Cree, Inc. v. LIRC

2022 WI 15SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1671
COMPLETE TITLE: Cree, Inc.,
Petitioner-Respondent-Petitioner,
v.
Labor and Industry Review Commission,
Respondent-Co-Appellant,
Derrick Palmer,
Respondent-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 395 Wis. 2d 642,953 N.W.2d 883PDC No:2021 WI App 4 - Published
OPINION FILED: March 10, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 15, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Michael J. Piontek
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY,
JJ., joined. DALLET, J., filed a dissenting opinion in which
ANN WALSH BRADLEY and HAGEDORN, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-respondent-petitioner, there were briefs
filed by Lindsey W. Davis, Robert H. Duffy, and Quarles & Brady
LLP, Milwaukee. There was an oral argument by Robert H. Duffy.
For the respondent-co-appellant, there was a brief filed by
Steven C. Kilpatrick and Anthony D. Russomanno, assistant
attorneys general; with whom on the brief was Joshua L. Kaul,
attorney general. There was an oral argument by Anthony D.
Russomanno.
For the respondent-appellant there was a brief filed by Alan
C. Olson and Alan C. Olson & Associates, S.C., New Berlin. There
was oral argument by Alan C. Olson.
An amicus curiae brief was filed on behalf of Legal Action of
Wisconsin, Inc. by Jessie Long, Sheila Sullivan, Susan Lund, and
Megan Sprecher, Milwaukee.
An amicus curiae brief was filed on behalf of Wisconsin
Manufacturers and Commerce by Corydon J. Fish, Madison.
2
2022 WI 15NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1671
(L.C. No. 2019CV703)
STATE OF WISCONSIN : IN SUPREME COURT
Cree, Inc.,
Petitioner-Respondent-Petitioner,
v.
FILED
Labor and Industry Review Commission, MAR 10, 2022
Respondent-Co-Appellant, Sheila T. Reiff
Clerk of Supreme Court
Derrick Palmer,
Respondent-Appellant.
KAROFSKY, J., delivered the majority opinion of the Court, in which
ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ.,
joined. DALLET, J., filed a dissenting opinion in which ANN WALSH
BRADLEY and HAGEDORN, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶1 JILL J. KAROFSKY, J. We address whether Cree, Inc.
(Cree) rescinding its job offer to Derrick Palmer based on his
conviction record constituted unlawful employment discrimination
or instead was lawful because the circumstances of Palmer's
convictions "substantially relate" to the circumstances of the
No. 2019AP1671
job, per Wis. Stat. § 111.335(3)(a)1.1 We hold that Cree
sufficiently established that the circumstances surrounding
Palmer's 2013 convictions for domestic violence substantially
relate to the circumstances of the offered position as an
Applications Specialist. Accordingly, Cree did not unlawfully
discriminate against Palmer by rescinding its job offer.
I. BACKGROUND
A. Palmer's Convictions
¶2 In 2013, Palmer was convicted for committing eight
crimes of domestic violence against his live-in girlfriend, L.R.
According to the criminal complaint, the incident began on the
morning of October 24, 2012, when Palmer and L.R. were arguing
amidst a break-up and Palmer initially refused to leave their
residence. When Palmer eventually left for work, he called L.R.
multiple times but she did not answer. Approximately 30 minutes
after leaving, Palmer returned to the residence and began yelling
at L.R. She tried to get away from Palmer by going into the
bedroom but Palmer followed her. Palmer then broke L.R.'s
cellphone by throwing it against a window. L.R. tried to escape
from the room but Palmer pushed her onto the bed with such force
that she bounced off and hit her head on the floor. When L.R.
started screaming in hopes that someone would hear her and call
the police, Palmer grabbed her mouth and squeezed it "real hard."
1
While this case was being litigated, Wis. Stat.
§ 111.335(1)(c)1. (2015-16) was renumbered to Wis. Stat.
§ 111.335(3)(a)1. (2017-18). In this and all subsequent
references to the Wisconsin Statutes we will refer to the 2017-18
version unless otherwise indicated.
2
No. 2019AP1671
Then Palmer allowed L.R. to get up, but as she tried to reach the
door handle to escape, Palmer threw her on the bed, straddled her,
and placed his hand over her mouth and nose, stopping her from
breathing for about 30 seconds. Then Palmer started to cry, told
L.R. that he loved her, and let her up from the bed. L.R. went
into the bathroom to get ready for work and Palmer followed her
and put his hand down the front of her pants. L.R. told Palmer to
stop, but Palmer pulled L.R. to the bed and sexually assaulted her
by engaging in sexual intercourse without her consent. Palmer
again left the residence and L.R. contacted the police. L.R.
additionally reported that Palmer had engaged in other acts of
violence, including forced sexual intercourse, during their four-
month relationship.
¶3 As a result of the incident, Palmer pleaded no contest
to two counts of felony strangulation and suffocation, four counts
of misdemeanor battery, one count of fourth degree sexual assault,
and one count of criminal damage to property.2 The circuit court
also dismissed and read in two counts of false imprisonment and
one count of threats to injure or accuse of a crime.3 The circuit
court sentenced Palmer to 30 months in prison, 30 months of
extended supervision, four years of probation, and ordered him to
2 Wis. Stat. § 940.235(1) (2011-12), Wis. Stat. § 940.19(1)
(2011-12), Wis. Stat. § 940.225(3m) (2011-12), and Wis. Stat.
§ 943.01(1) (2011-12), respectively.
3 A "read-in" crime is one that either is not charged or is
dismissed as part of a plea agreement that the defendant agrees
the circuit court may consider at sentencing, along with the
underlying conduct. See Wis. Stat. § 973.20(1g)(b).
3
No. 2019AP1671
register as a sex offender. Palmer also has a 2001 battery
conviction related to domestic violence.4
B. Palmer's Job Opportunity with Cree
¶4 While incarcerated, Palmer earned his mechanical design
certification through the Wisconsin Department of Corrections
education program. He earned high marks and took advantage of
opportunities to work as a tutor after he graduated from the
program. With these new qualifications, in June of 2015 Palmer
applied to work at Cree's Racine, Wisconsin facility as an
Applications Specialist. At that time, Cree manufactured and
marketed lighting components.5 It employed approximately 1,100
people at its Racine facility. The facility itself spanned 600,000
square feet, including manufacturing space, storage areas,
offices, cubical farms, break rooms, and the like. Although
security cameras monitored some portions of the facility, there
were also many "nooks and crannies" throughout that experienced
little foot traffic, no security camera coverage, and noise loud
enough to drown out a person's voice.
¶5 As for the particular job, the Applications Specialist's
primary responsibilities included designing and recommending
4 Although this charge was not known to Cree when it rescinded
its employment offer, the record before the Labor and Industry
Review Commission (LIRC) indicates that Palmer admitted to this
conviction. The parties do not dispute that the court may consider
the 2001 conviction as part of Palmer's conviction record, and
thus we assume without deciding that it is proper to consider it.
5 In May of 2019, Cree sold its lighting business to Ideal
Industries, Inc.
4
No. 2019AP1671
lighting systems to customers, sometimes on location at customers'
facilities. Cree expected the Applications Specialist to operate
largely independently and without close supervision. It also
expected occasional travel to trade shows, which would require
unsupervised overnight hotel stays. Applications Specialists had
access to most of Cree's Racine facility.
¶6 In July 2015 Cree offered Palmer the Applications
Specialist job subject to a standard background check. The
background check revealed Palmer's 2013 convictions.6 Cree
referred the matter to its general counsel who reviewed Palmer's
conviction record using a matrix that categorized each of Palmer's
convictions as a "fail." Cree then rescinded its offer of
employment to Palmer.
C. Palmer's Discrimination Complaint
¶7 Palmer filed a complaint with the Wisconsin Department
of Workforce Development's Equal Rights Division (ERD) alleging
that Cree discriminated against him on the basis of his conviction
record in violation of the Wisconsin Fair Employment Act.7 The
ERD found probable cause to hold a hearing on the merits before an
6 Palmer was forthcoming to Cree about the existence of a
conviction record prior to the background check. He responded
"yes" to questions on an employment questionnaire asking whether
he had been convicted of a felony or misdemeanor and stated the
convictions were domestic-related. Palmer also disclosed his 2013
convictions when told there would be a background check.
7 Wisconsin Stat. § 111.321 prohibits all employers from
engaging "in any act of employment discrimination . . . against
any individual on the basis of," among other things, a person's
"conviction record," subject to a few exceptions.
