State of Wisconsin
Labor and Industry Review Commission
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Fair Employment Decision[1] |
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Complainant |
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Respondent |
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Dated and Mailed:
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ERD Case No. CR201201421 |
June 21, 2017 |
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The decision of the administrative law judge is modified to conform with the following and, as modified, is affirmed in part and reversed in part. Accordingly, the commission issues the following:
Order
1. Time within which respondent must comply with Order. The respondent shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.
2. That the respondent shall cease and desist from using any form of application for employment which expresses an intent to discriminate based on conviction record, in violation of the Wisconsin Fair Employment Act.
3. 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.
Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See, Wis. Stat. §§ 111.395, 103.005(11) and (12).
4. That the claim that the complainant was barred from employment based upon conviction record, in violation of the Wisconsin Fair Employment Act, is dismissed with prejudice.
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By the Commission: |
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Laurie R. McCallum, Chairperson
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David B. Falstad, Commissioner |
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Procedural Posture
The complainant filed a complaint alleging that the respondent violated the Wisconsin Fair Employment Act (hereinafter “Act”) by printing or circulating a statement that implied or expressed discrimination based on conviction record, and that it barred him from employment based upon his conviction record. An equal rights officer for the Equal Rights Division of the Department of Workforce Development issued an initial determination finding probable cause, and the matter was certified to hearing. A hearing on the merits was held before an administrative law judge, after which the administrative law judge issued a decision dismissing the complaint. The complainant has filed a timely petition for commission review.
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 upon its review, the commission makes the following:
Findings of Fact
1. The respondent, Ruan Transportation Management Services (hereinafter “respondent”), is a company that transports merchandise for customers.
2. The complainant, Rick Jackson (hereinafter “complainant”) is an experienced tractor-trailer driver.
3. On April 19, 2012, the complainant saw an on-line job advertisement for tractor-trailer drivers at the respondent’s Wisconsin Rapids location. The job advertisement provided an opportunity to apply on-line, but the complainant did not file an on-line application. Instead, the complainant wrote a letter to the respondent indicating that he wanted to apply for a job, and explaining that he has been convicted of “home invasion, 2 counts of armed robbery, 2 counts of unlawful restraint, (2 cts) aggravated battery, residential burglary, and armed violence.”
4. In his letter the complainant asked the respondent to send him a job application or, if it determined that he was not qualified because of his conviction record, to send him confirmation of that fact because he receives benefits and must show that he is looking for work.
5. Roxana Meyers, a qualifications specialist for the respondent, received the complainant’s letter on April 23, 2012. That day Ms. Meyers mailed a job application to the complainant at the address he provided in his letter.
6. The complainant did not receive the job application that Ms. Meyers sent. He did not contact the respondent again to follow up on the status of his April 19, 2012 letter or to reiterate his request for an application.
7. The respondent never received a completed job application from the complainant, nor was the application that Ms. Meyers mailed to him returned to the respondent by the postal service as undeliverable mail.
8. The respondent did not refuse to send the complainant a job application, withhold an application from him, or take any other action that barred him from applying for the driver position in Wisconsin Rapids.
9. The job application form that the respondent sent the complainant contains a detailed list of “Driver Qualification Guidelines,” which includes a variety of specific types of disqualifying conduct related to driving. In addition to the driving-specific disqualifications, the application also states:
No Felony and/or Aggravated Misdemeanor convictions in the last 7 years. (Other criminal history will be reviewed and may be disqualifying).
Any pending charges and less than “honorable” discharges from the military will be evaluated and reviewed.
Frequent or severe misdemeanor convictions will be evaluated and reviewed by the employer and may result in disqualification.
Other applicable states laws may limit consideration of offenses contained herein.
10. The job application form used by the respondent expressly states that anyone who has been convicted of a felony or aggravated misdemeanor in the last 7 years does not meet the requirements for the job.
Conclusions of Law
1. The respondent did not bar the complainant from employment based upon conviction record, in violation of the Act.
2. The respondent used a form of application for employment which implied or expressed an intent to discriminate based upon conviction record, in violation of the Act.
Memorandum Opinion
Barring from employment
The complainant alleged that the respondent barred him from employment based upon his conviction record. However, the complainant failed to present sufficient evidence with respect to that claim. To begin with, the complainant presented no testimony or other evidence to establish that he is an individual with a conviction record, within the meaning of Wis. Stat. § 111.32(3). The only evidence on this point is the statement contained in his letter to the respondent requesting a job application, in which the complainant wrote: “I have been convicted of home invasion, 2 counts of armed robbery, 2 counts of unlawful restraint, (2 cts.) aggravated battery, residential burglary, and armed violence.” The complainant provided no additional testimony or supporting evidence with respect to this statement.
