duties be identical. Benna v. Wausau Ins. (LIRC, 07/10/89).

An employer is not always required to consider those facts which would be found in a criminal information when considering whether to hire a person with a conviction record. Perry v. UW-Madison (Wis. Pers. Comm'n, 05/18/89).

The burden of showing a substantial relationship between the circumstances of a conviction and the circumstances of a particular job rests with the Respondent. Perry v. UW-Madison (Wis. Pers. Comm’n, 05/18/89).

In determining whether the substantially related standard is met, society’s interest in rehabilitating a criminal must be balanced against its interest in protecting its citizens from an unreasonable risk that the convicted person will commit a similar offense if placed in an employment situation offering temptations or opportunities for criminal activity similar to that for which he was convicted. Halverson v. LIRC (Ct. App., District III, unpublished opinion, 08/09/88).

It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. McClellan v. Barnes Int’l Sec. (LIRC, 03/31/88).

Actions taken by an employer which might normally constitute discrimination are, by definition, deemed not to be “unlawful” if it can be shown that the circumstances of the offense substantially relate to the circumstances of the particular job. By enacting this statutory exception, the legislature sought to balance society’s interest in rehabilitating one who has been convicted of crime and, on the other hand, society’s interest in protecting its citizens. This law should be liberally construed to effect its purpose of providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have a “propensity” to commit similar crimes long recognized by courts, legislatures and social experience. In balancing the competing interests, the legislature has had to determine how to assess when the risk of recidivism becomes too great to ask the citizenry to bear. The test is when the circumstances of the offense and the particular job are substantially related. This test does not, in all cases, require a detailed inquiry into the facts of the offense and the job. Assessing 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, is the purpose of the test. The “circumstances” inquiry required under the statute refers to the circumstances which foster criminal activity e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. Milwaukee County v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987).

The full assessment of what may be termed the “fostering” circumstances of a conviction may, at times, require some factual exposition. Such factual inquiry would have as its purpose ascertaining the relevant, general, character-related circumstances of the offense or the job. Milwaukee County v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987).

An “essential concomitant” in an armed robbery case is the propensity of the robber to use force or the threat of force to accomplish one’s purposes, along with thievery. This is the type of “circumstances” the court highlighted in Gibson v. Transp. Comm'n, 106 Wis. 2d 22, 315 N.W.2d 346 (1982), when it employed the so-called “elements only” test. The “elements only” test is not a test distinct from the statutory test. Rather, focusing on the elements helps to elucidate the circumstances of the offense. Milwaukee County v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987).

Whether an individual can perform a job up to the employer’s standards is not the relevant question. This does not constitute a proper inquiry into the “circumstances” of the conviction and the job in question. Milwaukee County v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987).

Where an employee is arrested for conduct engaged in while on duty for his employer, the circumstances of the arrest are automatically related to job performance, and it is not discrimination for the employer to suspend the employee. Kozlowicz v. Augie's Pizzaria (LIRC, 12/07/83).

An applicant for a school social worker position was discriminated against because his non-hire was based on a conviction for manslaughter where the employer did not explore the extenuating circumstances which the applicant stated were involved in the conviction. Johnson v. Milwaukee Pub. Sch. (LIRC, 06/28/83).

In a case of armed robbery, the Act requires only that a licensing agency determine the elements of the criminal offense for which the applicant was convicted because that offense by itself constitutes circumstances substantially relating to the duties of school bus driver. An inquiry into the specific factual circumstances of a crime may sometimes be relevant to a licensing (or employment) decision. Gibson v. Transp. Comm’n, 106 Wis. 2d 22, 315 N.W.2d 346 (1982).