5
No. 2019AP1671
administrative law judge (ALJ). The ALJ heard testimony from
Palmer, Melissa Garrett (Cree's general counsel), and Lee Motley
(a recruiter at Cree).
¶8 The ALJ also considered the testimony of Dr. Darald
Hanusa, Cree's expert on domestic violence and domestic violence
perpetrators. Dr. Hanusa testified as to the relationship between
domestic violence, generalized violence and workplace violence,
noting that there is "a direct relationship" between "a willingness
to use violence in your intimate relationship" and "your
willingness to use violence in other settings." Additionally,
Dr. Hanusa spoke about the "power principle"——the concept that
people who struggle with power and control issues tend to overuse
their power when they do not get what they want. He testified
that "the underpinning, underlying issues for men who are violent
is their struggle with power and control. And it doesn't just end
when they leave their house, it enters the workplace as well."
Dr. Hanusa noted that "the best predictor of future violence is
what's happened historically." He also emphasized that a charge
of strangulation/suffocation is especially concerning given that
in "the research on femicide, that is the homicide of women,
suffocation ranks up as very high on every indice . . . for
homicide." Based on all the testimony, the ALJ determined that
Palmer's convictions did substantially relate to the Applications
6
No. 2019AP1671
Specialist position and thus, under Wis. Stat. § 111.335(3)(a)1.,8
Cree did not discriminate against Palmer when it rescinded its job
offer. Palmer appealed the ALJ's findings to the Labor and
Industry Review Commission (LIRC).
¶9 LIRC reversed. LIRC reviewed the ALJ hearing record and
conferred with the ALJ regarding his impressions of the testifying
witnesses, but the ALJ did not impart any specific impressions
regarding demeanor. Palmer v. Cree, Inc., ERD Case No.
CR201502651, at 19 (LIRC, Dec. 3, 2018). Regardless, LIRC deemed
Dr. Hanusa's testimony on the connection between domestic violence
and workplace violence "unhelpful" and proffered its own, opposite
conclusion regarding crimes of domestic violence: "where assault
or battery convictions stem from personal relationships and the
crimes are committed at home, it cannot necessarily be assumed
that the individual is likely to engage in the same conduct with
co-workers or customers at the work place." Id. at 13 & n.6.
Based on that view of the domestic crimes at issue, LIRC concluded
that they did not substantially relate to the Applications
Specialist job because of:
 The "high degree of speculation and conjecture" necessary
to envision a scenario in which Palmer would become
Wisconsin Stat. § 111.335(3)(a)1. makes it "not employment
8
discrimination because of conviction record to refuse to
employ . . . any individual if," among other reasons, "the
individual has been convicted of any felony, misdemeanor, or other
offense the circumstances of which substantially relate to the
circumstances of the particular job."
7
No. 2019AP1671
involved in a personal relationship with a female employee
"that might end badly";
 The fact that the ability to meet female employees and form
personal relationships with them is not unique to the job
at issue;
 The lack of evidence that Palmer would have "significant
personal interactions" with female employees;
 The lack of evidence that Palmer would have the opportunity
to develop personal relationships with clients; and
 The lack of evidence to suggest that Palmer would act
violently with coworkers or members of the public.
Id. at 11-13. With this view of the record, LIRC determined that
the finding of a substantial relationship "would require a
conclusion that unsupervised contact with other people is in and
of itself a circumstance that might lead the complainant to engage
in violent conduct." Id. at 13. And such a conclusion, LIRC
continued, would run contrary to its prior decisions rejecting the
proposition that "the mere presence of other human beings is a
circumstance that creates a substantial relationship." Id.
¶10 The circuit court reversed LIRC's decision,9 concluding
that it was not supported by substantial evidence. The circuit
court relied on Dr. Hanusa's uncontroverted expert testimony in
deciding that a substantial relationship existed between Palmer's
convictions and Cree's Applications Specialist position.
9The Honorable Michael J. Piontek of the Racine County
Circuit Court presided.
8
No. 2019AP1671
¶11 The court of appeals then reversed again, upholding
LIRC's decision that Cree failed to meet its burden to show a
substantial relationship between Palmer's convictions and the job
at hand. Cree, Inc. v. LIRC, 2021 WI App 4, 395 Wis. 2d 642, 953
N.W.2d 883. The court of appeals felt constrained by LIRC's
disregard for Dr. Hanusa's testimony. Id. ¶7 n.4 ("[T]he weight
and credibility of the evidence are for the agency, not the
reviewing court, to determine." (quoting Milwaukee Symphony
Orchestra, Inc. v. DOR, 2010 WI 33, ¶31, 324 Wis. 2d 68, 781 N.W.2d
674) (alteration in original))). Like LIRC, the court of appeals
relied heavily on the domestic nature of Palmer's convictions,
saying his "tendenc[y] and inclination[]" was "to be physically
abusive toward women in a live-in boyfriend/girlfriend
relationship." Id., ¶14 (alterations in original). Although the
court of appeals surmised that Palmer was likely to recidivate
against a future girlfriend, it concluded that such likelihood
does not substantially relate to the job Cree offered him. Id.
¶12 We granted Cree's petition for review and again reverse.
II. STANDARD OF REVIEW
¶13 In an employment discrimination appeal, we review LIRC's
decision rather than the decision of the circuit court or the court
of appeals while benefiting from their analyses. Wis. Bell, Inc.
v. LIRC, 2018 WI 76, ¶28, 382 Wis. 2d 624, 914 N.W.2d 1. This
case requires us to interpret Wis. Stat. § 111.335(3)(a)1. and
determine if the facts of the case fulfill the legal standard set
out in the statute. Statutory interpretation is a matter of law
which we review de novo, giving no deference to the agency's legal
9
No. 2019AP1671
conclusions. Tetra Tech EC., Inc. v. DOR, 2018 WI 75, ¶84, 382
Wis. 2d 496, 914 N.W.2d 21. Whether the facts of a case fulfill
a legal standard is also a matter of law we review de novo. Id.In reviewing LIRC's decision, the court "shall not substitute its
judgment for that of the agency" when reviewing factual
determinations, but shall "set aside agency action . . . if it
finds that the agency's action depends on any finding of fact that
is not supported by substantial evidence in the record." Wis.
Stat. § 227.57(6).
III. ANALYSIS
¶14 Wisconsin's laws regarding employment discrimination
based on conviction record serve two important, and sometimes
competing, interests——rehabilitating those convicted of crimes and
protecting the public from the risk of criminal recidivism. See
Milwaukee County v. LIRC, 139 Wis. 2d 805, 821-23, 407 N.W.2d 908(1987). As such, Wisconsin law generally prohibits an employer
from discriminating against prospective employees on the basis of
their conviction record. Wis. Stat. §§ 111.321 & 111.322. But
"it is not employment discrimination because of conviction
record . . . [if] the individual has been convicted of any felony,
misdemeanor, or other offense the circumstances of which
substantially relate to the circumstances of the particular job."
Wis. Stat. § 111.335(3)(a)1. This is known as the "substantial
relationship test." As an exception to the general rule against
discrimination, the employer bears the burden of showing that the
circumstances of the convicted offense substantially relate to the
circumstances of the job.
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No. 2019AP1671
A. The Substantial Relationship Test
¶15 We first delineate the substantial relationship test by
interpreting the plain language of Wis. Stat. § 111.335(3)(a)1.
We then draw guidance from this court's three previous cases
interpreting the substantial relationship test. Finally, we
clarify how convictions for crimes of domestic violence fit into
the test.
1. Plain language interpretation
¶16 In interpreting Wis. Stat. § 111.335(3)(a)1., we look to
the statute's plain language and give that language its "common,
ordinary, and accepted meaning." State ex rel. Kalal v. Cir. Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
Courts often consult dictionaries to help determine the "common,
ordinary, and accepted meaning" of statutory language. Stroede v.
Soc'y Ins., 2021 WI 43, ¶12, 397 Wis. 2d 17, 959 N.W.2d 305. The
operative language in the substantial relationship test includes
"circumstance" and "substantially relate." Black's Law Dictionary
defines "circumstance" as "[a]n accompanying or accessory fact,
event, or condition, such as a piece of evidence that indicates
the probability of an event." Circumstance, Black's Law Dictionary
306 (11th ed. 2019); see also Circumstance, The American Heritage
Dictionary of the English Language 347 (3d ed. 1992) ("a condition
or fact attending an event and having some bearing on it; a
determining or modifying factor."). Accordingly, the definition
of "circumstance" is quite broad and asks the court to consider
the facts, events, and conditions that accompany both the convicted
offense and the particular job.
