Criminal Conviction Discrimination Laws - Wisconsin

WISCONSIN LAW REGARDING CONVICTION
RECORDS IN THE NEWS

Wisconsin’s law prohibiting discrimination against employees based upon a criminal conviction has been a subject in the press lately. Noteworthy are the cases wherein employers are faced with an ultimate nightmare decision regarding whether to extend employment to an individual with a heinous murder conviction or crime of that nature.

An employer may refuse to retain or hire an applicant on the basis of a conviction only if the circumstances of the conviction substantially relate to the particular job or if the applicant is not bondable and bondability is required by law or an established business practice. There are also special rules under state law related to the employment of individuals in daycare facilities, nursing homes and other types of facilities. (See article this edition.)

Two cases have received much attention. First, the recently settled lawsuit between "the Halloween Killer," Gerald Turner, and Waste Management of Madison. Mr. Turner was convicted in 1973 for raping and killing a minor girl. Turner, who had been released from state prison on parole, was denied employment at Waste Management after he applied for a job sorting recyclables. Mr. Turner brought suit seeking, among other things, a declaration that he was entitled to be hired. The settlement came after the State Department of Workforce Development found that Turner may proceed to a hearing on his claim. The terms of the settlement are not public.

The second case is that of Milwaukee Public School employee, Mark Moore, who was fired from his position as a school janitor for first lying about a conviction on his application for employment. A year after his termination, he re-applied and was turned down based upon his conviction. Mr. Moore had been convicted of a felony for severely burning a child.

Mr. Moore brought suit claiming discrimination under the WFEA. MPS argued that Moore should not be in a position that involves contact with children. The Department analyzed the facts of Mr. Moore’s conviction and determined that his "criminal act arose in the course of a domestic dispute involving his girlfriend, a matter unlikely to replay itself in a school setting." According to the Department, Moore’s conviction stemmed from an argument with his then girlfriend wherein he threw hot grease in a frying pan at her. It missed her, but seriously burned her 20-month-old daughter.

The Department found that Mr. Moore’s contact with children at the school would be sporadic and that his position was not therefore "substantially" related to his conviction. MPS was ordered to re-hire Moore and pay three years of back pay. MPS has filed an appeal.

Both decisions have drawn critics, and should alert employers to act cautiously. These cases illustrate that employers need to be careful in reacting to news of a conviction. Cases such as these are highly factual and must be treated on a case-by-case basis. Before a decision is made to not hire an applicant, an employer should analyze the facts of the conviction compared to the required job duties. Moreover, care should be given to what the employer’s policy is on determining whether the applicant has a conviction record in the first place.

Other Wisconsin cases have implied that an employer faces possible liability if it doesn’t inquire about convictions at all, and as a result hires a convicted felon who harms individuals to whom the employer owes a duty of care. For example, in a case last year, an employer was found liable for negligent hiring, training and supervision of a security officer at a retail store. (Miller v. Wal-Mart Stores, Inc.) The court held that an employer is required to anticipate foreseeable risk of harm in the workplace. Since the security guard was in a position of authority, the employer had a duty to properly train the guard and supervise his actions. Given this legal theory, and despite concerns arising out of the cases involving Turner and Moore noted above, it is our recommendation that employers make carefully tailored inquiries into an applicant’s criminal conviction record upon hire.

For help on this issue, feel free to contact Attorney Charles W. Pautsch at (414) 291-0600.

Posted 10/7/99