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  1. #1
    Join Date
    Sep 2009
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    Default Discrimination Due to Criminal Record

    My question involves labor and employment law for the state of: Wisconsin

    I am aware that in the State of WI, an employer cannot discriminate against a job applicant due to criminal record unless the charge/conviction directly relates to the job applied for. That being said here is a history of events leading up to my question:

    My husband who has a conviction for 3rd degree sexual assault on his past record applied for a position at a manufacturing plant (he was recently laid off by another company - which manufactured similar products - due to a factory closure). He and two other former coworkers were all interviewed for the posted position at the hiring company. My husband's interview went fantastic. He had every qualification they were looking for. The company ended up hiring both of the other individuals and not my husband - even though (as confirmed by the former H.R. manager) my husband was better qualified for the posted position than either of the other candidates.

    Here is where it gets tricky. There is an individual that currently works on the crew with the open position(s) being hired for. This individual happens to be the person who brought the incident (which led to my husbands past criminal conviction) to the attention of a counselor. She was not a victim, just someone who had second hand knowledge as to the act that had taken place between my husband and the underage victim in his case. My husband pled guilty to the charge which was ultimately brought against him with no trial. This person was therefore never a party or witness, etc. Further, there was never any order prohibing contact between my husband and her or anyone else for that matter. Either way, there has not been any contact - of any sort - between my husband or anyone else in our family with this person. We live in a small town and have, in fact, run into this person from time to time with no incident or problems. After all these years, there is no reason for this person to believe there could or would be any retribution from my husband. He has served his time as he deserved and paid for his crime.

    This individual's father also happens to work in management at the hiring company. Upon learning my husband had applied and interviewed for the position, we believe he shared this information with his daughter. Upon learning of my husband's interview this individual immediately summoned her supervisor to a private meeting in which we believe she indiciated concern regarding my husbands possible employment at the company. After this she proceeded to share with the rest of the employees (whoever would listen) details she claimed to be "in the know" of regarding my husband's past crime. We further suspect that her father has put pressure on the H.R. staff and other management to not hire my husband because of their disapproval of my husband based on this one mistake he made and their personal feelings toward him.

    Since this time, my husband has applied for 3 other positions with this same company and their response consistently is that he is not being considered because they have filled positions with "better suited" applicants.

    It appears that my husband is being discriminated against because of his past criminal record. It is clear that the crime, however, does not directly relate to the job applied for. It is also clear, by the testimony given to us from the former H.R. manager that my husband was better qualified than both people ultimately hired. The part that is unclear is whether the employer can take into consideration the feelings of the individual - and her father (who are making a stink about my husband potentially working there). Under WI discrimination law, when determining whether to hire someone with a criminal record (that does not relate to the job) an employer cannot take into consideration the personal feelings of current employees and deny employment as a result. But does this individuals personal ties to the situation, although informal, change the legality in that in any way?

    Any input would be greatly appreciated. Thank you.

  2. #2
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    Default Re: Discrimination Due to Criminal Record

    If what I am to boil out of that is that your husband was convicted of a sexual offense against a minor at some time in the past, the person whose statements led to his arrest and conviction works at the place where he applied and would have been on the same crew, and you believe he wasn't hired because she expressed discomfort at having to work with him, that doesn't appear to be discrimination due to his criminal record. It appears instead to be based upon trying to maintain a safe (and that can include psychologically safe, even if your husband poses her no physical danger) workplace for a current employee.

  3. #3
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    Sep 2009
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    Default Re: Discrimination Due to Criminal Record

    Quote Quoting Mr. Knowitall
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    If what I am to boil out of that is that your husband was convicted of a sexual offense against a minor at some time in the past, the person whose statements led to his arrest and conviction works at the place where he applied and would have been on the same crew, and you believe he wasn't hired because she expressed discomfort at having to work with him, that doesn't appear to be discrimination due to his criminal record. It appears instead to be based upon trying to maintain a safe (and that can include psychologically safe, even if your husband poses her no physical danger) workplace for a current employee.
    Thank you for your response. I really do appreciate the fact that you shed some light on this for me. I just have a couple other comments/questions as to this situaton and the provisions of law in Wisconsin which protect individuals with records from being denied employment on that basis (whether or not the majority believes these individuals should be protected from their past mistakes).

    First of all, this person's statement was NEVER taken by a member of law enforcement, nor was there a trial involved. In fact, the infraction had taken place long before she was even was even acquainted with our family. In any event, she had knowledge and did not feel psychologically unsafe or endangered in any way throughout her interactions with our family.

    But back to what is relevant. As I've indicated, Wisconsin identifies past criminal record/convictions as a protected class (just as age, race, etc.). Wisconsin law further emphasizes that employers cannot take into consideration or account, when deciding to hire someone who is qualified for a job that his/her conviction does not relate directly to, the personal feelings of any employee or customer.

