Wis.LIRC ER Decision: Thorson - August 13, 1998 - Conviction record discrimination -- 'substantially related' -- 2d degree sexual assault of a child / machine operator

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

RUSSELL THORSON, Complainant

ROCKWELL INTERNATIONAL, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199404138

This case involves Russell Thorson's claim that Rockwell International (1 ) unlawfully refused to hire or employ him as a machine operator on the basis of conviction record. The commission previously determined that Thorson had not been discriminated against on the basis of conviction record. The Honorable Thomas S. Williams concluded, however, that the commission erred in its interpretation of the conviction record clause and remanded the matter for further proceedings. Specifically, the court concluded that it must first be determined whether discrimination occurred under � 111.321, without regard for the elements of the offense, and then determined whether the employer has sustained its burden of proving the affirmative defense that Thorson's conviction was substantially related to the job of machine operator.

Both parties submitted written arguments to the commission following the court remand.

Based upon the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT

1. Thorson, who had been employed over the course of 19 years for the respondent, was convicted for second degree sexual assault of a child under � 948.02(2), Wis. Stats., on September 30, 1991, and sentenced to four years in prison. Section 948.02(2), Stats., provides that "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C Felony." Since there were employes on layoff when sentenced to prison, Thorson was also allowed to go on layoff status. However, since Thorson was still serving his sentence and therefore could not return to work after a recall of laid off workers in 1992, the respondent terminated Thorson's employment. Thorson had previously been convicted for second degree sexual assault sometime in 1989 for which he received a deferred sentence.

2. At the Oshkosh, Wisconsin plant where Thorson had worked, the respondent employed male and female employes, totaling about 450 individuals, in hourly and salaried positions. The respondent operated three shifts. Fewer employes work during the second and third shifts, with the fewest, about 2 or 3 employes working in each of the respondent's seven manufacturing departments, on the third shift. During the third shift, unless the supervisor happened to be walking by, the most accessible way to reach the supervisor was by calling the supervisor by phone. Children are not allowed in the plant. The respondent utilizes a security firm to check individuals entering and leaving the plant, but the security firm's main purpose is to make hourly rounds in the plant for purposes of fire protection. A fence completely surrounds the plant.

3. Thorson had been classified as a Class A machine operator when employed at the respondent. He had worked on a variety of machines at the respondent, and has worked on all three shifts. Thorson had no record of attendance problems, and had no problems working with other employes during his employment. In fact, the only discipline he ever received was a write-up for once producing excessive scrap.

4. Following his release from prison in April 1994, Thorson completed an application for reemployment with the respondent as a machine operator on April 20, 1994. During the period from April 1994 to September 1994, the respondent was primarily hiring individuals for the second and third shifts. A question on the employment application asked Thorson if he had ever been convicted "(i) of a felony, or (ii) within the past five years of a misdemeanor which resulted in imprisonment?" If the answer was "yes," Thorson was to "give date, court, nature of offense and disposition." A note in parentheses on the application stated, "Conviction is not necessarily a bar to employment." Some time in the past the respondent had hired an individual with a felony conviction as a commodity planner. Thorson stated on his application that he had been convicted for sexual assault on November 1, 1991 and had served thirty two months time in prison.

5. Thorson's application passed a prescreening by a Wisconsin Job Service office and Steven Kosmer, the respondent's labor relations specialist, who had received Thorson's application on May 2, 1994. Thorson's application was among the 120 applications Kosmer had in his "active file."

6. Kosmer was responsible for hiring, but lacked hiring experience where the application showed the individual had a conviction record. Although Kosmer concluded that Thorson was qualified to work as a machinist, either on May 2, 1994, or very shortly thereafter, Kosmer conferred with David McCune, the respondent's human relations manager, regarding Thorson's employment application because it showed he had a conviction record. Kosmer would not normally seek advice from McCune about screening and interviewing job applicants.

7. Kosmer, who knew that Thorson's conviction involved sexual assault of a minor, advised McCune that Thorson had been previously employed by the respondent, and that he was incarcerated and unable to return to work when recalled which resulted in the termination of his employment. McCune asked Kosmer what Thorson had been incarcerated for and was told that it was for sexual assault, child molestation, or words to that effect. Upon being advised that there were other qualified candidates, McCune told Kosmer that he "would not hire (Thorson) and not interview him."

