Wisconsin Capitol East Gallery, Supreme Court (Keith Ewing | Flickr CC BY-NC 2.0)
How, when and why can an employer reject a job applicant who has been convicted of domestic violence?
Wisconsin Supreme Court justices heard arguments Friday on that question, in a case testing the state’s fair employment practices law. The law says employers can’t disqualify a job applicant with a criminal record unless there is a “substantial relationship” between the crime and the job.
Cree Lighting, a Racine manufacturer, canceled a job offer in 2015 after a background check showed that the prospective hire had been convicted in violent attacks on his girlfriend in 2012, including strangulation and sexual assault. The question of whether Cree acted lawfully in rejecting the man has see-sawed back and forth as the case wound its way first through the Wisconsin’s Equal Rights Division and then through the courts.
Cree, which makes light-emitting diode (LED) lightbulbs and fixtures as well as a wide range of indoor and outdoor lighting systems, had initially offered Derrick Palmer a job laying out lighting arrays. Palmer had reported a past conviction for “domestic related charges,” and after further investigation the company withdrew its job offer. Palmer filed a complaint with the state Equal Rights Division, charging that Cree had illegally discriminated against him.
About half of Cree’s 1,000 or so Racine employees are women, according to the company. In addition, the position involved traveling to trade shows and meeting with customers. In legal proceedings and court documents defending its actions, Cree has argued that Palmer’s record showed he could endanger women with whom he would be working.
An equal rights investigator found that Palmer’s complaint had merit. After a hearing, however, a state administrative law judge ruled that Cree’s concerns were justified and dismissed the complaint.
Palmer appealed to the state Labor and Industry Review Commission (LIRC), which overturned the administrative judge’s ruling. The commission concluded that the domestic violence convictions weren’t relevant in the context of the job.
Cree then appealed in Racine County circuit court, where a judge rejected the LIRC ruling and sided with the company. The state appeals court took the case next, reversing the judge, upholding the LIRC decision that Cree had unfairly discriminated against Palmer. Cree then appealed that ruling to the Supreme Court.
Friday’s argument before the high court, which held its session in person in Port Washington, revolved around whether the company was justified in rejecting Palmer, as well as how much latitude employers should have to judge whether a past conviction was “substantially related” to a particular job.
This case is about an employer’s right, and its obligation, to protect its employees, its customers and the public from harm...
– Cree Lighting lawyer Robert Duffy
“This case is about an employer’s right, and its obligation, to protect its employees, its customers and the public from harm by refusing to employ someone who was convicted of repeatedly suffocating, strangling, battering and sexually abusing women,” said Robert Duffy, a lawyer for Quarles & Brady in Milwaukee, representing Cree.
In its original ruling, LIRC concluded that Palmer’s convictions weren’t sufficiently related to the job to justify not hiring him. But the commission’s ruling also acknowledged that his crimes had shown a series of character traits, including, Duffy said, “the use of violence to achieve power or control or to solve problems, the inability to control anger, frustration, or other emotions [and] the lack of respect for authority.”
The size and layout of Cree’s Racine plant would have allowed Palmer to easily attack female coworkers undetected and out of sight of security cameras, Duffy said, while out-of-town travel to trade shows or visits with Cree customers could have put women with whom he interacted, whether co-workers or clients, at risk. All of those details were enough to establish that Palmer’s convictions in the attacks on his girlfriend were “substantially related” to the job, Duffy argued.
“It has to be the public policy that an employer has to protect individuals, its employees, its customers, its public from violence,” Duffy said. “And violence at home and violence in any other setting is related.”
According to the lawyer representing LIRC, however, Cree’s description of the prospective work circumstances did not meet the test of being “substantially related” to Palmer’s convictions.
The only crimes he’s been convicted of are ones in this domestic setting.
– Anthony Russomanno, attorney for Labor and Industry Review Commission
Palmer has never been convicted of “even getting in a bar fight,” said Anthony Russomanno, an assistant state attorney general. The man’s convictions were for “very alarming crimes,” he added. “But the only crimes he’s been convicted of are ones in this domestic setting.”