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No. 2019AP1671
¶17 The statute requires that these circumstances must
"substantially relate" to each other. "Substantial" is defined in
Black's Law Dictionary as "important, essential, and material; of
real worth and importance." Substantial, Black's Law Dictionary
1728 (11th ed. 2019). We take this to mean that the circumstances
must materially relate to each other, not merely superficially
relate. We do not take "substantially relate" to mean that the
circumstances must be nearly identical to satisfy the test.
Indeed, elsewhere in the law "substantially" is used and
interpreted to denote a middle ground——a heightened but not extreme
standard.10 Therefore, the plain language of the substantial
relationship test requires that the employer show that the facts,
events, and conditions surrounding the convicted offense
materially relate to the facts, events, and conditions surrounding
the job.
2. Previous cases
¶18 This framework has been further refined by three of our
previous cases: Law Enforcement Standards Board v. Village of
Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981); Gibson v.
Transportation Commission, 106 Wis. 2d 22, 315 N.W.2d 346 (1982);
and Milwaukee County v. LIRC, 139 Wis. 2d 805. Lyndon Station
10 See, e.g., State v. Curiel, 227 Wis. 2d 389, 406, 597 N.W.2d
697 (1999) (holding that "substantially probable" means "much more
likely than not" rather than "extreme likelihood"); AllEnergy
Corp. v. Trempealeau Cnty. Env't & Land Use Comm., 2017 WI 52,
¶76, 375 Wis. 2d 329, 895 N.W.2d 368 (reiterating that "substantial
evidence" is more than "a mere scintilla" of evidence but does not
amount to preponderance of the evidence).
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No. 2019AP1671
concerned whether the Wisconsin Law Enforcement Standards Board
(LESB) unlawfully discriminated when it deemed a prospective
police chief ineligible for that appointment because he had been
convicted of 26 counts of misconduct in public office for
falsifying uniform traffic citations while working as a chief
deputy sheriff. 101 Wis. 2d at 475-77. We held that "common
sense" dictated that the LESB recognize a substantial relationship
between the convicted offenses and the job of police chief. Id.
at 492. We pointed to the importance of "[p]ublic trust in the
integrity of our law enforcement officials" and reasoned that
someone who had been convicted of 26 felonies would have his
"effectiveness" as a law enforcement officer "greatly diminished."
Id. at 492-93.
¶19 Gibson concerned whether the Wisconsin Department of
Transportation (DOT) made a properly detailed inquiry into
Gibson's conviction record when it refused to grant him a school
bus driver's license. 106 Wis. 2d at 23-24. The DOT refused to
license Gibson after considering only the elements of armed
robbery——the crime for which Gibson was convicted——and not the
surrounding circumstances, such as the fact that Gibson's
coconspirator was the one who was armed. Id. We held that the
DOT had a rational basis for limiting its inquiry to the elements
of the convicted offense as that information alone sufficiently
established a substantial relationship to the school bus driver
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No. 2019AP1671
job.11 Id. at 27. We elaborated that the elements of armed robbery
indicated a "disregard for both the personal and property rights
of other persons . . . [and] a propensity to use force or the
threat of force to accomplish one's purposes." Id. at 28. We
considered these traits to be contradictory to the traits required
to be a bus driver, namely patience and level-headedness. Id. We
cautioned that "this case does not mean that the particular factual
circumstances of the crime upon which a felony conviction was based
may never be relevant" in a substantial relationship evaluation
because such a holding would impermissibly render the
"circumstances of which" language "superfluous." Id.¶20 Milwaukee County contains the most recent and thorough
discussion of the substantial relationship test. 139 Wis. 2d 805.
That case concerned whether an individual's convictions for
misdemeanor patient neglect arising from his employment as a
nursing home administrator substantially related to being a crisis
intervention specialist. Id. at 809. In defining the scope of
the substantial relationship inquiry, we looked to the term
"circumstances." Id. at 818. To determine which circumstances
were relevant, we focused on the underlying statutory purpose,
highlighting the balance between the two sometimes competing
This case, along with the other two cases concerning the
11
substantial relationship test, was decided before Tetra Tech EC.,
Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21, abrogated
judicial deference to administrative agency interpretations of
law. Under the old standard, we upheld an agency's decision if
there was a rational basis for the agency to come to its
conclusions. See Dairy Equip. Co. v. DILHR, 95 Wis. 2d 319, 327,
290 N.W.2d 330 (1980).
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No. 2019AP1671
rehabilitation and public-protection interests. Id. at 821-23.
We determined that although it is "highly desirable to reintegrate
convicted criminals into the workforce . . . the legislature has
clearly chosen to not force such attempts at rehabilitation in
employment settings where experience has demonstrated the
likelihood of repetitive criminal behavior." Id. at 823. It
declared that the purpose of the substantial relationship test is
to "[a]ssess[] whether the tendencies and inclinations to behave
a certain way in a particular context are likely to reappear later
in a related context, based on the traits revealed." Id. at 824.
¶21 Based on that understanding of the test, we interpreted
"circumstances" to mean those circumstances material to
"foster[ing] criminal activity," for example, "the opportunity for
criminal behavior, the reaction to responsibility, or the
character traits of the person." Id. But immaterial details such
as "the hour of the day the offense was committed, the clothes
worn during the crime, whether a knife or gun was used, whether
there was one victim or a dozen[,] or whether the robber wanted
money to buy drugs or to raise bail money for a friend" fall beyond
the scope of relevant circumstances. Id. We emphasized that this
line resulted in a practical test which employers can reliably
apply without a full-blown factual hearing. Id. at 826. Finally,
we addressed the Gibson court's supposed "elements only" test——
that the statutory test requires only a review of the elements of
the crime——by saying that "[i]t appears that the 'elements only'
test is not a test distinct from the statutory test. Rather,
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No. 2019AP1671
focusing on the elements simply helped to elucidate the
circumstances of the offense." Id.
¶22 Applying our refined view of "circumstances," we held
that the circumstances of the convicted offenses did substantially
relate to the circumstances of the crisis intervention specialist
job. Id. at 828. We rejected a "superficial" distinction between
the fact that the offenses were committed in an administrative
capacity while the job at hand involved direct care, instead
focusing on the fact that the prospective employee would again be
responsible for the wellbeing of vulnerable individuals. Id. at
830.
3. Convictions for crimes of domestic violence
¶23 The seesawing appellate history in this case reveals the
need for clarifying how employers, LIRC, and reviewing courts are
to apply the substantial relationship test to domestic violence
convictions. Here LIRC, following a pattern of prior
administrative cases, determined that acts of domestic violence
are practically immaterial to recidivism in the workplace because
of their domestic nature. LIRC's assumption appears to be based
on a common, but unsupported, belief that domestic batterers have
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No. 2019AP1671
a tendency to be violent only towards intimate partners.12 LIRC
reasoned that domestic abusers recidivate in the workplace only
when engaging in "significant personal interactions" with female
employees or clients. Palmer, No. 201502651, at 12. And when
that particular scenario takes a "high degree of speculation and
conjecture" to envision, the risk for recidivism remains low. Id.
at 11. Said differently, LIRC's analysis hinged on a domestic
batter's chances of finding a new domestic partner at work to then
victimize at home. That analysis differs from how LIRC analyzes
non-domestic crimes of violence, thus yielding inconsistent
results: a substantial relationship may exist when a violent
offense is committed outside the home but is barred when the same
violent offense is committed against an intimate partner behind
closed doors.
¶24 In short, LIRC has created an exception for domestic
violence crimes. And this exception disregards other
circumstances material to fostering criminal activity when crimes
of domestic violence are at issue. True, both the domestic setting
of the offense and the intimate relationship with the victim are
12 LIRC cited its prior decisions for the idea that when
dealing with domestic assault or battery convictions "it cannot
necessarily be assumed that the individual is likely to engage in
the same conduct with co-workers or customers at the work place."
Palmer v. Cree, Inc., ERD Case No. CR201502651, at 13 (LIRC, Dec.
