Employers Cannot Discriminate Based on Arrest Record

Sara Geenen

Job applications can be intimidating. They ask applicants to specify why they left their previous employment, they ask about rate of pay, and sometimes they even ask essay questions. While these questions often provide pause, an even greater issue arises when the job application asks about arrest and conviction record. Applicants want to present themselves in the best possible light to position themselves to be hired, and often worry a truthful answer will disqualify them from further consideration.

In Wisconsin, an employer cannot refuse to hire anyone with an arrest or conviction 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.

During the application process, an employer is not allowed to ask an applicant about arrests, but may ask whether he or she has any pending charges or convictions. However, an employer who asks these questions must make clear that pending charges and convictions are only relevant to the hiring consideration if the offenses are substantially related to the particular job. Whether a conviction or pending charge is substantially related to the job applied for requires the employer to individually consider both the charge and the job. An offense is “substantially related” when the circumstances in which it occurred are similar to the circumstances of the job the applicants seeks. For instance, a conviction for retail theft is substantially related to a position in retail sales. Physical abuse and/or child neglect is substantially related to caregiver positions. Where the circumstances of an offense are unclear, the employer has the obligation to ask enough questions to determine whether it is substantially related to the position sought.

An applicant who is denied employment due to a conviction or pending charge that is not substantially related to the position he or she applied for may have a discrimination claim against the employer and should contact our offices at (414) 240-1185 for additional information.