On March 10, 2022, the Wisconsin Supreme Court released its decision in Cree, Inc. v. Labor and Industry Review Commission, which provides significant clarity for employers evaluating whether a domestic-related crime of an employee or applicant is substantially related to a job and thus a lawful reason for discharging or not hiring the individual. In issuing the 4–3 decision, the court rejected a line of Wisconsin Labor and Industry Review Commission (LIRC) precedent and limited an employee’s or applicant’s ability to avoid the “substantial relationship” defense in the Wisconsin Fair Employment Act based on a close personal relationship (e.g., one involving a spouse, relative, or boyfriend/girlfriend) with the victim.
In 2015, Derrick Palmer applied for and then received an offer of employment for an applications specialist position at Cree, Inc. The job duties and responsibilities for the applications specialist position included designing and recommending lighting systems to customers without close supervision. The position also required travel away from Cree’s facility, including to customers’ facilities and trade shows. The offer was contingent on Palmer’s completing a background check.
Palmer’s background check revealed that in 2013 he had been convicted of committing eight crimes of domestic violence against his live-in girlfriend. These convictions included 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. Palmer was sentenced to 30 months of incarceration. Based on these convictions revealed to Cree through the background check process, it rescinded its offer of employment to Palmer.
The Wisconsin Fair Employment Act is one of a limited number of state laws around the country that prohibit discrimination against an employee or applicant based on the individual’s arrest or conviction record. However, the statute recognizes a defense for employers where the crime involved is “substantially related to the circumstances of the particular job.”
Under a line of LIRC precedent addressing the “substantially related” defense, LIRC had distinguished crimes of a domestic nature. (LIRC is an independent administrative agency in Wisconsin empowered to review and decide appeals of administrative law judge decisions applying and interpreting the Wisconsin Fair Employment Act, including the substantial-relationship defense to the arrest- or conviction-record discrimination law.)
LIRC had reasoned that an individual who had committed or been charged with a crime involving violence against someone with whom the individual had been in a close personal relationship was unlikely to reoffend in an employment setting where the individual would not share a similar relationship with coworkers or customers. As a result, LIRC had generally denied the substantial-relationship defense to employers in those circumstances.
The Court’s Decision
Writing for the majority, Justice Karofsky found that LIRC’s interpretations of Wisconsin Supreme Court precedent analyzing the “substantially related” defense had wrongly created an exception for domestic violence crimes. The majority criticized this approach and found that an application of the “substantially related” defense “must look beyond any immaterial identity between circumstances—such as the domestic context of the offense or an intimate relationship with the victim—and instead examine the circumstances material to fostering criminal activity.”
The court went on to explain a two-part analysis that applies to evaluate whether a charge or conviction is substantially related to a position. First, the court asks “whether there are opportunities in a workplace that would allow a domestic violence perpetrator to recidivate.” Addressing this question, the court discarded any significance that might be attributed to the setting of the crime and instead emphasized the significance of any opportunity for the abuser to isolate his or her victim. Second, the court evaluates the character traits of an individual who commits a crime of domestic violence. Here, the court found that a crime of domestic violence indicated a propensity to use violence against others.
Applying its analysis to Cree’s decision to rescind Palmer’s offer of employment, the court reviewed the elements of and character traits demonstrated by his domestic violence crimes. The court concluded that Palmer’s use of violence against another individual, regardless of the domestic relationship, had been substantially related to the circumstances of the applications specialist position. Additionally, the position’s lack of regular supervision created opportunities for Palmer to reoffend. Concluding its evaluation of the “substantially related” defense, the court also found significant the seriousness of Palmer’s convictions for which Cree would incur the risk of another offense, the recency of his convictions, and his pattern of domestic violence over the course of multiple convictions. (Palmer had a prior conviction for battery.) Thus, the court determined that Palmer’s domestic violence convictions were substantially related to the applications specialist position, and Cree had not unlawfully discriminated against him when it rescinded his job offer based on those convictions.
The dissent in Cree took issue with many aspects of the majority’s analysis and decision. It faulted the majority’s decision to ignore the overall purpose of the Wisconsin Fair Employment Act, the specific details of the convictions, and the undisputed factual findings of LIRC regarding the circumstances of the applications specialist position. The dissent concluded that that the majority’s decision would require LIRC and the courts “to play armchair psychologist, making assumptions about what character traits might be associated with each particular criminal offense.” While the substantial-relationship defense has now been clarified for domestic violence crimes, the dissent made clear that other areas of the arrest- or conviction-record discrimination law remain unsettled.
The Cree decision provides significant clarity for employers confronted with background checks that reveal convictions for domestic violence–related offenses. Under prior LIRC precedent, employers had been required to navigate a complex line of cases that often suggested that an employer would be forced to bear the risk of an individual’s potential recidivism, though the employer likely could lawfully exclude a candidate who committed similar crimes against an individual with whom a close personal relationship did not exist. The Cree decision now allows employers to evaluate domestic violence crimes similar to other crimes of violence when determining whether those arrests or convictions are substantially related to a position.
Additional information on federal and Wisconsin background check requirements is available in the firm’s OD Comply: Background Checks subscription materials, which are updated and provided to OD ComplyTM subscribers as the law changes.