122.23 Circumstances substantially related

The crime of embezzlement was substantially related to the Complainant’s job as a plumbing instructor at a technical college where the job required the Complainant to place orders for tools and supplies that he was allowed to remove from the classroom and bring to an offsite location. Geiger v. MATC (LIRC, 04/28/23).

The Complainant’s conviction for possession with intent to deliver and the manufacture of THC, which was repeated conduct and which occurred just four years prior to his application for employment with the Respondent, was substantially related to a manufacturing job in the Respondent’s plant, a noisy environment with no supervision and access to private locations. In reaching this conclusion, the commission rejected the argument that the Respondent employs temporary workers and that such workers are more vulnerable to drug use than the general population. Gullan v. Gen. Mills (LIRC 09/29/23).

Prior convictions for retail theft were substantially related to the job of inbound customer resolution specialist, which would give the Complainant access to social security numbers and banking information belonging to vulnerable clients. Although the Complainant had no past history of identity theft, the context of the offense and the particular job duties need not be identical. Rucker v. Milwaukee Ctr. for Independence (LIRC, 05/31/22).

A person’s willingness to threaten and to inflict bodily harm and willingness to use force or threat of force to take others’ property, make it less likely that that person would faithfully execute the authority to drill students at a military school, lead physical trainings of them, search them, and investigate their conduct for alleged security breaches. Billings v. Right Step, Inc. (LIRC, 06/10/20).

The Respondent proved a substantial relationship between drug convictions and the job of carpentry repair. The circumstances of the job involved solitary travel to work sites that were usually empty houses, and there was no contemporaneous tracking of the Complainant’s location or time on the job. The performance of services was largely without supervision or customer oversight. These circumstances offered a particular opportunity for the Complainant to engage in conduct such as the sale of illegal drugs. Kelly v. Multi-Serve, Inc. (LIRC, 08/13/19).

A disorderly conduct conviction that was based upon the Complainant’s actions in “losing it” and repeatedly striking her boyfriend out of anger while in a public place was substantially related to the job of caregiver for vulnerable elderly or disabled individuals. Staten v. Holton Manor (LIRC. 01/30/18).

The offense “sexual exploitation of a child” is substantially related to the job of clerk/cashier at a convenience store that is frequented by unaccompanied minors and where the Complainant would sometimes be the only employee working in the store. Kaufman v. Consumer’s Coop. Ass'n (LIRC, 09/28/17).

There is no discrimination where the Respondent has offered the “Caregiver” law, sec. 48.685, as a defense to a conviction record discrimination claim, and where the parties stipulated that the Respondent believed the Complainant was a “caregiver” and believed that the law prohibited it from continuing to employ her. However, the mere assertion of such belief is not necessarily conclusive and depends on the facts of each case. Strayhorn v. Soc. Dev. Comm’n (LIRC, 11/21/13).

Convictions for possession of marijuana and drug paraphernalia were substantially related to the circumstances of the Complainant’s job as an assistant debate coach. While the Complainant’s opportunity to re-offend in the circumstances of his job was limited, that is only one aspect of whether a substantial relationship exists. The question is whether the character traits and tendencies revealed by the crime are likely to reappear in the context of the job. The circumstances of the Complainant’s job included the duty to supervise and monitor students to ensure a drug-free environment. The Complainant’s drug convictions, showing the character trait of a propensity for illegal drug use, were fundamentally inconsistent with this duty. Manning v. Cedarburg High Sch. (LIRC, 10/31/13).

The character trait exhibited by someone convicted of misappropriation of identifying information and theft by false representation is a willingness to make a dishonest representation in order to obtain money or something of value. The critical fostering circumstances were that the Complainant at times was alone at the workplace and was expected to provide rental vehicles to customers during those times. Even though in most situations this did not involve the customer giving credit card information or other sensitive information to the Complainant, the Complainant had the leverage to request such information because he was in sole control of deciding whether to turn over a rental vehicle to a customer and might be inclined to falsely state that he needed to see a credit card or some other valuable information as a condition of turning over the vehicle. Therefore, a substantial relationship exists between the circumstances of the conviction and the circumstances of the job. Flick v. Ryder Rental & (LIRC, 10/03/13).

In applying the substantial relationship test in a case involving a theft conviction, it is not the specific type of item stolen that matters, but rather the character traits revealed by having committed a crime of theft. The relevant consideration is the fact that an individual has demonstrated untrustworthiness and a willingness to misappropriate an item belonging to someone else. Unsupervised access to private offices and lounges containing expensive equipment and personal items could pose a significant opportunity for criminal behavior for someone already inclined to theft. Moran v. UW-Madison (LIRC, 09/16/13).

