How to Handle Discrimination Based on Arrest or Conviction Records in Wisconsin Workplaces

Finding a job is challenging enough, but it becomes even more difficult when you have an arrest or conviction on your record. Fortunately, Wisconsin has strong laws protecting workers. The Wis. Stat. § 111.31 (WFEA) makes it illegal for employers to discriminate against job applicants and employees based on their criminal history. However, there are exceptions. Understanding your rights can help you protect your career and financial stability.

If you believe an employer unfairly rejected your application or demoted you because of a past mistake, you may be entitled to seek justice. You can find a local, experienced employment attorney in our US Lawyer Directory who can guide you through the process.

Arrest vs. Conviction Rules in Wisconsin

Under Wis. Stat. § 111.321, employers are strictly prohibited from using an arrest or conviction record against you without careful review. However, the law treats pending arrests and actual convictions slightly differently.

Pending Charges vs. Actual Convictions

An arrest simply means you were accused of a crime, not proven guilty. Employers cannot refuse to hire you solely because you have an arrest record. If you have pending charges, an employer may legally suspend your employment temporarily while the case is being resolved, but they usually cannot fire you outright just because you were arrested.

For convictions, the employer must look at the specific crime you were convicted of and compare it to the job you are applying for. They cannot reject you simply because they do not like people with records. They must apply the legal test.

The Substantial Relationship Test

The most important part of the law is found in Wis. Stat. § 111.335. This section creates the 'substantial relationship' test. It means an employer can only deny you a job or fire you if the circumstances of your conviction are substantially related to the circumstances of the specific job.

For example, as seen in the precedent County of Milwaukee v. LIRC, 139 Wis. 2d 805 (WI Supreme Court 1987), courts look closely at whether the specific traits required for the crime overlap with the traits required for the job. If there is no strong connection, the employer's decision is likely illegal discrimination.

How This Applies to Different Professions

The substantial relationship test looks completely different depending on the industry. What might disqualify you from one job might be completely irrelevant to another.

Daycare Workers and Teachers

If you are applying for a job at a school or a daycare facility in Madison or Milwaukee, you will be working closely with vulnerable children. If your record includes convictions for violent offenses, child abuse, or severe drug distribution, an employer will successfully argue that these crimes are substantially related to the job of protecting children. In these cases, denying employment is legally permitted.

Warehouse and Construction Workers

On the other hand, consider a warehouse worker in Green Bay or a construction worker in Kenosha. If a person applying for a heavy lifting job has a five-year-old conviction for writing bad checks or retail theft, those crimes generally have no substantial relationship to moving boxes or laying bricks. If a construction company refuses to hire you because of a past financial misdemeanor, they are likely violating the WFEA.

Step-by-Step Process to File a Complaint in Wisconsin

Whether you live in Milwaukee, Madison, or Appleton, the process for filing a state discrimination claim generally follows these steps.

Step 1: Gathering Documents

Start by collecting all evidence. Save job applications, rejection letters, emails, and any background check copies the employer provided. Write down the exact dates of interviews and the names of the people you spoke with.

Step 2: Filing the Official Complaint

You must file a complaint with the state. You will need to fill out Form ERD-4206, Wisconsin, Department of Workforce Development, Fair Employment Discrimination Complaint. You can submit this paperwork to either the Department of Workforce Development, Equal Rights Division, Milwaukee or the Department of Workforce Development, Equal Rights Division, Madison.

Step 3: The Investigation Phase

Once you file, an investigator from the state will look into your case. They will contact the employer for a response. If the investigator finds 'probable cause' that discrimination occurred, your case will move forward to a hearing before an Administrative Law Judge (ALJ).

How Much Does it Cost in Wisconsin?

Victims of discrimination often worry about upfront costs. Here is a general breakdown of what you might expect:

How Long Does the Process Take?

Employment discrimination cases are rarely quick. Under Wisconsin rules, you have 300 days from the date the discrimination happened to file your complaint. Once filed, the initial investigation usually takes 6 to 12 months. If your case goes to a formal hearing, it can take an additional 1 to 2 years to get a final decision. Settlements can happen at any time and may speed up the timeline.

Frequently Asked Questions (FAQ)