Arrest & Conviction Record Discrimination

Your Arrest or Conviction Record Should Not Prevent Fair Workplace Treatment

Statistics indicate that one in four Americans of working age have a criminal record. They also indicate that a vast majority of employers conduct criminal background checks as part of the hiring process, which can lead to screening out applicants or employees with criminal records. It is important to realize that applicants and employees with criminal records have certain legal rights to be free from discrimination, especially here in Wisconsin. This page will provide a brief overview of some state and federal laws that apply to job seekers and employees who have arrest or conviction records.

State Protections for Applicants and Employees With a Criminal Record

Wisconsin Fair Employment Act

The Wisconsin Fair Employment Act (“WFEA”) protects individuals from adverse employment actions on the basis of their arrest or conviction records, and provides rights to enforce these protections should such unlawful actions take place. Specifically, the WFEA makes it unlawful for any employer, labor organization, employment agency, licensing agency, or other person(s) to engage in any act of employment discrimination against any individual on the basis of his or her arrest or conviction record. Wis. Stat. § 111.321. These prohibitions include such actions as terminating an employee who has been recently arrested, or refusing to hire an applicant after asking about his or her arrests. Individuals who have been subject to such unlawful actions may be able to recover damages including back pay, reinstatement, attorney’s fees and, in some cases, compensatory damages.

There are some exceptions to these protections, however. For instance, an employer may refuse to hire a qualified applicant or terminate an employee because of a conviction record for an offense that is “substantially related” to the circumstances of a particular job. Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job. The “substantially related” test looks not only at the circumstances of an offense (where it happened, when, etc.) compared to the circumstances of a job (where is this job typically done, when, etc.), but also evaluates the characteristics of an individual who committed or was charged with a crime (prone to violence, inability to be truthful, trustworthy, etc). The more similar the circumstances, the more likely it is that a substantial relationship will be found. It is also important to note that the legislature has determined that certain convictions are substantially related to employment in child and adult caregiving programs regulated by the Department of Health and Family Services.

Individuals with arrest and conviction records residing in the City of Madison have even greater rights against arrest and conviction record discrimination. The Madison General Ordinances prevent employers from even considering arrest and conviction claims which occurred more than three years earlier in their hiring and firing decisions, and provide access to compensatory damages for litigants.

The Department of Workforce Development has provided a very useful resource for people with detailed questions about discrimination on the basis of their arrest and conviction records, which can be found here.

Federal Protections for Applicants and Employees With a Criminal Record

There are two federal laws that provide additional protections for applicants or employees with criminal records in Wisconsin; Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, and the Fair Credit Reporting Act addresses the accuracy of these records.

Title VII

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from refusing to hire any individual because of the individuals’ race, color, religion, sex, or national origin.  42 U.S.C. § 2000e-2(a). Title VII prohibits both intentional discrimination and practices that are not intended to be discriminatory but in fact have a disproportionately adverse effect on protected-class members. Although Title VII does not directly regulate background checks, it does affect how information obtained through a background check may be used in employment decision-making. For instance, because arrest and incarceration rates are higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be engaging in race discrimination. Indeed, employers are prohibited from using a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee.

The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense is “job related and consistent with business necessity,” employers must consider: how much time has passed since the offense or sentence, the nature and gravity of the criminal offense or conduct, and the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

The guidance also states that employers should give applicants with a record an opportunity to explain the circumstances, and provide mitigating information showing that the employee should not be excluded based on the offense. Indeed, an employer must perform an individualized assessment which would consist of:

  • notice to the individual that they have been screened out because of a criminal conviction
  • an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances
  • consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity

The Fair Credit Reporting Act

The federal Fair Credit Reporting Act (FCRA) addresses the issue of inaccurate criminal records in the employment context. For instance, criminal background checks may include errors, such as multiple listings of the same offense, information on convictions that have been expunged, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, and even records that belong to someone else entirely, all of which employers potentially use to screen out qualified applicants.

