STEPHEN LEE, Complainant
BED, BATH & BEYOND, Respondent
An administrative law judge (ALJ) for the Equal Rights Division (ERD) of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties. Based on its review, the commission agrees with the decision of the ALJ.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed August 14, 2009
leestep4 . rsd : 115 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Wisconsin Statutes § 111.321 states as follows, in relevant part:
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...arrest record, conviction record...
Wisconsin Statutes § 111.322 states as follows, as relevant here:
111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:
...(2)To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any basis enumerated in s. 111.321.
The employment application at issue here states as follows, in relevant part:
Have you ever been convicted of a felony? (Note: Do not answer "yes" or provide any information regarding the following: (A) arrests that did not lead to a conviction, (B) convictions that have been sealed, expunged, dismissed, or otherwise eradicated by state or court order)
The complainant, as in his other cases, argues that this request violates Wis. Stat. § 111.322 because it constitutes an inquiry in an employment application expressing or implying a limitation, specification, or discrimination on the basis of arrest/conviction record.
However, because the Wisconsin Fair Employment Act (WFEA) of which Wis. Stat. § 111.322 is a part, permits an employer to make employment decisions based upon an applicant's conviction record if the circumstances of the offense are substantially related to the circumstances of the particular job, it is implicit that it is not a violation of the WFEA to request conviction record information from an applicant. See, Haynes v. National School Bus Service, Inc., ERD Case No. 8751901 (LIRC January 31, 1992); Jackson v. Klemm Tank Lines, ERD Case No. CR200205060 (LIRC April 29, 2005)(not violation of Wis. Stat. § 111.322 for prospective employer to request information as to applicant's conviction record); Lee v. Milwaukee County, supra. The question in the Bed, Bath & Beyond employment application as to the applicant's conviction record would not, as a result, constitute prohibited discrimination within the meaning of Wis. Stat. § 111.322(2), and the complainant has failed to state a claim for relief under the WFEA.
The complainant argues that, unlike the application inquiries in his prior cases, the inquiry on the Bed, Bath & Beyond application at issue here also states, "Do not answer 'yes' or provide information regarding...arrests that did not lead to a conviction." The complainant appears to be arguing that this statement necessarily implies that the applicant is being asked to provide arrest record information in regard to arrests that did lead to convictions, thereby violating Wis. Stat. ? 111.335(1)(a) (1). An individual is convicted of a crime only if he has been previously arrested/charged with this crime. Once he is convicted, the record of this arrest/charge becomes part of the conviction record, and is no longer appropriate for separate analysis pursuant to Wis. Stat. § 111.335(1)(a). The statement in its application was obviously an attempt by Bed, Bath & Beyond to forestall applicants from providing arrest record information. To adopt the complainant's theory that this actually resulted in a violation of Wis. Stat. § 111.335(1)(a) would lead to an absurd result.
In his arguments to the commission, the complainant implies that counsel for respondent, as set forth in detail in counsel's May 22, 2009, affidavit, engaged in improper ex parte communications with ERD. However, this affidavit indicates that the only information exchanged between counsel for respondent and ERD related to matters of public record as to prior charges filed by the complainant. This does not constitute a prohibited ex parte communication.
cc: Attorney Warren E. Buliox
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