Dec. 9, 2020 – An employer unlawfully discriminated against a job applicant based on the applicant’s conviction record, a state appeals court has ruled.

Derrick Palmer filed a complaint with the Wisconsin Department of Workforce Development after Cree Inc. (Cree) rescinded a job offer to be a lighting schematic layout applications specialist. Cree manufactures and sells LED lighting products.

An administrative law judge concluded Cree did not unlawfully discriminate, but the Labor and Industry Review Commission (LIRC) reversed.

A circuit court reversed LIRC, also concluding Cree did not unlawfully discriminate. But in Cree Inc. v. LIRC, 2019AP1671, a three judge panel for the District II Appeals Court reversed the circuit court, concluding Cree did unlawfully discriminate against Palmer.

Not Substantially Related

Cree posted the job for its Racine location. They wanted someone to “perform a mixture of design, presales and post sales customer support responsibilities.”

A successful hire would also make design and installation recommendations, create sit plans, perform energy calculations, and interact directly with customers.

Palmer, if hired, would have worked in a 600,000-foot facility with more than 1,000 employees, half of them women. He would have worked in a cubicle but have access to the whole facility, which has security cameras mainly in areas with high-injury risk.

The job required regular interaction with customers and occasional travel to visit clients or attend trade shows. Cree offered Palmer the job conditioned on a drug screen and background check.

The background check revealed that Palmer was previously convicted for strangulation/suffocation, fourth degree sexual assault, battery, and criminal damage to property. After learning this, Cree rescinded the job offer, leading to the complaint.

LIRC determined that Cree rescinded the offer solely based on Palmer’s conviction record and Cree did not meet its burden to demonstrate that his convictions “substantially related” to the job for which Palmer was applying.

Under Wis. Stat. section 111.335(3)(a)1, it is not unlawful discrimination to refuse employment 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.” The key is whether the job is substantially related to the conviction.

The appeals court agreed with LIRC, which had concluded that the mere presence of women in the workplace could not form the basis for finding that the job substantially related to the convictions, which included crimes stemming from domestic violence.

“It cannot be found based on this record that the complainant would have had significant personal interactions with female employees in the context of his job,” LIRC concluded.

The appeals court noted the purpose of the substantial-relationship test is to assess “whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed.”

Palmer’s criminal record, which arose from domestic incidents, suggests he could be violent toward woman in a domestic relationship, the appeals court noted.

“The question is whether Cree met its burden to show that Palmer’s past domestic abuse is substantially related to the circumstances of the Applications Specialist job Palmer applied for,” wrote Judge Mark Gundrum “Based upon LIRC’s findings, to which we are limited, we cannot conclude that it has.”

The appeals court agreed that it would be speculative to conclude Palmer would develop a domestic relationship based on the job and “mere contact with others at the facility and on the job is not substantially related to Palmer’s domestic violence.”

The appeals court noted the legislature did not exempt Palmer’s specific convictions from protection against conviction-based discrimination, and Palmer did his time.

“Cree’s position appears to be less focused on the circumstances of the particular job Palmer applied for and more focused on the general sense that Palmer is not fit to be unconfined from prison and participating in the community at all due to his prior crimes, even though he has long since finished serving the confinement portion of his sentence,” Judge Gundrum wrote.