Why It Shouldn’t Matter That Governor Walker Shared A Stage With A Sex Offender

Why It Shouldn’t Matter That Governor Walker Shared A Stage With A Sex Offender


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At the Wisconsin State of the State (SOTS) address, Governor Walker stressed that economic conditions were improving and introduced some workers who had secured jobs. The day after the speech a Milwaukee Journal Sentinel column wrote about how one of the workers has a criminal past that includes a sexual offense and multiple incidents of drunk driving.

The comments from each political camp immediately focused on whether the individual was properly vetted or had a background check run on him. The Walker camp assumed the employer had performed an adequate background check and stated, “if we had been aware of this individual’s prior convictions, he would not have been invited to participate”. Similarly, candidate Burke stated, “I would make sure I’m vetting people I’m holding up as great examples of successes in Wisconsin”.

Of course, a background check should have been conducted by the Governor’s team. However, what each side missed saying is that regardless of his past this worker’s story is an example of a type of success worth recognizing, because he moved beyond a criminal past to become gainfully employed and a model employee.

Workers with an arrest or conviction record face a large hurdle to securing employment. There is the obvious aversion to someone who has not played by the rules or who has a troubled past. There is also a lack of faith in the person’s judgment and distrust of the person’s character. In spite of such hurdles, the worker at the SOTS secured a temporary position, performed well enough to move from seasonal work to full time work, and received a recommendation from his employer for prime time recognition by the Governor. Why would that not count as a personal and economic success story worth highlighting?

Focusing on just the criminal past (even one with a sexual offense) and suggesting exclusion sends a troubling message to the public and to employers. It supports a continued bias against former convicts, regardless of what they are able to accomplish, and it can undermine workplace anti-discrimination laws.

The Wisconsin Fair Employment Act (WFEA) makes it unlawful for an employer to discriminate on the basis of arrest or conviction records. While there are some limited exceptions, the law requires employers to ignore the arrest or conviction history unless there is a substantial connection to the job. That means an interviewer would have to resist the urge to summarily reject a candidate simply because of a criminal record, even if that record included sexual offenses. It also means the worker cannot simply be fired if the employer did not ask about the criminal history and it is uncovered later on. Instead, employers have to look past the checkered history, look at the person’s present abilities and character, and evaluate whether there is any substantial connection between the crime(s) and the task at hand.

The WFEA’s anti-discrimination obligations with regards to arrest or conviction history are not easily fulfilled. In fact, they can be counter-intuitive for people. Think about a background check revealing that a male employee has a history of sexual assault or other sexual offense. It is easy to fall back on skepticism, fear, or flat out convenience to avoid hiring that person. It is easier to say, “Not my problem and no need for me to get a headache from hiring him”. That response is simpler than worrying about how he will treat staff and customers who are women. That response certainly avoids wondering about the employer’s liability, concerns about negligent hiring, or impact to the employer’s reputation if there is a relapse. And yet organizations and their staff struggle with these questions and look past their concerns every day in order to follow the law. Shouldn’t a similar principle and thought process apply to a few minutes on stage with policymakers?

The WFEA’s anti-discrimination protections depend on employers understanding and supporting the underlying policy: giving people a second chance, viewing them as individuals rather than as a rap sheet, and providing them an opportunity to become economically self-sufficient. It is difficult to ask employers to voluntarily comply with the law, as opposed to out of begrudging obligation or playing cat and mouse with potential legal penalties, when policymakers cannot bother to look past the “ex-convict” label.

While I understand there is no legal obligation to invite a former convict to a political event, it would have been encouraging to hear that even though a background check was not conducted, the results would have been irrelevant in this case. This worker had moved beyond a criminal past to become a model employee. That is a positive development, on multiple fronts, that is worth highlighting. To be clear, I am not suggesting his life story makes him a model citizen in all respects. But certainly his story is an even better example of the economic successes that were being highlighted. Sure his inclusion raises some pesky questions. But there is a straightforward response as to why they should not matter: we expect this type of success from our anti-discrimination laws and there should be no shame in recognizing the result.

Author: Attorney Nilesh P. Patel

 

 

Articles are for informational purposes only and are not intended to be legal advice or create an attorney-client relationship.

 

2 Comments

  1. Manish Jain

    Great article, Nilesh. It was a well written piece.

  2. Thomas Burton

    Great piece! I had the same sentiment when I heard about this story and the ensuing media coverage. This guy is trying to turn his life around, and a good job is an important step in the process.

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