8. McCune advised Kosmer that any conviction would be a "red flag" that really needed to be looked at. Kosmer understood McCune to mean that the respondent also had to consider what the conviction was for and the safety of the rest of the employes. McCune was concerned that Thorson had been convicted of sexual assault because he had done a lot of reading on the subject which led him to believe that sexual assault was an act of violence, a domination issue, and posed a safety issue to females in the plant. (2 ) Also, McCune was concerned because the respondent was in the process of reorganizing its operation to that of a "teaming environment", which relied on groups of employes to work in a more self-managed fashion, and required that the employe have the ability to interact well with others and to have good decision-making ability. There was also testimony by respondent's witnesses that as a preventative measure, during the application and interview stages the respondent considered the conduct or any conflicts an individual might have had prior to their becoming a shop employe.

9. Kosmer conceded that Thorson would have been interviewed for a machinist position if he did not have a conviction record. The respondent made a decision not to hire Thorson at the meeting between Kosmer and McCune in May 1994. The absence of any notation of the 1989 conviction by Thorson on his application was not a factor considered in making the decision not to interview or hire Thorson. Kosmer admitted that he did not believe that Thorson had lied in his employment application.

10. Subsequent to the submission of his April 20, 1994 application for employment, Thorson either called or visited Kosmer at his office on a weekly basis to inquire about getting hired. Between April 20, 1994 and September 12, 1994, the respondent had 27 openings for the job of machine operator. Thorson saw advertisements in the newspaper by the respondent for these jobs during this time period. During this time period Thorson was also advised by the union that the respondent was hiring machine operators. Among the jobs that were filled during this time period was the exact same job that Thorson had performed prior to his incarceration. Thorson was never called for an interview for any of the available machine operator positions, nor was he ever advised that he did not meet any of the qualifications for the job. Eventually Kosmer told Thorson that the respondent was not going to hire him but Kosmer would not give him a reason as to why he would not be hired.

11. Thorson sought the assistance of the union, including union president, Alan Sawitski, in an effort to gain employment with the respondent. In a meeting in August 1994, McCune told Sawitski that Thorson would not be rehired, that it was not because of his work record but because of his incarceration.

12. The circumstances of the offense of sexual assault of a minor are not substantially related to the circumstances of the job of Class A machine operator at the respondent's Oshkosh plant. The circumstances of a conviction for sexual assault of a minor involve a lack of responsibility, control and judgment as applied to Thorson's relationship to minors. The circumstances that foster the criminal activity engaged in by Thorson are not present in the guarded, supervised, all adult machine shop facility operated by the respondent.

Based upon the above FINDINGS OF FACT, the Labor and Industry Review Commission makes the following:

CONCLUSIONS OF LAW

1. The respondent, Rockwell International, is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant, Russell Thorson, is an individual with a conviction record within the meaning of the Act.

3. The complainant proved by a preponderance of the evidence that the respondent discriminated against him by refusing to hire or employ him because of his conviction record.

4. It has not been established that the complainant's conviction is substantially related to the circumstances of the job of Class A machine operator, within the meaning of the Act.

5. The respondent discriminated against the complainant in violation of the Act when it refused to hire or employ him as a Class A machine operator.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the Labor and Industry Review Commission issues the following:

ORDER

1. That the respondent immediately cease and desist from discriminating against the complainant on the basis of conviction record.

2. That the respondent immediately make a written offer of employment to the complainant offering him a position of Class A operator, or its current equivalent. This offer shall entitle the complainant to the wages, benefits, privileges and seniority equivalent to that which he would have received if he had been hired as a Class A machine operator on May 9, 1994. The respondent shall hire the complainant, unless within twenty-one (21) days after this matter has become final the complainant notifies the respondent in writing that he does not wish to be reemployed, or unless the complainant unreasonably fails to report for work at a time and place which the respondent has reasonably designated in its offer of work. The offer by the respondent shall give the complainant reasonable notice of the time and place to report for work.

