SIDNEY MOORE, Complainant

OVERNITE TRANSPORTATION COMPANY, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on December 17, 1993, dismissing the complainant's complaint of alleged arrest and conviction record discrimination. The complainant filed a timely petition for commission review of the matter. Both parties submitted written argument to the commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:

The decision of the administrative law judge (copy attached) is modified as follows:

On the first line of paragraph 17 of the FINDINGS OF FACT the word "stayed" is inserted before the word "prison."

As modified, the decision of the administrative law judge is AFFIRMED and shall stand as the FINAL ORDER herein.

Dated and mailed October 13, 1994
125

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

Included in the complainant's arguments on appeal is the assertion that an employer may not summarily fire an employe on the basis of his conviction, and then attempt to justify its actions after the fact by adopting a substantial relations defense as provided under s.111.335(1)(c)l, Stats.  The evidence does not indicate that the complainant was summarily discharged on the basis of his conviction, however.  But even if he had been, the substantial relations defense does not require that the employer show that it had concluded at the time of the employment decision that the circumstances of the offense substantially related to the circumstances of the particular job.  The failure of an employer to make its own inquiry into the existence of a substantial relationship is not relevant to the applicability of s.111.335(1)(c)l, Stats.  Collins v. Milwaukee County Civil Service Comm., (LIRC, 3/8 91), aff'd., Collins v. LIRC, No. 91-2839 (Ct. App. 1992).

Other arguments included on appeal to the commission were previously presented to the ALJ and they have been satisfactorily addressed by him. The commission, like the ALJ, finds these arguments unpersuasive and sees no need to comment further on them.

cc: 
Mark D. Schubert
David L. Terry

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