STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RICK JACKSON, Complainant

CLASEN QUALITY COATINGS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200903151


An administrative law judge for the Equal Rights Division 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, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT

1. The respondent, Clasen Quality Coatings, Inc., (hereinafter "respondent"), is a company that manufactures confectionary coatings and chocolate.

2. The complainant, Rick Jackson, (hereinafter "complainant") is an individual with a criminal conviction record.

3. On or about September 9, 2009, the respondent posted a job announcement for a part-time tanker driver. The advertisement provided, in relevant part:

REQUIREMENTS:
. . .
* Have an acceptable driving record, which means you cannot have:
* One or more Major Violations within the past five (5) years. Major violations for our purposes are defined as:
* Driving while intoxicated or impaired or under the influence of drugs.
* Criminal conviction (e.g., felony, negligent homicide, manslaughter, hit and run, etc.)
* Speed in excess of 20 MPH over the speed limit.
* Three or more At-Fault Accidents and/or Other Moving Violations in the past three (3) years
* Two or more At-Fault Accidents and/or Other Moving Violations in the past year
* Driving with a revoked license conviction
* Reckless driving conviction

4. The advertisement posted by the respondent expressly states that anyone who has been convicted of a crime in the last five years does not meet the requirements for the job.

5. The complainant saw the job announcement on September 9 or 10, 2009. He immediately sent a letter to the respondent's human resources manager, in which he stated, in part:

I am inquiring about the job ad and I would like to arrange an appointment for an interview at your human resource office.

I appear to meet your company requirements to be considered as an applicant.

I do have an unusual question pertaining to your requirements section.

The question mentions criminal convictions (e.g. felony, negligent homicide, manslaughter, hit and run, etc.

I have a total of nine felony convictions two counts of armed robbery, two counts of aggravated battery, two counts of unlawful restraint, one count of armed violence, one count of residential burglary, and one count of home invasion.

. . .

Can you please fax me back and let me know if I can speak to the President of the company or yourself. If not please let me know via fax if there is absolutely no way Clasen Quality Coating, Inc. will ever consider any felons regardless of their qualifications. . . .

6. On September 14, 2009, the complainant filed a complaint with the Equal Rights Division alleging that the respondent discriminated against him by failing to hire him as a tanker driver based upon his conviction record, and by printing and circulating a discriminatory advertisement.

7. On or about September 25, 2009, the respondent's human resources manager, Abby Schuette, sent the complainant a letter inviting him to submit an application for the job. Ms. Schuette was not aware that the complainant had filed a discrimination complaint.

8. The complainant received Ms. Schuette's letter but did not submit an application.

Based on the FINDINGS OF FACT above, the commission hereby makes the following:

CONCLUSIONS OF LAW

1. That the respondent engaged in an act of discrimination by printing or circulating or causing to be printed or circulated an advertisement which expressed an intent to discriminate based on conviction record, in violation of the Wisconsin Fair Employment Act.

Based on the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:

ORDER


1. That the respondent shall cease and desist from printing or circulating or causing to be printed or circulated an advertisement which expresses an intent to discriminate based on conviction record, in violation of the Wisconsin Fair Employment Act.

2. That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).

Dated and mailed June 28, 2012
jacksri . rmd : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION


Procedural background

On September 14, 2009, the complainant filed a complaint with the Equal Rights Division alleging that the respondent discriminated against him by failing to hire him as a tanker driver based upon his conviction record, and by printing and circulating a discriminatory advertisement. The department issued an initial determination finding probable cause on the advertisement issue and no probable cause on the failure to hire issue. The complainant did not appeal the finding that he was denied hire based upon his conviction record. The matter was therefore certified to hearing solely on the question of whether the respondent violated the law by printing a statement which implied or expressed discrimination.

A hearing was held in this matter on August 3, 2010. During the hearing the administrative law judge advised the complainant that, because there was an unappealed finding of no probable cause on the failure to hire issue, he would not receive evidence regarding what would have happened had the complainant been considered for employment.

On October 3, 2010, the administrative law judge issued a decision finding that the respondent violated the statute by printing a statement that implied or expressed unlawful discrimination based upon conviction record and ordered that the respondent cease and desist from printing such statements. In a memorandum opinion accompanying the decision the administrative law judge noted that the complainant's failure to file an appeal of the probable cause finding meant that, even if there was the potential to award him any remedy based on the finding in this decision, it could not be granted. Both parties have filed petitions for commission review.

Respondent's petition

Wisconsin Stat. § 111.322(2), provides that it is an act of employment discrimination to do the following:

To print or circulate or cause to be printed or circulated any statement, advertisement or publication, . . . 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.

