The Wisconsin Fair Employment Act (WFEA) prohibits employers from discriminating against applicants and employees on the basis of their arrest and conviction records. Generally, an employer cannot make decisions based on an arrest or conviction record unless the crimes "substantially relate" to the circumstances of the job at issue. The City of Madison has its own equal opportunities ordinance that applies to employers within Madison.¹ Included within the Madison ordinance is a similar prohibition on discrimination against applicants and employees based on their arrest and conviction records.² Historically, there have been key differences between state law and the Madison ordinance that have created legal potholes for unwitting employers with Madison employees.

One such difference was that under the Madison ordinance, employers arguing for a substantial relationship could only do so when the employee or applicant "[h]as been within the past three (3) years placed on probation, paroled, released from incarceration, or paid a fine, for a felony, misdemeanor, or other offense . . . ." Conversely, under state law, there is no such time limitation. Thus, it was a possible that an employment decision could be lawful under state law because an older conviction was substantially related to the job at issue, while at the same time be unlawful under the Madison ordinance because the criminal record is too old.

On December 5, 2024, the Madison Common Council amended the ordinance, removing the three-year lookback provision, effective immediately.³ Under both state law and the Madison ordinance, however, the age of the conviction is still a relevant factor in the substantial relationship analysis. For example, if there has been a long passage of time between a conviction and the adverse employment action and the individual has no significant history of recidivism, it is more likely that the state agency and the Madison Equal Opportunities Commission (MEOC) will find that there is no substantial relationship.

The harmonization of the Madison ordinance with state law is good news for Wisconsin employers. However, the Madison Common Council may have unintentionally created a new headache for employers. Beyond eliminating the three-year lookback, the amendment provides some guidelines regarding the application of the substantial relationship test, adding the following language to the ordinance:

Whether the circumstances of any such offense substantially relate to the circumstances of the particular job or licensed activity shall be based on the facts of the particular offense, including but not limited to the seriousness of the offense, the passage of time since the employee or applicant was placed on probation, paroled, released from incarceration, or paid a fine, for a felony, misdemeanor, or other offense, the age of the employee or applicant at the time the offense occurred, and the character of the employee or applicant.

This majority of this statement is consistent with how the state agency and the MEOC have applied the substantial relationship test, with the notable exception of the portion declaring that the "character of the employee or applicant" must be considered. How the MEOC will apply this in practice remains to be seen, but in the meantime, employers are left wondering what it will mean to litigate about an employee's or applicant's "character" at an administrative hearing. At the very least, employers should consider mitigating evidence submitted by candidates in response to a pre-adverse action letter, such as letters of reference, documents confirming community service, proof of training (e.g., anger management), etc.

Employers also should be mindful that various jurisdictions continue to prohibit consideration of older criminal records, including California, Hawaii, Massachusetts, and Washington. Before taking adverse action based on criminal records, employers should take steps to become familiar with the laws, if any, in the specific jurisdiction. Employers also should be aware that the EEOC disfavors reliance on older criminal records and remains active in this area of employment law.

Posted: January 2, 2025

¹ Madison General Ordinances 39.03.

² Madison General Ordinances 39.03(8)(i)3.b.

³ ORD-24-00076.