Dollar Store Defends Post-Child Porn Firing

[amigocabal]

http://www.courthousenews.com/2015/09/0 ... firing.htm

MILWAUKEE (CN) - Dollar General fired a man convicted of possessing graphic child pornography, only to have Wisconsin officials upbraid it for discrimination, the store claims in court.
The Vonnegutian tale appears in a petition filed Thursday in Milwaukee County Circuit Court by Dolgen, the parent company of a Dollar General on South 27th Street that hired Michael Ionetz as its manager in May 2010.
One month on the job, Ionetz was charged with 22 counts of child pornography, Dolgen says. The company's complaint gives a sickening account of the data that the state claimed to have found on Ionetz's hard drive.
Dolgen says Ionetz continued to work while appearing in court on the charges, even asking the judge not to restrict his computer access since he needed the Internet to perform his job duties.
Though the court barred Ionetz from having "contact with any person younger than eighteen years of age" as a special condition of his bond, "Ionetz continued to work and schedule himself as the only person working in the Milwaukee store, even though he was aware that children (under eighteen years of age) frequented the store and he would come into contact with them," Dolgen claims.

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This is interesting. I do wonder what the reasoning of the commission was, or the relevant statute.

[Ziggy Stardust]

According to that article, though, Ionetz deliberately lied to his boss at the Dollar General about the situation and the terms of his probation. It was when the manager found out that Ionetz was fired. The court ruled that the offense was sufficiently different from his job that it wasn't an appropriate cause for termination (unless I am misunderstanding); but isn't the lie grounds enough to fire him, anyway?

[lPeregrine]

This is interesting. I do wonder what the reasoning of the commission was, or the relevant statute.

Perhaps you could read your own article to find out?

"But the language of the relevant statute requires the commission, in applying the substantial relationship test, to consider the elements of the offense for which the complainant was actually convicted, not the offense for which he was arrested or charged."

So, just that pesky little detail of "innocent until proven guilty".

[bilateralrope]

By turning up to work there he was constantly, knowingly, breaking the law on work premises by breaching his probation conditions.

Can anyone think of a reason why a company should be required to keep employing someone who is breaking the law when they turn up for work ?

The only thing I can think of is protest against an unjust law. But that is not the case here.

[Eternal_Freedom]

I have a feeling this is going to be another case of someone, or their lawyers, appealing tot he strict letter of the law and not it's meaning or intent, and those passing judgement thinking "oh cock, we're kinda stuck here."

[biostem]

It seems the decision did not take into account this guy's potential contact w/ people under 18, and instead focused on limited computer access, as a point to find the firing unlawful. This doesn't make sense to me...

[lPeregrine]

Can anyone think of a reason why a company should be required to keep employing someone who is breaking the law when they turn up for work ?

They shouldn't, which is why he didn't get his job back. They just had to pay damages for firing him for the wrong reason. Imagine an alternative situation where an employer fires someone because of their race, but it's later discovered that the former employee lied about their professional qualifications and can't legally do the job. They won't get the job back, but the company still broke the law and gets the punishment.

Lesson: if you're going to fire someone, be very careful that you do it right and don't admit to illegal reasons.

[lPeregrine]

It seems the decision did not take into account this guy's potential contact w/ people under 18, and instead focused on limited computer access, as a point to find the firing unlawful. This doesn't make sense to me...

It makes sense, because he was actually convicted of "computer crime". Was that a bad plea bargain offer for the state to make? Arguably, but it's the only crime he's (legally) guilty of and apparently the only crime the employer is allowed to consider.

[bilateralrope]

Can anyone think of a reason why a company should be required to keep employing someone who is breaking the law when they turn up for work ?

They shouldn't, which is why he didn't get his job back. They just had to pay damages for firing him for the wrong reason. Imagine an alternative situation where an employer fires someone because of their race, but it's later discovered that the former employee lied about their professional qualifications and can't legally do the job. They won't get the job back, but the company still broke the law and gets the punishment.

Lesson: if you're going to fire someone, be very careful that you do it right and don't admit to illegal reasons.

So how should they have gone about firing him ?

[biostem]

So is this the part that got the store in trouble:

As part of Ionetz's sentence of probation, the criminal court prohibited the man from entering locations where minors congregated - with a specific exclusion of working in a retail store where minors shopped, according to the complaint.

So the court made an exception for his job, which means that the store couldn't use that as a reason to fire him?

[lPeregrine]

So how should they have gone about firing him ?

"We are sorry, but we can not accommodate the conditions of your probation. As you are no longer able to perform the duties required for your position we regretfully wish you luck in your new career elsewhere."

And given that the commission explicitly declined to give him his job back for the "can't perform required duties" reason that approach would almost certainly have worked. But the company made the mistake of citing the original charges (which he was not convicted of) as a reason for firing him instead.

