P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR200204955, EEOC Case No. 26GA300763

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in review this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except as follows:

Finding of Fact 16 is deleted to more accurately reflect the commission's decision rationale. 


The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed July 11, 2005
ѕһеrіdа . rsd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


In February of 2001, the complainant was convicted of two felonies, second degree sexual assault of a child (Wis. Stat. 948.02(2)) (1)  and causing mental harm to a child (Wis. Stat. 948.04(1))  (2) ; and misdemeanor sex with a child 16 or older (Wis. Stat. 948.09) (3).  The victim of these crimes was the complainant's stepdaughter. 


The issue here is one of probable cause.

The provisions of the Wisconsin Fair Employment Act (WFEA) relevant here are as follows:

111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.36, no employer.. .may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of . ..conviction record...

11 1.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 11 1.36, it is an act of employment discrimination to do any of the following:

(1) To.. .terminate from employment...any individual, or to discriminate against any individual in.. .terms, conditions or privileges of employment.. .because of any basis enumerated in s. 111.321.

111.335(1) (c) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensing, any individual who:

1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity;...

The first question is whether the complainant was terminated "because of" his conviction record.

The respondent argues that, because it relied upon its own investigation of the complainant's conduct, consistent with the holding in City of Onalaska v. LIRC, 120 Wis. 2d 363, 367, 354 N.W.2d 22 (Ct. App. 1984), its termination of the complainant could not have resulted from discrimination "because of" his conviction record within the meaning of Wis. Stat. § 111.322. However, as the commission articulated in Swanson v. Kelly Services, ERD Case No. CR200203683 (LIRC Oct. 13, 2004), it would require a tortured interpretation of the underlying rationale in City of Onalaska to extend it beyond arrest record cases to conviction record cases, such as the one under consideration here.

Although the respondent took action only after learning of media publicity and customer complaints relating to the complainant's convictions, termination on that basis would be "because of' the convictions. See, Murray v. Waukesha Memorial Hospital, Inc., ERD Case No. 199901234 (LIRC May 11, 2001) (to the extent that the respondent made the termination decision because of its concern about the adverse media coverage which conviction attracted, it made the decision "because of" the conviction).

The commission concludes that the respondent's termination of the complainant was "because of'" his conviction record.

The next question then is whether the defense set forth in Wis. Stat. § 11 1.335(1)(c) is available to the respondent because the circumstances of the offenses for which the complainant was convicted substantially relate to the circumstances of his delivery driver job.

A determination of whether the circumstances of a criminal offense are substantially related to a particular job requires assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 824, 407 N.W.2d 908 (1987); Goerl v. Appleton Papers, Inc. (LIRC, October 5, 1992). As a general rule, the circumstances of the offense are gleaned from a review of the elements of the crime, and an inquiry into the factual details of the specific offense is not required. County of Milwaukee, at 823-824.

In Murphy v. Autozone, Inc., ERD Case No. 200003059 (LIRC May 7, 2004), the commission held that, in regard to the offense of second degree sexual assault of a child, one of the offenses of which the complainant here was convicted, the character traits revealed by having engaged in this crime are untrustworthiness with children, lack of judgment and inability to accept responsibility over children, and placing of one's own selfish desires ahead of the welfare of children.

These traits, considered in conjunction with the fact that, in his delivery driver position, the complainant had unsupervised contact with children, including children alone in their homes, establishes the existence of a substantial relationship within the meaning of Wis. Stat. § 11 1.335(l)(c).

The complainant argues that the holding in Murphy, supra, supports a contrary conclusion. The commission disagrees. In Murphy, the commission's conclusion that no substantial relationship had been established was clearly grounded on its finding that the complainant's job did not involve any contact with minors.

Although the record supports a conclusion that the complainant was terminated because of his conviction record, the respondent is not liable for discrimination because the circumstances of the complainant's convictions are substantially related to the circumstances of his delivery driver position.  

Terms and conditions of employment

The only term or condition of employment alleged as an adverse action by the complainant in his charge of discrimination was his alleged "demotion" to a 22.3 position on June 11, 2002, prior to his discharge on June 13. However, the record shows that this was not a demotion, but instead an offer of a temporary reassignment of duties during the period of investigation, consistent with the respondent's typical practice. It should also be noted in this regard that the complainant did not actually work in this assignment but opted instead to take two days of personal leave. The complainant failed to show that he was discriminated against in regard to this action.

It should also be noted in this regard that the respondent was not required to "accommodate" the complainant's criminal conviction by placing him in an assignment not substantially related to the circumstances of his conviction.

The complainant also argues that the respondent's alleged failure to properly apply the contractual just cause provision when it terminated the complainant's employment, is cognizable as an adverse term or condition of employment here and was discriminatory. Again, the complainant did not include this allegation in his charge of discrimination. Moreover, the proper avenue for litigating the just cause issue is through the contract grievance process. 

Evidentiary rulings

The commission agrees with each of the evidentiary rulings challenged by the complainant.

The ALJ ruled that the testimony of the complainant's treating psychologist as to the complainant's individual character traits and his likelihood of re-offending was irrelevant. This is the proper ruling since it is not the individual's unique character traits which are relevant to determining whether the substantial relationship test is satisfied but instead the character traits necessarily exhibited by an individual who commits a particular offense, as gleaned from an examination of the elements of the offense. County of Milwaukee, supra. Moreover, the likelihood that an employee will re-offend is generally immaterial to this analysis. See, e.g., Jackson v. Summit Logistics Services, Inc., ERD Case No. CR200200067 (LIRC Oct. 30, 2003); Villarreal v. S. C. Johnson and Son, Inc., ERD Case No. CR199903770 (LIRC Dec. 30, 2002).

The ALJ also ruled that the testimony of certain probation officers as to required sex offender notices was irrelevant. Apparently, these probation officers would have testified to their efforts to "make arrangements" with the respondent to "minimize the need for sex offender notices to be sent to customers," thereby minimizing potential damage to the public's trust in the respondent through nondisclosure or limited disclosure of the complainant's convictions. Once again, however, the substantial relationship test is an objective one, and evidence as to such post-conviction actions or impact is irrelevant to its application.

Finally, the complainant challenges the ALJ's ruling excluding the circuit court judge's order as to the conditions of his probation. According to the complainant's unrebutted testimony, this order permitted the complainant to continue in his delivery driver position for the respondent. The complainant argues that this order should resolve the substantial relationship issue here. However, the judge was not interpreting the WFEA when he issued his probation order, but instead criminal sentencing and probation requirements. The legal issue presented-here is for the commission to decide, not the judge who sentenced the complainant and imposed the terms of his probation. See, e.g., Collins v. Milwaukee County Civil Service Commission, ERD Case No. 8822724 (LIRC March 8, 1991). The complainant also contends that the judge's findings on whether complainant posed a risk for recidivism or posed a risk to the public are relevant to the issue of substantial relationship. Again, however, the substantial relationship test is an objective one, and evidence as to an individual's likelihood of re-offending is generally irrelevant. See, Jackson, supra.

Attorney Sally A. Stix
Attorney Mary Pat Ninneman

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(1)( Back )  (2) Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony.

(2)( Back )  (1) Whoever is exercising temporary or permanent control of a child and causes mental harm to that child by conduct which demonstrates substantial disregard for the mental well-being of the child is guilty of a Class F felony.

(3)( Back )  Whoever has sexual intercourse with a child who is not the defendants spouse and who has attained the age of 16 years is guilty of a Class A misdemeanor.


uploaded 2008/07/15