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Wisconsin Supreme Court broadens employers’ substantial relationship defense to conviction record discrimination claims

March 16, 2022

The Wisconsin Supreme Court recently issued a significant (4-3) decision in Cree, Inc. v. LIRC (Cree), rejecting the view that domestic violence crimes cannot substantially relate to employment. In a meaningful win for Wisconsin employers, the Court clarified how the substantial relationship defense to conviction record discrimination claims should be applied to crimes involving domestic violence: the substantial relationship test does not require an “exact identity” between the circumstances of the crime and job. The “public versus private, work versus home dichotomy” is no longer material. What matters are the traits revealed by the circumstances of a domestic violence conviction – such as the willingness to use violence against others, especially when one’s power or authority is threatened. As a result of the Court’s holding in Cree, Wisconsin employers should no longer doubt the existence of a substantial relationship between an applicant’s conviction and the job to which he or she applies solely because the applicant’s crime took place in a domestic setting. 

The Substantial Relationship Defense

As most Wisconsin employers know, the Wisconsin Fair Employment Act generally prohibits an employer from discriminating against applicants or employees on the basis of their conviction record. However, the Wisconsin prohibition against conviction record discrimination is not absolute. An important exception in the Wisconsin Statutes known as the “substantial relationship test” provides that “it is not employment discrimination because of conviction record . . . [if] the individual has been convicted of any felony, misdemeanor, or other offense the circumstances of which substantially relate to the circumstances of the particular job.” Wis. Stat. § 11.334(3)(a)(1). Since its inception, the proper application of the substantial relationship test, and whether an employer may refuse to hire an applicant because he or she has committed a particular crime, has been the source of extensive litigation. 

The Cree Decision

In Cree, the Wisconsin Supreme Court was asked to determine whether an employer discriminated against an applicant, Derrick Palmer, by refusing to hire him for a lighting applications specialist (Applications Specialist) job because of his prior conviction record, or whether the employer instead satisfied its burden of demonstrating that Palmer’s past convictions substantially related to the circumstances of the job. At the time of his 2015 job application, Palmer’s conviction record included eight domestic violence crimes against a live-in girlfriend, including strangulation, battery, sexual assault, and damage to property, which he committed in October 2012.

After reviewing Palmer’s crimes and the duties and responsibilities of the Applications Specialist position, both the Labor and Industry Review Commission (LIRC) and the Wisconsin Court of Appeals concluded the employer failed to establish a substantial relationship between the convictions and the job. The lack of a substantial relationship was primarily based on the fact that Palmer’s convictions and his propensity for violence were limited to domestic crimes that occurred in the context of a live-in boyfriend/girlfriend relationship, which made them immaterial to the potential for recidivism in the workplace.

On review, a majority of the Wisconsin Supreme Court disagreed with LIRC and the Court of Appeals and ruled in favor of Cree, Inc. Specifically, the Wisconsin Supreme Court concluded that LIRC’s determination was based “on a common, but unsupported, belief that domestic batterers have a tendency to be violent only towards intimate partners,” which is different from how LIRC analyzes other non-domestic crimes of violence. Rather than focusing on immaterial comparative factors such as the domestic setting of Palmer’s convictions, the Court reasoned that domestic violence convictions should be analyzed in the same way the Court analyzes any other type of conviction—by comparing the circumstances that are material to fostering criminal activity. 

To do this, the Court considered the following factors:

  • Whether there are opportunities in the workplace that would allow a domestic violence perpetrator to recidivate (e.g. the ability to isolate victims in the workplace through lack of supervision or because of physical attributes of the workplace)
  • The character traits revealed by the elements of the crime of domestic violence (e.g. crimes of domestic violence demonstrate the character trait of an individual’s willingness to use violence against others and a desire to exert power and control over others).
  • The other relevant and readily ascertainable circumstances of the offense such as the seriousness and number of offenses, how recent the offense is, and whether there is a pattern of behavior.

After reviewing these factors in Cree, the Court concluded that the character traits shown by Palmer’s convictions, along with the seriousness, relative recentness, and emerging pattern to Palmer’s crimes, were sufficient to demonstrate a substantial relationship between Palmer’s convictions and the circumstances of the Applications Specialist job, which would have fostered opportunities for future violence. 

Takeaways for your business

The Court’s broad interpretation of the substantial relationship test in Cree is undoubtedly a win for employers, who may now confidently apply the same substantial relationship analysis to applicants with convictions for domestic violence as they would otherwise apply to applicants with convictions for other violent crimes. Outside of eliminating this nuanced distinction, however, the Wisconsin substantial relationship analysis remains largely unchanged. Wisconsin employers who believe an applicant’s conviction record may be prohibitive to employment because of a substantial relationship are strongly advised to consult with legal counsel before making any final employment decisions.  

For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Labor, Employment & Immigration Law Practice Group.

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