3. That the respondent make the complainant whole for all lost wages and benefits incurred as a result of its refusal to hire him. The respondent shall make the complainant whole by paying him as back pay the amount that he would have earned from May 9, 1994, through the date on which he either begins employment or notifies the respondent in writing that he does not wish to be reemployed. The back pay shall be computed on a calendar quarter basis, with deductions on a quarterly basis for interim earnings. Also, any amounts that the complainant received as unemployment insurance or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from him and immediately paid to the unemployment reserve fund, or in the case of welfare payments, to the welfare agency making the payment. (Reimbursement for unemployment insurance shall be in the form of a check made payable to the Department of Workforce Development, Unemployment Insurance Division, and show the complainant's social security number and the ERD case number.) Additionally, the amount payable to the complainant after all statutory setoffs shall be increased by interest at the rate of 12% per annum, simple interest. The interest is to be computed by calendar quarter, figured from the last day of each quarter to the date payment is made. The sum of the net back pay plus interest owed for all calendar quarters shall constitute the total back pay owed.

4. The respondent shall not take any adverse employment action against the complainant on the basis of the contents or the lack of information contained in his employment application signed April 20, 1994.

5. The respondent shall also reimburse the complainant for reasonable attorney's fees and costs incurred in pursuing his complaint of conviction record discrimination under the Fair Employment Act. The reasonable attorney's fees and costs he incurred through February 23, 1996, are $9,255.75. In addition to this amount, the complainant shall also be reimbursed for reasonable attorney's fees and costs incurred in pursuing his complaint of discrimination since February 23, 1996, through April 30, 1998, the close of the briefing schedule following the court remand. The reimbursement for attorney's fees and costs shall be paid by check made jointly payable to the complainant and his attorney, Sandra K. Graf, and delivered to the offices of Ms. Graf.

6. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708.

Dated and mailed: August 13, 1998
thorsre.rrr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Sections 111.321 and 111.322, Wis. Stats., together provide that it is an act of discrimination to, among other things, refuse to hire or employ any individual on the basis of conviction record.

Section 111.32(3) defines the term "conviction record" as including, but not limited to, "information indicating that an individual has been convicted of any felony...or has been...imprisoned..."

Section 111.335(1)(c)l. provides in part, however, that it is not employment discrimination because of conviction record to refuse to employ any individual who has been convicted of any felony the circumstances of which substantially relate to the circumstances of the particular job. This exception to the prohibition of discrimination on the basis of conviction record constitutes an affirmative defense to a showing of discrimination on the basis of conviction record.

WAS THERE DISCRIMINATION ON THE BASIS OF CONVICTION RECORD?

The commission finds that Thorson was discriminated against on the basis of conviction record.

The respondent argues that its decision not to hire Thorson for the machinist job was not based on his conviction record, but rather on his history of absenteeism and sexual assault. The respondent argues that Thorson's conviction for sexual assault was irrelevant to its decision not to hire him. As support for its argument, the respondent asserts that McCune, the decision maker in this matter, testified that his first thought concerning Thorson's application was that Thorson was an absentee problem and therefore should not be hired. McCune stated that Thorson had voluntarily absented himself from the plant when he was needed at work. The respondent argues that the fact that Thorson's absenteeism had resulted from being imprisoned, which had resulted from his having committed sexual assault, does not change the fact that he was terminated for absenteeism.

The respondent concedes that McCune and Kosmer did, of course, also consider the fact that Thorson had engaged in sexual assault. The respondent argues, however, that their consideration was limited to the fact that Thorson had committed certain acts, not the fact that he was convicted of having committed those acts. The respondent argues that if Thorson had never been arrested for or convicted of sexual assault, but the respondent was aware that he had committed such acts, the respondent would undoubtedly be permitted to refuse to hire him on the basis of that conduct without discriminating against him on the basis of his conviction record. The respondent argues that the fact that Thorson was caught, and ultimately convicted, should not preclude it from taking the same actions based on the same considerations, namely that Thorson had engaged in prior gross misconduct.

