Racine firm improperly discriminated because of a criminal conviction, appeals panel rules

Gundrum

By Gretchen Schuldt

The mere possibility that a man with a domestic violence record might start a relationship with a woman at work or be alone with women there is not a good enough reason to refuse to hire him in the first place, the State Court of Appeals ruled this week.

​State law prohibits employment discrimination based on a conviction record unless the conviction is for a crime with circumstances that that "substantially relate" to the job in question.

Derrick Palmer's criminal record demonstrated a tendency to "be physically abusive toward women in a live-in boyfriend/girlfriend relationship," Appeals Judge Mark Gundrum wrote for the for the three-judge District II Court of Appeals panel. The question, though, Gundrum said, was whether Cree, Inc., of Racine, showed that Palmer’s past domestic abuse is substantially related to the job he applied for. The company did not, the panel said.

Gundrum was joined in the decision by Appeals Judges Lisa S. Neubauer and Paul F. Reilly.

The decision reversed a ruling by Racine County Circuit Judge Michael Piontek. 

Palmer was convicted of in 2012 of strangulation/suffocation, fourth-degree sexual assault, battery, and criminal damage to property arising from a domestic altercation with a live-in girlfriend. He was sentenced to 30 months in prison and 30 months of community supervision.

In 2015, Cree, a lighting manufacturer, hired Palmer as an applications specialist, but the offer was contingent on a background check. The job would require Palmer to would work with customers and staff.

About 1,100 people worked at Cree's facility, including about 500 women.

Cree withdrew its employment offer after receiving the background check and learning of Palmer's criminal record. (Palmer also had a 2001 battery conviction related to another domestic incident, but Cree did not learn of that until later.)

Palmer filed a discrimination complaint with the Wisconsin Department of Workforce Development, and the complaint eventually made its way to the Labor and Industry Review Commission.

​LIRC found for Palmer. In its decision, the agency said that the "fact that there are female employees in the plant with whom the complainant could potentially become involved in a personal relationship that might end badly is a scenario requiring a high degree of speculation and conjecture, and one that goes well beyond any reasonable concern about job-related conduct. Moreover, the ability to meet females and form personal relationships with them is not a circumstance unique to the job at issue, but describes virtually any employment situation in which female workers might be present...." 

Cree appealed to Racine County Circuit Court, where Piontek ruled in its favor, and Palmer and LIRC appealed from there.

The appeals panel said that "Cree presented no evidence suggesting Palmer has ever been violent in a circumstance other than a live-in boyfriend/girlfriend relationship or even suggesting he has ever had such a relationship that in any way stemmed from or was related to his employment." 

Cree also presented to LIRC "no evidence suggesting Palmer would be supervising, mentoring or even working closely with female employees," Gundrum said. The panel agreed with LIRC  about the speculative nature of some of Cree's argument and that "mere contact" with others at Cree is not substantially related to Palmer's domestic violence.

Cree's position, Gundrum said, seems "more focused on the general sense that Palmer is not fit to be unconfined from prison and participating in the community at all due to his prior crimes, even though he has long since finished serving the confinement portion of his sentence."

The legislature could have exempted certain crimes, such as those for which Palmer was convicted, from the non-discrimination statute if that is what it wanted to do, Gundrum said. 

"It could have easily done that, but chose not to," he wrote.

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