The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers who use criminal background checks as part of the hiring or employment process must first obtain the applicants written consent ahead of time, and give the applicant notice if the employer intends to disqualify him or her based on the contents of the report. The employer must give the applicant or employee a copy of the background report it receives, and should provide them the opportunity to contest inaccurate information contained in the report. Finally, the employer must also give the applicant a second notice after the employer makes a final decision not to hire him or her based on the information in the report.

It is important to note that firms that run background checks for employers also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.

Contact Us

Contact us if you would like to discuss your situation or legal rights with a Wisconsin employment attorney. Please call a Madison employment discrimination attorney directly at (608) 257-0040 or a Milwaukee employment discrimination attorney at (414) 271-8650, or email us via our Contact Page.

Arrest & Conviction Record Discrimination FAQ

How does the law (Wisconsin Fair Employment Law, Wisconsin Statutes. 111.31-111.395) define “arrest record?”

Arrest record is defined as information that a person has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor, or other offense by any law enforcement or military authority.

How does the law define “conviction record?”

Conviction record is defined as information indicating that a person has been convicted of any felony, misdemeanor or other offense, has been judged delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, or paroled by any law enforcement or military authority.

Can an employer discharge a current employee because of a pending criminal charge?

No. An employer may, however, suspend an employee if the offense giving rise to the pending criminal charge is substantially related to the circumstances of the particular job or licensed activity.

Can an employer refuse to hire a person because of a record of arrests that did not lead to conviction?

No. An employer is not allowed to ask about arrests, other than pending charges.

What can an employer ask regarding arrest and conviction records?

An employer may ask whether an applicant has any pending charges or convictions, as long as the employer makes it clear that these will only be given consideration if the offenses are substantially related to the particular job. An employer cannot legally make a blanket rule that no persons with conviction records will be employed. Each job and record must be considered individually.

Can an employer refuse to hire an applicant because of a lengthy record of convictions or conviction for a crime the employer finds upsetting?

An employer may only refuse to hire a qualified applicant because of a conviction record for an offense that is substantially related to the circumstances of a particular job. Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job.

What is meant by substantially related?

The law does not specifically define it. The “substantially related” test looks at the circumstances of an offense, where it happened, when, etc. – compared to the circumstances of a job – where is this job typically done, when, etc. The more similar the circumstances, the more likely it is that a substantial relationship will be found. The legislature has determined that certain convictions are substantially related to employment in child and adult caregiving programs regulated by the Department of Health and Family Services.

What if an employer believes a pending charge or conviction is substantially related, but the employee or applicant believes it is not?

In this situation, the employee or applicant may file a complaint and the Equal Rights Division will make a determination as to whether there is a substantial relationship, with either party having the right to appeal the decision.

Can an employer refuse to hire or discharge a person with a pending charge or conviction because other workers or customers don’t want the person with a conviction there?

No. The law makes no provision for this type of problem. The employer must show that the conviction record is substantially related to the particular job. Co-worker or customer preference is not a consideration.

Is it a violation of the law if the applicant’s conviction record is a part of the reason for not being hired, but not the whole reason?

Yes. A conviction record that is not substantially related to the particular job should be given no consideration in the hiring process.

How should an applicant answer questions on an application regarding conviction record?

It is best to answer all questions on an application as honestly and fully as possible, and to offer to explain the circumstances of the conviction to the employer.

Should an employer ask about the circumstances of a conviction during an interview?

Yes. An employer must obtain enough information to determine if the conviction record is substantially related to the job. If the employer decides there is a substantial relationship, employment may be refused, but the employer must be prepared to defend the decision if the applicant believes there is not a substantial relationship and files a complaint.

The City of Madison provides special protections.

Individuals with arrest and conviction records residing in the City of Madison have even greater rights against arrest and conviction record discrimination. The Madison General Ordinances prevent employers from even considering arrest and conviction claims which occurred more than three years earlier in their hiring and firing decisions, and provide access to compensatory damages for litigants.

Contact Us

If you believe your employment rights have been violated with regard to your arrest or conviction record, please contact the our employment attorneys to discuss your case.

