STEPHEN LEE, Complainant

OFFICE DEPOT INC, 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 December 26, 2008
leestep4 . rsd : 115 : 9

/s/ James T. Flynn, Chairperson

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 employermay engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis ofarrest 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 applicanton 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;

The language of the Office Depot employment application relevant here states:

Have you ever been convicted of a crime (either felony or misdemeanor) which has not been sealed, expunged, impounded, erased or statutorily eradicated, or entered a plea of no contest (nolo contendere)?... Yes No
(A conviction record will not necessarily eliminate your candidacy for employment. You do not need to disclose any convictions which have been discharged.) (emphasis in original)

The application also includes a consent form which states as follows, as relevant here, and for which applicants are required to provide identifying information:

DISCLOSURE/VOLUNTARY CONSENT TO REQUEST CONSUMER REPORT INFORMATION

I. I understand that an investigative report may be generated on me that may include information covering up to the last seven (7) years, as to my character, general reputation, personal characteristics, or mode of living; work habits, performance or experience, along with reasons for termination of past employment/professional license or credentials; educational verification; financial/credit history; or criminal/civil/driving record history. I understand that ChoicePoint, on behalf of Office Depot, Inc., may be requesting information from public and privates sources about any of the information noted earlier in this paragraph in connection with Office Depot's consideration of me for employment..., and give my full consent for this information to be obtained....

V. I hereby authorize, without reservation, any financial institution, law enforcement agency, information service bureau, school, employer or insurance company contacted by ChoicePoint to furnish the information described in Section I.

VI. I understand that any offer of employment from Office Depot, Inc., is contingent upon successful completion of all pre-employment screening and background checks.

BACKGROUND INFORMATION RELEASE FORM

I hereby authorize ChoicePoint, Inc., to gather information about me regarding the following: All records including criminal, civil, motor vehicle...

I have a right to request a copy of the report from ChoicePoint....

Note: The above information is required for identification purposes only and is in no manner used as qualifications for employment. Office Depot, Inc., an Equal Opportunity Employer, considers all applicants. Office Depot does not discriminate on the basis of race, color, religion, gender, national origin, sexual orientation, citizenship status, veterans' status, marital status, disability or any other protected class as defined by federal, state or local laws....

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 question in the body of Office Depot's employment application as to the applicant's conviction record, and the disclosure consent form insofar as it relates to conviction record information, would not, as a result, violate either Wis. Stat. § 111.322 or Wis. Stat. § 111.335.

The remaining question then is whether the disclosure consent form, which appears to be a required part of the employment application, and which does not limit the scope of criminal information to be disclosed to conviction record information, violates Wis. Stat. §§ 111.322(2) or 111.335(1)(a).

It would be a violation of Wis. Stat. § 111.322(2) if the disclosure consent form constituted, or presented, 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." A requirement that an applicant consent to permitting ChoicePoint, a service apparently retained by Office Depot to conduct background checks, to request and inspect records as to the applicant's criminal history does not "imply" or "express" any discrimination, or any intent to discriminate, based on arrest record. In fact, the disclosure consent form states that Office Depot is an equal opportunity employer, and "does not discriminate on the basis of...any...protected class as defined by federal, state or local laws."

Pursuant to Wis. Stat. § 111.335(1)(a), it is a violation of the WFEA's prohibition against arrest record discrimination for a prospective employer to request, on an application form or otherwise, that a candidate "supply information regarding any arrest record of the individual except a record of a pending charge..." An applicant is not asked on the Office Depot application form to provide information regarding an arrest record, only a conviction record. Applicants are, however, required to consent to an inspection of his or her criminal record by ChoicePoint. The possibility that ChoicePoint could have access to and could acquire arrest record information unrelated to a pending charge as to a candidate and share this information with Office Depot, is too remote and tenuous to implicate a violation of Wis. Stat. § 111.335(1)(a).

Appealed to Circuit Court.  Affirmed June 18, 2009.  Appealed to the Court of Appeals. Affirmed May 25, 2010 in an unpublished per curiam decision.

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