Wisconsin Supreme Court entrance in Capitol Building (copy)

The entrance to the Wisconsin Supreme Court chambers in the state Capitol. 

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A Republican attorney general candidate is accusing Democratic Attorney General Josh Kaul of demonstrating a “reckless disregard for safety” in office, pointing to a case before the state Supreme Court involving a man whose employment offer was rescinded after the company learned of his previous convictions on eight counts of sexual assault, strangulation and battery.

Ryan Owens, a lawyer and a professor of political science at the University of Wisconsin-Madison, argues that Kaul is “going out of (his) way” to help abusers. Kaul contends he is only following his responsibilities as attorney general.

The case involves a man named Derrick Palmer, who filed a discrimination complaint with the state Department of Workforce Development in September 2015 after the lighting company Cree, Inc. rescinded its conditional offer of employment following a background check. Palmer alleged that the move violated a state law that prohibits an employer from refusing to hire someone because of a conviction record. 

Cree acknowledged that the decision was based on Palmer’s record, but argued it was within its legal rights. Under the Wisconsin Fair Employment Act, an employer cannot refuse to hire an applicant based on his or her conviction record unless the circumstances of the offense(s) “substantially relate” to the circumstances of the job. Cree argued that standard was met in its decision to rescind Palmer’s job offer.

According to court records, over a series of incidents, Palmer pushed, struck, beat, suffocated and raped his girlfriend multiple times. One occasion left her with bruising on her face. In another, she was thrown to the bed so hard that she bounced off of it and hit her head on the floor before he forced intercourse. In another, Palmer picked her up by the neck and squeezed so hard she couldn’t breathe, then beat her with a belt before raping her. Court records indicate that Palmer was convicted of crimes involving violent assaults of three former girlfriends.

At the time Palmer sought employment with Cree, the company operated a 600,000-square-foot facility in Racine. According to a brief filed on behalf of the company, “​​there were areas within the facility where the noise level was so loud that even if someone was screaming, they would not be heard.” 

About half of the Racine location’s 1,100 employees were women, and, according to a court filing, “there was generally little supervision of employees.”

“Given the large, gender-diverse employee population, Cree’s Racine facility presented an opportunity for employees to form intimate relationships,” the company’s lawyers argued.

The position Palmer had sought would have been responsible for helping customers determine where to install the company’s lighting products, and would have required some unsupervised travel to customers’ facilities and trade shows. It would have been based in the facility’s “cubicle area.”

“Palmer’s propensity to use violence and the personal qualities his crimes reveal are inconsistent with working relatively unsupervised in a large community of women in a demanding, collaborative position,” Cree’s attorneys argued.

Following the case is likely to induce whiplash. 

After Palmer filed his discrimination complaint with DWD, an equal rights officer determined there was probable cause that Cree “may have” violated the state’s fair employment law. An administrative law judge then ruled that Cree had not, in fact, unlawfully discriminated against Palmer. But Palmer appealed that decision, and the state’s Labor and Industry Review Commission (LIRC) ruled in his favor, finding that the company had failed to demonstrate that Palmer’s convictions were substantially related to the job in question.

Cree appealed LIRC’s decision, and Racine County Circuit Judge Michael Piontek (who has since retired) sided with the company. 

From there, it went to the state Court of Appeals in 2020, where a three-judge panel reversed the circuit court’s decision and ruled in Palmer and LIRC’s favor — arguing that, because Palmer’s convictions were based on domestic incidents, too much speculation was required to assume his potential female coworkers could be in danger. 

“In light of Palmer’s criminal history, if the question before us was whether Palmer is likely to again be violent toward another woman with whom he is in a live-in boyfriend/girlfriend relationship, the answer would almost certainly be ‘yes.’ But that is not the question before us,” Judge Mark Gundrum wrote in the court’s decision. “The question is whether Cree met its burden to show that Palmer’s past domestic abuse is substantially related to the circumstances of the Applications Specialist job Palmer applied for. Based upon LIRC’s findings, to which we are limited, we cannot conclude that it has.”

Earlier this year, Cree took the case to the state Supreme Court, arguing that LIRC had erroneously concluded that Palmer’s violent domestic behavior would not reappear in the workplace. Palmer and Cree have their own attorneys, while Kaul and several assistant attorneys general represent LIRC.

In addition, Wisconsin Manufacturers and Commerce has filed an amicus brief supporting Cree’s position, while Legal Action of Wisconsin has filed one supporting Palmer and LIRC’s.

“As (LIRC) found, the circumstances for the offenses were a romantic relationship that turned bad and a domestic assault of Palmer’s partner. However alarming — and the Commission found Palmer’s conviction record concerning … the Commission found that Cree offered no similar scenario in its lighting factory,” DOJ attorneys wrote in their state Supreme Court filing. “Palmer’s offenses were not against co-workers or members of the public but, rather, flowed from an intimate relationship in a domestic setting.”

Owens criticized Kaul for advocating arguments that would benefit Palmer and LIRC, calling Kaul’s arguments “dangerous.”

“Kaul argues that sexual assaults in domestic settings don’t count. They’re not like work assault. The attorney general’s legal argument is that Palmer was physically and sexually violent ‘only’ to past domestic partners, not co-workers,” Owens said. “His position is frightening for women (and men) who have been assaulted in the past, makes it likely that they will be assaulted at work in the future, and is confusing to employers who might be held responsible for hiring such people.”

A DOJ spokeswoman declined to comment on the case.

Kaul's campaign spokeswoman Sondra Milkie said Owens “doesn’t understand the job he’s running for.”

“There are a number of laws that AG Kaul would change if it were up to him, but the AG doesn’t have that authority; the Legislature does,” Milkie said. “The duties of the attorney general include defending state law and state agency decisions when there’s a reasonable legal basis for doing so. That’s what’s happening here, in a case challenging a decision made by the Labor and Industry Review Commission during the Walker administration.” 

Owens will compete with Fond du Lac District Attorney Eric Toney in the Republican primary on Aug. 9, 2022. The winner will go on to face Kaul in the Nov. 8, 2022 general election.

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