Examination of the record to determine whether or not Thorson was discriminated against on the basis of conviction record, without regard for the elements of the criminal offense of sexual assault, however, results in a fairly strong showing that Thorson's conviction record was a determining factor in the respondent's failure to hire Thorson. For instance, Kosmer testified that he took Thorson's application to McCune because the application had a notation that Thorson had a sexual assault conviction and because he (Kosmer) lacked hiring experience where the application showed the individual had a conviction record. Further, there was testimony by Kosmer, which was not contradicted by McCune, that McCune advised him that any conviction raised a red flag that really needed to be looked at. Kosmer did not hire Thorson after his discussion with McCune. The evidence indicates that the respondent considered Thorson's conviction record for sexual assault when the respondent determined that it would not hire Thorson.

While the respondent maintains that Thorson was not hired because of absenteeism, and that the cause of Thorson's absenteeism does not change the fact that he was discharged for absenteeism, the evidence indicates that McCune was concerned about the cause for Thorson's absenteeism, namely that he had been in prison for sexual assault. This is evident because the testimony by McCune himself shows that when Kosmer came to him about Thorson's application and stated that Thorson could not return to work when recalled, he first inquired and learned from Kosmer that Thorson had been in prison for sexual assault, before informing Kosmer that he "would not hire (Thorson) and not interview him." (Tr. pp. 149-150). Further, when asked at the hearing to explain why he had advised Kosmer not to hire Thorson, McCune's first response was, "Well, I'm concerned about rehiring somebody who has a tendency for sexual assault...." (Tr. p. 150). This testimony by McCune suggests that consideration was given to Thorson's conviction record for sexual assault when the respondent determined that it would not hire Thorson.

Further, Alan Sawitski, president of the union at the respondent, testified that at an August 1994 meeting concerning the hiring of Thorson, McCune stated, "They were not going to rehire him period...It wasn't his work record, it was because of his incarceration." (Tr. pp. 84-85)

The respondent's further argument that it considered the fact that Thorson had engaged in sexual assault but that its consideration was limited to the fact that he had committed such acts, amounts to an attempt to again justify its failure to hire Thorson based on the underlying conduct involved in his conviction, a justification the court held was not relevant to the initial inquiry of whether or not the respondent discriminated against Thorson on the basis of conviction record. The respondent appears to argue that it makes no sense that it could have refused to hire Thorson without violation of the Act if he had not been convicted for sexual assault but the respondent knew that he had committed sexual assault, while the fact that Thorson was convicted prevents it from refusing to hire Thorson for engaging in sexual assault. This argument by the respondent fails to acknowledge the record evidence showing that Thorson's sexual assault conviction was a determining factor in the respondent's refusal to hire Thorson, however. Furthermore, the respondent was not prevented from refusing to hire Thorson so long as it could be demonstrated that his sexual assault conviction was substantially related to the circumstances of the job of machine operator.

WAS THORSON'S CONVICTION FOR SEXUAL ASSAULT SUBSTANTIALLY RELATED TO THE CIRCUMSTANCES OF THE MACHINIST JOB?

The commission finds that Thorson's conviction for sexual assault was not substantially related to the circumstances of the machinist job.

It has been held that the legislature in setting forth the exception under � 111.335(1)(c)1., recognized society's competing interests of rehabilitating individuals convicted of a crime by protecting them from discrimination in employment, yet at the same time protecting the community at large from having convicted persons placed in employment situations offering temptations or opportunities for criminal activity similar to those present in the crimes for which the individual had been previously convicted, such that the individual will commit another similar crime. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 821, 407 N.W.2d 908 (1987). In County of Milwaukee, the court held that the test for determining when the circumstances of the offense and particular job are substantially related requires assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. Id. at p. 824. "It 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." Id. In County of Milwaukee, the court stated that it "reject(ed) an interpretation of this test which would require, in all cases, a detailed inquiry into the facts of the offense and the job." Id. at pp. 823-4.

