122.22 Circumstances not substantially related

The arrest and conviction record provisions in the statute focus on criminal recidivism and the risks associated with requiring employers to employ individuals who may be likely to commit criminal acts in the workplace. The commission declined to conclude that a substantial relationship could be found simply based on negative character traits that were incompatible with good job performance, absent any concern that the Complainant might engage in criminal conduct. Lane v. Bellin Mem. Hosp. (LIRC, 03/16/23).

The Complainant’s conviction for conspiracy to distribute cocaine and possession with intent to distribute cocaine was not substantially related to the job of vegetation management for a landscaping company, which involved working in open prairies with little contact with other people. The commission considered the fact that the Complainant’s criminal conduct occurred seven years earlier and that the Complainant had undergone rehabilitation and had not used cocaine since that time. Armus v. Nat. Landscapes, Inc. (LIRC, 10/30/23). NOTE: This case has been appealed to circuit court.

The commission has focused on two variables affecting whether an individual’s past criminal conduct would be likely to reappear in the workplace -- the propensity to exhibit that conduct in the work environment, and the opportunity to do so. As to opportunity, the commission has required that the circumstances of the employment offer more than the possibility that an individual could repeat criminal conduct. Here, the Complainant’s opportunity to engage in sexual assault was not particular or significant. There was insufficient evidence that the Complainant would have opportunities to encounter female employees on the premises in situations where a sexual assault would go undetected. As to propensity, the commission has recognized that some factual exposition regarding certain sexual assault offenses is helpful to ascertaining substantial relationship. Sexual assault in a domestic setting or within a personal relationship, as existed here, would tend to create a weaker propensity to repeat that conduct in the workplace, compared to a sexual assault committed outside that context. Finally, the commission finds that in this case, the age of the Complainant’s commission of his crime, approximately 16 years prior to his employment, without any re-offense, is relevant to substantial relationship. The commission no longer interprets County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), or Law Enforcement Standards Board v. Village of Lyndon Station, 101 Wis. 2d 472, 305 N.W. 2d 89 (1981), to prohibit consideration of the amount of time that has elapsed since the last crime was committed as a factor that may bear a reasonable relationship to the individual’s propensity to commit a similar crime in the workplace. It is a factor that may be relevant in a particular case. To the extent that past commission decisions are inconsistent with this (e.g., Nelson v. The Prudential Ins. Co. (LIRC, 05/17/96); Borum v. Allstate Ins. Co. (LIRC, 10/19/01); Villarreal v. S.C. Johnson & Son, Inc. (LIRC, 12/30/02); and Jackson v. Klemm Tank Lines (LIRC, 02/19/2010), the commission intends not to follow them. 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 employee’s conviction for second degree sexual assault of a minor was not substantially related to the job of employment training specialist at a job center where the employee did not work with minors and had no unsupervised contact with minors. The employer argued that the employee could engage in “grooming” of vulnerable young adults; however, while such conduct might be inappropriate or unethical, it would not be criminal. Smith v. State of Wis. Dep't of Workforce Dev. (LIRC, 01/04/19).

There was no substantial relationship found between the Complainant’s job as a cashier at a large department store and a charge of misdemeanor battery. Nathan v. Wal-Mart (LIRC, 10/20/15).

The Complainant’s conviction for “computer crimes” was not substantially related to the job as manager of a retail store. Although the Complainant was barred from any contact with minors as part of the terms of his probation, that was not related to the computer crimes charge for which the Complainant was convicted and could not be considered in the substantial relationship analysis. Ionetz v. Dolgencorp, LLC (LIRC, 08/6/15), rev’d on other grounds sub nom. Ionetz and Dolgen Corp., LLC v. LIRC (Jefferson Co. Cir. Ct., 08/25/16), aff’d (Ct. App. Dist. IV, 07/14/17, summary decision).

No substantial relationship was established between a conviction record for disorderly conduct, public urination, and DUI, and the job of Executive Director of the Housing Authority. Wiechert v. City of Shawano Hous. Auth. (LIRC, 07/22/15).

The Respondent’s belief that the Complainant’s arrest and conviction record taken as a whole reflected bad choices and showed a lack of judgment and maturity did not establish a substantial relationship between the offenses and the job. The law requires an analysis of whether and how a specific offense is related to the circumstances of the job, and it does not permit an employer to deny an individual an employment opportunity based upon generalized conclusions about his character gleaned from a broad reading of his arrest and conviction record. Wiechert v. City of Shawano Hous. Auth. (LIRC, 07/22/15).

Drug convictions are not substantially related to the job of cleanup worker/custodian in a UW athletic facility. There was no evidence presented to indicate that students in general, or student athletes in particular, are more vulnerable to drug use than the general population, nor is there any reason to believe that the job of cleaning up during or after events would provide the Complainant with a particular opportunity to supply these individuals with illegal drugs, even assuming such vulnerability was established. The mere fact that the Complainant would have occasional contact with students or other workers is not, standing alone, considered to be a circumstance that would foster criminal activity. Moran v. UW-Madison (LIRC, 09/16/13).