Assuming, without deciding, that the complainant has met his initial burden of establishing that he is an individual with a conviction record and therefore entitled to the protections of the Act, there is nonetheless no basis to conclude that he was barred from employment because of conviction record. The respondent’s witness credibly testified that she sent the complainant a job application, and no evidence was presented to suggest that the respondent prevented the complainant from applying or that it would have been unwilling to consider his application had he submitted one. The fact that the complainant did not receive the application the respondent sent him does not change the essential fact that the respondent attempted to provide the complainant with an opportunity to apply. Moreover, the complainant also had an opportunity to file an application on-line, but did not do so. Where the complainant never applied for the job, and made no effort to follow up with the respondent when he received no reply to his letter requesting an application, there is no basis to conclude that he was barred from employment based upon conviction record, as alleged in his complaint.
Printing/circulating violation
Wis. Stat. § 111.322(2) makes it an act of employment discrimination:
To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or 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.
In his original complaint, date-stamped April 27, 2012, the complainant alleged, in relevant part:
The employer “prints and circulates” a discriminatory policy contrary to WFEA Wis. Stat. 111.322(2) indicating that it has a blanket policy on not hiring individuals with a felony regardless of the nature or the time that has elapsed since the sentence has been completed.
The complainant did not specify on the face of the complaint where the “blanket policy” of discrimination he was referring to could be found. However, he attached a copy of a job advertisement to his complaint, and it may be inferred that he was referring to a statement printed in that document.
In a revised complaint, date-stamped May 30, 2012, the complainant stated, in relevant part:
I attempted to both apply as well as get additional information on the employer’s no felony policy but the employer has not responded back... The employer’s “printing and publishing” § 111.322(2) discriminatory policy contrary to WFEA is a completed violation on its face.
Again, the complainant did not explain where the alleged “no felony policy” to which he referred was printed or published. The complainant did not attach any documentation to the revised complaint.
At the hearing the complainant provided no testimony specifically directed at the printing/circulating allegation, nor any documentary evidence establishing that the respondent had violated the statute. Although the complainant had attached a copy of the job advertisement to his original complaint, at the hearing he failed to present a copy of the job advertisement to which he responded and instead provided an incomplete copy of an advertisement for a different job posted by the respondent, located in Madison, in which the information following the heading, “Qualifications,” was missing.
However, at the hearing the respondent introduced a copy of the application form it mailed to the complainant. As stated above, the application supplied by the respondent contains a lengthy list of disqualifying conduct that is specific to driving. For example, the “Driver Qualification Guidelines” state, “No more than 3 moving violations within the past 3 years,” and “No convictions for operating a motor vehicle without permission of the owner or fleeing or eluding a police officer.” In addition to the driving-specific disqualifications, the application also states:
No Felony and/or Aggravated Misdemeanor convictions in the last 7 years. (Other criminal history will be reviewed and may be disqualifying).
Any pending charges and less than “honorable” discharges from the military will be evaluated and reviewed.
Frequent or severe misdemeanor convictions will be evaluated and reviewed by the employer and may result in disqualification.
Other applicable states laws may limit consideration of offenses contained herein.
Ms. Meyers testified that the respondent changed its application policy with regard to conviction records “right after 2012,” but did not elaborate upon that statement.
In his decision finding no violation of the printing/circulating statute, the administrative law judge had this to say about the employment application:
The Respondent’s admission into evidence of a copy of the employment application sent by Ms. Meyers cannot serendipitously supplant the allegedly discriminatory job advertisement that was never offered as evidence, and cannot otherwise resuscitate Mr. Jackson’s claim. As part of its case to prove that Ms. Meyer did send Mr. Jackson an employment application, the Respondent introduced into evidence as Exhibit 3, a copy of that application. The application contains references to various driving-related offenses; however Mr. Jackson’s claim that Ruan printed or circulated a discriminatory statement, advertisement, or publication is based on the allegedly discriminatory content of an online advertisement for the Wisconsin Rapids driver position – not the job application that the Respondent introduced into the hearing record. For Mr. Jackson himself testified that he never received a job application from Ruan. And yet instead of following up on that non-receipt, he filed the instant case. His discriminatory-statement claim could not have been based on a document (the employment application) that he claims not to have seen prior to filing his complaint. Therefore, Mr. Jackson’s claim that Ruan printed or circulated a discriminatory statement, advertisement, or publication also must be dismissed with prejudice.