Citing Wis. Stat., � 111.335(1)(c)l., the Act's statutory exception to the general prohibition against discrimination on the basis of conviction record, the respondent argues that even if it based its decision not to hire Thorson on the fact that he had been convicted of sexual assault, that action was lawful because the circumstances of the crime for which he had been convicted are substantially related to the job of a machinist. The respondent argues that assessment of the relationship between the circumstances of the offense and the circumstances of the job requires an inquiry into "the circumstances which foster criminal activity," or the opportunity for criminal behavior. The respondent notes that in some cases, the inquiry into the "fostering circumstances" may simply require a consideration of the elements of the offense in relation to the type of job involved. Further, the respondent notes that determining the substantial relatedness of a crime and the job does not require an identical comparison of the elements of the crime to the job duties, nor require that the job provide ample opportunity for the commission of the specific crime. Instead, the employer may look to the crime committed and evaluate whether the tendencies and inclinations to behave in a certain way may manifest themselves in the job sought, giving consideration to the opportunity for criminal behavior, the reaction to responsibility or the character traits of the person. Additionally, the respondent notes that the commission has consistently held that the substantial relationship test is an objective test to be applied after the fact by the reviewing tribunal, not a subjective test of the employer's intent at the time of its employment decision.

The respondent argues that it is clear in this case that Thorson's sexual assault crime is substantially related to the machinist job; that his character traits, as evidenced by his commission of two sexual assaults, are substantially related to the requirements of any job in a teaming environment which involved largely unsupervised self-managed teams some of whom were women, and particularly those on the second and third shifts. The respondent argues that obviously, common sense dictates that the employes working in such an environment must be trustworthy, and not have any tendency to engage in inappropriate sexual or violent activity. The respondent argues that there can be no reasonable question but that the second and third shift machinist jobs provide a context within which a person convicted twice of sexual assault will be placed in an employment situation offering temptations and opportunities for criminal activities similar to those present in the crimes for which he has already been convicted. Additionally, citing the balance between society's interest in rehabilitating one who has been convicted and protecting its citizens against an unreasonable risk of harm announced in County of Milwaukee, the respondent argues that it had an obligation to consider the entire workforce's safety, while there is no evidence suggesting that Thorson's rehabilitation process would have been furthered by a job with his former employer, particularly given that he was convicted of two sexual assaults while employed at the respondent.

Thorson argues that it is very clear that the substantial relationship test is not met in this case; that the respondent's machine shop is the ideal job for him. Thorson argues that his conviction may indicate a propensity toward being untrustworthy when alone with children, but there are no unsupervised minors in the workplace. Thorson argues that he has no record of ever harming an adult, and since there are no children in the Rockwell plant, it can hardly be said that this is a job which would foster criminal activity or give him an opportunity to commit further crimes.

Thorson further argues that there is no basis for the respondent's argument that his conviction record indicates such things as an inability to work in a team, a lack of trustworthiness, and being violent with coworkers, especially females. Thorson argues that he has never exhibited any tendency towards violence in the workplace and that he has never had any problems working with his coworkers. Further, he argues that there are no indicators that any elements of the crime are transferable to the workplace, and that this was speculative and disproven by his long and unblemished work history at Rockwell.

Thorson argues that his conviction record reveals absolutely nothing about his ability to work in a team. He argues that working in a team does not give him any added opportunity to engage in the criminal behavior he has in the past; in fact, McCune has testified that being in a team means that you are rarely alone. Further, citing McCune's testimony that how he (Thorson) would be accepted by coworkers was one of the real motivators behind the decision not to hire him, Thorson argues that coworker preference is an improper consideration, just as it would be in the case of a workforce of prejudiced people who did not wish to work with an African-American.

Additionally, Thorson argues that the respondent's assertion that he is untrustworthy improperly stretches the analysis because anyone convicted of any crime could be said to have exhibited an element of untrustworthiness. He argues that the job he seeks is a machinist position, not being entrusted as a playground supervisor or a daycare worker, and that he has not exhibited a lack of trustworthiness that would be substantially related to the position of machinist.

Thorson also argues that while the respondent now asserts that because the available jobs were on second or third shifts this poses a greater risk to society, the respondent (citing testimony by Kosmer) did not think so as he did not even think about the shift or give this any consideration.

Finally, Thorson argues that the respondent would like the commission to conclude that he is a threat to coworkers, but the mere possibility that a crime could happen because of contact with people is not enough. Thorson argues that the risk must be directly related to the offense committed, that a conviction for assault of a minor does not lead to the conclusion that he would assault or use physical force toward an adult in the workplace or anywhere else. Further, he argues that the respondent's logic ignores the balancing test, that he could not work anywhere under the respondent's logic.

