Wis.LIRC ER Decision: Sherwood, Robert - May 10, 1991 - Conviction record discrimination - 'substantially related' -- forgery, theft / bartender - Even if (contrary to ALJ's and LIRC's findings) employer knew of complainant's convictions for forgery and for theft, and made its decision not to hire him as a bartender because of those convictions, it would not have been discriminatory, because the offenses and the job were substantially related

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

ROBERT SHERWOOD, Complainant

306 PEARL, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8902593

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on November 2, 1990. Complainant filed a timely petition for review by the commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed May 10, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The Complainant appeals from the dismissal of his complaint of alleged discrimination on the basis of conviction record in regard to discharge. (Complainant had a 1985 conviction for forgery, and a 1987 conviction for theft when working part-time as a security guard.) The ALJ credited testimony given by Respondent regarding its lack of awareness that Complainant had a conviction record and its nondiscriminatory reasons articulated in explanation of Complainant's discharge. The Complainant's argument on appeal is that there is sufficient credible evidence to believe Respondent did know about his conviction record prior to the termination of his employment, and that Respondent's explanation regarding the events leading up to his discharge is so incredible that Respondent must have been improperly motivated to discharge him because of his conviction record.

However, even assuming the Commission were to accept Complainant's argument that Respondent knew about his conviction record and discharged him from his job as bartender for that reason, if the circumstances of the offense for which Complainant had been convicted substantially relate to the circumstances of his job of bartending, his discharge would not constitute illegal discrimination under the Act. Sec. 111.335(i)(c)1. Whether the circumstances of the offense substantially relate to the circumstances of the job involves "(a)ssessing 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 . . ." County of Milwaukee v. LIRC, 139 Wis. 2d 805, 824, 407 N.W.2d 908 (1987). In making this assessment, "(i)t 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.

There can be little dispute that a bartending position involves the handling of the employer's cash, thus providing an opportunity for theft. As stated by the court in Law Enforcement Standards Board v. Lyndon Station, 101 Wis. 2d 472, 492, 305 N.W.2d 89 (1981), "Common sense dictates" that a conviction for theft bears a substantial relationship to the duties of bartender.

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