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Many employers routinely conduct background checks before hiring prospective employees.

What if an applicant has an arrest or conviction record? Such information can be a significant red flag.

Can an employer rely on it to reject a prospective employee?

In Wisconsin, an employer generally discriminates if it refuses to hire an applicant because of their arrest or conviction record. Wisconsin law contains no express exceptions for particular offenses.

However, an employer does not discriminate for refusing to hire an applicant due to the individual’s arrest or conviction record, so long as the offense substantially relates to the position at issue.

A recent Wisconsin Court of Appeals decision, Cree, Inc. v. LIRC, describes the analysis required of an employer in this situation.

In Cree, a prospective employee sued a company that rescinded a job offer as an applications specialist based on the individual’s domestic violence convictions, including for strangulation/suffocation, fourth degree sexual assault, battery, and criminal property damage.

The court held that the company wrongly discriminated against the applicant because it could not demonstrate that the past domestic abuse was substantially related to the applications specialist position.

The court noted that the legislature did not exempt domestic abuse convictions from the discrimination statute, and the employer presented no evidence that the applicant was violent in any other circumstance, or that he would be working closely with female employees as part of his duties.

As such, the court stated that it would require a “high degree of speculation and conjecture” to conclude that the applicant would develop a romantic relationship on the job from which he could engage in the conduct for which he was convicted.

What should employers take away from Cree?

In reviewing applications and considering applicants, employers should ensure they have and can articulate non-discriminatory reasons for not hiring or rescinding job offers.

Employers should also document their non-discriminatory analyses and reasons in their hiring processes.  If an instance arises where an employer decides not to hire an applicant because of an arrest or conviction record, the employer should take a pause to articulate and document its reasoning.

The employer should be able to explain and support the direct link between the duties and circumstances involving the position at issue and the applicant’s specific arrest or conviction record.

A petition for review with the Wisconsin Supreme Court is pending.  Cree remains law unless the petition is granted and it is reversed.