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



ERD Case No. 199903353

An administrative law judge (ALJ) 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 ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


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

Dated and mailed June 27, 2001
schrost . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


In the petition for commission review the complainant argues that the allegations set forth in the criminal complaint were not substantially related to his employment. The complainant contends that the actions taken by the employer, as well as its claims that the arrest was substantially related, were directly contradicted by the employer's own Employee Handbook, and that the substantially related claim is an after-the-fact-pretextual effort to justify the respondent's noncompliance with the Fair Employment Act. These arguments lack merit.

The substantial relationship defense does not require the employer to demonstrate that it concluded at the time of the employment decision that the circumstances of the offense were substantially related to the circumstances of the job. To the contrary, the substantial relationship test is an objective legal test which is meant to be applied after-the-fact by a reviewing tribunal. See Santos v. Whitehead Specialties (LIRC, February 26, 1992), and cases cited therein. Thus, the relevant question is not whether the respondent made an independent determination that the complainant had engaged in conduct prohibited under its rules and policies, but whether there was an objective basis for the administrative law judge to conclude that the circumstances of the offenses with which the complainant was charged were related to the circumstances of his job. The commission agrees with the administrative law judge that such a substantial relationship exists.

The complainant was suspended indefinitely from his employment after being arrested and charged with manufacture of a controlled substance; possession with intent to manufacture, distribute or deliver a controlled substance; and knowingly keeping and maintaining a dwelling which was resorted to by persons using controlled substances. The circumstances of the crimes with which the complainant was charged indicate a tendency to manufacture, possess and distribute illegal drugs and, presumably, to engage in unlawful drug use.

The complainant's job entailed driving a bulk fuel truck, containing up to 2,800 gallons of gasoline, diesel fuel or kerosene, and delivering and loading this fuel into private residences. It was dangerous work, which must be performed carefully and with attention, in order to avoid the risk of explosion or spills. The complainant worked alone without supervision. He took the employer's truck home with him at night and did not check in with the employer in the mornings. The hazardous nature of the job, with its attendant risk of explosion and contamination, requires a degree of alertness and care which renders it unsuitable for an individual with a propensity to use unlawful drugs. Moreover, the commission has held that work which entails unsupervised, door-to-door contact with the public offers an opportunity for criminal behavior and presents a potential temptation for a person with an inclination to engage in conduct such as the sale of illegal drugs. Black v. Warner Cable Communications Co. of Milwaukee (LIRC, July 10, 1989). Under the circumstances, the commission concludes that the respondent's actions in suspending the complainant's employment pending resolution of the criminal charges against him were not undertaken in violation of the law. Accordingly, the dismissal of his complaint is affirmed. 

Charles W. Giesen
Randall J. Andersen

Appealed to Circuit Court. Affirmed January 31, 2002.

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uploaded 2001/06/29