122.9 Miscellaneous

An employer may be liable for discrimination under the WFEA if: (1) it knows, or believed, that a third party either had or would have a negative attitude about an employee based on that employee's protected status under the WFEA, and (2) even though the employer had the ability to not acquiesce to the perceived discriminatory animus, it submitted to it by taking an adverse action against the employee. In this unique case, the Respondent was not liable for arrest or conviction record discrimination because it had divided authority with a third party in such a way that the Respondent did not have the ability to control whether an adverse was taken against the Complainant based on arrest or conviction record. Sloan v. Human Dev. Ctr. (LIRC, 08/29/14).

The Respondent engaged in an act of employment discrimination in violation of sec. 111.322(2), Stats., when it posted a job advertisement that specified “no felonies,” because this expressed an intention to discriminate against individuals with conviction records. Jackson v. Dedicated Logistics (LIRC, 07/29/11).

It is not employment discrimination because of arrest record to suspend an employee pending the outcome of criminal charges where the circumstances of the pending charges substantially relate to the circumstances of the employee’s position. The Complainant’s argument that it would have been possible for the Respondent to change his schedule so that he would not come in contact with his wife (who was also an employee of the Respondent and who had a restraining order against him) was rejected. The arrest record law does not impose a duty to accommodate pending charges upon employers. Sanford v. Luther Midelfort (LIRC, 10/01/10).

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. The Complainant’s argument that the Respondent could have shielded itself from liability by engaging in risk management through a bonding program to eliminate concerns regarding the substantial relatedness of his criminal activity to the job was rejected. Jackson v. Klemm Tank Lines (LIRC, 02/19/10).

Sec. 111.335(1)(cm), Wis. Stats., provides that it is not employment discrimination because of conviction record to refuse to employ a person who has been convicted of a felony as an installer of burglar alarms unless that person has been pardoned for that felony. In this case, the Complainant had been convicted of felony possession of child pornography. He had not been pardoned. The Respondent did not violate the law when it refused to hire him to the position of banking service technician, which was a position that involved providing security systems, including burglar alarms for banks. Holze v. Security Link (LIRC, 09/23/05).

The Complainants established that their arrest records played a role in the Respondent’s decision to discharge them where, among other things, a representative of the Respondent testified at the Complainants’ unemployment compensation hearing that her decision to discharge the Complainants was based upon the fact of their arrest records and upon her beliefs about the behavior leading up to the arrests. Further, the Respondents’ own personnel records indicate that the reason for the Complainants’ termination was “jail.” Finally, the fact that the Respondent did not discharge other employees who had arrest records does not mean that it did not discriminate against the Complainants, where the arrests were for different types of offenses. Schneider v. Stoughton Trailers (LIRC, 02/24/95).

The fact that an employer may choose to retain one individual with a conviction record, the circumstances of which substantially relate to a particular job, but to discharge another does not violate the Act’s prohibition against arrest or conviction record discrimination. Mullikin v. Wal-Mart Stores (LIRC, 08/27/92).