In response to Thorson's arguments, the respondent attempts to highlight two basic points. First, responding to Thorson's argument that the substantial relationship test has not been satisfied because he has only sexually assaulted minors, not adults, the respondent cites County of Milwaukee, stating that the standard to be used in determining whether a substantial relationship exists between the circumstances of the offense and the job is "whether the job provides a context within which a convicted person, being placed in an employment situation offering temptations or opportunities for criminal activity similar to those present in the crimes for which he had been previously convicted, will commit another similar crime." The respondent emphasizes the words "similar," and argues that society's concern is not that the criminal will commit the exact same crime.

Secondly, the respondent argues that while the legislature enacted the prohibition against conviction record discrimination to balance the interests of rehabilitation with the interest of protecting society from recidivism, because Thorson was caught engaging in sexual assault once while employed at Rockwell, continued working there, and subsequently committed another sexual assault, clearly society's interest in rehabilitating Thorson will not be served by returning him to work at Rockwell, that his proven risk of recidivism is too great to bear.

Given the evidence presented in this case, the commission finds it difficult to conclude that there is a substantial relationship between the circumstances of Thorson's offense and the circumstances of the job of machine operator at the respondent's Oshkosh plant. The commission believes that the ALJ pretty much summed up this issue in his earlier decision when he stated at page 6 of his memorandum opinion as follows:

"The respondent tries to suggest that the circumstances of (Thorson's) conviction are the same as the circumstances of sexual assault of an adult, and that therefore Thorson cannot be permitted to work with female individuals. The Administrative Law Judge does not agree with that analysis, and concludes that the sexual assault of a minor is a separate criminal act that involves its own special circumstances and conduct, and is not related to his ability to work in a guarded facility under supervision with female co-workers. The Commission's conclusions in Black v. Warner Cable Communications Co. of Milwaukee, (LIRC, 7-10-1989) are particularly relevant to this argument. First the substantial relationship test is an objective test. The employer's belief that the conviction is substantially related, no matter how strongly and honestly the employer holds the belief, does not shield the employer from liability where it is not a legally appropriate conclusion under the circumstances. Secondly, the mere possibility that there could be contact with females is inadequate to justify a finding of substantial relationship. As the Commission noted in Black, such a finding would result in the conclusion that the conviction is substantially related to virtually all jobs, and is beyond what the statute anticipates."

The conclusion drawn by the ALJ regarding the lack of substantial relatedness between Thorson's conviction and the job of machine operator at the respondent's plant is supported by the testimony of Mary Wiatrowski, a sexual abuse therapist who specializes in work with sex offenders. (3 ) Wiatrowski has worked as a sexual abuse therapist for over 15 years, specializes in working with offenders, has a masters degree in counseling and has attended numerous training and workshops dealing with sexual abuse issues. Wiatrowski testified that she did not believe there had been any research evaluating whether or not pedophiles generally were poor decision makers; that pedophiles make poor decisions when they sexually abuse children but she did not think that reflected on their ability to make judgments in day-to-day life. More importantly, Wiatrowski testified that pedophiles were inclined to abuse children; that because someone was a pedophile was no indication that that person would assault an adult. There is no question but that minors are not allowed in the respondent's facility.

Considering that pedophiles are inclined to abuse children, that because someone is a pedophile presents no indication that the person would assault an adult, that minors are not allowed in the respondent's plant, that the respondent's facility is surrounded by a fence that has guards monitoring those entering and exiting, that there is no record of Thorson ever harming an adult, and that Thorson had never exhibited any tendency towards violence in the workplace or had any problems with coworkers during his lengthy unblemished work history with the respondent, it is hard to imagine that the evidence establishes a substantial relationship between a conviction for second degree sexual assault of a child and the job of machine operator at the respondent's Oshkosh plant. Given the available evidence regarding pedophiles, the lack of any evidence that Thorson had ever harmed an adult and his unblemished work history, the respondent's concerns that the job of machine operator would foster criminal activity, or the opportunity for the criminal behavior, and that his character traits were not suitable in a teaming environment, appear entirely unwarranted. Additionally, that Thorson has twice been convicted of sexual assault should not alone cause an end to society's interest in rehabilitating him through returning him to work at Rockwell. In County of Milwaukee, the court stated that there were two competing interests of the legislature when it enacted the conviction record provision: rehabilitating individuals convicted of a crime by protecting them from discrimination in employment and protecting the community from having persons placed in employment situations which offered temptations or opportunities for similar criminal activity for which they had been previously convicted. Since there is no evidence that Thorson would be a threat to his community of coworkers by placing him in the machine operator position at the respondent, there is no reason to conclude that the legislature's further interest of rehabilitation through employment should be abandoned.