But Justice Patience Roggensack suggested that the character traits Duffy had described could surface in his work. “He’s got to work with women who may come against what he thinks is correct — and his having to have his own way with violence, which is his history,” Roggensack told Russomanno.
The fair employment law, the lawyer replied, “requires more than that …. hypothetical situation” to make the connection.
Justice Jill Karofsky noted that a person who commits domestic violence isolates the victim. She asked whether the job would have given Palmer the “opportunity” to use violence in a conflict with a woman coworker in an isolated situation. Russomanno responded that there had been no evidence the job would have “put him in close, isolated contact with women in the sort of isolated setting that I think you’re describing.”
“What I’m hearing you say,” Chief Justice Annette Ziegler told Russomanno, “is domestic violence incidents like these would really pretty much never be part of an analysis” of a crime’s relevance to a job.
“I think it would depend on the job,” Russomanno replied. There was no evidence, he added, that Palmer would have been “in a small office where it’s isolated,” or working with, mentoring or supervising individual women. “He’s just another guy …. in this cubicle farm.”
I’m struggling to see how an argument could be made that this particular job is not substantially related to these horrific convictions...
– Justice Rebecca Bradley
None of those arguments appeared to persuade Justice Rebecca Bradley. “What about his co-workers?” she asked. “What about the woman who might have to share a rental car with him, who may not even have any knowledge of his convictions, who might not take steps to protect herself against somebody who has demonstrated proclivity for extraordinary violence against women?
“I’m struggling to see,” she continued, “how an argument could be made that this particular job is not substantially related to these horrific convictions, or vice versa.”
Russomanno said by requiring a “substantial relationship” between the crime and the job, the law sought to balance public safety with fostering rehabilitation. That requires scrutiny, he argued, “to see, is there really something about this job that really, especially, raises the risk, when you look at the particulars of that person’s offense?”
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Justice Rebecca Dallet suggested that Duffy was saying “it’s up to the employer” to decide what character traits could be attributed to an applicant with a criminal record. In the exchange that followed, Duffy complained that LIRC’s own opinions conflicted.
He cited one case in which the commission upheld the rejection of an applicant for violence in the home. And he asserted that in another instance, when LIRC found no reason to block an applicant with a domestic violence conviction, the analysis was “inappropriate.” “Violence is violence,” Duffy said, “whether it happens at home or somewhere else.”
Justice Brian Hagedorn pointed out to Duffy that the fair employment law didn’t exclude people from protection if they had been convicted of specific crimes.
“The Legislature could have exempted sexual assaults, it could have exempted battery, it could have exempted all sorts of crimes” from coverage, Hagedorn said. “But the Legislature has made a policy choice that says you cannot discriminate against people on the basis of their conviction record … unless there is a substantial relationship — not just a relationship” to the job.
To meet the test of “a substantial relationship,” Duffy responded, “we’re not going to force employers to employ people who could create a serious risk of harm in the workplace.”
If you're a felon, you cannot work at Cree. That's a violation of the statute.
– Alan Olson, job applicant's lawyer
After 47 minutes of arguments over how broadly or narrowly the law defines “a substantial relationship” between a crime and a job, Palmer’s lawyer raised a separate issue. The attorney, Alan Olson, asserted that testimony in the case had shown that Cree used an analytical matrix to categorically exclude all applicants with felony convictions.
“If you’re a felon, you cannot work at Cree,” Olson said. “That’s a violation of the statute.” He urged the justices “to make a declaration that Wisconsin employers are not allowed to apply a categorical chart or matrix that excludes all felons from working in their facility, cleaning toilets, or scraping gum off the floor — because that is exactly what they do.”
Justices questioned that assertion, noting the specifics of the conviction and Cree’s assessment of the relationship with the particular job he had been offered before being rejected. Hagedorn, however, said the allegation Olson raised was beyond the scope of the case they were hearing.
“The only statutory question that I think we’re being asked to address is whether this particular decision not to hire … violates the statute or not,” Hagedorn said — not whether “they were violating the statute wholesale.”
Duffy, in his final words to the court, also disputed Olson’s broader allegation. The analytical matrix “was a guideline to be looked at generally,” he said, but the decision was based on “the individual circumstances of the job and the opportunity to harm.”
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