State of Wisconsin

Labor and Industry Review Commission

Matthew W Doughty	Fair Employment Decision[1]
Complainant
Kelly Services, Inc.
Respondent	Dated and Mailed:
	July 31, 2018
ERD Case No. CR201403568	doughma2_rsd.doc:164

The decision of the administrative law judge (copy attached) is affirmed.  Accordingly, the complainant’s complaint is dismissed.

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner
	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the complainant’s allegation that the respondent discriminated against him based upon his conviction record, in violation of the Wisconsin Fair Employment Act (hereinafter “Act”).  An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision finding no probable cause to believe that discrimination occurred.  The complainant 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 at the hearing.  Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusions in that decision as its own.

Memorandum Opinion

In his petition for review the complainant takes issue with the administrative law judge’s finding that the decision not to hire him was made exclusively by FedEx Ground Package System, Inc. (hereinafter “FedEx”) and that Kelly Services, Inc. (hereinafter “Kelly”) was not involved in the decision-making process.  The complainant argues that Kelly entered into a contract with FedEx in which Kelly agreed not to hire applicants with conviction records and maintains, “That is Kelly Services deciding not to hire Doughty--an applicant with a conviction record.”   The complainant’s argument fails, for the reasons set forth below.  

While “Schedule A-1” attached to the hiring agreement does state that Kelly agrees not to hire applicants with conviction records, the agreement also provides that Kelly will comply with all state and federal non-discrimination laws and that, in the event of a conflict between the agreement and any schedule to the agreement, the agreement will control.  Consequently, the provision in Schedule A-1 in which the parties agree not to hire applicants with conviction records does not apply in Wisconsin, where state law prohibits discrimination on the basis of conviction record.  Further, notwithstanding the language in Schedule A-1, it does not appear that Kelly actually ruled out all applicants with conviction records.  Kelly’s application form only asked about convictions going back 7 years, and it specified that a conviction record would not serve as a bar to employment, but that individual circumstances would be considered.  Finally, and most importantly, regardless of the provisions in Kelly’s agreement with FedEx, the evidence indicates that Kelly did submit the complainant’s application to FedEx for its consideration and did not suggest to FedEx that he should not be hired.  In fact, there is no evidence that Kelly was aware the complainant had a conviction record or eliminated him from consideration on that basis; Kelly forwarded the complainant’s application--on which he indicated he had no convictions within the last 7 years--to FedEx, and it had no further involvement in the hiring process.

In his brief the complainant argues that the Act prohibits interference with employment opportunities and that a staffing firm that discriminates against a customer’s employees, or a customer that discriminates against a staffing firm’s employees, is liable for unlawfully interfering with employment opportunities.  The complainant contends that Kelly was “in cahoots” with FedEx and should be held equally liable under the Act, because it was a party to a discriminatory transaction.  This argument also fails.  While the commission does not disagree that a staffing firm that discriminates against a client’s employees or prospective employees may be found liable for discrimination under the Act, that did not occur in this case.  Kelly did not discriminate against the complainant based upon his conviction record--of which it was unaware--nor did it ask or pressure FedEx to do so.  It was FedEx that made the hiring decision, and Kelly’s only role in the transaction was to forward applications to FedEx so that it could consider them.  Under all the circumstances, there is no evidence to support a conclusion that Kelly did anything to interfere with the complainant’s employment opportunities.

Finally, the complainant argues that, even if Kelly did not discriminate against him, it is liable for the discriminatory acts of its agents.  This argument is undeveloped, and the complainant has not explained on what basis he believes FedEx can be considered Kelly’s agent.  Based on the evidence in this record, it does not appear that FedEx took any action on Kelly’s behalf but, rather, hired Kelly to assist it with its personnel needs.  Consequently, even if it could be found that FedEx engaged in discriminatory acts--and the commission reaches no conclusion on this point--there is no basis to determine that Kelly would be liable for that conduct under an agency theory.

cc:  Diane Merantza

       William F. Sulton

       Kyle Hartman

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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.