LIRC Rejects Negative Generalization of Workforce When Applying Substantial Relationship Test
The Wisconsin Fair Employment Act prohibits an employer from discriminating against any applicant based on conviction record, unless there is a substantial
relationship between the crime and the employee’s job duties (or some other legal exception applies). The substantial relationship test requires an examination of the circumstances of the offense and the facts, events, and conditions of the job.
In September, the Labor and Industry Review Commission (LIRC) issued a decision affirming dismissal of an applicant’s conviction record discrimination complaint. The employer rescinded a job offer to the applicant due to his conviction for intent to deliver and manufacture marijuana.
In applying the substantial relationship test, LIRC rejected the employer’s argument that its own workers were more “vulnerable” to drug abuse than the general population and had a “propensity” to engage in substance use.
Instead, LIRC illustrated proper application of the substantial relationship test and reasoned that rescinding the offer was not discriminatory because the applicant’s convictions were substantially related to the position’s duties. LIRC found that relevant factors included: the second-shift nature of the job, the noisy manufacturing environment surrounded by many employees, and that there was limited supervision and substantial access to private locations. Analyzing the circumstances of the conviction and the job, LIRC determined that the applicant would have had the opportunity to meet with others in private, escalating the risk of recidivism in the workplace.
The substantial relationship test is nuanced and evolving. However, the negative generalization of the company’s employees was ultimately irrelevant to the outcome of the case. Employers should work with legal counsel on a strong legal defense, but should be careful not to advocate so aggressively that it might negatively affect the workplace culture.
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