Wisconsin: State Supreme Court Clarifies Employers’ Burden Under Wisconsin Fair Employment Act

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March 10, 2022

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In Cree, Inc. v. Palmer, the Wisconsin Supreme Court stated that employers may potentially discriminate against individuals with a domestic violence criminal history for purposes of the Wisconsin Fair Employment Act. A provision of the Act bars employers from discriminating against applicants and employees because of an arrest or conviction record, except where the records “substantially relate” to the job circumstances. Historically, Wisconsin’s Department of Workforce Development (DWD) has stated that domestic violence does not substantially relate to any job. In Cree, the Wisconsin Supreme Court disagreed.

There, a job applicant was initially hired, then had the offer revoked after the employer discovered eight crimes of domestic violence on the applicant’s criminal record during a background check. The applicant filed a complaint with DWD. If hired, the applicant would have worked with over 1,000 employees and regularly interacted with customers, both on and off the employer’s premises.

In its ruling, the Court gave a more simplified substantial relationship test for employers to follow. Employers must show that the facts, events, and conditions of the arrest or conviction must materially relate to the facts, events, and conditions of the job. In this case, the seriousness of the offense and the short amount of time that had passed between conviction and the denial of employment, combined with an employer’s general obligation to protect its employees and customers, were in the employer’s favor.

The Court’s decision clarifies how employers should make decisions when determining if an employee or applicant’s arrest or conviction is substantially related to the job they are performing. Employers will still need to analyze each situation on its own facts and circumstances. Before making any detrimental employment decision, employers are always encouraged to seek the advice of competent legal counsel.

Action Items

Update background check processes based on the new test.
Have appropriate personnel trained on background check requirements.
Consult with legal counsel before taking adverse action against an employee or applicant.
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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.