The Wisconsin Supreme Court has clarified that employment nondiscrimination protections under the Wisconsin Fair Employment Act apply to arrest records connected to criminal and non-criminal matters. The Court also clarified that arrest record discrimination can occur when the arrest record is a motivating factor in an employer’s decision to take an adverse employment action. The ruling took effect on April 10, 2025.
The details
Background
The Wisconsin Fair Employment Act (WFEA) defines an “arrest record” as including, but not limited to, information that indicates an individual was questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for a felony, misdemeanor or other offense under law enforcement or military authority.
The WFEA defines a “conviction record” as including, but not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.
The WFEA generally prohibits an employer from:
- Discriminating against an applicant or employee on the basis of their arrest and conviction records.
- Requesting information about an arrest record (unless it is a pending charge).
However, an employer is generally not engaging in unlawful arrest record discrimination for:
- Refusing to employ (or suspending from employment) an individual subject to a pending criminal charge when the circumstances of the charge substantially relate to the circumstances of the individual’s job.
- Finding from their own investigation that an employee committed unlawful conduct and terminating the employee on the basis of that investigation.
Wisconsin Supreme Court’s Decision
In Oconomowoc Area School District v. Cota, the Wisconsin Supreme Court found:
- The WFEA’s nondiscrimination protections apply to arrest records connected to criminal and non-criminal matters, since state law expressly authorizes arrests connected to non-criminal matters. The court noted, for example, that violations of traffic regulations and municipal ordinances are not crimes under Wisconsin law. Yet, law enforcement officers can arrest individuals for violating traffic regulations.
- Even if an employer conducted its own investigation, if an employer is motivated by arrest record information to take an adverse employment action (such as terminating an employee), then such action violates the WFEA. In this case, the court noted that the employer conducted an investigation but did not terminate the employee on the basis of that investigation. It was only after the employer discovered that the employee was cited for municipal theft that the decision to terminate employment was made.
Next steps
Review hiring, employee conduct and termination policies and procedures and train supervisors to ensure compliance with the Wisconsin Fair Employment Act.