3, 2018) (citing Murphy v. Autozone, ERD Case No. 200003059 (LIRC,
May 7, 2004)); see also Robertson v. Family Dollar Stores, Inc.,
ERD Case No. CR200300021 (LIRC, Oct. 14, 2005); Knight v. Wal-Mart
Stores East LP, ERD Case No. CR200600021 (LIRC, Oct. 11, 2012);
and Johnson v. Rohr Kenosha Motors, ERD Case No. CR201602571 (LIRC,
Apr. 29, 2020).
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No. 2019AP1671
"circumstances" that are not identical to the setting and
relationships Palmer would encounter at Cree. Yet the substantial
relationship test does not require an exact identity between these
circumstances. For example, the armed robbery conviction in Gibson
was deemed to substantially relate to employment as a school bus
driver despite the robbery not being committed in an employment
setting nor involving children as the victims. 106 Wis. 2d 22.
As we later explained in Milwaukee County, that result was correct
because the relevant circumstances of the offense are those
material to the likelihood of recidivism in the workplace, such as
"the opportunity for criminal behavior, the reaction to
responsibility, or the character traits of the person." 139 Wis.
2d at 824. Thus, similar to the armed robbery conviction in Gibson
and the several counts of patient neglect in Milwaukee County,
crimes of domestic violence are to be assessed to determine
"whether the tendencies and inclinations to behave a certain way
in a particular context are likely to reappear later in a related
context." Id.¶25 To summarize, we apply the substantial relationship test
to a domestic violence conviction the same way we would to any
other conviction. According to our precedent, which no party asks
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No. 2019AP1671
use to revisit,13 we must look beyond any immaterial identity
between circumstances——such as the domestic context of the offense
or an intimate relationship with the victim——and instead examine
the circumstances material to fostering criminal activity. The
material circumstances are those that exist in the workplace that
present opportunities for recidivism given the character traits
revealed by the circumstances of a domestic violence conviction.
¶26 In applying this framework, we first ask whether there
are opportunities in a workplace that would allow a domestic
violence perpetrator to recidivate. One such opportunity would be
the ability to isolate victims. Perpetrators of domestic violence
often commit their crimes under a veil of secrecy inside the home.
Indeed, this aspect of domestic violence explains the inclination
to treat crimes of domestic violence differently from other violent
crimes. And it leads to the misconception that unlike other
violent offenders, domestic violence perpetrators are sufficiently
13 The dissent's umbrage with this opinion is misplaced.
Really the dissent's contention is aimed at this court
interpretation of "circumstances" in Milwaukee County v. LIRC, 139
Wis. 2d 805, 824, 407 N.W.2d 908 (1987). Yet the dissent offers
no grounds for overturning this precedent, and for good reason——
to do so would be to develop the parties' arguments for them. See,
e.g., Christus Lutheran Church of Appleton v. DOT, 2021 WI 30, ¶21
n.12, 396 Wis. 2d 302, 956 N.W.2d 837. Moreover, for over three
decades LIRC has been applying Milwaukee County's interpretation
to crimes where domestic violence is not at issue. See, e.g.
Weston v. ADM Milling Co., ERD Case no. CR200300025 (LIRC Jan. 18,
2006); McCain v. Favorite Nurses, ERD Case No. 200302482 (LIRC
Apr. 27, 2005); Santos v. Whitehead Specialties, Inc., ERD Case
No. 8802471 (LIRC, Feb. 26, 1992). This opinion simply ensures
that same standard applies consistently to all crimes, including
those of domestic violence.
19
No. 2019AP1671
deterred from engaging in violence when in public. However, this
pubic versus private, work versus home dichotomy misses the mark.
The specific setting of the crime is immaterial; what matters is
that the abusers engage in violence under circumstances where their
victims are isolated away from those who might intervene.14 That
isolation occurs not just in the home——under the right
circumstances, it can be achieved in a car, in a private room, in
a storage closet, or in a parking lot. Thus, when considering
crimes of domestic violence, we look for the opportunities that
may exist within the circumstances of the job that would allow a
perpetrator to isolate a victim.
¶27 Next we must identify the character traits revealed by
the elements of a crime of domestic violence. Here, we refer to
the testimony of Cree's domestic violence expert, Dr. Hanusa, on
14See Giles v. California, 554 U.S. 353, 380 (2008) (Souter,
J. concurring in part) (confirming that the inference drawn from
the "classic abusive relationship" is that the abuser means "to
isolate the victim from outside help, including the aid of law
enforcement and the judicial process").
20
No. 2019AP1671
general principles informing domestic violence offenses.15
Dr. Hanusa testified that there is "a direct relationship" between
"a willingness to use violence in your intimate relationship" and
"your willingness to use violence in other settings." He also
pointed out that the best predictor for future violent behavior
was past violent behavior. Put simply, Dr. Hanusa's testimony
shows that crimes of domestic violence, like other violent crimes,
indicate a character trait of willingness to use violence against
others.
¶28 Dr. Hanusa also explained the "power principle," that
acts of domestic violence are rooted in power and control. He
further testified that those who have issues with power and control
resort to violence when they believe their power or authority is
threatened, regardless of who the victim is. This indicates a
character trait of willingness to use violence when one's power
and authority is threatened. Thus, when reviewing the
circumstances of the job, we consider whether a domestic violence
We reference Dr. Hanusa's testimony not for his opinion on
15
Palmer's particular recidivism risk but instead for his exposition
on general principles regarding domestic violence offenders. See
State v. Dobbs, 2020 WI 64, ¶42, 392 Wis. 2d 505, 945 N.W.2d 609(distinguishing expert opinions about a particular individual from
expert expositions on general principles). This limited reference
to his testimony presents no conflict with LIRC finding
Dr. Hanusa's testimony "unhelpful"; that determination was not
based on credibility——the ALJ "had no specific demeanor
impressions to impart"——and faulted only Dr. Hanusa's opinion of
Palmer's particular recidivism risk because he had not personally
interviewed or treated Palmer. See Palmer, ERD Case No.
CR201502651, at 19. No fault was found with respect to his
exposition on domestic-violence general principles.
21
No. 2019AP1671
perpetrator's power and authority will be threatened in ways that
may trigger a violent response.
B. Application
¶29 Having defined the substantial relationship test and the
proper way to analyze a conviction for a crime of domestic violence
within that framework, we now apply that test to Palmer's case.
We begin by detailing the circumstances both of Palmer's
convictions and of the Applications Specialist position at Cree.
We then compare those circumstances and ultimately conclude that
Cree met its burden to show a substantial relationship.
1. The circumstances of Palmer's convictions
¶30 First, we look to the character traits evinced by the
elements of Palmer's offenses. Palmer was convicted of two counts
of strangulation and suffocation, four counts of battery, one count
of fourth degree sexual assault, and one count of criminal damage
to property. Importantly, each offense requires as an element
that Palmer acted intentionally. In addition, the offenses contain
the following elements:
 Strangulation and suffocation requires that the
defendant impede the normal breathing or circulation of
blood by applying pressure on the throat or neck or
blocking the victim's nose or mouth;
 Battery requires that the defendant caused bodily harm
to the victim without consent;
 Fourth degree sexual assault requires that the defendant
had nonconsensual sexual contact with the victim; and
22
No. 2019AP1671
 Criminal damage to property requires that the defendant
caused damage to property belonging to another without
consent.
These elements, informed by the domestic context of the offenses,
exhibit the following character traits:
 Willingness to use extreme acts of violence to achieve
power and control over another person, particularly when
the victim is isolated;
 Willingness to engage in nonconsensual sexual conduct
for the purpose of sexual gratification, degradation, or
humiliation;
 Willingness to use extreme violence to stop another
person's breathing or circulation;
 Disregard for the health and safety of others;
 Lack of respect for bodily autonomy;
 Unwillingness or inability to control anger or other
emotions, particularly in the face of a perceived power
differential; and
 Disregard for the property rights of others.
This list illustrates far more than a mere tendency to be "anti-
social." See Milwaukee County, 139 Wis. 2d at 831 (Abrahamson,
J., concurring) (voicing concern that an emphasis on describing
circumstances of an offense too generally could lead to viewing
all individuals who have conviction records as "anti-social"
"recidivist[s]" fit for few employment positions.). Palmer's
crimes show a tendency to violently exert his power to control
23
No. 2019AP1671
others, and thus Palmer poses a real threat to the safety of
others.
