LIRC’s View of the ‘Substantially Related’ Defense to Arrest and Conviction Record Discrimination Claims: Will Recent Events in Waukesha Prompt Change?

Wisconsin is one of a limited number of states that prohibits discrimination in employment on the basis of arrest or conviction records. The Wisconsin Fair Employment Act (WFEA) protects “properly qualified individuals” from unlawful discrimination “by reason of their … arrest record[s] [or] conviction record[s].” Employers defending against claims of arrest- or conviction-record discrimination under the WFEA may raise a defense to liability that asks whether an employee’s or applicant’s charge or conviction “substantially relate[s] to the circumstances of the particular job[.]” That is, the WFEA provides that an employer is not prohibited from suspending an employee who is charged with a felony, misdemeanor, or other offense, or from refusing to employ an individual who is convicted of a crime that is substantially related to his or her position.

A limited number of decisions by the Wisconsin Labor and Industry Review Commission (LIRC)—the administrative agency that reviews appeals of WFEA decisions—suggest that administrative law judges may consider whether the facts underlying a charge or conviction occurred in a domestic setting and involved a personal relationship with the offender in order to determine whether the charge or conviction is substantially related to the position. Briefly, the reasoning described in these LIRC opinions holds that the likelihood of any reoffense in an employment setting with a coworker or other member of the public is minimized when the crime at issue involved a victim who shared a close, personal relationship with the employee or job candidate or the crime occurred in a domestic setting.

In recent years, Wisconsin has experienced several acts of public violence that were directly or indirectly related to perpetrators who possessed histories of domestic violence, including most recently at a Waukesha parade and, before that, a Brookfield salon. Studies have found that many mass shootings in recent years were related to domestic violence. Such analysis may provide a basis for concluding that domestic violence abusers can reoffend in a manner that harms unrelated individuals and may engage in misconduct in workplace settings where others are present. Collectively, these events and reports may raise doubts with regard to whether the LIRC should allow room for a charging party to argue that the domestic nature of an arrest or conviction is at all relevant to whether an arrest or conviction is “substantially related to the circumstances of a particular job.”

Indeed, the Wisconsin Supreme Court is currently considering a case that addresses whether an arrest or conviction can be distinguished based on its domestic context. Once the court issues its decision, employers may gain clarity on whether such context should be considered when excluding a job candidate or employee from an employment opportunity on the basis of arrest or conviction.

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