CYNTHIA D NATHAN, Complainant

WAL-MART, Respondent

An administrative law judge 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 agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. In paragraph 9 of the administrative law judge's FINDINGS OF FACT the date "September 30, 2013" is deleted and the date "November 30, 2013" is substituted therefor.

2. In paragraphs 11, 12, and 13 of the administrative law judge's FINDINGS OF FACT the year "2013" is deleted and the year "2014" is substituted therefor.

3. Paragraph 1 of the administrative law judge's ORDER is deleted and the following is substituted therefor:

"That the respondent shall cease and desist from discriminating against the complainant on the basis of arrest record."

4. In the first sentence in paragraph 2 of the administrative law judge's ORDER the date "September 30, 2013" is deleted and the date "November 30, 2013" is substituted therefor.

5. The following language is inserted after the second sentence in paragraph 2 of the administrative law judge's ORDER:

"Any unemployment insurance or welfare benefits received by the complainant during the back pay period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Insurance Reserve Fund or the applicable welfare agency. (Reimbursement for unemployment insurance should be made in the form of a check made payable to the Department of Workforce Development and should include the complainant's name and social security number.)"

6. In the last sentence of paragraph 2 of the administrative law judge's ORDER the word "jointly" is deleted.

7. Paragraph 3 of the administrative law judge's ORDER is deleted, and the following is substituted therefor:

"That within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent shall submit a copy of the Compliance Report to the complainant at the same time that it is submitted to the commission. Within 10 days from the date the copy of the Compliance Report is submitted to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report."

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

Dated and mailed October 20, 2015

nathacy_rmd . doc : 164 : 5  122 122.2

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The question presented in this case is whether the respondent violated the Wisconsin Fair Employment Act (Act) when it suspended the complainant from her job as a cashier based upon her arrest record.(1) The administrative law judge found that the respondent's actions were undertaken in violation of the Act, and the commission agrees.

Sections 111.321 and 111.322(1) of the Act prohibit an employer from engaging in any act of employment discrimination against any individual on the basis of arrest record, with only one exception:

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.

Wis. Stat. § 111.335(1)(b).

A determination as to whether the circumstances of a criminal offense are substantially related to a particular job requires assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. 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. Goerl v. Appleton Papers, Inc. (LIRC, October 5, 1992). As a general rule, the circumstances of the offense are to be gleaned based upon a review of the elements of the crime and an inquiry into the factual details of the specific offense is not required. County of Milwaukee v. LIRC, 139 Wis. 2d. 805, 823-824, 407 N.W.2d 908 (1987).

A finding of a substantial relationship requires a conclusion that a specific job provides an unacceptably high risk of recidivism for a particular employee. On this point the commission has held:

The question is whether the circumstances of the employment provide a greater than usual opportunity for criminal behavior or a particular and significant opportunity for such criminal behavior. It is inappropriate to deny a complainant employment opportunities based upon mere speculation that he might be capable of committing a crime in the workplace, absent any reason to believe that the job provides him with a substantial opportunity to engage in criminal conduct. The mere possibility that a person could re-offend at a particular job does not create a substantial relationship.

Robertson v. Family Dollar Stores, Inc., ERD Case No. CR200300021 (LIRC Oct. 14, 2005). See, also, Moore v. Milwaukee Bd. of School Directors, ERD Case No. 199604335 (LIRC July 23, 1999)(commission looks at whether the job presents a particular or significant risk of recidivism for the complainant); Herdahl v. Wal-Mart, ERD Case No. 9500713 (LIRC Feb. 20, 1997)(relevant question is whether the job presents a "greater than usual opportunity" for criminal behavior).

In this case, the complainant worked as a cashier in a department store and was charged with misdemeanor battery. Therefore, the resolution of this matter requires an analysis of the connection between the circumstances of the offense of battery and the job of cashier.

