Wisconsin Supreme Court Decision on Wisconsin Fair Employment Act
April 13th, 2022 | Sterling
On March 10, 2022 the Wisconsin Supreme Court issued a decision in a case, Cree, Inc. v. Palmer, which provides direction for employers when assessing the job relatedness of an employee’s or applicant’s criminal records as required by the Wisconsin Fair Employment Act (WFEA). Historically the Wisconsin Department of Workforce Development (DWD) and the Labor and Industry Review Commission (LIRC) have taken the position that domestic violence crimes are not substantially related to any job and employers may not make hiring decisions based on such criminal records as they are not workplace related. This recent decision overturns this guidance and provides employers some breathing room when considering domestic violence offenses while conducting job related tests of criminal history records.
In the Cree case, the Wisconsin Supreme Court addressed whether Cree (the employer) rescinding it’s job offer to an applicant based on his conviction record constituted unlawful employment discrimination, or instead was lawful because the circumstances of the applicant’s convictions were substantially related to the job for which he applied.
In 2013 the applicant was convicted for committing eight crimes of domestic violence against his girlfriend. The applicant 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 also dismissed and read in two counts of false imprisonment and one count of threats to injure or accuse of a crime. The circuit court sentenced applicant to 30 months in prison, 30 months of extended supervision, four years of probation, and ordered him to register as a sex offender. The applicant also had a 2001 battery conviction related to domestic violence.
In 2015 the applicant applied for employment at Cree and was offered a job position subject to a background check. Cree reviewed the applicant’s 2013 criminal history using a matrix that categorized each of the applicant’s convictions as a “fail”. Cree then rescinded its offer of employment to the applicant. The applicant then filed a complaint with the Wisconsin Department of Workforce Development’s Equal Rights Division (ERD) alleging that Cree discriminated against him on the basis his conviction record in violation of the Wisconsin Fair Employment Act (WFEA). The WFEA prohibits employers from engaging in any act of employment discrimination against any individual on the basis, among other things, a person’s “conviction record,” subject to a few exceptions. After years of litigation and back and forth appeals, the state Supreme Court agreed to review the case.
Supreme Court Decision
The Court reviewed and considered several factors of the case: the characteristics of domestic violence offenders; the serious nature of the applicant’s criminal records; the amount of time passed since conviction and rehabilitation and when the applicant applied for the job position; and the employer’s legal obligation to protect its employees and customers. After consideration of all these factors the Supreme Court decided that Cree sufficiently established that the circumstances surrounding the applicant’s 2013 convictions for domestic violence substantially relate to the circumstances of the job offered position. This meant that Cree did not unlawfully discriminate against the applicant by rescinding its job offer. The Court’s analysis was a departure from the LIRC’s assumption in prior decisions that acts of domestic violence are immaterial in the workplace. Instead, the Court applied the substantial relationship test to domestic violence the same way it would to any other type of conviction.
Wisconsin employers now have additional clarification from the Supreme Court when assessing if a current employee’s or job applicant’s criminal history records are substantially related to the position. Employers also can now include domestic violence convictions as part of their assessment processes, however employers must still comply with the WFEA and conduct individualized assessments.
The recent court case decision in Cree, Inc. v. LIRC can be found here. The Information contained herein is for informational purposes only. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice. Clients are encouraged to consult with their legal counsel about the impacts of any requirements. This and other important legislative updates can be found on the Sterling website: https://www.sterlingcheck.com/resources/compliance-updates/
Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.