Does the WFEA Protect Against Discrimination Based on Municipal Offenses?
By Storm B. Larson, Brian P. Goodman, Mai Chao Chang and Aiyanah Simms
On June 17, 2024, the Wisconsin Supreme Court agreed to review an important employment law case, Oconomowoc Area School District v. Cota, which involves arrest and conviction record discrimination. In the case, the Oconomowoc Area School District terminated two of its employees, the Cota brothers, because they were issued a municipal citation for theft, and the municipal prosecutor agreed to drop the charges if the Cota brothers agreed to pay the district $500.
The Cota brothers challenged their terminations as unlawful “arrest record” employment discrimination under the Wisconsin Fair Employment Act (WFEA) because the district relied on the citation for the termination decision. According to the Cota brothers, the citation and the information regarding the citation being dropped constituted arrest records. State law prohibits terminations based solely on arrest records. The law only permits employers to suspend employees based on arrest records, and even then, only if the crime leading to the arrest is substantially related to the individual’s job.
The Wisconsin Court of Appeals ultimately held that the WFEA does not prohibit employment discrimination based upon civil, municipal offenses and concluded that the Wisconsin Legislature intended the WFEA’s arrest record provision to cover only criminal offenses. However, the Wisconsin Supreme Court will likely clarify the scope of the WFEA’s protections against arrest record discrimination as they relate to municipal and civil offenses when they review the case on appeal.
Importantly, for Madison employers, it is unknown if the Madison Equal Opportunities Division will adopt the conclusion of the Court of Appeals (or even the Wisconsin Supreme Court) with respect to the application of the Madison Equal Opportunities Ordinance. That ordinance is separate and distinct from the WFEA. Therefore, employers with employees in the city of Madison should be extra cautious before terminating an employee based on a citation or municipal forfeiture.
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