Feb. 5, 2024 – The prohibition in the Wisconsin Fair Employment Act (WFEA) against discriminating against an employee based on an arrest record does not apply to information related to civil charges, the Wisconsin Court of Appeals (District II) has held in Oconomowoc Area School District v. Gregory L. Cota, 2022AP1158 (Jan. 10, 2024).

Presiding Judge Mark Gundrum wrote the majority (2-1) opinion, joined by Shelley Grogan. Judge Grogan wrote a concurrence and Judge Lisa Neubauer dissented.

Brothers Fired

The Oconomowoc Area School District (District) fired Gregory and Jeffrey Cota after concluding that they’d sold scrap metal owned by the District and kept the proceeds.

The firings came after the District learned the following:

• each of the Cotas had been issued a municipal citation for theft;

• the municipal prosecutor told the District that he could prevail on the charges if the matter went to trial; and

• the Cotas agreed to resolve the charges by paying the District $500.

LIRC Finds for Brothers

The Cotas challenged their termination with the Labor and Industry Review Commission (LIRC).

They argued that the District had fired them because of an “arrest record,” in violation of Wis. Stat. section 111.321.

LIRC found that the District fired the Cotas based on their arrest records, in violation of section 111.321.

The District appealed. The Waukesha County Circuit Court upheld the LIRC decision. The District appealed.

Criminal or Civil?

Judge Gundrum began his opinion for the majority by explaining that section 111.321 prohibits an employer from engaging “in any act of employment discrimination … on the basis of … arrest record.”

Gundrum pointed out that section 111.32(1) defines “arrest record” as “information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.”

Judge Gundrum concluded that the term “or other offense” as defined in section 111.32(1) does not include civil offenses like the ones the Cotas had faced.

He reasoned that the terms “arrested, charged with, indicted or tried” as used in section 111.32(1) support a conclusion that, in enacting that section, the legislature had only criminal offenses in mind.

The Cotas argued that because Wisconsin has only felony and misdemeanor designations for criminal offense, the term “other offense” in section 111.32(1) must logically include civil offenses like the ones they were charged with, or it would be surplusage.

But Gundrum reasoned that section 111.32(1) “clearly looks beyond Wisconsin,” because it specifically references charges leveled by a military authority and the Uniform Military Code of Justice does not recognize the felony/misdemeanor distinction.

Judge Gundrum also pointed out that some states (Maine and New Jersey) no longer divide criminal charges into felonies and misdemeanors; the same was true, he noted, of several states in Australia.

As a result, Gundrum concluded that the legislature intended the term “other offense” as used in section 111.32(1) to mean criminal offenses charged in foreign jurisdictions, rather than civil offenses.

Statutory Canon

Judge Gundrum also reasoned that the statutory canon ejusdem generis supported the conclusion that “other offense” in section 111.32(1) was limited to criminal offenses.

That canon holds that when a phrase follows a list of specifics, it should be interpreted to include only items of the same class as the listed specifics.

“[‘Other offense’] follows a ‘list of specifics’ that includes only offenses from the criminal ‘class,’ specifically felony and misdemeanor,” Gundrum wrote.

“This consideration is further bolstered by the fact that, as previously noted, the actions listed under ‘arrest record’ are either exclusively or more commonly associated with criminal offense, not civil, municipal ones.”

Consequently, Judge Gundrum concluded, the District’s firing of the Cotas because of the civil charges did not constitute unlawful employment discrimination.

Dissent: Majority’s Meanings Are Too Narrow

Judge Neubauer argued in her dissent that by concluding that “other offense” in section 111.32(1) was limited to criminal offenses, the majority effectively read the words “any” out of the sentence fragment that reads “indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.”

“It is commonly understood that the legislature’s inclusion of the word ‘any’ in a statute typically signals an intent that the statute apply expansively to the items that follow,” Neubauer wrote.

Judge Neubauer also argued the majority’s consideration of the meaning of “arrest” as used in section 111.32(1) was too narrow.

“Focusing on one among many actions listed in the statute and layering a narrow dictionary definition of ‘arrest’ over the broader statutory definition runs afoul of our statutory interpretation methodology,” Neubauer wrote.

Neubauer argued that the majority compounded that error by failing to consider the broader meaning of “offense” given by Black’s Law Dictionary and several other dictionaries.

“Together, these sources reflect an understanding of ‘offense’ that is not confined to violations of criminal law but instead refer to violations of law more generally,” Judge Neubauer wrote.

Concurrence: Dissent Would Lead to Absurd Results

Judge Grogan wrote a concurrence to point out what she argued was the unreasonableness of Judge Neubauer’s dissent.

Grogan argued that interpreting “other offense” in section 111.32(1) to include civil offenses would lead to absurd results.

Judge Grogan pointed out that another provision of the WFEA, section 111.335(2)(b), allows an employer to discriminate against an employee for pending criminal charges if the charges are substantially related to the employee’s job.

But, she reasoned, if “other offenses” in section 111.32(1) were interpreted to include civil charges, section 111.335(2)(b) wouldn’t apply to an employee facing civil charges related to his or her employment.

“Thus, under the Dissent’s interpretation of ‘other offense,’ the District would have violated the WEFA for terminating the Cotas because their conduct was charged municipally but would not have violated the WEFA if the Cotas had been charged criminally even though the conduct resulting in the charge … was exactly the same,” Grogan wrote.