[bilateralrope]

So how should they have gone about firing him ?

"We are sorry, but we can not accommodate the conditions of your probation. As you are no longer able to perform the duties required for your position we regretfully wish you luck in your new career elsewhere."

And given that the commission explicitly declined to give him his job back for the "can't perform required duties" reason that approach would almost certainly have worked. But the company made the mistake of citing the original charges (which he was not convicted of) as a reason for firing him instead.

Fair enough.

[Dominus Atheos]

or the relevant statute.

Here:

Summary

An employer's use of an individual's criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

The Guidance builds on longstanding court decisions and existing guidance documents that the U.S. Equal Employment Opportunity Commission (Commission or EEOC) issued over twenty years ago.

The Guidance focuses on employment discrimination based on race and national origin. The Introduction provides information about criminal records, employer practices, and Title VII.

The Guidance discusses the differences between arrest and conviction records.

The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.

In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

The Guidance discusses disparate treatment and disparate impact analysis under Title VII.

A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).

An employer's neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).

National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.

Two circumstances in which the Commission believes employers will consistently meet the "job related and consistent with business necessity" defense are as follows:

The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or

The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer's policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).

Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.

State and local laws or regulations are preempted by Title VII if they "purport[] to require or permit the doing of any act which would be an unlawful employment practice" under Title VII. 42 U.S.C. § 2000e-7.

The Guidance concludes with best practices for employers.

Finding that Ionetz's conviction was not "substantially related to his job," the commission ordered Dolgen to pay the man's attorneys $27,000. It refused to award Ionetz backpay or reinstatement since the terms of his probation meant that he could not keep his Dollar General job. Nevertheless, store found that his firing discriminated on the basis of his conviction.

So while it would be impossible for the man to keep working there, it was not the business's right to fire him. If he had continued working there it would have violated his probation and he would have been thrown in jail.

[Grumman]

or the relevant statute.

Here:

So in other words, this is another example of why the "disproportionate impact" test is fucking stupid. Correlation is not causation. Discrimination against convicted criminals is not racist just because convicted criminals are more likely to be African-American than the general population, any more than it is sexist just because convicted criminals are more likely to be men than the general population. And honestly, I'd be pretty pissed off if the government tried to make that argument that I as a man am being victimised by distrust of convicted criminals.

[Simon_Jester]

So while it would be impossible for the man to keep working there, it was not the business's right to fire him. If he had continued working there it would have violated his probation and he would have been thrown in jail.

But isn't the business potentially liable if they knowingly continue employing a criminal any longer than necessary, and the criminal commits wrongdoing?

In my opinion, the proper course of action if you find out your employee is violating his parole by working for you would be to fire him and call the police at the same time.

[amigocabal]

So while it would be impossible for the man to keep working there, it was not the business's right to fire him. If he had continued working there it would have violated his probation and he would have been thrown in jail.

But isn't the business potentially liable if they knowingly continue employing a criminal any longer than necessary, and the criminal commits wrongdoing?

In my opinion, the proper course of action if you find out your employee is violating his parole by working for you would be to fire him and call the police at the same time.

Businesses are liable for the wrongdoing of their employees even if said employee had a squeaky clean record.

So in other words, this is another example of why the "disproportionate impact" test is fucking stupid. Correlation is not causation. Discrimination against convicted criminals is not racist just because convicted criminals are more likely to be African-American than the general population, any more than it is sexist just because convicted criminals are more likely to be men than the general population. And honestly, I'd be pretty pissed off if the government tried to make that argument that I as a man am being victimised by distrust of convicted criminals.

The case here involves a ruling by a state agency. As far as I know, state agencies generally only here antidiscrimination claims arising from state law when the respondent is a private actor. I would doubt that a state agency would arising from federal antidiscrimination laws (though of course they would consider federal law if the respondent cites federal law as as a defense).

[Terralthra]

So while it would be impossible for the man to keep working there, it was not the business's right to fire him. If he had continued working there it would have violated his probation and he would have been thrown in jail.

But isn't the business potentially liable if they knowingly continue employing a criminal any longer than necessary, and the criminal commits wrongdoing?

In my opinion, the proper course of action if you find out your employee is violating his parole by working for you would be to fire him and call the police at the same time.

It wasn't parole, it was part of the term of the bond on which he was released during the trial. Parole is part of a punishment imposed after a guilty verdict. There's a key distinction there.

[Flagg]

Dude, this is stupid as shit and not even questionable that this pedo asshole and his syphalitic scumbag lawyer are full of shit and the aforementioned frequently reused "public" whorehouse counsel should be disbarred. Aside from rolling my eyes at this so stupidly posted article, I'm actually annoyed enough to be that asshole goody-two shoes teacher's pet Quisling fuckbag that always asked if we had any homework during the 2 & 1/2 week Winter break 15 seconds before the end of day bell rang on the last day of school before said break that I'm gonna play hall monitor wannabe and point out that it's a rule on the site that you post the entire article, which is perfectly legal to do and is settled law as far as I know.

