JOSE C. SANTOS, Complainant


ERD Case No. 8802471

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 14, 1990. Complainant filed a timely petition for review by the Commission and both parties submitted written arguments.

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


The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed February 26, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


On appeal, Complainant points to the fact that the Respondent did not attempt to determine whether the crime of burglary was substantially related to the job of truck driver and urges the Commission to recognize that the substantial relationship test provided for in sec. 111.335(1)(c)1, Wis. Stats., requires that the employer inquire into the nature of the conviction and how it relates to the job being sought at the time that employment is refused. (It is further argues that since Complainant only sought a statement to the effect that he would be considered for employment, rather than a statement that he would be hired, there is even more of a burden on the employer to show that the circumstances of the crime relate to the job being sought.)

The identical view espoused by Complainant was rejected by the Commission in Bernard Collins v. Milwaukee County Civil Service Commission (LIRC, 3/8/91). There the Commission stated:

". . . If Collins is correct, then situations could conceivably arise in which the Commission would be obliged to order a complainant hired into a position, notwithstanding that an after-the-fact analysis demonstrates conclusively that the individual has a conviction record substantially related to the position in question, simply because the decision-making employer did not undertake this analysis at the time of the decision.
. . .
None of the three supreme court decisions interpreting sec. 111.335, Law Enforcement Standards Board v. Lyndon Station, 101 Wis.2d 472 (1981), Gibson v. Transportation Commission, 106 Wis.2d 22 (1982), and County of Milwaukee v. LIRC and Serebin, 139 Wis.2d 805 (1987), provide any support for Collins' argument. On the contrary, they support the conclusion arrived at herein.

In Law Enforcement Standards Board v. Lyndon Station, there was no indication that the Law Enforcement Standards Board had made any analysis whatsoever of whether the circumstances of the convictions there were substantially related to the position at issue. Rather, it acted solely on the basis of a determination that the individual in question had been convicted of felonies. The supreme court was obviously not troubled by this fact. It conducted its own analysis of the `substantially related' question, 101 Wis.2d at 492-93, and arrived at its own determination that there was a substantial relation between the circumstances of the offenses and the circumstances of the position.

In Gibson v. Transportation Commission, while the licensing agency did in fact consider and make a determination upon the question of whether the circumstances of the offense were substantially related to the circumstances of the licensed activity at the time of its decision, nothing in the supreme court's decision suggests that this fact was necessary to the result. Rather, the court again conducted its own independent analysis of the `substantially related' question. 106 Wis.2d at 28.

In County of Milwaukee v. LIRC and Serebin, contrary to the argument made by Collins in his brief, there was no indication that the county had made any determination that offense and circumstances were `substantially related'. On the contrary, the Commission made a specific finding of fact that the complainant therein had been discharged based upon the newspaper report of his conviction and because of concerns over adverse publicity to the county connected with its employment of the complainant in view of this reported conviction, without verifying the conviction or inquiring into the surrounding circumstances. 139 Wis.2d at 812. That finding of fact was not overturned by the Supreme Court. Rather, it reversed based on a conclusion that the Commission had misapplied the legal standard involved. As in the previous decisions, the court conducted its own analysis of and inquiry into the question of whether offense and position were substantially related. 139 Wis.2d at 828-29.

It is evident from the language of the supreme court in Serebin that the `substantially related' test is intended to be a legal test, applied after the fact by the reviewing tribunal, not a test of the subjective intent of the decision-maker. Defining the central issue in the case, the court stated:

`The basic question is: What is the nature of the inquiry required by sec. 111.32(5)(h)2b? Answering this question requires that this court determine what the legislature intended when it chose to phrase the exception in terms of the "circumstances" of the offense and "circumstances" of the particular job. Depending on what meaning is ascribed to the term "circumstances," the question remains: What procedure is required in order that courts may assess the "circumstances" in the particular case?'139 Wis.2d at 818 (emphasis added)

Further indication that the test is to be applied independently by reviewing tribunals is found in the court's statement that:

`Actions taken by an employer or licensing agency which might normally constitute discrimination are, by definition, deemed not to be "unlawful" if it can be shown that the circumstances of the offense substantially relate to the circumstances of the particular job or licensing activity.'139 Wis.2d at 820 (emphasis added)

The use of the phrase `if it can be shown that' clearly anticipates a showing in a subsequent trial. Thus, the court did not say that actions taken by an employer which might normally constitute discrimination would, by definition, be deemed not to be `unlawful' if the employer could show that it had concluded at the time that the circumstances of the offense substantially related to the circumstances of the particular job or licensed activity."

The Complainant also argues that the Administrative Law Judge failed to make the necessary inquiry because the record in the case is void of any evidence as to the definition of the crime of burglary, or "the circumstances of the crime for which (Complainant) was convicted." However, burglary is defined by s. 943.10, Wis. Stats., of which the Administrative Law Judge (and the Commission) may take official notice. Further, the proper "circumstances" inquiry under the statute 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, 139 Wis.2d at 824. As found by the Administrative Law Judge, the circumstances of the Complainant's felony burglary conviction are substantially related to a truck driving job with the Respondent because as a truck driver for the Respondent, Complainant would be solely responsible for transporting valuable merchandise and machinery to distant locations. Such a job would provide Complainant with the opportunity to easily perpetuate his past history of theft.

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