Skip to the main content.
New! Continuous MVR monitoring
Driving record monitoring

Ongoing monitoring of driving records can help employers avoid risk and improve driver safety. Learn about the benefits of adding Verified Credentials' newest solution to your screening strategy.

Read the blog ›

Featured resource

Industry-Trends-Report-01

Learn the latest trends in employment background checks. This report uses real-life usage data to uncover how employers are screening across industries.

Download the full report ›

Verified Credentials is a leading background screening company. Since 1984, we’ve helped validate and secure relationships through the use of our comprehensive screening solutions. We offer a wide variety of background checks, verifications, and innovative screening tools.

Get to know us ›

Accredited background screening solutions

Logo-PBSA-Accreditation-120x98

Our accreditation confirms that our policies, processes, and employee training meet rigorous industry compliance standards.

Learn about our solutions ›

2 min read

Employment Discrimination Based on Criminal History: A Cautionary Tale

The laws around employment background reports are vast. If you use background reports, you probably take care to follow all applicable federal, state, and local consumer reporting laws.

In addition to consumer reporting laws, you may want to consider anti-discrimination laws, too. Some states and cities have anti-discrimination laws that could prohibit conviction record discrimination.  Failing to consider state and local laws before making employment decisions based on criminal history could land an employer in hot water.

One Company’s Misstep

A Wisconsin employer is learning this lesson as outlined in the recent case of Cree, Inc. v. LIRC.

Cree, Inc., a company that manufactures and sells lighting products, offered a conditional offer of employment to an applicant contingent on a drug screen and background check.  The employer rescinded the offer of employment when the background report revealed that the applicant had “2012 convictions for strangulation/suffocation, fourth-degree sexual assault, battery, and criminal damage to property related to a domestic incident with a live-in girlfriend.”

The applicant had applied for an “Applications Specialist” position that would have the applicant working with more than “1100 employees, including about 500 women” in a facility that “includes a manufacturing space, storage areas with racks of parts, plus offices, conference rooms, cubicle farms, breakrooms, and the like.”  The applicant would have access to the entire facility, including areas without security cameras.  The position also included regular client interaction and unsupervised travel to both client locations and trade shows.

Tough Lesson in Court

The applicant “filed a discrimination complaint with the Wisconsin Department of Workforce Development alleging that [the employer] unlawfully discriminated against him when it rescinded a job offer for an Applications Specialist position based upon his conviction record.”  The Wisconsin Labor and Industry Review Commission (LIRC) found that the employer violated Wisconsin law and rescinded the “job offer based solely on his conviction record.”

A Wisconsin appellate court recently upheld the LIRC’s finding and held that the employer violated Wisconsin law.  The court states that “Wisconsin law prohibits an employer from refusing to hire a prospective employee on the basis of his or her conviction record…  The employer may, however, so discriminate if ‘the circumstances of [any felony, misdemeanor, or other offense] substantially relate to the circumstances of the particular job’ for which the employee is being considered.”

Disagreements on What “Substantially Relates”

Justifying its decision to rescind the offer of employment, the employer noted that the Applicant Specialist position would create “significant opportunity with which [applicant] could ‘commit additional crimes against persons and property.’”  The employer also stated that the applicant “would have… regularly interact[ed] with female coworkers whom he could later harm outside of work.”

The Cree court found that this argument was not enough to rescind the offer of employment to the applicant based on his conviction record.

The court noted that the applicant’s “criminal record does demonstrate a ‘tendenc[y] and inclination…’ to be physically abusive toward women in a live-in boyfriend/girlfriend relationship.”  However, the court held that “it would require a ‘high degree of speculation and conjecture’ to conclude that [applicant] would develop a live-in boyfriend/girlfriend relationship through the Applications Specialist job and… that mere contact with others at the facility and on the job is not substantially related to [applicant’s] domestic violence.”

The Cree court determined that the employer’s decision to rescind the offer of employment was “less focused on the circumstances of the particular job… and more focused on the general sense that [the applicant] 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.”

Employers would be wise to take note of the Cree decision. Check state and local anti-discrimination laws before making an employment decision based on criminal history.

Not sure if any laws that would prevent you from using criminal history when hiring?  Talk to your legal counsel for the answers you need.

Employment Fairness Act for Returning Citizens in Prince George’s County, MD

The Prince George's Employment Fairness Act for Returning Citizens is a new law in Prince George's County, Maryland, designed to provide fair...

Read More

Colorado’s Clean Slate Act Goes into Effect

As of July 1, 2024, Colorado’s Clean Slate Act, or Senate Bill 22-099, is officially in effect.This comes in the wake of several other states that...

Read More

Texas Attorney General Forms Privacy Task Force

The Texas Attorney General’s office has recently announcedthe formation of a dedicated task force within its Consumer Protection Division. This task...

Read More

Improper Use? Macy’s Faces Allegations of Discrimination in Background Check Policies

When completing background checks, ensuring compliance with federal, state, and local consumer reporting laws is only one consideration for an...

Read More

California Passes Cannabis Use Anti-discrimination Law

New York state and Washington, D.C. are two jurisdictions that introduced protections for cannabis users in the last year. Both have introduced or...

Read More

Anti-discrimination Suit Raised Against New York Insurance Company

If you’re an employer that uses background reports, compliance is a priority issue. Federal, state, and local consumer reporting laws are not the...

Read More