There is a substantial relationship between the job of truck driver and the Complainant’s convictions, which include home invasion, armed robbery, and residential burglary. The Complainant’s conviction record is substantially related to the job of hauling freight for the Respondent, a trucking company, either as an over-the-road driver or as a “house haul” driver. Jackson v. W.H. Transp. (LIRC, 11/30/12).

The Complainant’s conviction for felony child abuse was substantially related to her job as an associate professor of teacher education, a position in which she instructed college students in the best methods for teaching reading to elementary and middle school students, as well as supervising the students in elementary/middle school settings with children under 12 years of age. Character traits associated with the Complainant’s conviction included an inability to control anger, frustration, or other emotions towards children; disregard and failure to accept responsibility for the health and safety of children; poor self-control; lack of judgment; lack of trustworthiness with children; and the use of violence to achieve control over children or to resolve conflicts with them. Although the Complainant’s crime took place in a domestic setting, that does not mean that the character traits associated with that crime disappear outside of the domestic context. Another factor is that a college professor may serve as a role model for her students. In this case, the Complainant placed herself in the position of teaching her students to “do as I say, not as I do,” which is an inappropriate message from a college professor as it relates to conduct towards children her students are learning to teach. Hoewisch v. St. Norbert Coll. (LIRC, 08/14/12).

The Complainant’s convictions for retail theft were substantially related to the circumstances of the position as an associate systems analyst for the Respondent. Although associate systems analysts are subject to a high degree of supervision, they are not constantly monitored, and they have opportunities to access confidential information without the employer’s knowledge. The Respondent has security measures in place. Some of those measures are designed to make it more difficult for an employee to engage in fraud; however, others appear to be aimed at only detecting fraud after the fact. The focus of the statute is not whether an individual with a criminal record would be easily caught if he were to re-offend in the course of the job, but whether he would be likely to re-offend in the first place. Here, the Complainant would have had access to all of the software applications used by the Respondent. He would also have had the ability to print out customer credit card numbers undetected. Such credit card numbers in the hands of one inclined towards theft could pose a significant opportunity for criminal behavior. Lahey v. Kohler Co. (LIRC, 10/28/11).

The Complainant’s convictions for possession of an illegal substance with intent to deliver and sell that substance, as well as two convictions for driving while intoxicated, were substantially related to the position of a relationship manager for the Respondent, which was in the business of providing credit card processing services and payroll processing services to small and medium-sized businesses throughout the United States. The relationship manager position required the employee to work out of his home, to use his personal vehicle, and to develop sales leads to find business clients who would buy the Respondent’s services. This job involved an unusual lack of supervision, an enormous amount of freedom and discretion in scheduling and traveling, and access to business locations with the potential for encountering many members of the public. This job would provide a greater than usual opportunity for criminal behavior, and therefore, a substantial relationship exists between these circumstances and the Complainant’s drug conviction. Further, the large amount of unsupervised and unstructured time spent driving from business to business would provide a greater than usual opportunity and temptation for a relationship manager to drink alcohol, to become intoxicated, and to drive while intoxicated (something for which the Complainant has demonstrated an inclination, having been convicted of driving while intoxicated on two separate occasions). Thus, there is also a substantial relationship between the circumstances of the relationship manager position and the Complainant’s two convictions for driving while intoxicated. Mamayek v. Heartland Payment Sys. (LIRC, 08/22/11).

The Complainant’s conviction for public assistance fraud was substantially related to a job which entailed checking the previous employment and criminal backgrounds of applicants for driver positions for the Respondent. The elements of public assistance fraud are set forth in sec. 49.95, Stats. The circumstances of the criminal offense of public assistance fraud are, basically, dishonesty and a willingness to engage in fraud for financial gain. In this case, the Respondent was concerned about identity theft. The Complainant would have access to Social Security numbers, birth dates, driver’s license numbers and other personal identification information in circumstances that could facilitate criminal activity by someone predisposed to engage in fraud for economic gain. Featherston v. Roehl Transp. (LIRC, 07/23/10).

A conviction for fraud or theft is substantially related to virtually any job which provides the employee an opportunity for new acts of fraud or theft. Although the Complainant’s job in this case did not entail handling money, he did have access to identity information, and this is equivalent to money in the hands of individuals who are inclined to engage in fraudulent activity. Featherston v. Roehl Transp. (LIRC, 07/23/10).

The Complainant was discharged based upon his conviction record for multiple instances of speeding, some of which occurred while on the job. The circumstances of the Complainant’s conviction record were substantially related to the circumstances of a job requiring a great deal of driving. Lefever v. Pioneer Hi Bred Int’l (LIRC, 05/14/10).

