Felon Protection.

Should employers be forced to hire ex-cons?

Imagine Sweeney Todd as your next barber. Or a paroled Unabomber wrapping gifts at your department store. Or Jim Jones of the People's Temple, reincarnated to manage the juice bar at your health club.

Things have not gotten quite that bad yet. But it's still worth taking a look at some recent headlines from Wisconsin that may confirm the emergence of the next "protected class" to be treated with kid gloves in the workplace: violent felons.

The Wisconsin Fair Employment Act makes it unlawful to hold a worker's or applicant's criminal record against him unless you're prepared to show in court that the record is "substantially" related to the employment. The standard example is that you don't have to offer a convicted embezzler a job as your bookkeeper. (That probably rules out Sweeney Todd as a barber, too, for now.) But so long as an ex-con applies for a job less directly related to his rap sheet, an employer in Green Bay or Kenosha is forbidden to give preference to a rival applicant who's never had trouble with the law. Nor will it necessarily get off the hook by citing the gruesomeness or notoriety of the applicant's offense - or the misgivings of co-workers or customers about dealing with him.

Which brings us to the case of Mark Moore, 37, who was convicted seven years ago after an incident in which he threw hot grease from a pan at his girlfriend; he missed, and the grease severely burned a 20-month-old child. After serving jail time for reckless injury and then being released on probation, Moore got a maintenance job - as a boiler room attendant, no less - with the Milwaukee public school system. Where more appropriate for someone who's just done time for injuring a kid? According to school administrators, Moore lied about his criminal record on his job application, and they fired him when they learned about his conviction.

Off he marched to the state's Department of Workforce Development (DWD), which ruled in Moore's favor, saying he had indeed suffered unlawful discrimination. The Labor and Industry Review Commission agreed; the school board has gone to court to challenge its decision, which includes an award of three years' back pay.

Scarcely had the headlines from Moore's case subsided when Gerald Turner's came along. Nicknamed the "Halloween Killer" for his 1973 rape and murder of a 9-year-old girl who disappeared while trick-or-treating in Fond du Lac, Turner had again become a figure of statewide notoriety because of agitation by those who wanted the state to find some excuse to keep him locked up after the completion of his sentence. There was no such lawful excuse, and he was duly released from prison last year. The signs couldn't be said to be propitious: A psychiatrist had warned that he was still dangerous, and the state had unsuccessfully tried to revoke his parole, saying he'd waved a butcher knife at a caseworker at his halfway house.

After his release, Turner applied for a job sorting recyclables at Waste Management Inc.'s Madison plant, which was in the habit of hiring released convicts, some with serious robbery and burglary raps. This particular case, however, struck the company as a no-go. Next stop: the DWD, which gave Turner's complaint against Waste Management a green light, finding evidence that its actions constituted unlawful discrimination. That was enough for the company's managers, who agreed to pay him an undisclosed sum to drop his action.

Even before the Moore and Turner came along, cases under the Wisconsin law had raised eyebrows. In 1997 the state's enforcers found probable discrimination in the decision by a Watertown nursing home to withdraw its offer of a job to Melinda Belden on learning of the pending charges of felony child endangerment against her. (Her infant had been rushed to an emergency room, police said, after inhaling fumes from the crack cocaine morn had been smoking.) The state said the employer had not done enough to establish that charges of child endangerment were "substantially related" to a job at a nursing home - helpless old people apparently being quite a different thing, in its view, from helpless young people. (The case was dropped when Belden failed to pursue it.)

You might predict that the workings of this sort of law would raise a strong emotional reaction. And for many in the Wisconsin legal and criminological elite, the law does indeed raise a strong emotional reaction: They just adore it. The state bar association has sent out letters strenuously opposing the notion of letting employers take criminal records into account. Probation officers and law professors coo about what a good social policy the state has adopted, while Jeff Hynes, co-chairman of the plaintiff-oriented Wisconsin Employment Lawyers Association, has praised the law as one that "protects the rights of thousands of Wisconsin workers" and added, of the Halloween Killer affair, that people should not "overreact to this case."

To hear the law professors tell it, it's predictable, maybe even understandable, that released convicts would revert to crime were there not a law compelling employers to overlook their pasts. "What is society telling them that they have to do?" asked Marquette's Phoebe Williams, quoted in the Milwaukee Journal Sentinel. "Go back and do more crime." James E. Jones of the University of Wisconsin echoed that sentiment, saying that if society failed to enact such a law an ex-con "might as well commit another crime and go back to jail."

Numbers were not quoted, yet in principle such assertions should be checkable. Only a few states have thus far joined Wisconsin in passing felon protection laws. Do jailbirds in the rest of the country in fact prove immune to rehabilitation and return inevitably to lives of crime because no one ever offers them a job? It would be surprising if that were so, since labor markets now, as in the past, include substantial blue-collar and service sectors where a willingness to show up and pitch in is the major prerequisite - aside from which, many organizations, large and small, are willing to give a break to ex-cons.

