STEPHEN LEE, Complainant

MILWAUKEE COUNTY, Respondent

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 September 26, 2008
leestep . rsd : 115 : 9 

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 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.

Wisconsin Statutes § 111.335 states in relevant part as follows:

111.335 Arrest or conviction record; exceptions and special cases.

(1)(a) Employment discrimination because of arrest record includes, but is not limited to, requesting an applicant...on an application form or otherwise, to supply information regarding any arrest record of the individual except a record of a pending charge...

(b) Notwithstanding s. 111.322, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity.

(c) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensing, any individual who:

1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity;...

That part of respondent's employment application at issue here inquires as follows:

Have you ever been convicted of a felony or misdemeanor?

Have you ever been found in violation of an ordinance?

Do you have any pending charges for a felony, a misdemeanor, or a pending
ordinance violation (other than a minor traffic violation)?

Complainant alleges that these inquiries as to his arrest/conviction record on the respondent's employment application violate Wis. Stat. § 111.335(1)(a). However, this statutory provision relates solely to an applicant's arrest, not conviction, record. Moreover, this provision specifically provides that it is not arrest record discrimination for a prospective employer to inquire as to "a record of a pending charge," which is all that the subject application requests.

Complainant cites extensively in his petition to Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). However, in this decision, the Court of Appeals noted that Wis. Stat. § 111.322(2) identifies and prohibits two distinct categories of employment discrimination, i.e., first, the printing or circulating of any statement, advertisement, or publication which seeks to discriminate; and, second, the use of any form of application for employment which seeks to discriminate. The court clarified that the issue it was deciding related solely to the printing and circulating category. The issue before the commission, however, relates to the employment application category.

Because the WFEA 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).

The commission agrees with the ALJ as a result that the complainant has failed to state a claim for relief under the WFEA, and his charge should be dismissed.

The complainant implies in his petition that it was a denial of due process for ERD to dismiss his charge without considering its merits.

Wisconsin Administrative Code § DWD 218.05 states as follows:

DWD 218.05 Preliminary review of complaints.

(1) REVIEW OF COMPLAINT. The department shall review every complaint filed to determine all of the following:

(a) Whether the complainant is protected by the act.

(b) Whether the respondent is subject to the act.

(c) Whether the complaint states a claim for relief under the act.

(d) Whether the complaint was filed within the time period set forth in the act, if that issue is raised in writing by the respondent.

(2) PRELIMINARY DETERMINATION DISMISSING COMPLAINT. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements of sub. (1). The department shall send the order of dismissal by first class mail to the last-known address of each party and to their attorneys of record.

(3) APPEAL OF PRELIMINARY DETERMINATION. The complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the preliminary determination. The department shall serve the decision of the administrative law judge upon the parties. If the decision reverses or sets aside the preliminary determination, the complaint shall be remanded for investigation. If the decision affirms the preliminary determination, it may be appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21 (1).

Consistent with the language of this code provision, ERD is not required to address the merits of a charge if, as here, it concludes that the charge fails to state a claim for relief under the WFEA. The complainant, consistent with the rule, has had full and fair opportunity to appeal both the preliminary determination and the ALJ's decision.

The complainant also argues that, because the respondent was not required to file an answer to his charge, ERD did not follow the proper procedure here. However, consistent with Wis. Adm. Code § DWD 218.12(1), an answer is only required after a notice of hearing on the merits of the charge has been issued. Because a review of the merits has not been undertaken here, as explained above, and no hearing on the merits noticed as a result, the respondent was not required to file an answer.

The complainant also characterizes the respondent's decision not to respond to the preliminary determination or to the ALJ's decision as a failure to respond to a request for admission pursuant to Wis. Stat. § 804.11. However, the respondent was not required to respond to the preliminary determination or to the ALJ's decision. The request for admission referenced in Wis. Stat. § 804.11 is a discovery tool which was not employed by either party here.

cc: Attorney Mary Ann Grimes

Appealed to Circuit Court. Affirmed March 2, 2009.  Appealed to the Court of Appeals.  Affirmed May 25, 2010 in an unpublished per curiam decision.

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