The circumstances of the Complainant’s pending charges were substantially related to the job of an Eligibility Specialist. The Complainant had pending charges for disorderly conduct, battery to law enforcement officers, and resisting or obstructing arrest at the time he applied to work for the Respondent. The character traits revealed by these charges included a tendency to become engaged in conflict with others, to become violent, to exhibit poor self-control, lack of judgment, and a refusal to follow orders. The qualifications for the Eligibility Specialist position for which the Complainant had applied included the ability to handle stress and conflict, the ability to implement decisions that one might disagree with, and the ability to follow directions. Johnson v. Kelly Servs. (LIRC, 04/21/09), aff’d sub nom. Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

The Respondent did not consider the Complainant for employment because it found him to be very belligerent, rude and threatening during a telephone call, because he did not meet the Respondent’s required minimum 250,000 driving mile requirement, because he had no significant tanker experience, and because of a concern about the Complainant’s “job hopping” history. Further, there was a substantial relationship between the Complainant’s conviction record and the circumstances of the tanker driver job. The Complainant had been convicted of armed robbery, aggravated battery, home invasion, residential burglary, unlawful restraint, and armed violence. The Respondent has to deal with concerns regarding driver theft of petroleum (which is difficult to track) and a driver having access to customer sites 24 hours per day, often making deliveries when there is only one gas station attendant present at the location. Jackson v. Klemm Tank Lines (LIRC, 02/19/10), aff’d sub nom. Jackson v. LIRC (Rock Co. Cir. Ct., 07/23/10).

The Complainant’s conviction record included armed robbery, aggravated battery, home invasion, residential burglary, unlawful restraint and armed violence. The Complainant’s convictions were substantially related to the job of a tanker truck driver for the Respondent. Jackson v. Klemm Tank Lines (LIRC, 02/19/10), aff’d sub nom. Jackson v. LIRC (Rock Co. Cir. Ct., 07/23/10).

The Complainant’s conviction on one count of repeated sexual assault of a child in violation of sec. 948.025(1), Wis. Stats., was substantially related to the direct customer service position in a retail establishment patronized by members of the general public. The particular circumstances of this job presented too great a risk that the Complainant’s tendencies and inclinations to behave in a certain way would be likely to reappear if he were employed in those circumstances. The evidence regarding the physical layout of the store indicated that there were a number of locations in the store where a child, and an adult bending over or kneeling down beside them, would be out of the line of sight of others in the store. It would be entirely possible that the Complainant would expose himself to a child or have improper physical contact with a child in such a shielded location. Similarly, the Complainant could engage in such contact out of the sight of others if he was able to induce a child to go with him through the doors to the warehouse space adjacent to the sales floor. This could occur in a very brief period of time. The law does not require that it is “likely” that a convicted person will re-offend, but rather that there is an “unreasonable risk” of this occurring. 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.

Concern over the risk of recidivism by child sexual offenders has expressed itself in legislative action and in the jurisprudence of the Wisconsin courts. The Supreme Court has upheld the constitutionality of the “two-strikes” law pertaining to serious sexual offenders. Legislative concern regarding recidivism and the need to protect the community from sexual offenders is also embodied in the creation of the Sex Offender Registry and the enactment of ch. 980, Stats. The courts also grant “greater latitude” for proof regarding similar acts in cases involving sexual assault, particularly those involving children. All of these considerations should serve to alert the Labor and Industry Review Commission and the Equal Rights Division to the degree of concern and attention appropriate when considering the risk of recidivism by child sexual offenders. There is no indication in Wisconsin law reflecting an inclination to elevate society’s interest in the rehabilitation of offenders above that of protecting children. LIRC’s decision in this case failed to reference the elements of child sexual assault and especially the issue of recidivism inherent in an offense that requires proof of repeated acts. The case was remanded to LIRC for further proceedings where the record failed to reflect consideration of the elements of the crime, and consideration of what an extraordinarily long period of probation may reveal about the sentencing court’s concerns regarding recidivism by the Complainant. Further, the LIRC decision did not address the most salient and dangerous character traits revealed by the Complainant’s sexual assault of a prepubescent child. That is that child sexual assault of young children is rooted in an unhealthy, perverse attraction that is often pathological, and that the damage to its victims is frequently profound and lifelong. Sears Roebuck & Co. v. LIRC (Milwaukee Co. Cir. Ct., 09/29/06), reversing Matousek v. Sears Roebuck & Co. (LIRC, 02/17/06).

