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768 Arrest record/conviction record discrimination
768.01 Generally
While there might be a substantial relationship, pursuant to §111.335(1)(c), Stats., between complainant's attempted first degree murder conviction and the duties of an investigator/paralegal for respondent, the relationship was not so ineluctable that it could be concluded to be present as a matter of law. Respondent's motion to dismiss, made at the close of the complainant's case in chief arising from the decision not to hire him nearly 20 years after the conviction, was denied. Staples v. SPD, 95-0189-PC-ER, 8/11/98 (ruling by examiner)
A conclusion that there was no just cause for a discharge does not equate to a conclusion that respondent was illegally motivated. An employer’s mistaken belief or inability to prevail at a hearing or arbitration is not necessarily inconsistent with a good faith belief, independent of complainant’s arrest record, that discipline was warranted. However, the less support there is for the charges, the more likelihood there is of pretext. Russell v. DOC, 95-0175-PC-ER, 4/24/97
While the FEA prohibits the discharge of an employe because of his or her arrest record, it is clear that this prohibition does not extend to prohibiting an employer from discharging an employe because the employer determines that the employe engaged in conduct which is inconsistent with continued employment, merely because the conduct happened to result in an arrest. The employer does no violate the FEA so long as the disciplinary action is taken because of the underlying conduct and not because of the arrest and accompanying criminal charge. Russell v. DOC, 95-0175-PC-ER, 4/24/97
A respondent does not discriminate on the basis of arrest record merely because in its investigation into the employe's conduct it relies to some extent on information from the police department that had been developed in connection with complainant's arrest. Whitley v. DOC, 92-0080-PC-ER, 9/9/94
Even in a job where the circumstances are not especially conducive to committing the particular crime of which the employe has been convicted, the employer can consider the incompatibility between the personal traits important for a particular job and the personal traits exhibited in connection with the criminal activity in question. The personal qualities associated with the crime of arson, for which appellant had been convicted and was still serving his sentence, are incompatible with the qualities needed for a job that has responsibilities for the safety, direction and discipline of juvenile offenders. Thomas v. DHSS, 91-0013-PC-ER, 4/30/93
Commission of the crime of arson indicates a disregard for the welfare of people who may be unable to protect themselves, which is inconsistent with the expectations of responsibility associated with the position in question and its connection with the welfare of juvenile offenders confined in a juvenile correctional institution. Thomas v. DHSS, 91-0013-PC-ER, 4/30/93
Respondent's consideration of the elements of the crime, the requirements and responsibilities of the position in question, and factors related to the likelihood of recidivism, like length of time that the applicant remained crime free following the most recent conviction, were all acceptable factors to consider in the hiring decision. Thomas v. DHSS, 91-0013-PC-ER, 4/30/93
Where respondent relied on complainant's conviction record to make its hiring decision, its consideration of other information related to his status in the correctional system was related to an assessment of the risks that would be associated with his employment at a juvenile institution and was not a separate form of conviction record discrimination. Thomas v. DHSS, 91-0013-PC-ER, 4/30/93
Only an understanding of the statutory elements of the conviction is required in an "elements only" analysis. Those facts found in a criminal indictment or information would usually be required only when the conviction is for an unspecific offense such as that of disorderly conduct. Retail theft falls within the category of convictions where the type of offensive circumstances is explicit and consideration of the criminal information is not required. Perry v. UW-Madison, 87-0036-PC-ER, 5/18/89
768.02(1) Finding of probable cause
Probable cause was found with respect to an allegation arising from a constructive discharge where complainant, who had been convicted of second degree sexual assault, was employed as an institution aide at Winnebago Mental Health Institute, he had been employed with respondent for nearly three years, had not been asked as part of his employment application whether he had a conviction record, the institution had no written policy regarding employment of persons with conviction records and did not screen job applicants or employes on the basis of conviction records, one of his supervisors at the institution had been aware of complainant's criminal record for some time but took no action, and where there was no dispute that the discharge was because of his criminal record. Snow v. DHSS, 86-0051-PC-ER, 6/20/88
768.02(2) Finding of no probable cause
Respondent did not discriminate against complainant on the basis of his conviction record when his supervisor and lead worker contacted complainant’s probation agent in relation to complainant’s extended unauthorized absences from work. Complainant filled a position which required the employment of an ex-offender and the position had a significant rehabilitation component in addition to the traditional components of an employment relationship. Perrien v. DOC, 95-0031-PC-ER, 7/2/97
