Wisconsin Supreme Court bolsters employers’ defenses in some discrimination arrest and conviction cases

The Supreme Court of Wisconsin recently rendered its decision in Cree, Inc. v. Labor and Industry Review Board, overturning a long-established precedent regarding when a candidate with a domestic violence conviction record can be disqualified from the position because the conviction is “substantially related to it”. State of Wisconsin. Section 111.335(3) prohibits discrimination based on the arrest or conviction of a candidate or employee unless the case is “substantially related” to the underlying position.

The state Labor and Industry Review Board (LIRC) the long-standing application of the “substantially related” test to crimes of domestic violence has relied on the intimate, household-related nature of such crimes, which the LIRC believes is inherently absent from the workplace. Essentially, the LIRC’s application of the exception assumed that domestic abusers would not engage in the same behavior with co-workers or clients, meaning domestic violence crimes were almost never job-related. underlying.


In 2013, Derrick Palmer was found guilty of eight crimes of domestic violence against his girlfriend – two counts of strangulation and choking, four counts of misdemeanor battery, one count of fourth-degree sexual assault and one count of criminal damage to property . Two years after his release from prison, he applied for an open position as an applications specialist at Cree, Inc., a 600,000 square foot facility employing over 1,000 people. The position required the employee to have access to almost the entire Cree facility, to be on-site at customers’ sites at times, and even to travel at night independently to trade shows. The employee was expected to work largely unsupervised.

Cree offered Palmer the position of Applications Specialist subject to a standard background check. The background check revealed Palmer’s 2013 convictions. Cree referred the case to his general counsel who reviewed Palmer’s conviction record using a matrix classifying each of Palmer’s convictions as a “failure.” “. Cree then rescinded his job offer to Palmer.

Palmer filed a discrimination complaint with the Wisconsin Department of Workforce Development which, after years of litigation, finally reached the LIRC. LIRC enforced its longstanding rule that crimes committed in an “exclusively domestic setting” were not materially related to the position at Cree and that the employer’s decision to rescind its offer was unlawful.

The Court’s New Rule

In considering the company’s appeal on this issue, the Supreme Court of Wisconsin immediately clarified that the ordinary meaning of “substantially connected” requires the employer to demonstrate that the facts, events and conditions surrounding the convicted offense are materially connected to the facts, events and conditions surrounding the work. Essentially, she argues, the genuine connection test seeks to “[a]Essay[] whether tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, depending on the traits revealed.

The case’s contradictory appeal history coupled with the impractical LIRC, de facto exception for crimes of domestic violence, highlighted the need to clarify how employers, the LIRC and review courts are to apply the substantial relationship test to domestic violence convictions. The Court looked at two key factors in determining whether a crime is “substantially connected” with employment:

1. The specific workplace circumstances that could lead to the recidivism. Here, domestic violence crimes required the perpetrator to be given the opportunity to isolate his victim(s).

When considering the circumstances of working at Cree that could allow an attacker to isolate a victim, “Cree’s large, loud, and unsupervised facility provides cover for criminal activity.” Additionally, Palmer is said to be “largely independent as an applications specialist, with no day-to-day supervision” and the independent and interpersonal circumstances of the position and the opportunities created by unsupervised travel created significant opportunities to isolate a victim.

2. The existence of character traits that would indicate the desire to reoffend. The court pointed out that some crimes exhibited the existence of certain undesirable character traits. He held that “crimes of domestic violence, like other violent crimes, indicate a character trait of willingness to use violence against others” and that circumstances threatening “a perpetrator’s power and authority could “trigger a violent response.”

Applying this factor, the Court held that character traits exhibited by domestic violence convictions indicate a “willingness to use violence to exert power and control over others”, which is essentially related to the independent nature and interpersonal skills of a pre-sales and after-sales team. work as the position of Application Specialist.

The Court also considered the seriousness of Palmer’s convictions (“the more serious the offence, the less an employer can be expected to bear the risk of reoffending”), the recentness of the conviction (approximately two years ) and the existence of an emerging pattern of criminal behavior (Palmer was previously convicted of crimes of domestic violence against another partner).

Key points to remember

While the Supreme Court of Wisconsin decision in shout is limited to crimes of domestic violence, it should nevertheless be a welcome relief for employers. First, the decision ultimately allows Wisconsin employers to view a candidate’s conviction for crimes of domestic violence as potentially disqualifying, which previously carried a high risk of successful discrimination claims under Wisconsin’s fair employment law. Second, employers can easily apply the practical framework to most workplaces to assess the likelihood of recidivism, given the nature of the position, the physical layout of their facilities, and the violent nature of the offense under -lying. Amid other hiring problems, Wisconsin employers can now more comprehensively assess the real risk of a candidate repeating their conduct and threatening the safety of employees, customers and the public.

For employers across the country, the shout case serves as a helpful reminder of the many nuanced issues (which can often vary widely by state and crime) in the assessment of criminal background checks for employees and applicants.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

Mrs Christina L. WabiszewskiFoley & Lardner
321 Clark Street Northoffice 2800
IT 60654-5313
Tel: 312832 4500
Fax: 312832 4700
Email: [email protected]
URL: www.foley.com

© Mondaq Ltd, 2022 – Tel. +44 (0)20 8544 8300 – http://www.mondaq.com, source Business Briefing

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