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While the general rule in Wisconsin is that employers may not discriminate against an applicant or employee for an arrest or conviction record, the Wisconsin law does provide an exception where the job and offense underlying the conviction are substantially related. It is meant to be a narrow exception to the protection afforded an employee, but is sometimes broadly construed by the Equal Rights Division and Labor & Industry Review Commission.
Generally, an employer may avoid liability for discrimination based on a conviction record by showing that the circumstances substantially relate to the particular job. Wis. Stat. 111.335(1)(b) and (c)(1). This statutory exception is an affirmative defense that the employer must prove. Chicago & Northwestern R.R. v. LIRC, 91 Wis. 2d 462, 467 (Wis. App. 1979). The employer has the burden to prove that the circumstances of employment provide “a greater than usual opportunity for criminal behavior” or “a particular and significant opportunity for such criminal behavior,” not just “a mere possibility.”
The commission recognizes that an individual who is inclined to engage in criminal activity can potentially find a way to do so in virtually any employment setting. However, the mere possibility that a person could reoffend at a particular job does not create a substantial relationship. Rather, the question is whether the circumstances of the employment provide "a greater than usual opportunity for criminal behavior," Moore v. Milwaukee Bd. of School Directors (LIRC, July 23, 1999), or "a particular and significant opportunity for such criminal behavior." Herdahl v. Wal-Mart (LIRC, Feb. 20, 1997). It is inappropriate to deny the complainant employment opportunities based upon mere speculation that he might be capable of committing a crime in the workplace, absent any reason to believe that the job provides him with a substantial opportunity to engage in criminal conduct.
Robertson v. Family Dollar Stores (LIRC 10/14/05).