When the matter was previously before the commission, the respondent argued that the ALJ's award of reinstatement and back pay placed him in a better position than he would have been had the alleged discrimination not occurred. The respondent argued that the complainant had only advanced to step 3 of the hiring process--application placed in active file. The respondent argued that the complainant had not been selected for interview from among the 120 applicants in the active file, and that there is no evidence that he would have successfully advanced beyond the interview stage. Further, the respondent argued that back pay is inappropriate because there is no evidence that the complainant would have been hired during the dates of alleged discrimination, April 19, 1994, through September 13, 1994, because the record establishes that his application could have remained in the active file for at least 10 months before even interviewed. Finally, the respondent argued that even if back pay were appropriate, the ALJ's award of back pay beginning from May 9, 1994, is improper as a matter of law. The respondent cited Thorson's testimony at page 24 of the transcript for the proposition that union negotiations were being conducted as of May 9 and that interviewing did not begin until at least a month later.

The ALJ explained the basis for his back pay award at page 6 of his memorandum opinion as follows:

"The Administrative Law Judge has chosen May 9, 1994 as the date for the beginning of the back pay award. The record reflects that the Respondent received this application on May 2, 1994, and immediately reviewed the application. The record further reveals that the Respondent had 27 openings for class A machine operators during the time period after Thorson filed his application. It is reasonable to conclude that, given his experience level, his availability, and the availability of work, that Thorson would have been placed in employment shortly after applying had he not had a conviction record. Nothing offered by the Respondent suggests any other conclusion."

The ALJ properly concluded that May 9, 1994, was the appropriate date for beginning the back pay period. Given Thorson's many years of experience as a class A machine operator, and the fact that the respondent had 27 openings for class A machine operators during the period after Thorson filed his application, it is hard to believe that he would not have been hired shortly after his application was received on May 2, 1994. Thorson did not testify that union negotiations were being conducted on May 9, 1994. Thorson testified that when he reported to the respondent's facility on the day after his release from prison, i.e., April 19, 1994, Kosmer told him that they weren't hiring at the moment due to contract negotiations, but would be hiring later, probably in a month or so, as soon as the contract was settled. Further, Thorson testified that after filling out his application (dated April 20, 1994), he believed that the respondent was hiring people because he would periodically check at the union hall and see the list of people the respondent had hired, and that the union president stated that the respondent had hired or was hiring. There is nothing in the record offered by the respondent which shows that Thorson would not have been hired by May 9, 1994.

The respondent had also argued before the ALJ that any relief awarded Thorson should not be extended beyond August 4, 1995. As reason therefor, the respondent asserted that during Thorson's deposition on August 4, 1995, he revealed that he had been convicted of sexual assault in 1989, and that the respondent's employment application set forth its policy that untrue information contained in the application subjects the employe to immediate discharge. The commission rejects the respondent's argument that Thorson not be awarded relief beyond August 4, 1995. First, it has not been clearly established that Thorson was untruthful in his employment application. The employment application asked Thorson if he "had ever" been convicted of a felony (or convicted within the last 5 years of a misdemeanor which resulted in imprisonment), and if the answer was yes, to "give date, court, nature of offense and disposition." The employment application did not instruct him to list all felony convictions. Furthermore, as noted by the ALJ, despite having called three of its managerial staff personnel, the respondent failed to offer any testimony or evidence to establish that it had ever enforced the applications language about falsification being grounds for termination, or that it has consistently enforced such a provision. In addition to the above observations by the ALJ, Kosmer testified at the hearing that he did not believe that Thorson had lied in his application. The record does not support a basis for limiting the back pay period.