¶31 These traits are not overgeneralizations untethered from
the circumstances of Palmer's crimes, as the dissent suggests. In
every criminal case that results in a conviction, there is a direct
link between the elements of an offense and the defendant's
particular conduct. Indeed, the traits we have identified here
are each borne out by the specific facts of Palmer's offenses.
Palmer brutally attacked L.R., physically injuring her,
endangering her life, and violating her sexually. No expert is
needed to appreciate that these facts demonstrate Palmer's
willingness to use extreme violence or his disregard for the health
and safety of others.
¶32 In addition to these character traits, we consider other
relevant and readily ascertainable circumstances of the offense
such as the seriousness and number of offenses, how recent the
conviction is, and whether there is a pattern of behavior.16 We
consider the seriousness of the convicted offense because the more
serious the offense, the less we can expect an employer to carry
the risk of recidivism. See Milwaukee County, 139 Wis. 2d at 823
16The court in Milwaukee County emphasized the need for "a
semblance of practicality about what the test requires. A full-
blown factual hearing is not only unnecessary, it is impractical."
Milwaukee County, 139 Wis. 2d at 826. These circumstances can be
ascertained from the record of conviction itself and thus do not
require any "full-blown" hearing. Furthermore, the court in
Milwaukee County similarly looked to the "pattern of neglect of
duty" evinced by the twelve misdemeanor counts to determine there
was a substantial relationship in that case. Id. at 828.
24
No. 2019AP1671
("This law should be liberally construed to effect its purpose of
providing jobs for those who have been convicted of crime and at
the same time not forcing employers to assume risks of repeat
conduct by those whose conviction records show them to have the
'propensity' to commit similar crimes . . . ."). The possible
consequences to an employer of hiring a recidivist shoplifter is
a matter of petty cash and missing property. The experience may
be inconvenient and frustrating but is unlikely to result in any
great harm to the employer, its staff, or its customers. In
contrast, the possible consequences of an employer hiring someone
who has committed strangulation, battery, and sexual assault
include a threat to the very safety and bodily autonomy of
employees and customers. If harm were to befall a customer or
employee, an employer could face potential liability.
¶33 The recentness of the offenses and any pattern of
conviction are additional readily ascertainable considerations.
If significant time has passed since a potential employee's last
conviction, then that tends to indicate rehabilitation and reduces
the likelihood of recidivism. But the existence of convictions
with similar elements that predate the most recent conviction
undermine an inference of rehabilitation, increasing the
recidivism risk.
¶34 Thus, in considering these circumstances of Palmer's
convictions, we recognize the undeniable seriousness of his
offenses and an emerging pattern of behavior. His convictions for
battery and sexual assault are themselves grave offenses, but his
conviction for strangulation and suffocation is a particularly
25
No. 2019AP1671
concerning offense given its association with homicide. Palmer
applied for a job at Cree in 2015, only two years after his multiple
2013 convictions. Before that, Palmer had an additional domestic
battery conviction in 2001, indicating an emerging pattern.
2. The circumstances of Cree's job
¶35 As an Applications Specialist at Cree, Palmer would have
been working in and have access to most of Cree's large facility
alongside over 1,000 coworkers. As his place of work, the layout
and characteristics of Cree's facility are "accompanying or
accessory fact[s], event[s], or condition[s]," of Palmer's
particular job with Cree.17 See Circumstance, Black's Law
Dictionary 306 (11th ed. 2019). Some portions of the facility are
heavily populated but other portions are secluded. The facility
is extremely loud in places, which could cover the sounds of a
struggle. While some portions of the facility are covered by
security cameras, the cameras are largely located at entrances and
exits and in places where injuries are likely to occur.
17The dissent misreads Wis. Stat. § 111.335(3)(a)1.,
suggesting that the circumstances of the "particular job" narrowly
means circumstances unique to that particular job. That
"uniqueness" limitation appears nowhere in the statue. Cree's
Racine facility is a circumstance of this particular Application
Specialist job, in the way that a different facility where a
different Application Specialists might work is not particular to
the position Cree offered Palmer. That other employees in other
jobs at Cree might share the same space does not change the fact
that the shared facility is a circumstance of this particular
Applications Specialist job. Nor does it matter that Cree
"expected" an Applications Specialist to be in a particular part
of the facility; the record is clear that, despite the expectation,
Palmer could still access much of the facility.
26
No. 2019AP1671
¶36 The Applications Specialist position works largely
independently and with no day-to-day supervision. Palmer would
have been expected to interact with co-workers and customers
regularly. By providing pre and post sales customer support,
Palmer would have been subject to deadlines and responsible for
satisfying customer demands. Because of the independent nature of
his position, he would have been expected to provide some level of
conflict resolution between Cree and its customers.18 Applications
Specialists must occasionally assist customers at their facilities
in uncontrolled and unpredictable environments. For example, they
work with "industrial accounts . . . building new facilities, such
as an office building, a school, a retail establishment, or an
automotive dealership[.]" Palmer, No. 201502651, at 12. Trade
shows would have required Palmer to travel with no supervision,
giving him access to rental cars and hotel rooms. Id. at 4.
3. The substantial relationship
¶37 Based on the evidence Cree submitted, the circumstances
of Palmer's convictions substantially relate to the Applications
Specialist position in at least two regards. First, Palmer's
willingness to use violence to exert power and control over others
substantially relates to the independent and interpersonal nature
of a pre and post sales job like the Applications Specialist
position. The relevant circumstances of the Applications
18The Application Specialist job posting stated that the job
performs a "mixture of design, presales and post sales customer
support responsibilities[,]" and would be "part of a team, []
applying project management skills to drive your own projects to
completion." Palmer, No. 201502651, at 3-4.
27
No. 2019AP1671
Specialist position would have presented situations where Palmer's
power or authority could have been threatened. Palmer would have
been responsible for designing an appropriate lighting system for
Cree's customers and responding to their complaints, problems, and
demands. Furthermore, in this situation, he was likely going to
interact with coworkers and supervisors who may have challenged
his ideas or perceived authority. These kinds of challenges and
demands could lead Palmer to react, consistent with his past
behavior, in a violent manner in order to exert his own power or
control.
¶38 Second, the absence of regular supervision creates
opportunities for violent encounters. LIRC's decision in this
case emphasized that unsupervised contact with other people cannot
in and of itself be a circumstance that might lead someone to
violent recidivism. This is true, but it is not just the
unsupervised contact with others that creates the substantial
relationship in this case. The lack of supervision is bolstered
by the secluded nature of portions of the large facility, the
covering noise in portions of the facility, and the broad
opportunities afforded to Palmer when working with clients on
location or traveling for trade shows. Palmer's conviction record
evinces a propensity to use violence to exert power and control
over others, particularly when they are isolated and unable to
attain help. Cree's Racine facility offers sufficient
opportunities for Palmer to either encounter a victim in isolation
or to intentionally isolate someone in one of the secluded, noisy
portions of the facility that experience little foot traffic.
28
No. 2019AP1671
Furthermore, traveling to customer sites or for trade shows
provides more significant opportunities to isolate and victimize
someone.
¶39 Several other factors also weigh in favor of finding a
substantial relationship. First, the seriousness of Palmer's
convictions would force Cree to assume the risk of Palmer repeating
his conduct and threatening the safety of employees, customers,
and the public. Additionally, the recentness of Palmer's
convictions——a scant two years——eliminates any favorable inference
of a long-dormant conviction record. Finally, Palmer's emerging
pattern of domestic violence convictions further highlight his
recidivism risk.
¶40 When we consider the fostering opportunities for
conflict and violence in light of the character traits shown by
Palmer's convictions along with the seriousness, relative
recentness, and emerging pattern to Palmer's crimes, we conclude
that Cree met its burden to show a substantial relationship between
Palmer's convicted offenses and the Applications Specialist
position. Palmer's willingness to use violence to exert power and
control over others substantially relates to the independent and
interpersonal circumstances of the position, the layout of the
facility——which provides sufficient opportunities to isolate a
victim——and the opportunities created by unsupervised travel. To
be abundantly clear, this holding is based on the specific
circumstances of Palmer's convictions and this particular
Applications Specialist job. Nothing in this opinion condemns all
domestic violence offenders to a life of unemployment. But in
29
No. 2019AP1671
this case, Cree sufficiently demonstrates that requiring it to
employ Palmer would force it to carry too much risk relating to
his recent criminal behavior.
