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

KIM M JACKSON, Complainant

DIRECT SUPPLY INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199602668, EEOC Case No. 26G961544

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.

DECISION

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

Dated and mailed: July 8, 1998
jackski . rsd : 105 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant concedes that employers are well-advised to conduct their own independent investigation into circumstances of convictions [to see whether the conviction substantially relates to the job in question under Wis. Stat. § 111.335(1)(c)1.]. The complainant argues, though, that an interview of the job applicant, or an interview coupled with review of documents immediately available to the employer, is sufficient. The case now before the commission perfectly illustrates why the complainant's assertions are incorrect. The complainant testified that she informed respondent personnel, in the July 2 meeting regarding the conviction, that she had been involved in the crime with her cousin. The complainant virtually immediately thereafter testified that respondent personnel then asked her why the police felt as though the complainant had been in "cahoots" with her cousin. It must be obvious that both of these assertions cannot be true. Had the complainant in fact admitted in the July 2 meeting her complicity in the crime for which she had been convicted, respondent personnel could have had no reason to ask the complainant why the police thought she was involved in the crime. All of the respondent's witnesses who were at the July 2 meeting testified consistently that the complainant denied personal involvement in the crime, that she asserted instead she had been wrongly accused by her cousin of complicity.

The above also partially takes care of the complainant's assertion that the respondent "went looking" for a reason to rescind its employment offer to the complainant. The complainant asserts that the respondent had enough information from its interview with the complainant, to determine the relationship between the complainant's conviction and her duties as a direct mail specialist. Indeed. The respondent could have dismissed the complainant on the spot, with no further investigation whatsoever, and still have been protected by Wis. Stat. § 111.335(1)(c)1. The record indicates, though, that the respondent was attempting to determine whether circumstances existed which would mitigate the complainant's otherwise-disqualifiable conviction.

As to the relationship between the conviction and the direct mail specialist position, finally, the courts have made clear that the statute contemplates only a limited inquiry into the circumstances of the offense. The complainant's conviction was for forgery, party to a crime. This is a Class C felony, the elements of which include false writing (of, here, a negotiable instrument) with intent to defraud. The respondent rightly determined that the circumstances of the conviction were substantially related to the complainant's prospective job duties. As the individual responsible for virtually all of the respondent's mail, including the personal mail of the respondent's other employes, the complainant would have significant opportunity to defraud either the respondent itself or other employes of the respondent. This is not a risk the discrimination laws require an employer to bear. For these reasons, and those stated in the administrative law judge's memorandum opinion, the commission has affirmed the decision in this case.

cc:
Brenda Lewison
Robert K. Sholl

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