Respondent did not discriminate against complainant on the basis of arrest record when it terminated his employment as a correctional officer as a result of an altercation with his daughter’s estranged husband. Respondent’s investigation included perusal of the police report of the incident which led to complainant’s arrest and other documents related to the criminal proceeding, including statements by witnesses. The investigation resulted in the conclusion that complainant, while in uniform, assaulted his son-in-law and failed to report his arrest to his supervisor. Russell v. DOC, 95-0175-PC-ER, 4/24/97
Complainant failed to sustain his burden of proof as to his claim of discrimination based on conviction record arising from a decision to terminate his employment where evidence showed that the decision to terminate complainant’s LTE employment was based on his misconduct during his prior employment with the agency and that respondent would have reached the same decision to terminate his employment regardless of whether he had been criminally convicted with regard to that underlying misconduct. Rohland v. DATCP, 96-0080-PC-ER, 3/26/97
In dictum, the Commission noted that even if the complainant had established that respondent terminated his employment due to his conviction record, respondent would have been able to avail itself of the exception to the prohibition against conviction record discrimination given the relationship between the kind of criminal activity for which the complainant was convicted, which involved falsifying work reports, and the potential for such activity in the LTE moth trapper position. Complainant’s conviction indicated a lack of honesty and responsibility which was inconsistent with the need to function relatively independently in the new moth trapper position. Rohland v. DATCP, 96-0080-PC-ER, 3/26/97
No probable cause was found with respect to a decision not to reinstate complainant to a BMH 2 position where it was undisputed that the appointing authority was applying a policy that former employes with disciplinary records were not rehired in the absence of extenuating circumstances and the appointing authority was not even aware of the complainant's arrest until complainant himself brought it up during discussions about the record of discipline. Ames v. UW-Milwaukee, 85-0113-PC-ER, 12/23/88
No probable cause was found with respect to a decision to terminate the complainant's employment as an LTE where the respondent had concluded, based on a reasonable though not foolproof procedure for checking on the complainant's presence at various times during the work day, that the complainant had been falsifying his hours. The fact that complainant returned to work after a first arrest undermined complainant's contention that the termination decision, made after a second arrest, was motivated by that arrest or by an earlier conviction. Pugh v. DNR, 86-0059-PC-ER, 9/26/88
No probable cause was found with respect to the termination of complainant's employment, where complainant, a probationary employe who was handicapped, missed four consecutive days of work after he was arrested, where complainant could not say when he would be released from jail and return to work and where there was an immediate need to have someone perform the complainant's duties. No evidence was presented showing that complainant was treated differently than other probationary employes who missed several work days. Brummond v. UW-Parkside, 83-0045-PC-ER, 5/30/86
The complainant, who had an arrest record of which the respondent was aware, and who was discharged, failed to establish his job performance was satisfactory, where he did not complete his assigned work, was verbally abusive and threatening to both coworkers and supervisors, was threatening toward and made off-color remarks about members of the public with whom he came into contact and had unexcused absences/tardiness. Even if he had established a prima facie case, complainant failed to establish that the unsatisfactory work record was pretextual. Brummond v. UW-Parkside, 83-0045-PC-ER, 5/30/86
No probable cause was found with respect to a selection decision for an investigator position in the Wausau area where the successful candidate, who did not have a conviction record, had a wider range of and a great deal more relevant experience than complainant who had a conviction record. No pretext was demonstrated where during the complainant's interview, one interviewer stated that complainant's experiences due to his status as an ex-offender were less useful in the Wausau area where most crimes were committed by 11white farm boys" and the other interviewer stated he was not generally impressed with the work of "jailhouse lawyers", and where the interviewers were acquainted with the successful candidates prior to the interview and prior to the certification. Brownlee v. State Public Defender, 83-0107-PC-ER, 12/6/85
No probable cause was found as to the respondents' decision not to select complainant for vacant Building Maintenance Helper 2 positions where each successful applicant had a higher interview score than the complainant and a more stable work record and there was no showing that the selection criteria applied by the respondent were not reasonably job-related, even though complainant may have had more custodial experience than some of the successful candidates. Brummond v. UW-La Crosse, 84-0178-PC-ER, 10/10/85
768.03(1) Finding of discrimination
Respondent's decision to terminate the complainant's employment as an Institution Aide at a mental health institution was illegal where management knew when complainant was hired about his criminal conviction in 1980 and after more than two years of employment, complainant was arrested and while this charge was pending, the respondent decided to terminate him. The respondent's professed reliance on the 1980 sexual assault conviction as a basis for the discharge was pretextual where the employer had no policy in place concerning conviction records, including no practice of screening job applicants with respect to conviction records. Snow v. DHSS, 86-0051-PC-ER, 4/11/89
