In a significant decision that impacts employers, employees, and job applicants across the state,
the Wisconsin Supreme Court has clarified and expanded the scope of the Wisconsin Fair Employment Act (WFEA).
In Oconomowoc Area School District v. Cota, et al. (2025), the Court held that the WFEA’s protections
against discrimination based on an individual’s arrest record extend to non-criminal offenses,
such as municipal theft violations.
What Is the WFEA?
The Wisconsin Fair Employment Act prohibits discrimination in employment based on numerous protected characteristics, including age, race, sex, marital status, and arrest record. Specifically, Wis. Stat. § 111.32 defines “arrest record” as “including, but not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.”Key Takeaway from Oconomowoc Area School District v. Cota
In its 2025 decision, the Wisconsin Supreme Court determined that this statutory language encompasses non-criminal offenses, such as municipal ordinance violations. The Court’s interpretation clarifies that employers cannot consider non-criminal offenses, like a municipal theft citation, as a basis for adverse employment decisions if doing so would violate the WFEA.Implications for Employers
This ruling has a direct impact on hiring and employment practices in Wisconsin. Employers must now exercise even greater caution when reviewing background checks or making employment decisions based on an individual’s legal history. Information that may not rise to the level of a criminal offense, yet still appears on a background check, may fall within the WFEA’s protections. To stay compliant, employers should:- Review and update background check policies and procedures.
- Train HR personnel and hiring managers on the expanded definition of “arrest record.”
- Ensure adverse employment decisions are not based on non-criminal records of job applicants and/or employees.