Wisconsin’s Supreme Court recently made a decision providing guidance for employers when considering domestic violence convictions on applicants’ criminal history checks.
The March 10, 2022 ruling in Cree, Inc. vs. Lab. & Indus. Rev. Comm’n (Labor and Industry Review Commission, or LIRC) indicated that an employer lawfully rescinded a job offer when it learned of an applicant’s domestic violence convictions.
The Supreme Court’s 4-3 decision is a reversal on LIRC’s decision that a domestic violence conviction does not pass the “substantial relationship” test regarding employment in a non-domestic setting.
What is a “substantial relationship” test?
The “substantial relationship” test is an exception to Wisconsin’s rule barring employers from discriminating against an applicant based on a record of prior conviction. If an individual has been convicted of a felony or misdemeanor that is “substantially related” to the job in which the individual is applying for, an employer may refuse to employ the individual.
Employers must show that the circumstances of the applicant’s conviction(s) are substantially related to the circumstances of potential employment. The majority ruling in the Wisconsin Supreme Court’s decision said that the test “does not require an exact identity between circumstances” between the conviction and the job, but that it 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.”
The majority decision said the court must “look beyond any immaterial identity between circumstances—such as the domestic context of the offense or an intimate relationship with the victim—and instead examine the circumstances material to fostering criminal activity.”
These circumstances, as defined by the majority, are:
- The opportunity for criminal behavior in the workplace (ability to isolate victims),
- The reaction to responsibility, and
- Character traits revealed by the elements of a crime of domestic violence (willingness to use violence).
Derrick Palmer applied for employment as an Applications Specialist at Cree, Inc. in 2015, a company that makes lightbulbs and outdoor lighting systems. The position is held at Cree’s Racine, Wisconsin facility, a large campus housing more than 1,000 employees. The Applications Specialist position, which designs lighting systems, consists of fairly independent work, little supervision, and requires occasional visits to clients’ homes, as well as travel to trade shows.
Cree gave Palmer a conditional offer of employment, pending the results of a background check. The criminal background check showed a domestic violence conviction from 2013, in which Palmer had pleaded no contest to felony strangulation and suffocation, misdemeanor battery, sexual assault, and criminal damage to property. Cree then rescinded Palmer’s employment offer, saying the job would have put Palmer in close proximity to women coworkers and clients, and that his convictions showed he could endanger them.
Palmer then filed a complaint with the Wisconsin Department of Workforce Development’s Equal Rights Division. Described by Wisconsin’s Supreme Court as “seesawing,” the decision was reversed at each level of appeal:
- An Administrative Law Judge determined Palmer’s convictions did substantially relate to the job for which he had applied.
- Palmer appealed to the LIRC, which reversed, determining that Palmer’s convictions did not substantially relate to the job.
- Cree appealed to the Circuit Court, which reversed once again, holding that Palmer’s convictions did substantially relate to the job.
- Palmer appealed to the Court of Appeals, which then reversed the Circuit Court, deciding that Palmer’s convictions may indicate that he would be violent to another woman in the future, but not necessarily that his violence would occur in the workplace.
- Cree then petitioned for review with the Wisconsin Supreme Court.
What does this mean for employers in Wisconsin?
Employers in Wisconsin will now be able to base employment decisions on domestic violence convictions, provided the conviction is substantially related to the job for which the applicant has applied, as defined by the majority decision outlined above. While employers need to individually assess the nature of the conviction against the nature of the job, domestic violence convictions no longer need to be treated any differently than other violent crimes.