What happened?

On December 5, 2024, the Madison Common Council immediately amended the Equal Opportunity Ordinance. 

Overview:

Madison amended its Equal Opportunities Ordinance, removing the three-year lookback period for considering arrest and conviction records. This change aims to provide a fairer assessment of arrest and conviction records in employment decisions. 

• This change requires employers to evaluate the relevance of an offense to the job, considering factors like the seriousness of the offense, time elapsed, and the individual’s character, potentially complicating hiring decisions. 
• Under both state law and the Madison ordinance, the age of the conviction remains a relevant factor in the substantial relationship analysis. This harmonization with state law is beneficial for Wisconsin employers.  
• Employers may face challenges in litigating an employee’s or applicant’s “character” at administrative hearings. They should consider mitigating evidence submitted by candidates, such as letters of reference, community service documents, and proof of training. 

Additional Details:  

• Historically, Madison’s stricter rule prevented employers from considering convictions if three years had passed since probation, parole, release, or fine payment, regardless of the offense’s relevance to the job. Outside Madison, the Wisconsin Fair Employment Act (WFEA) allows employers to consider the offense in relation to the job. 
• The amendment introduces new guidelines for applying the substantial relationship test, including the seriousness of the offense, the time elapsed since probation, parole, release, or fine payment, the individual’s age at the time of the offense, and the individual’s character. 
• The amendment to the Madison General Ordinances (MGO) specifies criteria for determining whether an offense is related to a job, including the seriousness of the offense, the time elapsed since the offense, the age of the individual at the time, and the individual’s character.  
• While these criteria are similar to those under the WFEA, there are differences. For example, the Wisconsin Supreme Court suggests considering patterns of behavior and the opportunity for re-offense in the workplace. 
• The MGO’s reference to the “character of the employee or applicant” may be interpreted differently than state law, requiring future clarification by the Madison Equal Employment Commission.  
• This nuanced area of law requires fact-specific inquiries, and the MGO still differs from state law regarding arrest and conviction record discrimination. 
• The amendment updates Section 39.03(8)(i)3. b. of the MGO, allowing employers to evaluate the circumstances of an offense to provide a more balanced and fair assessment of an applicant’s or employee’s suitability for a job. 

“Please mark the effective date on your calendar as a reminder to be fully prepared and ready to ensure compliance with applicable laws and regulations.” 

Source References

• City of Madison Ordinance Amendment

Resources

• City of Madison Arrest Record and Employment Flyer
• City of Madison Conviction Record and Employment Flyer
• City of Madison Arrest & Conviction Record Discrimination Information

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