DINEO BLACK, Complainant

WARNER CABLE COMMUNICATIONS 
COMPANY OF MILWAUKEE, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on September 30, 1988. Complainant filed a timely petition for review of the ALJ's decision by the Commission and both parties subsequently submitted written arguments.

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

The decision of the Administrative Law Judge is modified as follows:

1. Delete FINDINGS OF FACT numbers 9 through 13, and replace them with the following:

"9. Warner Cable suspended the employment of Black on September 23, 1985 because of his arrest, and it terminated his employment on September 30, 1985 because of his conviction.

10. Sales representatives of Warner Cable perform their work away from the premises of the employer with no direct supervision of any kind. They have the opportunity, while engaged in their assigned duties, to interrupt their selling and to go virtually anywhere in the city and do virtually anything. A salesman could conceivably interrupt his selling activities and travel to some other location to engage in personal business, as long as the salesman was able to return and complete his or her assigned quota of calls. They are also engaged in constant contact with a wide variety of people of all ages and walks of life, both in the homes they may visit to make their sales calls and on the streets as they travel their selling routes. The completely unsupervised nature of the work, the fact that a salesman could conceivably take 'breaks' and travel around the city to engage in other activities at any time during the workday, and the fact that a great deal of contact with members of the public is involved, all contribute to make the job one that would present a particularly significant opportunity to a person inclined to engage in illicit entrepreneurial activities such as trading in contraband."

2. After CONCLUSION OF LAW number 1, add the following as CONCLUSION OF LAW number 2:

"2. The circumstances of the offenses for which Black was arrested and convicted were substantially related to the circumstances of the job of sales representative for Warner Cable."

Renumber CONCLUSIONS OF LAW numbers 2 and 3 accordingly.

As modified, the decision of the Administrative Law Judge (copy attached) shall stand as the FINAL ORDER herein.

Dated and mailed July 10, 1989

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

The Commission has modified the Administrative Law Judge's decision to eliminate those findings of fact that pertain to a claim by the employer that it is a defense to its conduct that the arrest and conviction of Black would have affected Warner's reputation in the eyes of the public. The Commission finds that the offenses here (possession of cocaine with intent to deliver and delivery of cocaine) were substantially related to the position of salesperson for Warner. This finding is based on a consideration and comparison of the offenses and the job which focuses on the circumstances that may foster criminal activity, e.g., the opportunity for criminal behavior, the reaction to responsibility, and the character traits of the person. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 824 (1987). Analyzing the case under these standards, the Commission has no occasion to make findings of fact on questions relating to the effect that the continued employment of Black would have on Warner Cable's reputation or public image.

Black argues that, because Warner originally articulated only its concern for its image as a defense to the claim of illegal discrimination, there should be a conclusion that this was the only reason, and thus a conclusion that no substantial relationship existed. The Commission disagrees. 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. Such a belief on the part of the employer would not shield the employer, no matter how strongly and honestly the employer held the belief, if it were not a legally appropriate conclusion under all of the circumstances. By the same token, where a finding of a "substantial relation" is legally appropriate, it does not matter whether this was the basis on which the employer subjectively acted.

The Commission has concluded that the offenses of possession of cocaine with intent to distribute and distribution of cocaine are substantially related to the occupation of being a door-to-door salesman for Warner Cable not merely because both the offenses and the job involved selling activity (although the Commission considers this to be a legitimate consideration), but principally because the circumstances of the job are such that it would present a particular opportunity, and thus a potential temptation, for a person with a demonstrated inclination to engage in conduct such as the sale of illegal drugs.

Certainly, any such person whose job involved any degree of contact with any other persons could conceivably attempt to sell illegal drugs to them, if they were so inclined. The mere possibility that this could happen because of some contact with other persons, however, seems to the Commission inadequate in the absence of other factors to justify a finding of "substantial relation." Such a broad approach could conceivably result in a finding that offenses such as those involved here would be substantially related to virtually all jobs, since virtually all jobs entail some degree of contact with other persons. The overwhelming breadth of this conclusion is in itself a suggestion that it is not what the statute anticipates.

In this particular case, however, there is not merely the normal, incidental contact with others that can be expected to be present in most jobs. There, is a degree of freedom from supervision that is relatively uncommon in most types of employment, and a degree of unsupervised public contact in public areas that is also relatively uncommon in most employment contexts. A Warner Cable salesman is basically out on the street all day. As long as he or she meets the employer's requirements as to minimum number of sales calls, the salesman can essentially go anywhere or do anything, at any time. The amount of completely unsupervised contact with members of public is also unusually high in this job, and the Commission finds this to be significant in connection with the nature of the offense.

The Commission rejects as speculative and unwarranted the contention of the employer that a risk is presented here that drug-related violence might erupt while the employe is dealing with customers of Warner, and the suggestion of the Administrative Law Judge that a problem might be presented by the fact that the employe would be in a good position to "scout" residences for potential burglary. The particular risk presented by having a person with the Complainant's demonstrated inclinations in a position such as this are much more readily apparent than this, and they are much more directly related to the offenses for which he was convicted. The risk presented is that the employe will use the opportunity presented by his employment to engage in the sale of illegal drugs, either by using his contacts with customers of Warner Cable to facilitate the identification of potential customers for drug sales, or by using the high degree of freedom and movement he has in connection with the job to engage in drug sales to other members of the public along his route or even at some distance from his route and to whom he "commutes" during the course of his workday. The opportunities created by the particular circumstances of the job in this case are significant enough, when the job is compared to many other types of employment, that it is a legitimate conclusion that there is a "substantial" relationship between the offenses and the job in question.

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