The Complainant’s convictions for second-degree sexual assault, aggravated battery and felony theft were substantially related to the position of pack and load employee at a large production facility which produced corn meal, flour and other products. The elements of the crime of second-degree sexual assault are the commission of a non-consensual sexual act through the use of force or violence. The elements of the crime of aggravated battery are the intentional infliction of bodily harm on another person. The elements of the crime of felony theft are the taking of the property of another without their knowledge or consent. There is a substantial relationship between the elements of these crimes, and the traits associated with them, and the circumstances of the pack and load position, which entailed unrestricted access to unsecured property of significant value; work with little supervision in close proximity to others (including female employees); and location in a vast facility with many possible hiding places and with a high noise level which could prevent detection. Weston v. ADM Milling (LIRC, 01/18/06).

The Complainant’s conviction for possession of child pornography was substantially related to a job which required him to service burglar alarm systems in homes, day care centers, and schools. These are all places where children would be present. Holze v. Security Link (LIRC, 09/23/05).

The Respondent discharged the Complainant only after learning of media publicity and customer complaints relating to the Complainant’s convictions for second degree sexual assault of a child, causing mental harm to a child and misdemeanor with a child sixteen or older. The Complainant’s termination on that basis was “because of” the convictions. However, although the Complainant was terminated because of his conviction record, the Respondent was not liable for discrimination because the circumstances of the Complainant’s convictions were substantially related to the circumstances of his delivery driver position. In regard to the offense of second degree sexual assault of a child, the character traits revealed by having engaged in this crime are untrustworthiness with children, lack of judgment, inability to accept responsibility over children, and placing of one’s own selfish desires ahead of the welfare of children. These traits, considered in conjunction with the fact that the Complainant had unsupervised contact with children in his delivery driver position (including children alone in their homes), establishes the existence of a substantial relationship within the meaning of sec. 111.335(1)(c), Stats. Sheridan v. United Parcel Serv. (LIRC, 07/11/05).

The circumstances of the Complainant’s pending criminal charge for possession of marijuana were substantially related to the circumstances of his job as a youth counselor. There was evidence that approximately seventy-five percent of the youth offenders at the facility had drug and alcohol problems. Clearly, the Complainant was in no position to credibly provide leadership and training to other counselors, or to provide instruction and training to the youthful offenders at the institution, many of whom had problems with drugs. Thus, the Respondent could legally suspend the Complainant from employment for his arrest on the criminal charge of felony possession of marijuana. When the Complainant eventually pled guilty to the possession of marijuana charge, the Respondent could have legally terminated his employment because his conviction demonstrated that he was unwilling to accept the responsibility of obeying the law and his behavior was not conducive to that of serving as a role model or providing counseling to young people who had been adjudicated as juvenile offenders by the court system. Blunt v. DOC (LIRC, 02/04/05).

The Complainant’s conviction for possession of a controlled substance under sec. 961.41(3g)(c), Stats., was substantially related to the position of teacher’s assistant in a medium security prison. The character traits revealed by violation of this criminal statute include a tendency to possess illegal drugs, and, presumably, to engage in unlawful drug use. It might be said that a conviction for such an offense demonstrates an unwillingness to comply with laws and rules. The job the Complainant sought would have put her in unsupervised contact with inmates. The question to ask then, was whether, given the character traits demonstrated by the Complainant’s conviction for possession of a controlled substance, the circumstances of the job of teacher’s assistant would provide a potential temptation and a significant opportunity for her to re-offend. A high percentage of prison inmates have a history of drug abuse and are likely to have a strong incentive and desire to manipulate and obtain favors from staff members. This would be a circumstance that could foster a repeat offense for an individual with a demonstrated propensity to possess illegal drugs. Zeiler v. DOC (LIRC, 09/16/04).

The Complainant was convicted of possession with intent to deliver a controlled substance. She was subsequently hired as a teacher at a facility which provides childcare for children between the ages of six weeks and twelve years of age. Given the availability of prescription drugs at the Respondent’s daycare facility (including Ritalin, which is a drug that is valued among illegal drug users and drug dealers), plus the Complainant’s opportunity for after-hours access to the Respondent’s daycare facility, her conviction for possession with intent to deliver a controlled substance is substantially related to her employment with the Respondent. The Complainant’s discharge did not violate the WFEA. Flores v. Kindercare Learning Ctrs. (LIRC, 05/27/04).