IV. CONCLUSION
¶41 We hold that Cree met its burden to establish a
substantial relationship between the circumstances of Palmer's
convicted offenses and the circumstances of the Applications
Specialist position. Accordingly, Cree did not unlawfully
discriminate against Palmer based on his conviction record.
Because LIRC's contrary conclusion conflicts with our prior
direction on how to apply the substantial relationship test, we
remand to the circuit court with instructions to remand the matter
to LIRC with direction to dismiss Palmer's complaint on the merits.
By the Court.—The decision of the court of appeals is reversed
and the cause remanded to the circuit court with instructions.
30
No. 2019AP1671.rfd
¶42 REBECCA FRANK DALLET, J. (dissenting). The text of
Wis. Stat. § 111.335 prohibits discrimination on the basis of an
applicant's conviction record unless the circumstances of the
applicant's offenses are substantially related to the
circumstances of the particular job he seeks. The majority ignores
that context-specific directive, focusing instead on generic
"character traits," as well as the general qualities of the
workplace, gutting the anti-discrimination policy of the Fair
Employment Act in the process. The court should instead realign
its interpretation and application of § 111.335(3)(a)1. with the
statute's actual text and express purpose. Under such an analysis,
Cree unlawfully discriminated against Palmer because it failed to
show that the circumstances of Palmer's offenses are substantially
related to the circumstances of the lighting-specialist job for
which he applied. I therefore respectfully dissent.
I
A
¶43 The Fair Employment Act makes it illegal, generally, for
employers to refuse to hire an applicant based on the applicant's
criminal record. Wis. Stat. § 111.321. Notwithstanding that
general prohibition, the legislature has carved out a number of
"exceptions and special cases." Wis. Stat. § 111.335. Some
exceptions target specific jobs; for instance, an employer may
lawfully refuse to hire "as an installer of burglar alarms" anyone
convicted of a felony. § 111.335(3)(c). Some target certain
employers, such as an "educational agency," allowing them to
1
No. 2019AP1671.rfd
lawfully discriminate against persons convicted of a felony.
§ 111.335(3)(e). Other exceptions target specific crimes,
permitting the lawful discrimination against an applicant who was
convicted of "knowingly us[ing] a false academic credential" or
"falsely claiming to have a legitimate academic credential."
§§ 111.335(3)(f), 440.52(13)(c).
¶44 In addition to those targeted exceptions, the
legislature enacted a broader exception that applies when the
applicant has been convicted of any offense "the circumstances of
which substantially relate to the circumstances of the particular
job." § 111.335(3)(a)1. Although we have addressed this exception
in prior cases, we have never defined "circumstances" or
"substantially relate" in the context of § 111.335. Because those
words are also not defined in the Fair Employment Act, I look to
their common meanings. See Clean Wis., Inc. v. DNR, 2021 WI 72,
¶22, 398 Wis. 2d 433, 961 N.W.2d 611. A "circumstance" is a
"detail accompanying or surrounding an event"; a "fact attending
an event and having some bearing on it."1 A "relation" is a
"connection" or "logical or natural association between two or
more things."2 And "substantial" means to a
"considerable . . . degree."3 Thus, § 111.335(3)(a)1. applies
when the details and attending facts surrounding both the
applicant's prior offense and potential job are connected to a
considerable degree.
1 E.g., Am. Heritage Dictionary 347 (3d ed. 1994).
2 Id. at 1523.
3 Id. at 1791.
2
No. 2019AP1671.rfd
¶45 That definition is consistent with the Fair Employment
Act's express anti-discrimination purpose. See State v. Jendusa,
2021 WI 24, ¶24, 396 Wis. 2d 34, 955 N.W.2d 777 (statutes must be
interpreted in line with their purpose). The legislature directed
courts to "liberally construe[]" the Act so as to "encourage and
foster to the fullest extent practicable the employment of all
properly qualified individuals regardless of . . . conviction
record." Wis. Stat. § 111.31(3). It therefore follows that we
must narrowly construe exceptions such as § 111.335(3)(a)1. so
that they do not swallow the Act's anti-discrimination rule. See
McNeil v. Hansen, 2007 WI 56, ¶10, 300 Wis. 2d 358, 731 N.W.2d 273("If a statute is liberally construed,' . . . exceptions must be
narrowly construed.'") (quoted source omitted). To that end, the
employer must show that the "circumstances" of the offense
referenced in § 111.335(3)(a)1. are closely tethered to the
specific facts of the applicant's conviction, not to general
characteristics that may or may not apply to this particular
applicant. See Gibson v. Transp. Comm'n, 106 Wis. 2d 22, 29, 315
N.W.2d 346 (1982) (the burden of proof is on the employer). The
employer must also prove that the connection between the particular
circumstances of the applicant's offenses and those of the job is
strong and specific, not tenuous and general. See
§ 111.335(3)(a)1.
¶46 Despite those clear textual directives, the court has
generally struggled to follow them. Of the three cases in which
3
No. 2019AP1671.rfd
the court has previously interpreted § 111.335(3)(a)1.,4 only once
has our interpretation been true to the text. In that case, LESB
v. Village of Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89(1981), William Jessen had applied to be Lyndon Station's chief of
police, a job for which one of the primary responsibilities was
enforcing local traffic laws. Id. at 492. Jessen, however, had
previously been convicted of 26 felony counts of misconduct in
public office for falsifying traffic tickets while he was the chief
deputy sheriff for Juneau County. Id. at 476. We concluded that
the particular details surrounding Jessen's specific offense——that
he wrote false traffic tickets while serving as a deputy sheriff—
—were closely and strongly connected to the position of chief of
police such that it was not unlawful discrimination for Lyndon
Station to refuse to hire Jessen:
[U]nder the facts of this case, it can hardly be said
that the circumstances of the offense for which Jessen
was convicted fail to meet the substantial relationship
exception [in the Fair Employment Act], as common sense
dictates that a conviction of the felony of misconduct
in public office for falsifying traffic tickets
certainly bears a substantial relationship to the duties
of a police officer who is called upon to issue traffic
citations.
Id. at 492. Consistent with the statute's narrow focus, we did
not consider the general "character traits" of a person who commits
misconduct in public office. Nor did we consider the general work
environment of Lyndon Station's police department. Instead, we
4 Although it has not always been numbered § 111.335(3)(a)1.,
the relevant text of the statute has been the same since 1977,
when the conviction-record basis was added to the Fair Employment
Act's prohibited bases for discrimination. See Wis. Stat.
§ 111.32(5)(h)2.a. (1977–78).
4
No. 2019AP1671.rfd
focused on the relationship between the facts surrounding Jessen's
convictions and the job of a police chief.
¶47 Contrast that textual analysis, rooted in the facts of
the case, with our two more recent decisions interpreting
§ 111.335. In Gibson v. Transportation Commission, 106
Wis. 2d 22, 315 N.W.2d 346 (1982), and Milwaukee County v. LIRC,
139 Wis. 2d 805, 407 N.W.2d 908 (1987), we concluded that certain
character traits are inherent in the elements of a crime such that
everyone who commits that crime necessarily has those traits. In
both cases, the court divined these character traits from nothing
but its own judgment——not record evidence, not expert testimony,
not a statutory provision. See Gibson, 106 Wis. 2d at 28;
Milwaukee County, 139 Wis. 2d at 828. In Gibson, for instance,
the court flatly asserted that anyone who commits armed robbery
has a "propensity to use force . . . to accomplish one's
purposes," as well as a lack of "patience [and] level-headedness."
106 Wis. 2d at 28. While some people who commit armed robbery
undoubtedly posses these qualities, the same cannot be assumed of
every person who commits that crime. Concluding otherwise requires
the court to play armchair psychologist, making assumptions about
what character traits might be associated with each particular
criminal offense.
¶48 Followed to its logical end, an analysis rooted in
generic "character traits" obliterates the express policy of the
Fair Employment Act. The Act is meant to "encourage and foster to
the fullest extent practicable the employment of all properly
qualified individuals regardless of . . . conviction record." See
Wis. Stat. § 111.31(3). It further requires employers to evaluate
5
No. 2019AP1671.rfd
an applicant based upon the applicant's "individual
qualifications . . . rather than upon a particular class to which
the individual may belong." § 111.31(2). Neither of those policy
statements can be squared with an analysis focused on general
character qualities rather than the specific circumstances of the
case at hand. Indeed, Justice Abrahamson presciently sounded the
alarm 35 years ago about the consequences of the atextual
"character traits" approach:
I fear that what may emerge from the majority opinion is
an emphasis on describing the circumstances of the
offense at a high level of generality. At the highest
level of generality, according to the majority opinion,
an individual convicted of a crime is an "anti-social"
"recidivist," and anti-social recidivists are fit for
few employment positions. Clearly the majority cannot
have intended this approach because such an approach
tends to eviscerate the statute.
