Wisconsin is one of many states that limits the use of arrest and conviction records when hiring employees. The key exception to the use of a criminal conviction record is whether it substantially relates to the circumstances of the particular job. The Wisconsin Supreme Court recently addressed the issue in a case where an applicant engaged in extreme domestic violence. The court exonerated the employer for revoking an offer of employment.

Facts

In 2013, Derrick Palmer was convicted of committing eight crimes of domestic violence against his live-in girlfriend. He pleaded no contest to two counts of felony strangulation and suffocation, four counts of misdemeanor battery, one count of fourth-degree sexual assault, and one count of criminal damage to property. The circuit court sentenced him to 30 months in prison, 30 months of extended supervision, and four years of probation and ordered him to register as a sex offender. He also had a 2001 battery conviction related to domestic violence.

In 2015, Palmer applied to work at Cree, Inc.’s Racine, Wisconsin, facility as an applications specialist. At that time, Cree manufactured and marketed lighting components. It employed approximately 1,100 people in Racine. The facility itself spanned 600,000 square feet, including manufacturing space, storage areas, offices, cubical farms, break rooms, and the like. Although security cameras monitored some portions of the facility, there were also many “nooks and crannies” throughout that experienced little foot traffic, no security camera coverage, and noise loud enough to drown out a person’s voice.

The applications specialist’s primary responsibilities included designing and recommending lighting systems to customers, sometimes on location at customers’ facilities. Cree expected the applications specialist to operate largely independently and without close supervision. It also expected occasional travel to trade shows, which would require unsupervised overnight hotel stays. Applications specialists had access to most of Cree’s Racine facility.

Cree offered Palmer the applications specialist job subject to a standard background check. It referred the matter to its general counsel, who reviewed Palmer’s conviction record using a matrix that categorized each of his convictions as a “fail.” The employer then rescinded its offer of employment.

Procedural History

Palmer filed a discrimination complaint with the Wisconsin Department of Workforce Development’s Equal Rights Division (ERD). An administrative law judge (ALJ) for the ERD held a hearing and found Cree didn’t discriminate against him based on his criminal conviction. The Labor and Industry Review Commission (LIRC) then reviewed the ALJ’s finding and reversed because of:

  • The “high degree of speculation and conjecture” necessary to envision a scenario in which Palmer would become involved in a personal relationship with a female employee “that might end badly”;
  • The fact that the ability to meet female employees and form personal relationships with them is not unique to the job at issue;
  • The lack of evidence that he would have “significant personal interactions” with female employees;
  • The lack of evidence that he would have the opportunity to develop personal relationships with clients; and
  • The lack of evidence to suggest he would act violently with coworkers or members of the public.

Essentially, the LIRC concluded domestic violence is a crime that happens in the home, and that there’s nothing about most workplaces that would provide any trigger for someone to commit domestic violence. Moreover, if a domestic violence crime could be a basis to bar employment, it would bar employment in almost all employment settings.

Cree then appealed to a circuit court, which found in its favor. Palmer appealed to the Wisconsin Court of Appeals, which found in his favor. The employer petitioned for Wisconsin Supreme Court review.

Wisconsin Supreme Court Decision

The Wisconsin Supreme Court addressed the state’s substantial relationship test. The test arises from the text of section 111.335(3)(a)1 of the Wisconsin Statutes, which makes it “not employment discrimination because of conviction record to refuse to employ . . . any individual if,” among other reasons, “the individual has been convicted of any felony, misdemeanor, or other offense the circumstances of which substantially relate to the circumstances of the particular job.”

To apply the test, an employer must look specifically at the elements of the applicant’s or employee’s criminal conviction and then evaluate the circumstances of the particular job.

The court noted the following elements of Palmer’s offense:

  • Strangulation and suffocation require that the defendant impede the normal breathing or circulation of blood by applying pressure on the throat or neck or blocking the victim’s nose or mouth;
  • Battery requires that the defendant caused bodily harm to the victim without consent;
  • Fourth-degree sexual assault requires that the defendant had nonconsensual sexual contact with the victim;
  • Criminal damage to property requires that the defendant caused damage to property belonging to another without consent.

Based on these elements, the court found they exhibit the following character traits:

  • Willingness to use extreme acts of violence to achieve power and control over another person, particularly when the victim is isolated;
  • Willingness to engage in nonconsensual sexual conduct for the purpose of sexual gratification, degradation, or humiliation;
  • Willingness to use extreme violence to stop another person’s breathing or circulation;
  • Disregard for the health and safety of others;
  • Lack of respect for bodily autonomy;
  • Unwillingness or inability to control anger or other emotions, particularly in the face of a perceived power differential; and
  • Disregard for the property rights of others.

Given these character traits, coupled with the lack of supervision with respect to the position and the need for Palmer to resolve conflicts with Cree’s customers (including in-person interactions), the supreme court found the convictions substantially related to the position, and the company didn’t engage in discrimination. The supreme court also emphasized that his crimes were in the recent past, and he was a habitual offender.

The dissent disagreed with the majority’s view of the factual record and argued that the LIRC’s decision finding discrimination should be upheld.

Bottom Line

Before this decision, employers could rarely rely on violent convictions to bar an applicant. On the other hand, crimes involving dishonesty and theft generally could be used to bar an applicant, if the position provided the applicant the opportunity to steal or engage in fraud. Convictions for sexual assault could sometimes be used as a basis to bar employment, depending on whether the applicant would be supervised and whether there was a significant risk to other employees or the public.

The supreme court’s decision opens the door for employers to use violent convictions in some instances to bar employment. Palmer’s convictions were extreme, however, and also involved sexual and property offenses. Accordingly, it would be highly unlikely that a misdemeanor domestic battery conviction could be used to bar employment, unless gun ownership was a requirement of the position.

Like the Wisconsin Supreme Court, the Equal Employment Opportunity Commission (EEOC) guidelines emphasize you should consider how much time has passed since the criminal conviction, in addition to the substantial relationship test. The city of Madison doesn’t allow employers to use any conviction that is more than three years since the person was placed on probation, paroled, released from incarceration, or paid a fine for a felony, misdemeanor, or other offense. Wisconsin employers may not use a nonpending arrest that didn’t lead to a conviction as a basis not to hire an employee. You may suspend or refuse to employ an employee for a pending arrest when the crime substantially relates to the circumstance of the job.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.