Battery conviction was not substantially related to the job of cleanup worker/custodian in a UW athletic facility. A battery conviction may be substantially related to a job which entails working in a position of trust with vulnerable people. However, the Complainant’s job was primarily to clean bathrooms and floors. The mere presence of other human beings in the workplace is not enough to support a finding of a substantial relationship. Moran v. UW-Madison (LIRC, 09/16/13).

The Complainant’s conviction for third-degree sexual assault, use of a dangerous weapon, first-degree recklessly endangering safety and false imprisonment were not substantially related to the job as a lift driver in the Respondent’s warehouse. The Complainant was not subject to direct, over-the-shoulder supervision. However, there were job coaches and others who went through the warehouse at random times during the day observing the performance of workers. The Complainant was required to log each completed task into a computer system that made the Respondent aware of his actions. The warehouse and employee parking lot were monitored by cameras, which served as a deterrent to criminal activity. While the majority of the plant was not covered by cameras, the evidence established that the employees did not know where all the cameras were located or what portions of the warehouse they covered. It is hard to envision a circumstance where the Complainant might re-offend in the workplace. The Respondent’s warehouse provided little or no opportunity for even the most committed sex offender to engage in criminal activity. Knight v. Walmart Stores East (LIRC, 10/11/12) (unavailable online).

The Complainant was arrested but was never charged with a crime. Even if there had been pending charges against the Complainant based upon crimes involving child pornography or physical or sexual abuse of a child, the record would not establish a substantial relationship between those alleged crimes and the circumstances of the job of deputy director of operations/maintenance for an international airport. There was no evidence that the Complainant had any contact with the general public, let alone unaccompanied children. 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 Complainant’s conviction of the offenses of first-degree sexual assault of a child and bail jumping were not substantially related to the position of assistant manager of a store. The Complainant’s crime was one of opportunity, and there was nothing in the record to suggest that the sporadic or incidental presence of children in the workplace was a circumstance that would cause him to re-offend. Fink v. Sears Roebuck & Co. (LIRC, 03/01/07), aff’d sub nom. Fink v. LIRC (Sheboygan Co. Cir. Ct., 02/29/08).

The Respondent failed to establish that the Complainant’s conviction for repeated sexual assault of a child was substantially related to a customer service position in the Respondent’s store. The job primarily involved waiting on customers at a counter in the customer service area of a store which provided parts, repairs and service for appliances, power tools and other related items. The Respondent’s argument that the Complainant would have had an opportunity for contact with children in the store rested upon unproven assumptions about such things as how large the store area was, where the service counter was in relation to a display area where a television was, whether there were clear lines of sight between those areas, and whether there would be other customer service employees on duty at the same time as the Complainant was waiting on customers, thus freeing the Complainant to move around the store. At most, the Complainant came into incidental contact with children at the store and had little opportunity to engage in the type of conduct for which he was convicted. Matousek v. Sears Roebuck & Co. (LIRC, 02/17/06); vacated and remanded for further proceedings sub nom. Sears Roebuck and Co. v. LIRC (Milwaukee Co. Cir. Ct., 09/29/06). (See sec. 122.23 for decision on remand).

The Complainant’s conviction for second-degree recklessly endangering safety was not substantially related to the position of order puller at the Respondent’s home improvement store. There was no evidence in the record as to the specific duties and responsibilities of an order puller; the type of equipment used; the proximity and frequency of contact with other employees or with customers; the level of supervision; the degree of independence; or other factors relevant to determining the circumstances of the subject position. Moreover, it is not necessary to conclude that the elements of the defense of second-degree recklessly endangering safety (i.e., reckless disregard for the physical safety of others) bears a substantial relationship to any and all positions working with customer orders in a retail home improvement establishment. For example, a position which does not utilize potentially dangerous equipment or materials and which has closely supervised contact with others would probably not satisfy the substantial relationship test here. Ward v. Home Depot (LIRC, 10/21/05).

The Complainant’s conviction for possession with intent to deliver a controlled substance indicated a propensity to unlawfully possess and sell illegal drugs. This conviction was not substantially related to the position of stocker at a store. The evidence indicated that the Complainant was never alone in the workplace, and that the Respondent always had a security guard and a manager present. In addition, the Respondent’s stores were monitored by security cameras, and the Respondent failed to explain how the Complainant would know how to engage in illegal acts outside the range of the cameras. This was not an environment which was particularly conducive to criminal activity. Robertson v. Family Dollar Stores (LIRC, 10/14/05).