The Complainant’s convictions for home invasion, two counts of aggravated battery, two counts of residential burglary and misdemeanor theft and robbery were substantially related to the position as a truck driver for the Respondent. Drivers for the Respondent drive alone and have access to the freight they are hauling. They are not closely supervised. Drivers also have access to the company office where various office equipment, including computers, printers and pagers, are located. The Complainant had no legal authority to support his contention that the recidivism rates of former prisoners with particular characteristics are relevant to the substantial relationship test. The length of time that has passed since an offense is not relevant in deciding the substantial relationship test. Jackson v. Summit Logistic Serv. (LIRC, 10/30/03), aff’d sub nom. Jackson v. LIRC (Rock Co. Cir. Ct., 03/02/04).

There is a substantial relationship between the circumstances of the Complainant’s conviction for theft in a business setting and the circumstances of a job as a phlebotomist. In the phlebotomist position, the Complainant would have relatively easy access to a large amount of cash, providing him an opportunity to engage again in the same type of criminal activity which led to his conviction. Opportunity and access, even without control, are sufficient, given the circumstances present here, to provide the required nexus between the offense and the job. Vanderkin v. Community Bio Res. (LIRC, 09/30/03).

There was a substantial relationship between the Complainant’s convictions for being a party to possession with intent to deliver/manufacture controlled substances and his job as a counselor at a group home residential center for youth that have criminal, emotional or mental health problems. Wilson v. New Horizon Ctr. (LIRC, 09/11/03).

The circumstances of the Complainant’s convictions for armed robbery, aggravated battery, unlawful restraint, home invasion and residential burglary were substantially related to the job of a truck driver. The connection between the Complainant’s convictions and the likelihood of recidivism are obvious. Were he to be hired, he would routinely be given dominion and control over valuable assets to be freighted; he would be given special ingress and egress privileges to facilities of customers where valuable property is warehoused; and he would be given a truck from which to operate and in which to conceal criminal activity. Jackson v. Transport America (LIRC, 05/06/02); aff’d sub. nom. Jackson v. LIRC (Rock Co. Cir. Ct., 01/07/03); aff’d (Ct. App., Dist. IV, unpublished opinion, 07/01/04).

The Complainant’s conviction for conspiracy to possess with intent to distribute in excess of 500 grams of cocaine, and possession with intent to distribute cocaine are related the position of general factory worker. It is immaterial that ten years have passed since the offense. In fact, the Complainant had been released from prison less than six months at the time he sought rehire at the Respondent. The Respondent’s work environment would present a substantial opportunity for the Complainant to engage in criminal behavior similar to that present in the crimes for which he had been previously convicted. Villarreal v. S.C. Johnson & Son (LIRC, 12/30/02). [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 Complainant’s convictions for theft, armed robbery, unlawful restraint, aggravated battery, residential burglary, armed violence, and home invasion are substantially related to the job of a truck driver, whether over-the-road or local. Jackson v. Transport America (LIRC, 05/06/02).

The Complainant’s conviction of felony theft in violation of sec. 943.20, Stats., involved a calculated course of alteration and misuse of records and documents through which money was stolen by fraud. This conviction was substantially related to the occupation of selling insurance and investment products for an insurance company. Borum v. Allstate Ins. Co. (LIRC, 10/19/01).

The Complainant was arrested and charged with the manufacture of a controlled substance; possession with intent to manufacture, distribute or deliver a controlled substance; and knowingly keeping and maintaining a dwelling which was resorted to by persons using controlled substances. The circumstances of these criminal charges were substantially related to the Complainant’s job, which entailed driving a bulk fuel truck containing up to 2,800 gallons of gasoline, diesel fuel or kerosene, and delivering and loading this fuel into private residences. The hazardous nature of the job, with its attendant risk of explosion and contamination, requires a degree of alertness and care which renders it unsuitable for an individual with a propensity to use unlawful drugs. Moreover, work which entails unsupervised, door-to-door contact with the public offers an opportunity for criminal behavior and presents a potential temptation for a person with an inclination to engage in conduct such as the sale of illegal drugs. Schroeder v. Cottage Grove Coop. (LIRC, 06/27/01), aff’d sub nom. Schroeder v. LIRC (Dane Co. Cir. Ct., 01/31/02).

The circumstances of the Complainant’s conviction for uttering a forged document in violation of sec. 943.38(2), Stats., was substantially related to the circumstances of her position as break pack order filler at a retail distribution center. Forgery requires a lie relating to the genuineness of a document. One convicted of forgery exhibits the character traits of dishonesty and deceitfulness. Although somewhat limited, employment at the Respondent’s distribution center does present the opportunity for an employee to forge documents. The most significant opportunity for this to occur is presented in connection with an employee’s timekeeping responsibilities. Further, forgery is just a variation of theft. Based on the character trait of dishonesty exhibited by her forgery conviction, employment for Respondent certainly offered the Complainant temptations or opportunities for criminal activity similar to the crime of forgery. Young v. Wal-mart Distrib. Ctr. (LIRC, 10/27/00).