The commission disagrees with this analysis. Findings and orders under the Act may not be broader than that specified in the complaint and notice of hearing. See, Greco v. Snap On Tools Corp., ERD Case No. 200200350 (LIRC May 27, 2004). However, in this case the complainant did not attempt to broaden the allegations made in his complaint at the hearing. The complainant alleged that the respondent printed and circulated materials that expressed an intent to discriminate based upon conviction record, in violation of Wis. Stat. § 111.322(2), and that issue was noticed for hearing. The complainant did not specify in his complaint which printed materials were the subject of the complaint,[2] but even assuming he was referring to the job advertisement, there would be no reason to conclude that his allegation that the respondent violated sec. 111.322(2) of the statute by printing a discriminatory hiring policy would not also cover a discriminatory hiring policy contained in the application. The commission does not see any basis to limit the scope of the discriminatory printing/circulating issue raised in this case to the contents of a single document.
Moreover, while it is an unusual circumstance that the complainant did not actually see the job application until the hearing, and that the application was introduced into the record by the respondent, these factors should not serve to defeat his claim. The application is contained in the record and was authenticated by the respondent’s witness. For purposes of a sec. 111.322(2) printing/circulating claim, it is not necessary that the complainant have been directly affected by the discriminatory conduct. “The violation is complete when the policy is in place and then printed or circulated.” Racine Unified School Dist. v. LIRC, 164 Wis. 2d 267, 592-93, 476 N.W.2d 707 (Ct. App. 1991). Further, as the Wisconsin Supreme Court has noted, “[A] Complainant who files a Complaint under the Fair Employment Act is acting as a “private attorney general” to enforce the rights of the public and to implement a public policy that the legislature considered to be of major importance.” Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 42 (1984). Given the foregoing, the commission does not believe that a decision-maker is justified in disregarding evidence that an employer used a discriminatory job application form on the technical basis that the complainant was not the party who introduced the evidence into the record or because he was not directly affected by it.
Having concluded that the job application may be considered as evidence of a sec. 111.322(2) violation, the question to decide is whether the job application in this case does, in fact, express an intention to discriminate. The commission concludes that it does. It is not discrimination because of conviction record to refuse to employ an individual who has been convicted of a crime that is substantially related to the circumstances of the particular job. Wis. Stat. 111.335(1)(c)1. Therefore, the statements regarding convictions that specifically pertain to driving would, in all likelihood, not be considered statements expressing an intent to discriminate. However, the statement “No Felony and/or Aggravated Misdemeanor convictions in the last 7 years” contained under the heading “Driver Qualification Guidelines” indicates that even individuals with convictions that are not substantially related to the job will be disqualified. While the application form does state thereafter that “other applicable state laws may limit consideration of offenses contained herein,” that statement is too vague to mitigate the harm done by the previous statement, which is underlined in the application for emphasis, and which clearly indicates that individuals with recent felony or aggravated misdemeanor convictions are not considered qualified for the job.
The final issue to resolve, then, is what the remedy ought to be for the respondent’s violation of the Act. The administrative law judge indicated that this matter would be bifurcated, with a separate hearing held as to remedy if a violation were found. However, the commission sees no need for a separate hearing with respect to the publication question, as there is no fact issue presented that requires a hearing to resolve. There are no attorney’s fees to award, because the complainant appeared pro se. Nor can it be found that the complainant would have applied for the job but for the respondent’s statement expressing discrimination, given that he never saw the discriminatory application, and because there is no evidence to indicate that the disqualification for individuals convicted of felonies in the last seven years would have applied to the complainant. Therefore, the commission concludes that the complainant has no colorable claim for back pay as a result of the respondent’s violation of the statute.
The only remedy available in this case is a cease and desist order. The respondent must remove the discriminatory language from its application, a matter which its witness contends has already been done. This is a remedy that can be ordered without a hearing, and the commission has done so.
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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.
Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.
[2] A complainant need only provide a general statement describing the allegedly discriminatory action in order to satisfy the liberal pleading requirements of the Act. See, Moeller v. County of Jackson, ERD Case No. CR200003908 (LIRC Jan. 27, 2003).