Statistics indicate that one in four Americans of working age have a criminal record. They also indicate that a vast majority of employers conduct criminal background checks as part of the hiring process, which can lead to screening out applicants or employees with criminal records. It is important to realize that applicants and employees with criminal records have certain legal rights to be free from discrimination, especially here in Wisconsin. This page will provide a brief overview of some state and federal laws that apply to job seekers and employees who have arrest or conviction records.

State Protections for Applicants and Employees With a Criminal Record

Wisconsin Fair Employment Act

The Wisconsin Fair Employment Act (“WFEA”) protects individuals from adverse employment actions on the basis of their arrest or conviction records, and provides rights to enforce these protections should such unlawful actions take place. Specifically, the WFEA makes it unlawful for any employer, labor organization, employment agency, licensing agency, or other person(s) to engage in any act of employment discrimination against any individual on the basis of his or her arrest or conviction record. Wis. Stat. § 111.321. These prohibitions include such actions as terminating an employee who has been recently arrested, or refusing to hire an applicant after asking about his or her arrests. Individuals who have been subject to such unlawful actions may be able to recover damages including back pay, reinstatement, attorney’s fees and, in some cases, compensatory damages.

There are some exceptions to these protections, however. For instance, an employer may refuse to hire a qualified applicant or terminate an employee because of a conviction record for an offense that is “substantially related” to the circumstances of a particular job. Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job. The “substantially related” test looks not only at the circumstances of an offense (where it happened, when, etc.) compared to the circumstances of a job (where is this job typically done, when, etc.), but also evaluates the characteristics of an individual who committed or was charged with a crime (prone to violence, inability to be truthful, trustworthy, etc). The more similar the circumstances, the more likely it is that a substantial relationship will be found. It is also important to note that the legislature has determined that certain convictions are substantially related to employment in child and adult caregiving programs regulated by the Department of Health and Family Services.

Individuals with arrest and conviction records residing in the City of Madison have even greater rights against arrest and conviction record discrimination. The Madison General Ordinances prevent employers from even considering arrest and conviction claims which occurred more than three years earlier in their hiring and firing decisions, and provide access to compensatory damages for litigants.

The Department of Workforce Development has provided a very useful resource for people with detailed questions about discrimination on the basis of their arrest and conviction records, which can be found here.

Federal Protections for Applicants and Employees With a Criminal Record

There are two federal laws that provide additional protections for applicants or employees with criminal records in Wisconsin; Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, and the Fair Credit Reporting Act addresses the accuracy of these records.

Title VII

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from refusing to hire any individual because of the individuals’ race, color, religion, sex, or national origin.  42 U.S.C. § 2000e-2(a). Title VII prohibits both intentional discrimination and practices that are not intended to be discriminatory but in fact have a disproportionately adverse effect on protected-class members. Although Title VII does not directly regulate background checks, it does affect how information obtained through a background check may be used in employment decision-making. For instance, because arrest and incarceration rates are higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be engaging in race discrimination. Indeed, employers are prohibited from using a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee.

The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense is “job related and consistent with business necessity,” employers must consider: how much time has passed since the offense or sentence, the nature and gravity of the criminal offense or conduct, and the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

The guidance also states that employers should give applicants with a record an opportunity to explain the circumstances, and provide mitigating information showing that the employee should not be excluded based on the offense. Indeed, an employer must perform an individualized assessment which would consist of:

  • notice to the individual that they have been screened out because of a criminal conviction
  • an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances
  • consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity

The Fair Credit Reporting Act

The federal Fair Credit Reporting Act (FCRA) addresses the issue of inaccurate criminal records in the employment context. For instance, criminal background checks may include errors, such as multiple listings of the same offense, information on convictions that have been expunged, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, and even records that belong to someone else entirely, all of which employers potentially use to screen out qualified applicants.