The Complainant’s conviction for aiding and abetting a felon was substantially related to the position of store clerk at the Milwaukee County House of Corrections, a position which required regular contact with inmates. Yokofich v. LIRC (Milwaukee Co. Cir. Ct., 12/08/99).

The circumstances of the Complainant’s convictions for bail jumping and communicating with jurors were substantially related to the circumstances of the licensed activity of a certified public accountant. Farr v. Dep't of Regulation & Licensing (LIRC, 11/15/99).

The Complainant’s conviction for forgery and being party to a crime were substantially related to her prospective job duties as a direct mail specialist. Jackson v. Direct Supply, Inc. (LIRC, 07/08/98).

A Complainant’s convictions for violation of the law on tavern closing hours and for obstructing a police officer were substantially related to the position of truck driver in interstate commerce. The “hours of operation” offense demonstrated an inclination to disregard applicable safety-related regulations. The conviction of obstructing an officer had a very distinct relationship to situations the Complainant would likely confront as a truck driver. Truck drivers encounter regulatory authority frequently in the process of complying with weighing requirements and they are more likely to encounter police authority on the job than most employees are because the activity of driving is routinely patrolled by police. Lillge v. Schneider Nat’l (LIRC, 06/10/98).

The elements of the crimes with which the Complainant was charged (sexual assault and threatening to injury another while in the possession of a dangerous weapon) were substantially related to the Complainant’s position as a cab driver. A cab driver obviously has the opportunity to commit such acts while transporting a passenger, if the two are alone in a vehicle the cab driver controls. Rathbun v. City of Madison (LIRC, 12/19/96).

The Complainant’s criminal conviction for mail fraud, bank fraud and interstate transportation of forged securities was substantially related to the circumstances of the position of coordinating promotional activities for the Respondent, which was a job that entailed fund raising and the collection of dues. Harris v. Berlin Chamber of Commerce (LIRC, 12/04/96).

The Complainant's conviction for illegally possessing a firearm was substantially related to the circumstances of his employment as a line specialist in the assembly department of a company engaged in the business of making and distributing pizzas. The Respondent was aware that the possession of a firearm was unlawful for the Complainant because he was a felon. Perhaps in the case of an employee in the Complainant's job who had good relations with his co-workers, there would be some question with the connection between the job and a conviction for illegal possession of a firearm. However, in this case, the Complainant himself made his firearms possession conviction particularly related to the circumstances of his employment, because the circumstances of his employment included his simmering anger against and his threats of physical violence against co-workers. Kort v. Tombstone Pizza (LIRC, 10/23/96).

The Complainant's arrest and conviction for first degree sexual assault and exposing a child to harmful material was related to his job as the Respondent's fitness center director. Ponto v. Grand Geneva Resort & Spa (LIRC, 08/22/96).

A conviction for lewd and lascivious behavior is substantially related to the job of courier. The position of courier requires a high degree of responsibility and trustworthiness. A conviction for lewd and lascivious behavior demonstrates a lack of good judgment and concern for the welfare of others. The Respondent’s electronic monitoring system only meant that the Complainant would be caught after the fact, not that it would prevent the conduct from occurring or that it would decrease the circumstances that foster criminal activity. Stroede v. Federal Express (LIRC, 08/14/96).

The Complainant’s convictions for forgery and burglary were substantially related to the circumstances of the job of a district agent for an insurance company. This job would require the Complainant to handle funds in the form of checks and cash and to regularly deal with forms that could be subjected to forgery for personal gain. Nelson v. The Prudential Ins. Co. (LIRC, 05/17/96).

The Complainant’s felony conviction for knowingly permitting a motor vehicle to be used for delivery of a controlled substance is substantially related to the circumstances of the position of district agent for an insurance company. Knight v. Prudential Ins. Co. of Am. (LIRC, 10/30/95), aff’d sub nom. Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998).

The Complainant’s conviction for delivering cocaine was substantially related to his employment as a youth counselor for emotionally disturbed juveniles, many of whom have problems related to chemical dependency. Sellars v. Sunburst Youth Homes (LIRC, 07/18/95).

Circumstances of a charge for possession of a controlled substance substantially relate to the job of school bus driver. Motel v. Lake Shore Buses (LIRC, 10/21/93).

