Over the last several years, the Wisconsin Labor and Industry Review Commission ("LIRC") has developed a maddening interpretation of the Wisconsin Fair Employment Act as it relates to disability discrimination; that is, if the conduct that prompted an employee's discipline was caused by a disability, then taking action based on that conduct is an act of discrimination, regardless of whether the employer was aware of the connection between the two. For example, if an employee with a known mental disability tells his supervisor to "stick it" and is then disciplined, but later contends his conduct was due to his disability, LIRC has found that disciplining the employee because of his conduct is tantamount to disciplining him because of his disability, and therefore a violation of the WFEA.
HR professionals that conduct criminal background checks on prospective employees are well aware of (or should be) the Wisconsin Fair Employment Act's prohibition against discrimination on the basis of an individual's arrest or conviction record. Under the WFEA, an employer may not discriminate against an employee or prospective employee on the basis of a pending arrest or conviction, unless the circumstances of the arrest/conviction are substantially related to the circumstances of the proposed employment. Easy enough? Not really.