The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers who use criminal background checks as part of the hiring or employment process must first obtain the applicants written consent ahead of time, and give the applicant notice if the employer intends to disqualify him or her based on the contents of the report. The employer must give the applicant or employee a copy of the background report it receives, and should provide them the opportunity to contest inaccurate information contained in the report. Finally, the employer must also give the applicant a second notice after the employer makes a final decision not to hire him or her based on the information in the report.

It is important to note that firms that run background checks for employers also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.

Contact Us

Contact us if you would like to discuss your situation or legal rights with a Wisconsin employment attorney. Please call a Madison employment discrimination attorney directly at (608) 257-0040 or a Milwaukee employment discrimination attorney at (414) 271-8650, or email us via our Contact Page.

Arrest & Conviction Record Discrimination FAQ

How does the law (Wisconsin Fair Employment Law, Wisconsin Statutes. 111.31-111.395) define “arrest record?”

Arrest record is defined as information that a person has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor, or other offense by any law enforcement or military authority.

How does the law define “conviction record?”

Conviction record is defined as information indicating that a person has been convicted of any felony, misdemeanor or other offense, has been judged delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, or paroled by any law enforcement or military authority.

Can an employer discharge a current employee because of a pending criminal charge?

No. An employer may, however, suspend an employee if the offense giving rise to the pending criminal charge is substantially related to the circumstances of the particular job or licensed activity.

Can an employer refuse to hire a person because of a record of arrests that did not lead to conviction?

No. An employer is not allowed to ask about arrests, other than pending charges.

What can an employer ask regarding arrest and conviction records?

An employer may ask whether an applicant has any pending charges or convictions, as long as the employer makes it clear that these will only be given consideration if the offenses are substantially related to the particular job. An employer cannot legally make a blanket rule that no persons with conviction records will be employed. Each job and record must be considered individually.

Can an employer refuse to hire an applicant because of a lengthy record of convictions or conviction for a crime the employer finds upsetting?

An employer may only refuse to hire a qualified applicant because of a conviction record for an offense that is substantially related to the circumstances of a particular job. Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job.

What is meant by substantially related?

The law does not specifically define it. The “substantially related” test looks at the circumstances of an offense, where it happened, when, etc. – compared to the circumstances of a job – where is this job typically done, when, etc. The more similar the circumstances, the more likely it is that a substantial relationship will be found. The legislature has determined that certain convictions are substantially related to employment in child and adult caregiving programs regulated by the Department of Health and Family Services.

What if an employer believes a pending charge or conviction is substantially related, but the employee or applicant believes it is not?

In this situation, the employee or applicant may file a complaint and the Equal Rights Division will make a determination as to whether there is a substantial relationship, with either party having the right to appeal the decision.

Can an employer refuse to hire or discharge a person with a pending charge or conviction because other workers or customers don’t want the person with a conviction there?

No. The law makes no provision for this type of problem. The employer must show that the conviction record is substantially related to the particular job. Co-worker or customer preference is not a consideration.

Is it a violation of the law if the applicant’s conviction record is a part of the reason for not being hired, but not the whole reason?

Yes. A conviction record that is not substantially related to the particular job should be given no consideration in the hiring process.

How should an applicant answer questions on an application regarding conviction record?

It is best to answer all questions on an application as honestly and fully as possible, and to offer to explain the circumstances of the conviction to the employer.

Should an employer ask about the circumstances of a conviction during an interview?

Yes. An employer must obtain enough information to determine if the conviction record is substantially related to the job. If the employer decides there is a substantial relationship, employment may be refused, but the employer must be prepared to defend the decision if the applicant believes there is not a substantial relationship and files a complaint.

The City of Madison provides special protections.

Individuals with arrest and conviction records residing in the City of Madison have even greater rights against arrest and conviction record discrimination. The Madison General Ordinances prevent employers from even considering arrest and conviction claims which occurred more than three years earlier in their hiring and firing decisions, and provide access to compensatory damages for litigants.

Contact Us

If you believe your employment rights have been violated with regard to your arrest or conviction record, please contact the our employment attorneys to discuss your case.

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