A conviction for arson was substantially related to the position of Food Service Worker at a juvenile offender institution, where the employee would have responsibilities for the safety, direction and discipline of juvenile offenders. Even in a job where the circumstances are not particularly conducive to committing the particular crime of which the employee has been convicted, the employer may consider the incompatibility between the personal traits important for a particular job and the personal traits exhibited in connection with the criminal activity in question. Here, the commission of the crime of arson indicates a disregard of the welfare of people who may be unable to protect themselves, which is inconsistent with the expectations of responsibility associated with the position in question. Thomas v. DHSS (Wis. Pers. Comm'n, 04/30/93).

Application of the substantially related test does not require a detailed inquiry into the facts of the offense and the job. The Complainant was convicted for knowingly maintaining a dwelling which was used for keeping controlled substances in violation of sec. 161.42, Stats. The specific facts of the offense were never developed in the Complainant’s criminal trial because she pled no contest. However, a violation of sec. 161.42, Stats., shows an inclination towards trafficking in controlled substances as a way of earning an income. This was substantially related to the Complainant’s position as a home health aide, which provided her with unsupervised access to the homes of impaired adults with numerous potent prescription drugs, thereby providing a clear opportunity for drug trafficking. Thayer v. Home Health United (LIRC, 04/08/93), aff’d, Dane Co. Cir. Ct., 04/19/94.

An allegation of felony delivery of controlled substances is clearly substantially related to a job caring for dependent adults which includes responsibility for access to, and control and distribution of medication and prescription drugs. Delapast v. Northwoods Beach Home Caring Homes (LIRC, 02/17/93).

It was not unlawful conviction record discrimination to remove the name of an individual--who had received a full and unconditional Governor’s pardon--from an eligibility list for deputy sheriff’s vacancies where it was established that the employer’s action was because the individual had been dismissed from a previous public service job and because the employer had concluded that the individual's conduct exhibited during previous employment as a police officer with respect to truthfulness made him unsuitable for the position of deputy sheriff. Cieciwa v. County of Milwaukee (LIRC, 11/19/92).

The Complainant's conviction of a crime involving the delivery of drugs was substantially related to his employment as a machine operator at a paper mill where the opportunity for criminal behavior was significant in light of the large amount of free time available to the employee, the presence of only intermittent supervision, and the enormity of the workplace. In addition, the Complainant's reaction to responsibility and character traits revealed by the conviction made it reasonable to conclude that the workplace would provide a potential temptation for a person with a demonstrated inclination to engage in conduct such as the illegal sale of drugs. Goerl v. Appleton Papers (LIRC, 10/05/92).

The Complainant's welfare fraud conviction was substantially related to the Complainant's job as automotive department manager, which involved access to all cash registers, maintaining inventory, stocking shelves, watching for shoplifters, and recording price markdowns on merchandise. Mullikin v. Wal-Mart Stores (LIRC, 08/27/92).

A trucking company did not discriminate against a prospective employee when it refused to consider him for future employment because he was convicted of a felony. The company was able to prove at the hearing that the prospective employee's burglary conviction was substantially related to being a truck driver for the company. Santos v. Whitehead Specialties (LIRC, 02/26/92).

The Complainant had an extensive criminal record which included convictions for forgery, theft, and resisting or obstructing an officer. The circumstances of the Complainant’s employment as a janitor working in the offices of a police department were such as to create great opportunities for theft, because of the unsupervised nature of the work. Additionally, multiple convictions for resisting or obstructing an officer raised questions about the wisdom of allowing the Complainant to have unsupervised access to offices of a police department. Davidson v. Town of Madison Police Dep't (LIRC, 10/15/91).

The circumstances of the offense of armed robbery are substantially related to the circumstances of the position of Juvenile Correctional Worker. The characteristics of extreme patience, level-headedness, and avoidance of the use of force are necessary in what is in effect a job as a prison guard for juvenile detainees. 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).

Even if LIRC accepted the Complainant’s argument that the Respondent was aware of his conviction record before it discharged the Complainant, the Respondent would not have violated the Wisconsin Fair Employment Act because the circumstances of the Complainant’s conviction for theft were substantially related to the circumstances of his job as a bartender. Sherwood v. 306 Pearl, Inc. (LIRC, 05/10/91).

The offenses of possession of cocaine with intent to distribute and distribution of cocaine are substantially related to the occupation of being a door-to-door salesman not merely because both the offenses and the job involved selling activity, but principally because the circumstances of the job are such that it would present a particular opportunity, and thus a potential temptation, for a person with a demonstrated inclination to engage in conduct such as the sale of illegal drugs. This finding is based on a consideration of the offense and the job which focuses on the circumstances that may foster criminal activity, e.g., the opportunity for criminal behavior, the reaction to responsibility, and the character traits of the person. Black v. Warner Cable Communications Co. of Milwaukee (LIRC, 07/10/89).