One of the bases enumerated in s. 111.321 is conviction record.

The advertisement at issue lists the following job requirements:

* Have an acceptable driving record, which means you cannot have:
* One or more Major Violations within the past five (5) years. Major violations for our purposes are defined as:
* Driving while intoxicated or impaired or under the influence of drugs.
* Criminal conviction (e.g., felony, negligent homicide, manslaughter, hit and run, etc.)
* Speed in excess of 20 MPH over the speed limit.
* Three or more At-Fault Accidents and/or Other Moving Violations in the past three (3) years
* Two or more At-Fault Accidents and/or Other Moving Violations in the past year
* Driving with a revoked license conviction
* Reckless driving conviction

In its petition for commission review the respondent contends that the qualifier in its advertisement is that the references which follow are all linked to the words "an acceptable driving record," such that the advertisement should be read as only focusing on criminal convictions that involve driving a motor vehicle. The commission does not find this argument persuasive. The advertisement indicates that an applicant cannot have had within the last five years a "criminal conviction (e.g., felony, negligent homicide, manslaughter, hit and run, etc.)" Nowhere does the advertisement specify that the criminal conviction prohibition is limited to convictions related to driving and, to the contrary, the fact that the ad contains examples of disqualifying convictions that are unrelated to driving, including any felony, suggests that no one with a criminal conviction will be qualified for the job. Further, the fact that the advertisement later specifies that an applicant cannot have three or more moving violations, cannot have driven with a revoked license, and cannot have a conviction for reckless driving, all of which directly relate to the applicant's driving record, supports a conclusion that the general prohibition against "criminal conviction[s]" is meant to apply to a broader range of convictions than just those pertaining to driving.

Although the respondent may have intended to only eliminate applicants with driving-related convictions, its advertisement says otherwise, and the commission believes that an individual with a conviction for a non-driving related felony, such as theft, would reasonably assume that he or she need not apply for the job. The administrative law judge's finding that the respondent violated the portion of the statute prohibiting printing or circulating an advertisement which implies or expresses discrimination with respect to conviction record is, therefore, affirmed.

Complainant's petition

Wisconsin Stat. § 111.39(4)(c) provides, in relevant part:

If, after hearing, the examiner finds that the respondent has engaged in discrimination. . ., the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay. . .

In a recent decision also involving this complainant the commission found, as follows:

. . . [W]hile instatement into the job and back pay are remedies that are potentially available for a violation of Wis. Stat. § 111.322(2), those remedies are only granted where the facts warrant a conclusion that, but for the respondent's act of discrimination, the complainant would have been hired for the job. . .

Note: The administrative law judge ruled that the complainant lost his opportunity to pursue instatement and back pay by failing to appeal the no probable cause determination that was issued with respect to the failure to hire portion of his complaint. The administrative law judge has not provided any authority for limiting the complainant's remedies on this basis, and the commission is not persuaded that the complainant should be foreclosed from receiving any remedies to which he would otherwise be entitled on the ground that he did not file an appeal of the no probable cause determination . . .

Jackson v. Dedicated Logistics, Inc., ERD Case No. CR200800665 (LIRC July 29, 2011).

As in the decision cited above, the commission is not persuaded that the complainant's failure to appeal the no probable cause determination issued in this case with respect to his failure to hire claim meant he could not pursue all available remedies associated with the respondent's discriminatory job posting, and it believes the administrative law judge erred in precluding the complainant from presenting evidence on this issue.

However, there is no reason to believe that such error resulted in any prejudice to the complainant. At the hearing the complainant raised no objection to the administrative law judge's ruling and made no offer of proof as to what evidence he would present if given an opportunity to do so. The complainant does not argue in his petition for review that there was additional evidence he wanted to present that would have established that he would have been hired in the absence of the discriminatory advertisement, nor does it appear that such evidence exists. The evidence adduced at the hearing established that the complainant was not deterred from applying for the job because of the wording of the advertisement. To the contrary, the complainant wrote a letter to the respondent advising it of his various criminal convictions, and the respondent replied that he should submit an application. However, the complainant did not do so. Even if it could be found that the complainant was dissuaded from applying because of the discriminatory job posting, the commission sees no reason to believe that the complainant would have been hired but for the respondent's act of discrimination, and the complainant has not identified any evidence that would establish this was the case.

The commission has rewritten the administrative law judge's decision to more fully set forth the relevant facts. However, the administrative law judge's finding that the complainant is not entitled to additional remedies beyond a cease and desist order is affirmed.

cc: Attorney John Zawadsky


Appealed to Circuit Court.  Affirmed, February 12, 2013.

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