Last week I posted a http://host.madison.com/ct/news/local/crime_and_courts/blog/article_87f8f614-f4fc-11e0-b9d1-001cc4c002e0.html?sourcetrack=moreArticle"> story about a legislative proposal that would make it legal for businesses to refuse to hire or allow them to fire people just because they have a felony conviction record.
This past week the bill sailed through the Assembly Committee on Labor and Workforce Development on a 6-3 party-line vote, setting up a vote by the full Assembly. A public hearing for the Senate version of the bill is set for Monday.
In the story, I talked to Linda Ketcham, executive director of Madison-area Urban Ministry, who said the proposal would make it harder for felons to get and keep jobs, which in turn would undermine the state's commitment to rehabilitating offenders released into the community.
The law that put felons into a protected class under the state's Fair Employment Act was passed in 1977. It prohibits employment discrimination based on conviction records unless the conviction substantially relates to the job.
At least one proponent of the bill took me to task for not including arguments in favor of the proposal. (The bill's author, state Rep. Joel Kleefisch, R-Oconomowoc, didn't return a phone call seeking comment, so proponents didn't get their say.)
So when WisconsinEye posted the hearing, I tuned in.
Here's what the proponents had to say.
As the hearing started, a Kleefisch aide, Stephanie Kundert, took the low-hanging fruit: Gerald Turner, the notorious Halloween Killer, who sexually assaulted and murdered a 9-year-old girl who was trick-or-treating in Fond du Lac in 1973.
I have to admit, I wouldn't want to hire or work with Turner. But in 1999 Turner won an undisclosed settlement from Waste Management Inc. because the company refused to hire him while he was out on parole. We'll never know if Turner would have won his case in court, however, because Waste Management chose to settle out of court rather than pursue litigation.
"In addition to child rapists and murderers, convicted burglars could also be able to file a lawsuit against a company who chose not to hire them if they perceived that decision as being discriminatory against their conviction record," Kundert said.
Kleefisch, who showed up late, added:
"This bill says an employer may consider a felony conviction in hiring or termination without the fear of being sued, and I think that's that type of climate we need to create right now as we're trying to create jobs throughout the state and give employers the tools they need to make sure that if they hire someone, if that person doesn't work out based on a felony conviction, they're not going to lose hundreds of thousands, if not millions, of dollars."
He also disclosed that his sister is about to marry someone with a felony record, which has not softened his stance one bit.
In response to Rep. Barbara Toles, D-Milwaukee, who said, "It seems like you're punishing individuals twice for a crime they committed," Kleefisch replied:
"You're trying to paint a scenario where we should be sorry for a felon after he gets out because life's a little tough. I guess I would say that should have been thought of before he or she made the decision to commit the felony."
Attorney Thomas Hruz, representing the conservative Civil Justice Council, argued that the current law puts employers in a box because Wisconsin law makes businesses liable for negligent hiring, which "enables someone who was injured by an employee to bring a claim against an employer if that employer knew or should have known that the person had a propensity to commit the act that they did in harming the third party."
He didn't provide any examples of that actually being an issue with hiring felons. But he cited the Turner case as an egregious consequence of the the current law.
"An employer like Waste Management or some other employer shouldn't be forced to put Gerald Turner next to an employee who has a 2-year-old child who was just abhorred by what he did," he said.
And while some at the hearing said lifting the ban on discrimination would constitute racial discrimination, since racial minorities are convicted at alarmingly higher rates than whites, Hruz said federal civil rights laws would still kick in when racial discrimination was alleged, a point that was disputed by others at the hearing.
Hruz also pointed out that Wisconsin is decidedly in the minority, being one of only five states with laws protecting felons in hiring and firing matters.
But according to Sheila Sullivan, an attorney with Legal Action of Wisconsin, a nonprofit law firm for low-income people, at least eight states have enacted some form of protection for those with criminal records in the past four years.
"They all have moved in the direction of making it harder to do what this law seems to embrace," she said.
While people representing the Civil Justice Council, the National Federation of Independent Businesses and Wisconsin Manufacturers & Commerce spoke in favor of the bill, 10 speakers lined to up oppose it from the State Bar, employment attorneys, Madison-area Urban Ministry and other advocacy groups that specialize in reintegrating offenders into society.
So just how big a problem is the anti-discrimination law for businesses? Proponents of the bill alluded to the potential of huge payouts to people claiming discrimination.
In reality, that's a rare occurrence. Sullivan, the attorney with Legal Action of Wisconsin, cited statistics from the Labor and Industry Review Commission that show that in 2010 there were 122 claims of discrimination of all types filed with the state Equal Rights Division, 13 of them involving arrest records. There were no findings of discrimination in any of the 122 cases.
Marilyn Thompson, an attorney in Madison, has litigated workplace issues for 30 years. In that time, she says, she's taken a total of two cases involving arrest records.
"There are very few of us attorneys in Wisconsin who represent people with job-related problems," she told the committee. "Most of our time is spent talking to people on the phone and telling them they don't have a case. We cannot afford to bring any case that doesn't have merit. And I would respectfully say that those anecdotes about million-dollar judgments, forget it, it doesn't happen."
The bill comes at a time when Republicans and their big business backers are clearly taking aim at the state's discrimination laws. Another https://docs.legis.wisconsin.gov/2011/related/proposals/ab286.pdf"> Assembly bill would eliminate the awarding of compensatory and punitive damages to people who have been discriminated against by employers because of factors such as age, race, gender, religion, marital status, conviction records or national origin. It would also eliminate compensatory and punitive damages for those discriminated against because of genetic testing and lie-detector tests.