122.4 Bondability

The Respondent failed to prove that bondability was a factor that actually motivated it to refuse to hire the Complainant. The bonding requirements for the Respondent’s drivers provided that coverage was not available to individuals who have committed dishonest acts. The Complainant’s conviction record does not establish that he ever committed a dishonest act. (The Complainant had been convicted of misdemeanor disorderly conduct/domestic abuse). Furthermore, the Respondent failed to prove that the bonding company would have concluded that the Complainant was not bondable under its standard fidelity bond or that, if it had, no other equivalent bond would have been available from that bonding entity or some other bonding entity. Rowser v. Upper Lakes Foods (LIRC, 10/29/04).

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

The Respondent has the burden of proving the affirmative defense that the Complainant is not bondable because of a conviction record. Regency Janitorial Serv. v. LIRC (Milwaukee Co. Cir. Ct., 03/12/02).

The Respondent has the burden to establish the affirmative defense of lack of bondability established by sec. 111.335(1)(c), Stats. That particular exception does not turn on the question of whether or not a particular employee is no longer covered under a particular blanket bond which an employer may have in force; rather it turns on whether or not the employee is bondable, which means capable or worthy of being bonded. Where the Respondent made no effort to determine whether or not the Complainant was bondable under some other equivalent bond, after her bondability under the company’s blanket bond ceased, the Respondent failed to establish that the Complainant was not bondable within the meaning of the affirmative defense. Therefore, that defense was unavailable to the Respondent. Hart v. Wausau Ins. Co. (LIRC, 04/10/87), reversed on other grounds sub nom. Employers Ins. of Wausau v. LIRC (Marathon Co. Cir. Ct., 02/10/88), aff’d Ct. App., Dist. III, unpublished opinion, 10/11/88.