Milwaukee County, 139 Wis. 2d at 831-32 (Abrahamson, J.,
concurring). To prevent the Act's exceptions from eviscerating
its anti-discriminatory purpose, the court should return to the
text of § 111.335(3)(a)1. and analyze whether the actual
circumstances of an applicant's offense are substantially related
to those of the job for which he applied.
B
¶49 Under the proper text-based approach, Cree failed to
prove a substantial relationship between the circumstances of
Palmer's offenses and those of the lighting-specialist position.
Regarding the circumstances of Palmer's offenses, the record
before LIRC included the criminal complaint, which described the
horrifying facts underlying Palmer's convictions for strangulation
6
No. 2019AP1671.rfd
and suffocation, battery, sexual assault, and damaging property.
See majority op., ¶¶2–3. As for the circumstances of the lighting-
specialist job, LIRC found that the position would require Palmer
primarily to design lighting systems for clients.5 Within the
company, lighting specialists work on teams with other specialists
and coordinate project designs with teams of engineers. They also
interact directly with customers, "most[ly]" by phone and email
but "occasionally" in person either at the company's demonstration
rooms, "on the trade show floor" (requiring travel to the trade
show), or in "other industrial setting[s]." Palmer v. Cree, Inc.,
No. 201502651, at 4, 12 (LIRC, Dec. 3, 2018). LIRC found "no
evidence" that Palmer would be "supervising or mentoring female
employees, nor is there anything to suggest that he would be
working closely with female employees." Id. at 12. It also found
"nothing in the record" indicating that Palmer would interact with
customers in "private homes or other isolated settings." Id.
¶50 Based on the circumstances as found by LIRC, Cree has
failed to establish a strong connection between the circumstances
of Palmer's offenses, despicable as they are, and the circumstances
of the lighting-specialist position. Lighting specialists work in
a "cubicle farm," not in an isolated or secluded area. See id. at
5 The circumstances of both the offense and the particular
job are factual determinations. See State v. Thiel, 2003 WI 111,
¶21, 264 Wis. 2d 571, 665 N.W.2d 305 ("Findings of fact include
'the circumstances of the case . . . .'") (quoted source omitted).
We must therefore defer to LIRC's findings unless no reasonable
fact finder could have made the same determination. Milwaukee
Symphony Orchestra, Inc. v. DOR, 2010 WI 33, ¶31, 324 Wis. 2d 68,
781 N.W.2d 674. As the court of appeals noted, Cree does not
challenge LIRC's factual findings. Cree, Inc. v. LIRC, 2021 WI
App 4, ¶10, 395 Wis. 2d 642, 953 N.W.2d 883.
7
No. 2019AP1671.rfd
4. Client meetings take place either in the company's
demonstration rooms or in public settings, such as the trade-show
floor or "an office building, a school, a retail establishment,
[or an] automotive dealership" where the lighting system will
eventually be installed, not individuals' homes or isolated
settings. See id. at 12. It is true that Palmer's offenses
involved a violent assault on a woman and the lighting-specialist
position would require Palmer to interact with co-workers and
clients, some of whom will be women. But as LIRC pointed out,
interacting with others, including women, is not a circumstance of
this particular job, but rather a circumstance of having a job
generally. See id. at 11–12.
¶51 Moreover, no single circumstance of a person's offense
is dispositive. The domestic nature of Palmer's offenses is just
one of many circumstances that informs the substantial-
relationship analysis, all of which must be considered to determine
whether the circumstances of the offense are in fact substantially
related to those of the job. Thus, when the relevant offenses
"stem from personal relationships and the crimes are committed at
home, it cannot necessarily be assumed that the individual is
likely to engage in the same conduct with co-workers or customers
at the workplace." See id. at 13 (emphasis added). It was Cree's
burden to prove otherwise, a burden that LIRC concluded Cree failed
to meet: "[T]here is nothing in the record regarding the types of
interactions with co-workers or with the public that might raise
a concern that [Palmer] would act in a violent manner." Id. at
12–13. Indeed, to conclude that there is a substantial
relationship in this case would be to say that the "mere presence
8
No. 2019AP1671.rfd
of other human beings is a circumstance that creates a substantial
relationship." See id. at 13. LIRC rightly rejected such a
conclusion as contrary to the Fair Employment Act and correctly
determined that Cree unlawfully discriminated against Palmer on
the basis of his conviction record.
II
¶52 The majority's contrary holding undermines the anti-
discrimination policy of the Fair Employment Act by allowing
employers to refuse to hire all domestic-violence offenders,
regardless of the circumstances. Instead of focusing on the
specific circumstances of Palmer's offenses, the majority
redefines "circumstances of the offense" to mean the "general
character traits" it claims are somehow "revealed by the elements
of a crime of domestic violence." See majority op., ¶27.
Similarly, rather than analyzing the particular circumstances of
the lighting-specialist position, the majority relies upon
generalities about Cree's work environment. The majority arrives
at these conclusions by failing to follow the proper standard of
review, improperly substituting its own factual findings for
LIRC's. The result is a substantial-relationship analysis that is
unrecognizable in the text or the explicit policy of the Fair
Employment Act.
A
¶53 The majority gets off on the wrong foot by ignoring the
standard of review. The court must defer to LIRC's findings of
fact, including the circumstances of both Palmer's convictions and
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the lighting-specialist job, as well as its weight and credibility
determinations unless no reasonable fact finder could reach the
same conclusions. See Milwaukee Symphony Orchestra, Inc. v. DOR,
2010 WI 33, ¶31, 324 Wis. 2d 68, 781 N.W.2d 674. For that reason,
the majority's reliance on the testimony of Cree's expert witness,
Dr. Hanusa, is improper. LIRC found Dr. Hanusa's testimony
"unhelpful" and gave it no weight in its analysis. See Palmer,
No. 201502651, at 13 n.6. LIRC made no exception for Dr. Hanusa's
"exposition on general principles regarding domestic violence
offenders." See majority op., ¶27 n.15. Thus, Dr. Hanusa's
testimony is not properly before the court, and the majority may
not rely on it for any purpose. The majority also inappropriately
relies on Cree's assertions that Palmer would be expected to
interact with customers one-on-one in "uncontrolled and
unpredictable environments" and to "provide some level of conflict
resolution between Cree and its customers." See id., ¶36. LIRC
found "nothing in the record" to support any of those assertions.
See Palmer, No. 201502651, at 12 ("the conclusion that [Palmer]
would be meeting one-on-one with clients in private settings is
not supported by the record"); id. ("There is nothing in the record
to suggest that [Palmer] would be performing his services in
private homes or other isolated settings, nor did [Cree] specify
that the on-site meetings with clients would be conducted one-on-
one."); id. (Cree "did not contend that [Palmer] would be required
to deal with angry or irate customers or that there were any
conflicts presented in his relationships with the public."). The
majority identifies no error by LIRC on any of these points;
therefore it cannot substitute its own factual findings for LIRC's.
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B
¶54 The majority continues down the wrong path by ignoring
the text of the Fair Employment Act. Under § 111.335(3)(a)1.,
Cree's decision to not hire Palmer is lawful only if there is a
substantial relationship between the circumstances of his offenses
and those of the lighting-specialist position. The majority gets
each part of that analysis wrong: it recasts circumstances of the
offense as general character traits; it over-generalizes the
circumstances of the job; and it invents a substantial relationship
between the two.
¶55 Beginning with the circumstances of Palmer's offenses,
the majority fails to consider Palmer's conduct and other facts of
his offenses as the relevant circumstances. Instead, it shifts
the meaning of "circumstances" to include whatever general
"character traits" Dr. Hanusa testified to and those it conjures
from the elements of Palmer's crimes. See majority op., ¶¶27–28,
30–31. Not only is the court unqualified to divine psychological
traits from conduct, but, as discussed above, such general
characterizations are incompatible with the Fair Employment Act's
requirement that employers evaluate applicants based on their
"individual qualifications," not on the general group to which the
applicant may belong. See §§ 111.31; 111.335(3)(a)1. Also,
general character traits that may be common to most persons who
commit certain crimes are neither attending facts nor surrounding
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details of a specific person's offenses——especially when, as here,
there is no evidence that the offender actually has such traits.6
¶56 To boot, the majority identifies character traits at
such a high level of generality that they likely substantially
relate to the circumstances of most any job, thus establishing a
hurdle that no person with a conviction record is likely to clear.