For all of the reasons stated above, the commission has concluded that the respondent discriminated against Thorson, on the basis of conviction record in violation of the Act, when it refused to hire or employ him as a machine operator.

Pamela I. Anderson, Commissioner, (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The majority makes the finding that "McCune advised Kosmer that any conviction would be a `red flag' that really needed to be looked at." I believe that McCune meant a conviction needed to be looked at to evaluate what circumstances are involved.

In County of Milwaukee v. LIRC, 139 Wis. 2d 805, 823, 824, 407 N.W.2d 908(1987) the court stated:

"This law should be liberally construed to effect its purpose of providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the `propensity' to commit similar crimes long recognized by the courts, legislatures and social experience....We reject an interpretation of this test which would require, in all cases, detailed inquiry into the facts of the offense and the job. Assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed is the purpose of the test....It 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."

The complainant in Gibson v. Transp. Comm. 106 Wis. 2d 22, 315 N.W.2d 346 (1983) had been convicted of armed robbery, the circumstances of which the court found to be substantially related to school bus driving. In County of Milwaukee, the court found that convictions of a nursing home administrator for patient neglect were substantially related to the job as a crisis intervention specialist because they both dealt with vulnerable, dependent populations.

In this case, McCune argued that "If somebody sexually assaults somebody, it's violence, it's a control issue, it's a domination issue, it's not a sexual issue, it's a matter of somebody controlling another person, and that in my thinking is violent." Transcript 168. The administrative law judge asked questions about the nature of the conviction on the sexual assault of the child to find out if he knew if violence was involved. McCune did not have any details but he continued to look at it as an act of domination, control and violence.

I do not believe that County of Milwaukee would have us only look at whether there would be children in the workplace and once we know that children are not allowed that the case is over because the employer no longer has legitimate concerns. We know that the complainant was convicted as repeat offender of second degree sexual assault. If we were limited to the narrow analysis that the complainant was only a danger to children then we would likely have a different result in Gibson as well.

In explaining why the court reversed the commission in County of Milwaukee, supra, at 827-828, the court wrote

"Whether an individual can perform a job up to the employer's standards is not the relevant question. This does not constitute a proper inquiry into the "circumstances." The Commission also emphasizes that the offenses related to Serebin's failures as an administrator, not as a direct care worker and that the job in question involved direct care. We do not find this distinction to be persuasive. The responsibilities present in both jobs extended to a group of people similarly situated so that the neglect or dereliction of duties in either job would likely have similar consequences."

The County argues that the

"circumstances of the offense and the job are similar since in both contexts Serebin was in a position of exercising enormous responsibility for the health, safety, and life of a vulnerable, dependent segment of the population. The twelve misdemeanors indicate a pattern of neglect of duty for the welfare of people unable to protect themselves. The propensities and personal qualities exhibited are manifestly inconsistent with the expectations of responsibility associated with the job. We agree with the County's analysis."

I would find that the complainant has shown a propensity for conduct that involves control, domination and uses force to gain compliance for his own sexual gratification. The employer was concerned about the safety of women on the evening shift when there were only a few people in each area. While the employer did have some security guards, those guards were to guard the plant perimeter from danger outside the plant. The security guards were not there to protect employes from one another. The employer envisioned opportunities for the complainant to again violate the sexual assault statutes.

For these reasons, I would reverse and find that the employer did not violate the Wisconsin Fair Employment Act and thus I would dismiss the complaint.

Pamela I. Anderson, Commissioner

cc: Attorney Sandra K. Graf
Attorney Michael M. Grebe

Appealed to Circuit Court. Settled and dismissed based on settlement prior to any decision.

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Footnotes:

(1)( Back ) The respondent states that Meritor Automotive, Inc., is the successor-in-interest to all entities which constituted Rockwell's automotive business, and has thus become the interested party in this matter.

(2)( Back ) The record fails to disclose what McCune had read on the subject of sexual assault, however.

(3)( Back ) While the ALJ noted at the hearing that the substantial relationship test is an objective legal test applied after the fact by the reviewing tribunal and therefore he was not bound by Wiatrowski's testimony, her testimony nevertheless supports a conclusion that Thorson's sexual assault conviction is not substantially related to the job of machine operator.