It might well be that laws like Wisconsin's eventually backfire by scaring away established companies from working with parole and probation officials to hire released inmates (which seems to be how Waste Management Inc. became the target of Gerald Turner's unwanted attentions). If you risk legal trouble every time you disagree with a social worker or probation officer on the feasibility of a particular placement, there's nothing to stop you from joining the majority of companies that don't actively fish in this particular pool.

Reports from employers suggest that this sort of problem has begun to crop up for rehabilitation agencies that seek work for the severely disabled. Because of the Americans with Disabilities Act, an employer may buy itself a plateful of headaches if it purposely hires disabled workers and then disagrees with them or with their sponsors about which tasks they're suited to handle or what kinds of accommodations should be made for them. Even socially conscious companies that have historically prided themselves on disabled or ex-offender recruitment may at some point decide that it's easier to tiptoe quietly away from the whole area.

And there are a few other questions. Does it really discourage recidivism to hand newly sprung convicts an engraved invitation to conceal their pasts from employers? (In this as in other areas, if an employer can't consider an issue in making a hiring decision, it's legally dangerous for it to probe for information on that subject in a job interview or on an application.) One respectable school of thought holds that to stay on the straight and narrow it helps to have those around you know what your weakness is, so they can be on the lookout for early signs that you're slipping. And even supposing laws of this sort could somehow be shown to improve success rates in convict rehabilitation, by what right should citizens and organizations that have themselves committed no crime be forced to sacrifice their freedom (and perhaps their security) for the sake of furthering that social project?

Popular Wisconsin opinion on this summer's cases seemed to diverge drastically from the views of the bar association activists. An editorial in the Milwaukee Journal Sentinel called the settlement of Turner's case a "travesty," while a letter to the editor described him as a "de facto aristocrat, with special powers, benefits and protections not allotted to mere commoners," entitled to enlist "all the power and authority of [the government] on his side and against us for the rest of his life, specifically because he raped and murdered 9-year-old Lisa Ann French." The retired sheriff who'd served as special investigator in the French murder said he was "damn upset."

So intense was public sentiment over the episodes that a few legislators critical of the law actually managed to bring a bill aimed at revising it to the floor of the state assembly. This was a switch: Similar legislation had been bottled up in committee the previous year, amid vigorous opposition from inner-city Milwaukee legislators. "This is foot-in-the-door legislation that can be used to discriminate against certain people," Rep. G. Spencer Coggs (D-Milwaukee) said this time around.

This turned out to be the one case in a thousand where school safety hysteria worked to assist the forces of rationality. Scalding a child, everyone seemed to agree, was a far more heinous offense on Moore's part than if he'd succeeded in hitting and burning his grown-up girlfriend. And Waste Management did its best to conform to the spirit of the times by stressing in its public statements that the recycling job Turner was seeking would give him access to such contents of recycling bins as "weapons, used hypodermic needles, and BB guns," and that more than a dozen Boy Scout troops and school groups had toured the facility in the previous year. (By contrast, it said little about the views of the employees who might not have wanted to work alongside Turner day in and day out, perhaps recognizing that the law had already written off their interests as of no importance.) In the event, the Assembly voted by an 85-to-14 margin to allow schools - though not other sorts of employers - to take felony convictions into account. It remains to be seen whether even that limited step will clear the rest of the legislative process.

Meanwhile, federal law has progressed a long way toward developing its own version of felon protection. For starters, the Americans with Disabilities Act may require employers to ignore some past violent or criminal behavior when it is blamed on mental illness or behavioral disabilities such as alcoholism. More sweepingly, the federal Equal Employment Opportunity Commission (EEOC) holds that for employers to take workers' criminal records into account subjects racial minorities to "disparate impact" (since they are more likely to have such records) and must therefore be justified by "business necessity." As a result, managers nationwide - not just in states like Wisconsin - have for years been advised that they ask job applicants about conviction records only at their peril, and that they should not ask about arrest records at all.

To be sure, the EEOC's attempts to expand the frontiers of criminal protection have not always succeeded in court. In a 1989 case, it lost after having demanded that a trucking company hire felons to handle "high-risk" freight such as computers and pharmaceuticals. The words of U.S. District Judge Jose Gonzalez, throwing out the agency's contentions, could serve as a dry coda to the whole subject: If applicants "do not wish to be discriminated against because they have been convicted of theft," he wrote, "then they should stop stealing."

Contributing Editor Walter Olson ([e-mail]) is senior fellow at the Manhattan Institute and edits overlawyered.com.