RICK JACKSON, Complainant

DEDICATED LOGISTICS INC, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

1. The complainant, Rick Jackson, (hereinafter "complainant") has a conviction record that includes multiple felony convictions.

2. The respondent, Dedicated Logistics, Inc. (hereinafter "respondent") is an employer doing business in the State of Wisconsin.

3. On or about January 8, 2008, the respondent posted an advertisement on the "Wisconsin's JobNet" website for two openings for a "Class A CDL, Team Drivers" position. Under the section entitled "Minimum Requirements of Employer" the ad stated, "No felonies."

4. After posting the job the respondent decided that it could cover the route using its existing drivers. It, therefore, did not fill the job posting in question.

5. Other JobNet postings and/or newspaper advertisements by the respondent seeking drivers in December of 2007 and January of 2008 did not include the "No felonies" language.

Based on the above FINDINGS OF FACT the commission makes the following:

1. That the respondent engaged in an act of discrimination by printing or circulating or causing to be printed or circulated an advertisement which expressed an intent to discriminate based on conviction record, in violation of the Wisconsin Fair Employment Act

Based on the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:

1. That the respondent shall cease and desist from printing or circulating or causing to be printed or circulated an advertisement which expresses an intent to discriminate based on conviction record, in violation of the Wisconsin Fair Employment Act.

Dated and Mailed July 29, 2011
jacksri . rrr : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

Wisconsin Stat. § 111.322(2), provides that it is an act of employment discrimination to do the following:

To print or circulate or cause to be printed or circulated any statement, advertisement or publication, . . . 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 an basis enumerated in s. 111.321.

One of the bases enumerated in s. 111.321 is conviction record. The respondent clearly engaged in an act of employment discrimination, in violation of Wis. Stat. § 111.322(2), when it posted a job advertisement that specified "No felonies," as this expressed an intention to discriminate against individuals with conviction records.

Wisconsin Stat. § 111.39(4)(c) provides, in relevant part:

If, after hearing, the examiner finds that the respondent has engaged in discrimination. . ., the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay.

In his petition for commission review the complainant contends that he should be eligible for instatement into the job that was subject of the discriminatory advertisement along with back pay. However, while instatement into the job and back pay are remedies that are potentially available for a violation of Wis. Stat. § 111.322(2), those remedies are only granted where the facts warrant a conclusion that, but for the respondent's act of discrimination, the complainant would have been hired for the job.

In this case, the evidence established that the respondent never filled the job. The respondent testified that the job posting was for a position its operations people thought they needed, but that it was subsequently determined the respondent did not actually need to fill the position. The respondent elaborated that the position was for an existing route, and that it found a way to alter the route configuration so that it worked better for the current drivers without having to add additional drivers. The respondent explained that there can be a variety of circumstances when it posts a job that it ends up not filling and provided an example of another instance when this occurred. While at the hearing the complainant attempted to rebut the respondent's testimony that it did not fill the job, the commission can see no compelling reason to question the respondent's assertions on this point.

In his petition the complainant suggests that the respondent should be precluded from arguing that it did not fill the job because it repeatedly refused to comply with his discovery requests prior to hearing. This argument is without merit. In his pre-hearing discovery request the complainant asked for the applications of the two drivers who were hired for the positions at issue. In response to this request, the respondent stated that, ". . . due to changed business needs, no one was ever hired for the Hudson team driving position." The fact that the complainant's discovery attempt did not yield the evidence he sought does not mean the respondent failed to comply with it, nor is there any reason to believe that the respondent otherwise prevented the complainant from presenting his case.

Given the facts presented at the hearing, the commission sees no basis to conclude that the complainant would have received the job at issue but for the respondent's unlawful publication of a discriminatory advertisement. Under the circumstances, the most appropriate remedy, and that which will best effectuate the purpose of the statute, is an order requiring the respondent to cease and desist from printing or circulating such advertisements.

NOTE: The administrative law judge ruled that the complainant lost his opportunity to pursue instatement and back pay by failing to appeal the no probable cause determination that was issued with respect to the failure to hire portion of his complaint. The administrative law judge has not provided any authority for limiting the complainant's remedies on this basis, and the commission is not persuaded that the complainant should be foreclosed from receiving any remedies to which he would otherwise be entitled on the ground that he did not file an appeal of the no probable cause determination. However, for the reasons set forth above, the commission agrees with the administrative law judge's ultimate conclusion that the appropriate remedy in this case is a cease and desist order.

cc: Attorney Alissa Raddatz

Appealed to Circuit Court. Affirmed, August 31, 2012.

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