The commission has previously held that the central element of the offense of misdemeanor battery is the intentional infliction of bodily harm on another person, and that the underlying traits evidenced by such conduct might include disregard for the health and safety of others, inability to control anger, frustration, or other emotions, and use of violence to achieve power or to solve problems. Moran v. State of Wisconsin, ERD Case No. CR200900430 (LIRC Sept. 16, 2013), citing McClain v. Favorite Nurses, ERD Case No. 200302482 (LIRC April 27, 2005). Those character traits have been found to be substantially related to the duties and responsibilities of a variety of jobs involving direct contact with vulnerable people, including the job of a police officer, Robinson v. City of Milwaukee PFC, ERD Case No. 200704546 (LIRC Aug. 27, 2010), a nurse, who was responsible for delivering direct care to hospital patients, many of whom were combative or disoriented, McClain v. Favorite Nurses, ERD Case No. 200302482 (LIRC April 27, 2005), and a certified nursing assistant working in a nursing home, Williams v. Havenwood Health & Rehabilitation Center, ERD Case No. 200202280 (LIRC March 11, 2005).

On the other hand, the commission has found that the traits revealed by a charge of battery were not substantially related to the responsibilities of the job of custodian at a university. Moran v. State of Wisconsin, ERD Case No. CR200900430 (LIRC Sept. 16, 2013). In Moran, the commission distinguished the cases cited above and noted that:

All of the jobs in question entail working in a position of trust with vulnerable people, and all are jobs in which patience and calm are necessary attributes. However, the complainant in this case did not work directly with people; her job was primarily to clean bathrooms and floors. There is no reason to presume that the job of custodian would pose particular opportunities for criminality for a person with anger management issues or a tendency to solve problems through violence. . . .

Unlike the complainant in Moran, the complainant in this case did have a job requiring her to interact with people. The complainant rang up sales and provided customer service to members of the general public at a large department store. However, the complainant's job as a cashier is readily distinguishable from the type of jobs that the commission has found to be substantially related to the offense of battery. The complainant did not work with vulnerable populations, was not in a position of trust, and was not alone with the people with whom she interacted, but performed her work in an open and public setting where other shoppers and employees were likely to be present. While in its petition the respondent emphasizes the fact there can be angry or irate customers that the complainant would need to deal with, and that patience was a requirement of the job, the evidence shows that the complainant was not required to interact directly with angry customers, but was expected to locate a manager to handle the situation. Further, as indicated above, a public encounter with an angry Wal-Mart shopper would not present the same risk as would, for example, an encounter with an elderly and agitated nursing home resident, possibly taking place in that resident's room and away from public scrutiny. Considering all the facts and circumstances, the commission believes that the complainant's job would not have provided her with a significant opportunity to engage in criminal conduct, and it agrees with the administrative law judge that the substantial relationship defense was not established.

In its brief in support of the petition for review the respondent also argues that the administrative law judge erred in refusing to allow it to introduce evidence of the complainant's behavior subsequent to the suspension. However, the administrative law judge correctly ruled that events occurring after the suspension were not relevant to the question of whether a substantial relationship existed between the circumstances of the charge and the circumstances of the job. Just as prior satisfactory job performance is not germane to the inquiry that must be conducted in applying the substantial relationship test, Weston v. ADM Milling Co., ERD Case No. CR200300025 (LIRC Jan. 18, 2006), neither are incidents occurring in the future.

Finally, the respondent has identified several errors in the administrative law judge's decision that warrant correction. The commission has modified the administrative law judge's decision to accurately set forth the dates on which certain events occurred, most significantly with respect to the date on which the complainant was suspended from her employment. The record indicates that the complainant's employment was suspended on November 30, 2013, rather than on September 30, 2013, as found by the administrative law judge, and the commission has modified both the findings of fact and the back pay order accordingly. The commission has further modified the order to specify how unemployment insurance or welfare benefits received during the back pay period are to be treated. Finally, it has deleted the portion of the administrative law judge's remedial order that requires the respondent to change "its policy under which it considers all violent arrests and convictions to be substantially related to all of its jobs." The respondent's written policy with regard to arrests and convictions does not appear to contemplate such a result.

cc: Attorney Joseph Weiner

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) While evidence at the hearing suggests that the complainant may also have been denied a promotion based upon the pending charge, the complainant did not raise this matter in her complaint, and the administrative law judge did not address it in his decision. 

uploaded 2015/11/30