768.03(2) Finding of no discrimination
Respondent did not discriminate on the basis of arrest/conviction record or retaliate against complainant for FEA activities regarding its decision to reprimand him, even though other employes similarly situated were not reprimanded, where at the time the reprimand was imposed, the supervisor did not have knowledge of the actions of the other employes and management revoked the reprimand thereafter. Erickson v. WGC, 92-0207-PC-ER, 92-0799-PC, 5/15/95
Where respondent conducted its own investigation of complainant's conduct (which served as the basis for complainant's arrest and charge) and reached its own decision that complainant had been involved in an altercation with a female neighbor, had threatened the neighbor when she was in her car, had blocked her car and had kicked her car, respondent's decision to discharge the complainant was not motivated by complainant's arrest record but was motivated by his conduct. Whitley v. DOC, 92-0080-PC-ER, 9/9/94
Respondent showed it would have made the same decision to terminate complainant's probationary employment absent his arrest where complainant failed to report his arrest, in violation of work rules, and respondent has a policy to terminate probationary employes who have a work rule violation. Thomas v. DOC, 91-0161-PC-ER, 4/30/93
Respondent did not discriminate against complainant on the basis of arrest/conviction record when it failed to hire him for a food service worker position at a juvenile correctional institution where appellant was currently serving a sentence for arson and the personal qualities associated with the crime are incompatible with the desirable traits needed for a position that has responsibilities for the safety, direction and discipline of juvenile offenders in an institution. Thomas v. DHSS, 91-0013-PC-ER, 4/30/93
No discrimination was found where the complainant, who had a conviction record for retail theft, was not hired for a relief security position. The single conviction for intentionally taking merchandise from a merchant evidenced a disregard for the property rights of others and indicated personal qualities contrary to the security responsibilities assigned to the position which had the prevention of theft as its primary goal. The employe in the position effectively had total access to 22 campus buildings, including 19 dormitories and worked independently and without supervisory contact for 90% of the time. The fact that the conviction occurred a year before the non-selection did not make the offense "old news." Perry v. UW-Madison, 87-0036-PC-ER, 5/18/89
Respondent's concern expressed over potential litigation if complainant, who had a conviction record for retail theft, would be hired for a relief security position was a recognition of one of the two competing interests in the FEA's prohibition against discrimination based on conviction record and was not an illegal motive. Perry v. UW-Madison, 87-00360PC-ER, 5/18/89
No discrimination was found with respect to a decision not to reinstate the complainant to a vacant FRW 3 position where the decision-maker considered another candidate to be better qualified, the decision-maker had not been overly impressed by complainant's work habits during his prior employment and the decision-maker was concerned about a work rule violation that had occurred when the complainant was smoking and possessing marijuana on the job but was not concerned about the associated arrest. Ames v. UW-Milwaukee, 85-0113-PC-ER, 12/23/88
Where the complainant did not have a past arrest record, it was not discrimination on the basis of arrest record for the respondent to have discharged him in part for possession of a concealed weapon while at work, where such conduct also was the basis for his arrest. Buller v. UW, 80-PC-ER-49, 10/14/82; factual findings modified by order on 12/2/82; appeal dismissed by Dane County Circuit Court, Buller v. Pers. Comm., 83-CV-8, 12/14/89
Assuming that the complainant established a prima facie case in a hearing on a complaint of discrimination on the basis of arrest/conviction record, it could not be found that the reasons for termination of probationary employment were pretextual, where the complainant was caught playing checkers on the job and drinking in the dormitory at the Corrections Academy at Oshkosh, had failed to prepare written assignments, and had been the subject of reports of inadequate performance by co-workers. The complainant was unable to show that he had been treated unequally, as while it was established that drinking at the academy was a "tradition", this was an unusual situation as it was the only known case where trainees had been caught and reported back to the employing institution, and all of the involved WCI-GB employes were counseled after their return to the institution. Peters v. DHSS, 80-PC-ER-122, 3/19/82
768.04 Prima facie case
Complainant failed to establish a prima facie case with respect to the information provided him by his employer relating to the filling of a vacant position, where one of the two people that complainant claimed he was treated differently than in this regard, also had a conviction record. Perrien v. DOC, 95-0031-PC-ER, 7/2/97
The complainant, who had an arrest record of which the respondent was aware, and who was discharged, failed to establish his job performance was satisfactory, where he did not complete his assigned work, was verbally abusive and threatening to both co-workers and supervisors, was threatening toward and made off-color remarks about members of the public with whom he came into contact and had unexcused absences/tardiness. Even if he had established a prima facie case, complainant failed to establish that the unsatisfactory work record was pretextual. Brummond v. UW-Parkside, 83-0045-PC-ER, 5/30/86
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.