    In considering your response, I guess it comes down to whether Wisconsin would recognize "psychological safety" of an employee as a viable defense to employment discrimination and, if so, what would this employer have to show to overcome the burden proving it. Is that in a nutshell what I hear from your response?

    I know it is easy to cast all stones at the low-life "sex offender" as society always seems to do. Unfortunatly we tend to toss all offenders into the same pot - as such individuals as with Phillip Garrido and the like. But that aside, you have to trust me when I tell you this other person is a person far from the realm ever legitimately feeling psychologically unsafe from anyone, including my husband.

  4. #4
    Join Date
    Mar 2007
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    9,096

    Default Re: Discrimination Due to Criminal Record

    Quote Quoting whatisfair
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    Thank you for your response. I really do appreciate the fact that you shed some light on this for me. I just have a couple other comments/questions as to this situaton and the provisions of law in Wisconsin which protect individuals with records from being denied employment on that basis (whether or not the majority believes these individuals should be protected from their past mistakes).

    First of all, this person's statement was NEVER taken by a member of law enforcement, nor was there a trial involved. In fact, the infraction had taken place long before she was even was even acquainted with our family. In any event, she had knowledge and did not feel psychologically unsafe or endangered in any way throughout her interactions with our family.

    But back to what is relevant. As I've indicated, Wisconsin identifies past criminal record/convictions as a protected class (just as age, race, etc.). Wisconsin law further emphasizes that employers cannot take into consideration or account, when deciding to hire someone who is qualified for a job that his/her conviction does not relate directly to, the personal feelings of any employee or customer.

    In considering your response, I guess it comes down to whether Wisconsin would recognize "psychological safety" of an employee as a viable defense to employment discrimination and, if so, what would this employer have to show to overcome the burden proving it. Is that in a nutshell what I hear from your response?

    I know it is easy to cast all stones at the low-life "sex offender" as society always seems to do. Unfortunatly we tend to toss all offenders into the same pot - as such individuals as with Phillip Garrido and the like. But that aside, you have to trust me when I tell you this other person is a person far from the realm ever legitimately feeling psychologically unsafe from anyone, including my husband.
    So... the person that narc'ed on your husband for having sex with a child doesn't want to work with him... or, even, feels that he might want to retaliate and/or endanger her?

    I don't see this as a problem for the employer.

  5. #5
    Join Date
    Sep 2009
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    4

    Unhappy Re: Discrimination Due to Criminal Record

    First of all, no one ever said the assault was of a child - that was each of your assumptions - once again the stereotype that all sex offenders are offenders of children.

    All I wanted to do was seek some legal insight - based upon Wisconsin Law, whether you agree with the law or not, but all I feel I am getting is sarcasm towards my husband, his poor choice and his right to employment. We are aware what he did was not right, as we all make mistakes - some just larger than others, but does that mean that long after you make your mistakes and pay for them you do not deserve to be able to support your family and be a productive part of society - even when all professionals involved in the past have reported that you are NOT a danger to society. Yes, by the way there was no violence involved.

    If I misinterpreted your replies, I apologize.

    Still no one has addressed the balancing act the employer faces in WI between the protection afforded to individuals with criminal records and the current employee views and feelings.

  6. #6
    Join Date
    Mar 2007
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    9,096

    Default Re: Discrimination Due to Criminal Record

    Quote Quoting whatisfair
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    First of all, no one ever said the assault was of a child - that was each of your assumptions - once again the stereotype that all sex offenders are offenders of children.
    No, that is what the term "minor" means.

    All I wanted to do was seek some legal insight - based upon Wisconsin Law, whether you agree with the law or not, but all I feel I am getting is sarcasm towards my husband, his poor choice and his right to employment.
    You are incorrect. You have received our best guess as the legalities of the situation.

    We are aware what he did was not right, as we all make mistakes - some just larger than others,
    Mistake? You make it sound like he was walking down the street, tripped and found himself on top of a CHILD having sex.

    Please... let's not minimize this to try and make you feel better.

    but does that mean that long after you make your mistakes and pay for them you do not deserve to be able to support your family and be a productive part of society - even when all professionals involved in the past have reported that you are NOT a danger to society. Yes, by the way there was no violence involved.
    Never said that.

    However, if you are asking for my personal feelings, I would ask you if the folks that DIDN'T have a criminal record should be penalized for your husband?

    Why shouldn't people that DIDN'T have inappropriate relations with a child be judged exactly the same as someone that did?

    Now... WI law says that employers cannot take that into account. However, they CAN say that since the person that narc'ed out your husband is already a valued member of our team that the introduction of your husband could be dangerous at worst and problematic at best....

    And it just isn't worth it to hire him.

    If I misinterpreted your replies, I apologize.

    Still no one has addressed the balancing act the employer faces in WI between the protection afforded to individuals with criminal records and the current employee views and feelings.
    I am guessing you are one of those people that doesn't see a response unless it agrees with what you want.

    Because that point has been answered three times now.

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