by Jacob Barrett

In a 4-to-3 decision handed down on March 10, 2022, the Supreme Court of Wisconsin held an employer did not unlawfully discriminate against a former state prisoner by rescinding a job offer based on his domestic violence convictions.

In its ruling, the Court held that the state fair employment law designed to protect returning prisoners also carves out an exception to protect potential co-workers they might victimize. But in their dissent, the minority noted that the law provides no “categorical exception for domestic-violence convictions,” and the majority’s decision “essentially eliminates” the test for exception that the law does provide.

Derrick Palmer was convicted in 2013 of eight domestic abuse crimes during a break-up argument with his live-in girlfriend. For beating and sexually assaulting her, he pleaded no contest to felony strangulation and suffocation, misdemeanor battery, fourth degree sexual assault, as well as criminal damage to property. He was sentenced to 30 months in prison, 30 months extended supervision, four years of probation, and was ordered to register as a sex offender. Palmer also had a previous conviction in 2001 for domestic violence.

In prison, Palmer earned his mechanical design certification through an education program, in which he then worked as a tutor. Upon release, he applied at Cree, Inc., which manufactures lighting components, for an Application Specialist position.

Cree offered Palmer the job subject to a background check, though he revealed his convictions in his application. After reviewing them, Cree rescinded its offer.

Palmer filed a complaint with the state Department of Workforce Development’s Equal Rights Division (ERD), accusing Cree of discriminating against him based on his convictions, in violation of the state’s Fair Employment Act (FEA), Wis. Stat. § 111.31 et. seq.

But an ERD administrative law judge found that Cree’s refusal to hire Palmer fell under an exception found in § 111.335(3)(a)1 because the circumstances of his offense “substantially relate to the circumstances of the particular job.”

How? Cree argued that hiring someone convicted of violence toward a woman could endanger some 500 women who also work at its Racine facility. The administrative law judge agreed, concluding that pursuant to FEA the firm “did not discriminate against Palmer when it rescinded its job offer.”

Palmer appealed to the Labor and Industry Review Commission (LIRC), which reversed the decision, finding Palmer’s domestic violence conviction was not “substantially related” to the job at Cree. But a circuit court then reviewed that decision and reversed LIRC, holding the administrative law judge was correct.

Palmer appealed, and the Court of Appeals again reversed the decision, agreeing with LIRC that Cree had unlawfully discriminated against Palmer. Though it allowed “Palmer was likely to recidivate against a future girlfriend,” the Court of Appeals said that this didn’t mean he posed a threat to any other women, so the only threat posed by his convictions “does not substantially relate to the job Cree offered him.”

Cree then asked the state Supreme Court for review, and the justices granted the petition. This time, the decision swung back against the ex-prisoner, whose convictions convinced four of the seven justices that they were “substantially related” to the position he was offered, after all.

The Court began its analysis by noting that Wisconsin’s anti-discrimination law was designed to balance two competing interests — “rehabilitating those convicted of crimes and protecting the public from the risk of criminal recidivism.” To accomplish the latter goal, the law provides an exception when a candidate’s conviction reflects circumstances which are “substantially relate[d] to the circumstances of the particular job.”

Based on the seesaw history of appellate reviews in Palmer’s case, the Court decided on “clarifying how employees, LIRC, and reviewing courts are to apply the substantial relationship test to domestic violence convictions.”

“[W]e apply the substantial relationship test to a domestic violence conviction the same way we would to any other conviction,” the Court wrote.

In Palmer’s case, the Court found he would have worked in and had access to most of Cree’s facility alongside 1,000 other employees — half of whom are women — while his “crimes show a tendency to violently exert his power to control others,” meaning he “poses a real threat to the safety of others.”

Thus, the Court held Cree met its burden to establish a substantial relationship between the circumstances of Palmer’s convictions and the job he applied for, so there was no discrimination against him. The case was remanded to the circuit court with instruction to forward it back to LIRC for dismissal based on the Court’s reasoning.

In their lengthy dissent, the three justices in the minority said the rest had “undermine[d] the anti-discrimination policy of [FEA] by allowing employers to refuse to hire all domestic-violence offenders, regardless of the circumstances.” Rather than connecting Palmer’s crime to the job he wanted, they said, the majority offered nothing more than “‘general character traits’ it claims are somehow ‘revealed by the elements of a crime of domestic violence.’”

The upshot, they concluded, is that the Court’s decision “has no basis in the text of the Fair Employment Act and undermines the Act’s express policy of promoting the reintegration into the workforce of those who have been convicted of crimes.”

The case was argued on appeal for Palmer by New Berlin attorney Alan C. Olsen and for LIRC by state Assistant Attorney General Anthony D. Russomano. Legal Action of Wisconsin also filed an amicus curiae brief. See: Cree, Inc. v. Labor & Indus. Review Comm’n, 2022 WI 15. 

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