Can men with history of domestic violence against women be denied jobs working with women? | State

It is illegal for employers to deny jobs to applicants if they have a criminal history, unless that criminal history directly relates to the job. For example, someone with convictions for fraud or embezzling can be denied a job that would give them access to a company’s checkbooks.

But what if someone with a criminal history that involves domestic violence against women applies for a job at a 600,000-square-foot facility where women are employed?

A Racine County case, which had its beginnings six years ago and is now to be heard by the Supreme Court of Wisconsin, deals with this very question. The case could have ripple effects across Wisconsin — in this case, for employers and applicants with criminal records.


CLICK HERE to read the Appeals Court decision in CREE, INC. v. LIRC regarding the Derrick Palmer job application case



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The facts of the case

In 2015, Derrick Palmer received a job offer from Cree Lighting — one of Racine’s biggest employers and an international lighting manufacturer.

However, the offer was rescinded after the company learned of Palmer’s convictions.

In 2012, Palmer was convicted of strangulation/suffocation, fourth-degree sexual assault, battery, and criminal damage to property related to a domestic incident with a live-in girlfriend, according to court filings; he was sentenced to 30 months in prison plus 30 months of community supervision.

Court documents indicate Palmer has a 2001 domestic battery conviction, although Cree attested that it was unaware of that conviction when the job offer was rescinded and that only the 2012 convictions were considered.

Palmer filed a discrimination complaint, alleging that Cree unlawfully discriminated against him based upon his conviction record.

Cree argued that, by hiring someone with Palmer’s history, it would be putting the safety of its female employees at risk. The Racine facility where Palmer would be working has, according to court documents, more than 1,100 employees, nearly half of whom are women. In his job Palmer “would have access to the entire facility,” according to a court filing, including areas where there aren’t security cameras.

Cree, according to court filings, argued that the noisy nature of the busy factory floor allowed “significant opportunity with which Palmer could ‘commit additional crimes against persons and property.’ Cree also states that Palmer ‘would have … regularly interact(ed) with female coworkers whom he could later harm outside of work.’ ”

The job Palmer had been offered, which was later rescinded, included travel to other locations to meet clients and occasionally staying in hotels while on business without supervision. His primary job, as an applications specialist, would have been based in a cubicle, although he would not have spent 100% of his time there.

Decisions in the case have gone back and forth in the ensuing six years. Attorneys for both sides declined to comment on the case.



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One decision reverses the last

After an evidentiary hearing, an administrative law judge sided with Cree, saying that the company had not discriminated.

That decision was appealed and Wisconsin’s Labor & Industry Review Commission — an independent government agency that reviews administrative law judges’ decisions in cases involving unemployment and workers’ compensation as well as equal rights — reversed the administrative law judge’s decision, finding that Cree had discriminated based on Palmer’s conviction record.

According to court documents, “LIRC found that Cree rescinded Palmer’s job offer based solely on his conviction record. It further concluded that Cree had failed to meet its burden under (Wisconsin Statute 111.335) of demonstrating that Palmer had “been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances” of the applications specialist job.

In its decision, LIRC asserted that Palmer’s convictions relate specifically to violence against women in relationships with him, not with women in general, and thus should not have been taken into account when the hiring decision was made simply because there will be women in the same building as him.

As Kress Employment Screening, Texas-based human resource consulting firm, wrote in an article titled “Should You Hire Someone Accused of Sexual Harassment in the Workplace?” on its website: “If a job candidate is up front with you about sexual harassment allegations, you must always consider the potential liability the hire could bring into your company. If this person is accused again of sexual harassment in your workplace and you knew about his or her history, you could be opening yourself and your company to a potential lawsuit.”

Similarly, a 2018 report from the National Association of Professional Background Screeners states: “All that matters for liability may be that the employer COULD have foreseen that SOME injury would likely result in SOME manner as a consequence of the employee’s acts.” (Emphasis added by NAPBS.) That NAPBS report cited a 2007 case in New York where “an employee with a conviction for first- degree sexual abuse subsequently physically assaulted a coworker. Though the assault on the coworker was not a sexual assault, the employer was found liable because the harm was similar enough to have been foreseeable.”

However, according to LIRC in the case of Cree Inc. v. LIRC, “the fact that there are female employees in the plant with whom the complainant could potentially become involved in a personal relationship that might end badly is a scenario requiring a high degree of speculation and conjecture, and one that goes well beyond any reasonable concern about job-related conduct.

“Moreover, the ability to meet females and form personal relationships with them is not a circumstance unique to the job at issue, but describes virtually any employment situation in which female workers might be present.

LIRC further asserted that Cree failed to provide enough evidence “to suggest that he would be working closely with female employees. While the record indicates that the job would entail occasional trade show travel, the evidence does not establish that the complainant would be traveling with females on business trips, and there is no basis to conclude that he would be sharing cars, staying at the same hotels, or socializing with females in the course of his business travel.”

Cree appealed LIRC’s decision to the Racine County Circuit Court. The case landed in front of Judge Michael Piontek, who found in Cree’s favor.

The case then moved on to the Wisconsin Court of Appeals.






Court of Appeals Judge Mark D. Gundrum

Gundrum


In writing the Court of Appeals’ decision, Judge Mark Gundrum wrote that the court’s three-judge panel looked at a 1987 case that stated employers considering whether to hire someone based on their past actions must assess “whether the tendencies and inclinations to behave a certain way, in a particular context, are likely to reappear later in a related context, based on the traits revealed.”

In this case, Cree (and now the courts) are to assess whether Palmer’s history of violence against women in domestic scenarios should bar him from gaining employment in a place where he would most certainly be in contact with women, but not necessarily in contact with women with whom he is in a relationship.

The Appeals Court’s decision stated that “Palmer’s criminal record does demonstrate a ‘tendenc(y) and inclination … to behave a certain way in a particular context’ — to be physically abusive toward women in a live-in boyfriend/girlfriend relationship … In light of Palmer’s criminal history, if the question before us was whether Palmer is likely to again be violent toward another woman with whom he is in a live-in boyfriend/girlfriend relationship, the answer would almost certainly be ‘yes.’ But that is not the question before us.”

Like LIRC, the Appeals Court ruled that Cree had not “met its burden to show that Palmer’s past domestic abuse is substantially related to the circumstances of the Applications Specialist job Palmer applied for,” and again ruled in Palmer’s favor.

Gundrum noted that the Legislature, should it have chosen to, could have written into law that those with “certain particularly disturbing offenses” on their record — like murder, rape and domestic abuse — could be legally rejected for more jobs as a result of the nature of their crimes, but “the Legislature chose not to” make such a caveat in the law.

Some local laws address this issue more specifically. The City of Madison, for example, has an ordinance that specifically says employers “may not” consider information from conviction records when it comes to hiring “if three years have passed since you were placed on probation, paroled, released from incarceration, or paid a fine, for a felony, misdemeanor or other offense.”



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Unsurprisingly, the Appeals Court’s decision was appealed by Cree, and the Supreme Court of Wisconsin agreed to hear the case late last month.

Two members of the Wisconsin Manufacturers and Commerce have filed briefs in the case, indicating wider interest beyond Palmer and the company that rescinded its job offer to him.

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