The Complainant was convicted of second-degree sexual assault. The statutory definition of second-degree sexual assault encompasses a wide range of offenses which could reflect a variety of character traits, depending in part upon which portion of the statute was violated. The record contained no evidence as to which subsection of the statute was violated, and nothing about the fostering circumstances of the crime, other than it occurred in the Complainant’s home and involved his girlfriend. There was no evidence as to the severity of the assault, whether it involved the use or threat of force, or whether the Complainant’s girlfriend was a minor or otherwise presumed incapable of consent. While there are some common character traits evidenced by having violated any of the enumerated statutory subsections (including, most obviously, a willingness to engage in a non-consensual sexual act), it cannot be assumed based upon a mere reading of the statutory elements that the character traits revealed by having committed an act of second-degree sexual assault include an inclination to engage in sexual conduct by use of force or threat, or an inclination to prey upon individuals who are especially vulnerable, and it is difficult to arrive at any general conclusions as to the dangerousness of the individual who has committed such a crime. The mere fact of the Complainant’s conviction for second-degree sexual assault did not warrant the Respondent’s conclusion that he might lure a female customer or co-worker into a stockroom and assault her. Even assuming that the Complainant had such inclinations, the mere fact that there could conceivably be a scenario in which he could assault someone without being heard does not warrant a conclusion that the job presented a substantial opportunity to do so. The work environment, in which a manager and armed security guard were always present and where there were security cameras, offered no significant opportunity for criminal behavior. Robertson v. Family Dollar Stores (LIRC, 10/14/05).

The Complainant’s conviction for misdemeanor disorderly conduct/domestic abuse, was not substantially related to the duties and responsibilities of a driver hired to deliver food products to fast food restaurants. Although drivers have unsupervised access to the employer’s assets and customers, the elements of the offense for which the Complainant was convicted do not include theft or destruction of property, or violence towards individuals with whom the Complainant has no personal relationship. Rowser v. Upper Lakes Foods (LIRC, 10/29/04).

The Complainant’s non-criminal conviction for disorderly conduct (which resulted from a domestic violence case where she defended herself against the father of her child with a knife) was not substantially related to a position as a certified nursing assistant at a long-term care nursing home facility with clients who are elderly and defenseless, and who cannot care for themselves. McKnight v. Silver Spring Health & Rehab. (LIRC, 02/05/02).

The Complainant’s conviction for injury by conduct regardless of life (which resulted from his throwing a pan of hot grease at his girlfriend and severely burning the girlfriend’s 20-month old daughter, who was standing between them) was not substantially related to the Complainant’s job as Boiler Attendant Trainee in a public school. The criminal traits displayed by the Complainant’s conviction included a lack of concern for the safety and well-being of others, a disregard for human life, and extremely poor judgment. While it is conceivable that an individual with a tendency to act recklessly and without regard to the consequences of his actions could engage in harmful behavior in virtually any job, there was nothing about a janitorial position that poses a greater than usual opportunity for criminal behavior. Further, while sec. 48.65, Wis. Stats., prohibits persons convicted of injury by conduct regardless of life from being able to operate licensed daycare facilities in Wisconsin or from working in regular contact with children at a licensed daycare center, that statute does not bar such individuals from employment at elementary schools. Moore v. Milwaukee Bd. of Sch. Dir. (LIRC, 07/23/99), aff’d in part sub nom. Milwaukee Bd. of Sch. Dir. v. LIRC (Ct. App., Dist. I, unpublished opinion, 06/12/01).

The Complainant’s conviction for second degree sexual assault of a child was not substantially related to the position of machine operator. Thorson v. Rockwell Int’l (LIRC, 08/13/98).

The Complainant’s conviction for possession of marijuana was not substantially related to her position as a stocker. That position provided little opportunity for the Complainant to distribute drugs or to use drugs at the workplace. If the Complainant is considered unsuitable for the stocker position based upon the potential to distribute drugs, then it would appear that she could be lawfully excluded from essentially every job which placed her in contact with other workers or with the public. Such a result would be inconsistent with the goals of the Wisconsin Fair Employment Act. Herdahl v. Wal-Mart Distrib. Ctr. (LIRC, 02/20/97), aff’d sub nom. Wal-Mart Stores v. LIRC (Ct. App., Dist. IV, unpublished opinion, 06/04/98).

The mere fact that an employee works somewhere in the vicinity of potentially dangerous equipment or machinery is insufficient to warrant a finding that a drug-related arrest or conviction record is substantially related to the circumstances of the job, absent other evidence establishing an actual safety risk. Herdahl v. Wal-Mart Distrib. Ctr. (LIRC, 02/20/97), aff’d sub nom. Wal-Mart Stores v. LIRC (Ct. App., Dist. IV, unpublished opinion, 06/04/98).

There was probable cause to believe that the Complainant was discriminated against on the basis of conviction record where there was evidence that his job as a resident caretaker/manager of the Respondent’s housing units was not substantially related to the circumstances of his conviction for driving while intoxicated. The Respondent had not documented that a driver’s license was a necessity for the job. The previous caretaker/manager did not possess a driver’s license. Further, the Complainant's wife performed job duties for the Respondent, including driving the Complainant between job sites. Valla v. Augusta Hous. Co. (LIRC, 02/28/90).