COREY J WILSON, Complainant

NEW HORIZON CENTER INC, Respondent

An administrative law judge (ALJ) 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 ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

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

Dated and mailed September 11, 2003
wilsoco2 . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for review the complainant takes issue with the ALJ's memorandum opinion statement that the substantial relation test is an objective test to be applied after-the-fact by the reviewing tribunal and that it does not matter whether or not the employer considered the substantially related issue when making the termination decision. The ALJ's statement correctly reflects long-established case law with respect to the substantial relationship defense. See, e.g., Black v. Warner Cable Communications (LIRC, 07/10/89), "The 'substantial relation' test provided for in s. 111.335, Stats., is an objective, legal test, not a test of the employer's motives. It is an affirmative defense, and if it is demonstrated at hearing to have been applicable as a matter of law to a challenged decision, it operates as a bar to any finding of liability whether or not, at the time of the challenged decision, the employer had a conscious intention or belief that it was acting because of a `substantial relationship' between certain offenses and the job." See, also, Collins v. Milwaukee County Civil Service Commission (LIRC, 03/08/91), aff'd, sub nom. Collins v. LIRC, Case No. 91-2839, Ct. App., Dist. 1, unpublished decision, 12/15/92; Santos v. Whitehead Specialties (LIRC, 02/26/92).

Next, the complainant apparently misconstrues the import of the ALJ's statement that the Fair Employment Act does not protect employees from ordinances or other rules imposed upon employers. First the complainant argues that the respondent was not a county facility so it was not bound by any county rules. Then he argues that the respondent "negligently terminated me because they claimed the ordinance required them to do so." However, the gist of what the ALJ was saying was that the Fair Employment Act protected employees from prohibited conviction record discrimination, not ordinances or rules that were imposed upon employers, and that the record in this case overwhelmingly supported the conclusion that the complainant was terminated because of his conviction record.

Finally, the complainant argues that the substantial relationship test is biased (because in County of Milwaukee v. LIRC, 139 Wis. 2d 805 (1987), the court stated that it was not the details of the criminal activity that are important, but rather the circumstances that foster criminal activity, such as opportunity for criminal behavior, reaction to responsibility and character traits of the person), and that it was never proven that a substantial relationship exists between his crime and his job with the respondent. As reason for the alleged lack of relationship, the complainant argues that he was convicted of a "non-violent crime," that children were not used in the commission of his crime and that he has never abused or neglected anyone. These arguments fail. First of all, regardless of what the complainant thinks of the County of Milwaukee decision, this is the law. Second, contrary to argument by the complainant, there is a substantial relationship between his convictions for party to possession with intent to deliver/manufacture controlled substances (1989) and possession with intent to deliver/manufacture controlled substances (1993), and his job as a counselor at a group home residential center for youths that have had criminal, emotional or mental health problems. As stated by the ALJ:

"Given the freedom from the supervision, the free time available during the shifts worked and in the residence setting, and the position of trust and responsibility the job involves in dealing with youth who have already had trouble with the law and/or are having emotional or mental health issues, the Administrative Law Judge can reach no other conclusion but that there is a substantial relationship between the conviction record and the job involved in this case. The Labor and Industry Review Commission reached a similar conclusion in Sellars v. Sunburst Youth Homes, (LIRC, 7-18-1995), when it concluded that a conviction for delivery of cocaine was substantially related to employment as a youth counselor for emotionally disturbed juveniles. See also, Delapast v. Northwoods Beach Home Caring Homes, (LIRC, 2-17-1993), where felony delivery of controlled substances was found to be substantially related to a job care for dependent adults."

Accordingly, the commission therefore affirms the decision of the administrative law judge.

cc: Attorney Cynthia L. Manlove

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uploaded 2003/09/15