A regional case over alleged hiring discrimination against a man convicted of domestic violence has tumbled around the courts for six years and is now headed to the Wisconsin Supreme Court.
It’s being closely watched across the state by employers and job applicants with criminal records because the high court‘s decision could ripple across the state for years to come.
The basic facts of the case are this: In 2012, Derrick 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. He was sentenced to 30 months in prison and 30 months of community supervision.
After he got out of prison, Palmer applied for a job in 2015 as an Applications Specialist with Sturtevant-based Cree Lighting, one of Racine County’s largest employers. He was given a job offer by Cree, but that offer was then rescinded when the company learned of his conviction. Palmer also had 2001 domestic battery conviction, but Cree was unaware of that.
Palmer filed a discrimination complaint alleging that Cree unlawfully discriminated against him based on his conviction record. In court, Cree, which has more than 1,100 workers nearly half of whom are women, argued that hiring Palmer would be putting the safety of its female employees at risk and that he “would have … regularly interact(ed) with female coworkers whom he could later harm outside of work.”
Palmer’s complaint bounced from an administrative law judge who ruled against him to the Wisconsin Labor and Industrial Review Commission which ruled in his favor and held Cree failed to meet its burden under state law to show that his convictions substantially relate to the circumstances of the Applications Specialist job. The LIRC held that Palmer’s convictions related specifically to violence against women in domestic situations with him, not with women in general and 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.
Up the legal ladder it went. The LIRC decision was overturned by the Racine County Circuit Court and then to the Wisconsin Court of Appeals which reinstated the LIRC finding of discrimination.
Now it goes to the state Supreme Court.
There are competing interests and arguments here.
On the one hand, Wisconsin’s laws side with those who have been convicted of crimes to protection against hiring discrimination once they have paid their debt to society and completed their incarceration and probation — unless the criminal history substantially relates to the job. A bank does not have to hire someone who was convicted of embezzlement for a teller’s job; a school does not have to hire someone with a child molestation conviction for a job as a janitor.
On the other hand, employers don’t have crystal balls to determine how a prospective hire with a criminal background is going to behave in the future. How can they know if a person convicted of domestic abuse won’t graduate to assaulting women in a workplace setting? And why would they want to take on that risk?
If the state Supreme Court rules in favor of Cree Lighting, would that mean that anyone convicted of domestic battery can never be successful in finding a job at a workplace that has any women employees? Would that then shunt those unsuccessful applicants into criminal activity in order to make ends meet?
Whatever the high court rules, we would hope the state Legislature re-examines this issue at some point. Perhaps, as Court of Appeals Judge Mark Gundrum suggested, legislators could change the law to allow the rejection of job applicants with “certain particularly disturbing offenses” like murder, rape and domestic abuse. Or, perhaps, the Legislature could provide some legal liability protection for employers who take on the risk of hiring people with criminal records in the hopes of reintegrating them into society.
It’s a complex and difficult question with no bright line answers — but we should continue to look for them.