For example, the majority asserts that anyone who commits the same
crimes as Palmer necessarily exhibits a "disregard for the health
and safety of others." See majority op., ¶30. I can think of no
job to which a respect for the health and safety of others is not
substantially related. Such a total prohibition on employment for
individuals convicted of offenses such as Palmer's must be
rejected. See Milwaukee County, 139 Wis. 2d at 831-32(Abrahamson, J., concurring).
¶57 Moving even further away from the text of
§ 111.335(3)(a)1., the majority claims that the "recentness" of
Palmer's convictions and his "emerging pattern" of criminal
behavior are circumstances of his offenses. See majority op.,
¶¶32–34. In reality, however, both are just different ways of
talking about general character traits rather than the facts of
Palmer's offenses. To be sure, the date of the offense is a fact
of that offense, but how much time has passed since that date is
not. Likewise for the majority's argument about a pattern of
conduct. Setting aside the point that no party raised that
argument, the number of times someone has been convicted of a crime
Even if Dr. Hanusa's testimony were properly before the
6
court, nowhere does he testify that Palmer actually has any of the
general character traits he describes.
12
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says nothing about the details surrounding any of those offenses.
And there is no logical relationship between how long ago or how
many times Palmer has been convicted and the job responsibilities
of a lighting specialist. At bottom, few if any of what the
majority claims as circumstances of Palmer's offenses are, in fact,
circumstances of those offenses.
¶58 The majority's approach to the circumstances of the
lighting-specialist job is similarly flawed. Again failing to
focus on the particular circumstances of that position, the
majority falls back on high-level generalities, identifying
generic characteristics of employment at Cree. For instance, the
majority notes the size of Cree's facility and the fact that most
employees have "access" to most of the facility. See majority
op., ¶¶4, 35. But there is nothing in the record to suggest that,
as a lighting specialist, Palmer would be expected to access the
whole of Cree's facility. Rather, the record establishes that
lighting specialists typically work in a cubicle farm or, when
meeting clients face-to-face at Cree's facility, in the company's
demonstration rooms. The so-called "nooks and crannies" of Cree's
expansive facility, see id., ¶4, are no more a circumstance of the
lighting-specialist position than all parts of Mitchell
International Airport are a circumstance of working for a food
vendor there. Indeed, the text of § 111.335(3)(a)1. explicitly
precludes such a broad reading. See § 111.335(3)(a)1. (focusing
on the circumstances of the "particular job"). And even when the
majority points to an actual circumstance of the job——such as the
potential for Palmer to travel to trade shows——it fails to explain
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how such a generic and mundane fact informs the substantial-
relationship test.7
¶59 Given its errors regarding the relevant circumstances of
Palmer's offenses and the lighting-specialist job, it is no
surprise that the majority gets the ultimate substantial-
relationship conclusion wrong. But worse than just getting it
wrong the majority opinion threatens the anti-discrimination
policy at the heart of the Fair Employment Act by concluding that
individuals convicted of crimes of domestic violence are unfit to
work in close proximity to other people, regardless of the
circumstances. For example, the majority claims that employing
someone with Palmer's convictions could lead to certain negative
consequences for employers. See majority op., ¶32. But that is
whole point of the Fair Employment Act. The Act is premised in
part on the idea that, left to their own devices, few employers
would hire convicted criminals, especially those convicted of
violent crimes, a scenario that the legislature has determined
"substantially and adversely affects the general welfare of the
state." § 111.31(1). Accordingly, the legislature made the policy
decision that unless an employer can demonstrate a substantial
relationship between the circumstances of this applicant's
convictions and this particular job, it is prohibited from
discriminating against the applicant on the basis of his conviction
record. § 111.335(3)(a)1.
While traveling to trade shows is a circumstance of the
7
lighting-specialist position, the fact that Palmer would have
"access to rental cars and hotel rooms" is not. See majority op.,
¶36. He has "access" to both regardless of where he works.
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¶60 In no way does that policy determination excuse an
applicant's convictions or diminish their offensiveness. Rather,
it reflects the Act's goals of reintegrating into the workforce
individuals convicted of crimes and furthering their
rehabilitation, thus lessening the chances they will commit more
crimes. See Milwaukee County, 139 Wis. 2d at 823. Whether or not
the majority considers that "to be a wise policy decision," it is
one "the legislature was entitled to make and to which [the court]
must defer." See Kohn v. Darlington Cmty. Schs., 2005 WI 99, ¶43,
283 Wis. 2d 1, 698 N.W.2d 794.
¶61 The majority opinion, however, suggests a different
approach for domestic-violence offenders such as Palmer. It
instructs LIRC and reviewing courts to ignore the circumstances
related to "the domestic context of the offense or an intimate
relationship with the victim" and instead focus on the general
character traits supposedly "revealed" by a domestic-violence
conviction. See majority op., ¶25.8 Through that framing, the
majority creates a per se substantial relationship between a
domestic-violence conviction and the circumstances of any job that
involves working with other people. That reasoning seemingly
extends to all violent convictions, creating a per se substantial
8 Ironically, given its insistence that LIRC and reviewing
courts analyze a domestic-violence conviction "the same way [they]
would . . . any other conviction," majority op., ¶25, the
majority's position requires LIRC and reviewing courts to do the
opposite. It forces them to disregard the domestic circumstance
of a domestic-violence offense, thereby treating such offenses
differently than any other. The majority's approach is also a
solution in search of a problem. As explained above, supra, ¶¶9–
10, LIRC analyzed Palmer's offenses as it would any other, by
considering all of the relevant circumstances of the offenses.
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relationship between any such conviction and any job involving
other people. In short, the majority crafts an exception to the
Fair Employment Act that swallows the Act's general rule against
such discrimination.
¶62 The text of § 111.335, however, proscribes the
majority's position in two ways. First, a categorical exception
for domestic-violence convictions would render meaningless the
textual directive that LIRC and reviewing courts must consider the
"circumstances" of each particular offense. See § 111.335(3)(a)1.
Second, had the legislature wanted to enact such a categorical
exception to the Act's protections, it would have done so, just as
it did it elsewhere in § 111.335. Under subsec. (4)(a), for
example, a licensing agency may lawfully discriminate against a
potential licensee if, in addition to meeting the same substantial-
relationship test as in § 111.335(3)(a)1., the licensee's
conviction was for either "an exempt offense" or a "violent crime
against a child." An "exempt offense" is defined as any crime
listed in ch. 940 ("Crimes against life and bodily security") or
certain crimes against children. See § 111.335(1m)(b). The
legislature included no similar categorical exception for
employers regarding domestic-violence convictions.
¶63 It likewise declined to single out domestic-violence
convictions under any of the specific "exceptions and special
cases." As mentioned above, no employer is required to hire as a
burglar-alarm installer anyone convicted of any felony.
§ 111.335(3)(c). All private-investigation firms are allowed to
lawfully discriminate against anyone convicted of any felony.
§ 111.335(3)(b). The legislature enacted no such exception for
16
No. 2019AP1671.rfd
any of the crimes Palmer committed. The lack of a categorical
exception for domestic-violence convictions doesn't mean that Cree
was required to hire Palmer; only that because it didn't hire him
based on his criminal record, the substantial-relationship test
applies. See § 111.335(3)(a)a. The majority's interpretation,
however, essentially eliminates that test for applicants with
domestic-violence convictions.
III
¶64 The text of § 111.335(3)(a)1. is straightforward and
clear. If an employer wants to discriminate against an applicant
or employee due to that person's conviction record, it must
demonstrate a substantial connection between the factual details
surrounding the person's convictions and the circumstances of the
particular job for which the person is applying. Here, LIRC
correctly determined that Cree failed to establish such a
connection between Palmer's convictions and its lighting-
specialist position. The majority's erroneous conclusion to the
contrary has no basis in the text of the Fair Employment Act and
undermines the Act's express policy of promoting the reintegration
into the workforce of those who have been convicted of crimes.
¶65 I am authorized to state that Justices ANN WALSH BRADLEY
and BRIAN HAGEDORN join this opinion.
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