A conviction for shoplifting substantially relates to the position of processing and distributing payment checks, the job duties of which include the exercise of supervisory control and the expenditure of large amounts of money for an employer and its clients. Benna v. Wausau Ins. (LIRC, 07/10/89).

A conviction for retail theft is substantially related to the job of relief security person, where the employee is unsupervised most of the time and where he has access to campus buildings. Perry v. UW-Madison (Wis. Pers. Comm’n, 05/18/89). The offense of shoplifting was substantially related to the employee’s position as a customer representative for a power company, which involved the employee going on residential and commercial customers’ premises at times when the customers were not there, presenting temptations and opportunities similar to those present in his shoplifting conviction. Halverson v. LIRC (Ct. App., Dist. III, unpublished opinion, 08/09/88).

The offense of possession of marijuana, a misdemeanor, was substantially related to the circumstances of the Complainant’s job as a security guard. The Complainant’s admission to possession and prior use of marijuana gave Respondent ample reason to doubt his devotion to the task of prohibiting the use and possession of drugs at the job site. McClellan v. Barnes Int’l Security (LIRC, 03/31/88).

Conviction of a municipal ordinance violation for shoplifting was substantially related to the employee’s job as a group insurance claims technician, where she processed claims under group insurance policies and had authority to release up to $15,000.00 in payment of medical claims without supervisory approval. Employers Ins. of Wausau v. LIRC (Marathon Co. Cir. Ct., 02/10/88), aff’d (Ct. App. Dist. III, unpublished opinion, 10/11/88).

The substantial relationship inquiry does not turn on superficial matters such as the distinctions between an administrative job and a “direct care” job. In this case, the Complainant was apparently unwilling to accept his legal and professional responsibility for an extremely vulnerable population. The responsibilities of his job as an administrator of a nursing home and his subsequent job as a crisis intervention specialist were such that the circumstances of his misdemeanor convictions for patient neglect while he was an administrator were substantially related to the crisis intervention specialist job. Milwaukee County v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987).

The Complainant was convicted of shoplifting in 1979 and was warned by his employer that if a similar event occurred his position might be in jeopardy. In 1981 the Complainant engaged in four incidents of theft from his employer and was a given a warning that he might thereafter be terminated for any “unsatisfactory conduct of a serious nature.” In 1982, the Complainant admitted to an offense of shoplifting, off duty, and was discharged. Although the Complainant’s conviction for shoplifting in 1982 was a factor in the Respondent’s decision to discharge him, his previous history of on and off duty offenses were part of the circumstances of his final offense of shoplifting and, accordingly, the circumstances of the shoplifting offense in 1982 were “substantially related” to the circumstances of the Complainant’s job, since the circumstances of the Complainant’s job involved a warning that he not engage in conduct such as that for which he was terminated. Halverson v. Northern States Power Co. (LIRC, 10/02/86).

A history of four convictions for speeding in less than a two-year period was substantially related to the circumstances of a job in a body shop which would require the employee involved to drive customer's cars on a daily basis in the course of his employment. Gumbert v. Ken Loesch Oldsmobile-Pontiac-Cadillac-Buick (LIRC, 07/09/85). The circumstances surrounding a job applicant’s pending arrest for false representation on medical assistance claims were substantially related to the children's probation officer position which she sought because those circumstances suggested she would not convey to youthful offenders the necessity of reforming their conduct. McVicker v. Milwaukee County (LIRC, 06/28/83).

The Complainant had been convicted of armed robbery under Indiana law. A conviction under that law required that the person be found to have participated in the taking of another person’s property by threatening to harm him with a dangerous weapon. This indicated a disregard for both the personal and property rights of other persons. It also indicated a propensity to use force or the threat of force to accomplish one’s purposes. The armed robbery conviction indicated personal qualities which were contrary to the extreme patience, level-headedness, and avoidance of the use of force which are essential in a school bus driver. Because the Complainant’s conviction for armed robbery was substantially related to the position of school bus driver, the Respondent did not violate the Wisconsin Fair Employment Act when it refused to grant the Complainant a school bus driver’s license. Gibson v. Transp. Comm'n, 106 Wis. 2d 22, 315 N.W.2d 346 (1982).

Common sense dictates that a conviction of the felony of misconduct in public office for falsifying traffic tickets bears a substantial relationship to the duties of a police officer who is called upon to issue traffic citations. Law Enforcement Standards Bd. v. Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981).