Excerpted from a Wisconsin Examiner story by Erik Gunn
How, when and why can an employer reject a job applicant who has been convicted of domestic violence?
Wisconsin Supreme Court justices heard arguments October 15 on that question, in a case testing the state’s fair employment practices law. The law says employers can’t disqualify a job applicant with a criminal record unless there is a “substantial relationship” between the crime and the job.
Cree Lighting, a manufacturer, canceled a job offer in 2015 after a background check showed that the prospective hire had been convicted in violent attacks on his girlfriend in 2012, including strangulation and sexual assault. The question of whether Cree acted lawfully in rejecting the man has see-sawed back and forth as the case wound its way first through the Wisconsin’s Equal Rights Division and then through the courts.
Cree, which makes light-emitting diode (LED) lightbulbs and fixtures, had initially offered Derrick Palmer a job laying out lighting arrays. Palmer had reported a past conviction for “domestic related charges,” and after further investigation the company withdrew its job offer. Palmer filed a complaint with the state Equal Rights Division, charging that Cree had illegally discriminated against him.
About half of Cree’s 1,000 or so Racine employees are women, according to the company. In addition, the position involved traveling to trade shows and meeting with customers. In legal proceedings and court documents defending its actions, Cree has argued that Palmer’s record showed he could endanger women with whom he would be working.
An equal rights investigator found that Palmer’s complaint had merit. After a hearing, however, a state administrative law judge ruled that Cree’s concerns were justified and dismissed the complaint.
Palmer appealed to the state Labor and Industry Review Commission (LIRC), which overturned the administrative judge’s ruling. The commission concluded that the domestic violence convictions weren’t relevant in the context of the job.
Cree then appealed in circuit court, where a judge rejected the LIRC ruling and sided with the company. The state appeals court took the case next, reversing the judge, upholding the LIRC decision that Cree had unfairly discriminated against Palmer. Cree then appealed that ruling to the Supreme Court.
The argument before the high court revolved around whether the company was justified in rejecting Palmer, as well as how much latitude employers should have to judge whether a past conviction was “substantially related” to a particular job.
“This case is about an employer’s right, and its obligation, to protect its employees, its customers and the public from harm by refusing to employ someone who was convicted of repeatedly suffocating, strangling, battering and sexually abusing women,” said Robert Duffy, a lawyer for Quarles & Brady in Milwaukee, representing Cree.
In its original ruling, LIRC concluded that Palmer’s convictions weren’t sufficiently related to the job to justify not hiring him. But the commission’s ruling also acknowledged that his crimes had shown a series of character traits, including, Duffy said, “the use of violence to achieve power or control, the inability to control anger, frustration, or other emotions and the lack of respect for authority.”
The size and layout of Cree’s Racine plant would have allowed Palmer to easily attack female coworkers undetected and out of sight of security cameras, Duffy said, while out-of-town travel to trade shows or visits with Cree customers could have put women with whom he interacted, whether co-workers or clients, at risk. All of those details were enough to establish that Palmer’s convictions in the attacks on his girlfriend were “substantially related” to the job, Duffy argued.
“It has to be the public policy that an employer has to protect individuals, its employees, its customers, its public from violence,” Duffy said.
According to the lawyer representing LIRC, however, Cree’s description of the prospective work circumstances did not meet the test of being “substantially related” to Palmer’s convictions.
Palmer has never been convicted of “even getting in a bar fight,” said Anthony Russomanno, an assistant state attorney general. The man’s convictions were for “very alarming crimes,” he added. “But the only crimes he’s been convicted of are ones in this domestic setting.”
But Justice Patience Roggensack suggested that the character traits Duffy had described could surface in his work. “He’s got to work with women who may come against what he thinks is correct — and his having to have his own way with violence, which is his history,” Roggensack told Russomanno.
The fair employment law, the lawyer replied, “requires more than that …. hypothetical situation” to make the connection.
After 47 minutes of arguments over how broadly or narrowly the law defines “a substantial relationship” between a crime and a job, Palmer’s lawyer raised a separate issue. The attorney, Alan Olson, asserted that testimony in the case had shown that Cree used an analytical matrix to categorically exclude all applicants with felony convictions.
“If you’re a felon, you cannot work at Cree,” Olson said. “That’s a violation of the statute.” He urged the justices “to make a declaration that Wisconsin employers are not allowed to apply a categorical chart or matrix that excludes all felons from working in their facility, cleaning toilets, or scraping gum off the floor — because that is exactly what they do.”
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Excerpted from a Wisconsin Examiner story by Erik Gunn