This is the second in a two-part blog post series regarding Wisconsin employment law and the recent scandals with the National Football League and players in the justice system.
Last week I wrote about employer responses to employee misconduct that involve an arrest and the Onalaska defense under the Wisconsin Fair Employment Act. This week my post will explain the statutory “substantially related” defense in the WFEA when an employee is arrested or convicted of a crime.
Recall that under the WFEA, it is unlawful for an employer to discriminate against an employee on the basis of the individual’s arrest or conviction record. However, employers can take adverse action where the arrest or conviction is substantially related to the charge or conviction. That is, if the circumstances of the job are substantially related to the circumstances of the crime, the employer will be able to take adverse action.
In some circumstances, the comparison is easy for the employer to make. For example, a conviction for child abuse will preclude the individual from working with children. Additionally, the WFEA has been repeatedly interpreted so that the crime of theft demonstrates untrustworthiness in many other settings and allows an employer to prevent employment in a wide variety of positions.
This leaves us with the circumstances suggested by the Ray Rice situation. Many are familiar with the set of elevator videos showing Rice punching his fiancée. These circumstances raise a good question: In Wisconsin, is an employee convicted of domestic abuse protected by the WFEA?
The answer, of course, is “it depends.” The law has been interpreted to find that misdemeanor disorderly conduct/domestic abuse is not substantially related to the duties and responsibilities of a driver hired to deliver food products to fast food restaurants. In another case, a conviction for third-degree sexual assault, use of a dangerous weapon, first-degree recklessly endangering safety, and false imprisonment involving an incident with another individual with whom the offender had a personal relationship was deemed not substantially related to the job of a lift driver in a warehouse. In these types of cases, the substantially related defense has been interpreted to look at not only the elements of the crime but also the factual circumstances as well. Facts such as where the crime was committed and the relationship with the victim may be relevant to the analysis.
Thus, employers who intend to rely on this defense should take a close look at the position at issue, the elements of the crime, and even the factual circumstances of the crime to make a determination of whether the substantially related defense applies.