The Wisconsin Supreme Court has recently issued a ruling overturning a long-standing precedent regarding when a domestic abuse record may disqualify a candidate from a position due to being “substantially related.” Under Wisconsin’s law, specifically Wisconsin Stat. § 111.335(3), an employer is prohibited from discriminating against an applicant or employee unless the record is substantially related to the position in question.
Previously, Wisconsin’s Labor and Industrial Review Commission’s (LIRC) interpretation has been that domestic violence crimes are rarely related to an employment situation. Under this interpretation, the nature and setting of these crimes made them unlikely to reoccur in the workplace.
However, in the current case, the Supreme Court has strayed from this interpretation. The plaintiff, in this case, was previously convicted of eight domestic violence offenses committed in 2013. Two years after he was released from prison, he applied for a position as an Applications Specialist, which would entrust the employee with a high degree of access to employer and customer facilities as well as to operate with limited supervision.
The employer made a conditional offer of employment to the plaintiff contingent upon a background check. The background check discovered the plaintiff’s prior criminal history, and based upon a general matrix, the employer’s counsel categorized the convictions in question as failing its standards, and the employment offer was rescinded.
The plaintiff then filed a discrimination claim that ultimately would reach LIRC, which found that the decision to rescind the offer was unlawful based on its long-standing precedent. The company then appealed this ruling to the Wisconsin Supreme Court.
The Court responded by clarifying the meaning of “substantially related,” which specifically means that “the employer shows that the facts, events, and conditions surrounding the convicted offense materially relate to the facts, events, and conditions surrounding the job.”
To assist employers and courts which have had a conflicting history in interpreting how this applies, the court examined two factors that are central to determining if a crime is substantially related to a position. Learn More
The first factor is whether there are opportunities in a workplace that would allow a domestic offender to recidivate, which in the context of a domestic violence offender may include the ability to isolate victims. Based on the lack of supervision in the plaintiff’s potential position, the employer’s large facility, and the potential for unsupervised travel, there would be significant opportunities to isolate potential victims.
The second factor the court addressed was character traits that may lead to a likelihood of committing the offense again. In the case of the plaintiff, the court found that a crime of domestic violence would indicate “a character trait of willingness to use violence against others.” Additionally, the court noted, based upon expert testimony from the defendant, that the” best predictor for future violent behavior was past violent behavior.”
In the context of the case at hand, the court found that the plaintiff’s “willingness to use violence to exert power and control over others substantially relates to the independent and interpersonal nature of a pre and post-sales job like the Applications Specialist position.” In addition, the plaintiff had a prior conviction for domestic abuse showing a pattern of behavior, and the most recent conviction was only two years prior to his application for employment with the defendant. Considering these factors, the Court found that the employer had met the burden of establishing a substantial relationship and reversed the lower court’s ruling.
Though this ruling is directly applicable only to crimes of domestic violence, it provides a strong framework for Wisconsin employers in analyzing an applicant’s likelihood to recidivate and whether or not this makes a criminal record “substantially related.
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