Arrest Record Discrimination Laws in Wisconsin

Federal law does not directly prohibit employment discrimination based on arrest records. However, the U.S. Equal Employment Opportunity Commission (EEOC) has stated that employers may violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, if arrest record policies have a disparate impact on protected classes (race, color, national origin). The EEOC guidance suggests that using arrests without conviction as an absolute bar to employment is generally not permissible, as arrests do not establish guilt and may reflect discriminatory policing practices.

Federally, employers covered by Title VII (those with 15 or more employees) must ensure policies regarding arrest records do not have a discriminatory effect. The EEOC enforces this through the disparate impact theory, which allows complaints when facially neutral policies disproportionately harm individuals based on protected characteristics. There is no comprehensive federal statutory prohibition on arrest-based discrimination; protection depends on proving the employer's practice violates a civil rights statute like Title VII, the ADA, or ADEA.

Wisconsin provides substantially stronger protections than federal law through Wisconsin Statute Section 111.321, which explicitly prohibits employers from refusing to hire, promote, or retain any individual based on an arrest record that did not result in a conviction. This protection applies to all Wisconsin employers, regardless of size, including private employers, municipalities, and state agencies.

Wisconsin law defines the protected category broadly: any arrest not resulting in conviction is protected. This includes arrests that were dismissed, resulted in acquittal, or where charges were dropped. Employers cannot ask applicants or employees about arrests, cannot use arrest records in hiring or promotion decisions, and cannot terminate employment based on an arrest without conviction.

Wisconsin Statute Section 111.322 provides limited exceptions. Employers may consider convictions (not arrests) for positions in law enforcement, corrections, and certain roles involving direct care of vulnerable persons (children, elderly, disabled individuals). Employers in these fields can still not use arrests, only final convictions.

State law also prohibits employers from asking questions about arrests on job applications or in interviews. If an arrest record is discussed, the employer must restrict inquiry to convictions only. State law remedies are more comprehensive than federal: an employee can recover back pay, reinstatement, front pay, compensatory damages for emotional distress, and punitive damages for willful violations up to $50,000. Additionally, Wisconsin allows recovery of reasonable attorney fees and costs.

Wisconsin law contains narrow, specific exceptions. Employers may only consider arrest records (limited to convictions, not arrests) for positions in the following categories: (1) law enforcement officers or agents; (2) employees of the Wisconsin Department of Corrections or county correction departments; (3) employees working in facilities that provide direct care to vulnerable persons including children, individuals with intellectual or developmental disabilities, or elderly persons in need of care. Even in these excepted positions, employers cannot consider arrests without conviction — only final convictions.

The exception does not extend to all employers in a broad industry. For example, a private security company cannot use the law enforcement exception unless it employs actual peace officers. An employer claiming an exception must have legitimate job-related necessity. General business operations, customer service, administrative roles, and commercial services remain protected even if employed by a law enforcement agency.

One important caveat: Wisconsin allows consideration of convictions (not arrests) for any position if there is a direct and substantial relationship between the conviction and the job duties or the conviction creates a direct threat. However, this is limited to convictions, not arrests. Additionally, employers can verify that an applicant truthfully disclosed information; if an applicant lies about arrests or convictions on an application, that dishonesty may be grounds for nonhiring or termination independent of the underlying arrest record.

Step 1: Document Everything. Keep copies of all communications, including job postings, application forms, interview notes, emails, and any statements made by the employer about arrest records. Write down specific dates, times, and what was said. If the employer asked about arrests, note who asked, what was asked, and your response. Save rejection letters, termination notices, and any written policies the employer provided regarding arrest or conviction inquiries.

Step 2: Internal Complaint Process (Optional but Recommended). Many employers have human resources departments or internal grievance procedures. File a written complaint with HR or your supervisor's manager, clearly stating that the adverse employment action (nonhiring, termination, demotion) was based on your arrest record and that Wisconsin law prohibits this. Request a written response. Keep a copy of your complaint and any response. Internal complaints create a paper trail and sometimes lead to resolution without formal action, though Wisconsin law does not require you to exhaust internal remedies before filing with the state agency.

Step 3: File with Wisconsin Department of Safety and Professional Services (DSPS). This is the state agency that enforces Wisconsin Statute Section 111.321. File online at https://dsps.wi.gov/Pages/default.aspx or mail a complaint to the Wisconsin Department of Safety and Professional Services, Equal Rights Division, 1 South Pinckney Street, Suite 615, Madison, WI 53703. Include your name, contact information, employer name and address, date of the adverse action, a detailed description of what happened, and reference Wisconsin Statute Section 111.321. The deadline is 300 days from the date of the violation.

Step 4: Investigation and Process. After filing, DSPS assigns an investigator who will contact the employer and request evidence. You will likely be asked to provide written statements and may be interviewed by the investigator. The employer will be given an opportunity to respond. The investigation typically takes 60–120 days. DSPS may attempt mediation or conciliation. If no settlement is reached, the case may proceed to a hearing before an administrative law judge (ALJ). You have the right to have an attorney present at any hearing.

Step 5: When to Consult an Employment Attorney. Consult an employment attorney immediately if: (1) you were terminated and need to understand your options quickly; (2) the employer is large and has internal counsel; (3) the violation appears willful (employer had clear knowledge of the law and ignored it); (4) you suffered significant damages (lost wages, emotional distress); or (5) you believe punitive damages are warranted. Wisconsin allows recovery of attorney fees, making it more economically feasible to hire counsel. An employment attorney can evaluate whether you have a strong case, help prepare your complaint and evidence, represent you before DSPS, and negotiate a settlement.