STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JOHN T NELSON, Complainant

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9401390

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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.

DECISION

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

Dated and mailed: May 17, 1996
nelsojo.rsd : 125 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant in this case was refused hire in January 1994 as a district agent to sell insurance and investment products for the respondent in part because of his convictions for forgery and burglary which occurred in 1968 and 1970, respectively. A district agent handles client's funds in the form of checks and cash, and regularly deals with a great number of internal and external forms that could be subjected to forgery for personal gain. Also, 90 percent of the district agent's business is conducted in the homes and offices of the respondent's contract holders and prospective clients. The administrative law judge concluded that the complainant's convictions for forgery and burglary were substantially related to the circumstances of the job of district agent and therefore dismissed his complaint of conviction record discrimination.

The complainant argues that the ALJ erroneously decided that the date of the crime is irrelevant to the issue of whether a substantial relationship exists between the conviction and the job applied for, and that the case of County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), offered support for this position. These arguments fail. First of all, there is nothing in the statutory language of the conviction record provision which indicates that the length of time between the conviction record and the alleged discrimination is a relevant consideration. Section 111.335(1)(c)l., Wis. Stats., simply identifies the relevant concern as to whether or not the individual "has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job..." Secondly, the court's interpretation of this provision in County of Milwaukee, further indicates that the time elapsed since the offense occurred is not relevant. The court stated that the purpose of this language was the result of the legislature's assessment of how to balance the competing interests of "providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the `propensity' to commit similar crimes long recognized by courts, legislatures and social experience." Id. at p. 823. The court stated that what is important in this assessment is "not the factual details related to such things as the hour of the day the offense was committed, the clothes worn during the crime, whether a knife or gun was used...It 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. at p. 824. Furthermore, in County of Milwaukee the court cited with approval at pages 814-815 its earlier decision in Law Enforcement Standards Board v. Village of Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981), where the majority failed to consider, among other things, the time elapsed since William Jessen's conviction for falsification of uniform traffic citations and his employment as the chief of police by the village when considering whether the circumstances of his offense was substantially related to the duties of village chief of police. Lyndon Station 101 Wis. 2d at 513-515.

The complainant apparently further argues that the ALJ erroneously found that the circumstances of his offenses were substantially related to the job in view of the fact that the purpose of the hearing was only to determine whether or not there was probable cause to believe that discrimination had occurred, and because there was evidence that he was "licensed" to sell the exact product that the respondent refused him the opportunity to sell by the State of Wisconsin and the National Association of Securities Dealers, he had worked for the Metropolitan Life Insurance Company (for about one year) without incident immediately before applying for work with the respondent, his superiors at Metropolitan endorsed his integrity and capabilities and because other agents at the respondent had urged his hiring. The gist of this argument by the complainant is that the evidence shows that he has the ability to perform the job of district agent for the respondent. This argument also fails. The complainant's ability to successfully work as a district agent is simply not relevant in ascertaining whether his convictions are substantially related to the position. "Whether an individual can perform a job up to the employer's standards is not the relevant question. This does not constitute a proper inquiry into the `circumstances.'" County of Milwaukee, 139 Wis. 2d at 827.

Based upon the above, the commission affirms the ALJ's decision finding that the complainant's convictions for forgery and burglary are substantially related to the circumstances of the job of a district agent and that he has thus failed to establish probable cause to believe that the respondent discriminated against him in violation of the Act because of his conviction record.

cc: GEORGE BURNETT
DAVID B. KERN

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