[Flagg]

So in other words, this is another example of why the "disproportionate impact" test is fucking stupid. Correlation is not causation. Discrimination against convicted criminals is not racist just because convicted criminals are more likely to be African-American than the general population, any more than it is sexist just because convicted criminals are more likely to be men than the general population. And honestly, I'd be pretty pissed off if the government tried to make that argument that I as a man am being victimised by distrust of convicted criminals.

Dude, there are more white felons than black and there sure as hell aren't more white felons than the general population, so I think you need to rethink both of those because the first is racist and numerically incorrect and the second is just numerically impossible. Blacks have a higher rate of felons in their community than whites, and they sure as hell have a higher rate of incarcerated members of their community than whites, but there are more white's both in number of felons and incarcerations.

And it's purely a numbers game. But since the game is rigged against blacks and other minorities due to institutional racism, especially in the justice system, then you're wrong on the facts. However, I agree that the policies regarding hiring felons used by the vast majorities of businesses is not intentionally racist simply because, as you said "Corralation is not causality."

All of that said, not being black doesn't make you "Part of the GENERAL population." It just means you're not black, because blacks are part of the general population. Unless you're racist. I get the impression, and a vague recollection that you've said you're American, if not then Canadian, and if not either of them, then I apologize, but you clearly have a grasp of the English language, which is what I'm trying to get at. So given past statements made by you, I'd carefully think about the way you phrase things.

Take it from the master shoveler: You don't wanna dig that hole any deeper.

[Flagg]

Dude, this is stupid as shit and not even questionable that this pedo asshole and his syphalitic scumbag lawyer are full of shit and the aforementioned frequently reused "public" whorehouse counsel should be disbarred. Aside from rolling my eyes at this so stupidly posted article, I'm actually annoyed enough to be that asshole goody-two shoes teacher's pet Quisling fuckbag that always asked if we had any homework during the 2 & 1/2 week Winter break 15 seconds before the end of day bell rang on the last day of school before said break that I'm gonna play hall monitor wannabe and point out that it's a rule on the site that you post the entire article, which is perfectly legal to do and is settled law as far as I know.

LATE EDIT: I say this due to an assumption that he was on the typical "90 days probation" since it says he was only working there for a month, and in both FL and WA (where I've been employed), you can get fired on a coin flip during the probationary period, not considering the law may be different in WI.

[Grumman]

So in other words, this is another example of why the "disproportionate impact" test is fucking stupid. Correlation is not causation. Discrimination against convicted criminals is not racist just because convicted criminals are more likely to be African-American than the general population, any more than it is sexist just because convicted criminals are more likely to be men than the general population. And honestly, I'd be pretty pissed off if the government tried to make that argument that I as a man am being victimised by distrust of convicted criminals.

All of that said, not being black doesn't make you "Part of the GENERAL population." It just means you're not black, because blacks are part of the general population. Unless you're racist. I get the impression, and a vague recollection that you've said you're American, if not then Canadian, and if not either of them, then I apologize, but you clearly have a grasp of the English language, which is what I'm trying to get at. So given past statements made by you, I'd carefully think about the way you phrase things.

I was not saying "convicted criminals are more likely to be African-American/men than [convicted criminals are likely to be part of] the general population" - which as you say is a nonsensical statement when African-Americans and men are both subsets of "the general population". I was saying "convicted criminals are more likely to be African-American/men than the general population [is likely to be African-American/men]".

It's true that I could have worded it better but since the alternative reading makes no logical sense, I failed to consider it might be necessary to explicitly rule it out.

[Purple]

It's true that I could have worded it better but since the alternative reading makes no logical sense, I failed to consider it might be necessary to explicitly rule it out.

That sort of thing happens a lot on this forum. People don't use common sense when reading to rule out interpretations that make no sense. And than you have to spend the next week fighting them to explain why and how their reading of your text is wrong. It's bloody annoying, that's what it is.

[Grumman]

If everyone's okay with cutting it down to an hour and a half of fighting to explain how and why Flagg's reading of the text is wrong, we can move on. We're both on the same side, here.

[Flagg]

So in other words, this is another example of why the "disproportionate impact" test is fucking stupid. Correlation is not causation. Discrimination against convicted criminals is not racist just because convicted criminals are more likely to be African-American than the general population, any more than it is sexist just because convicted criminals are more likely to be men than the general population. And honestly, I'd be pretty pissed off if the government tried to make that argument that I as a man am being victimised by distrust of convicted criminals.

All of that said, not being black doesn't make you "Part of the GENERAL population." It just means you're not black, because blacks are part of the general population. Unless you're racist. I get the impression, and a vague recollection that you've said you're American, if not then Canadian, and if not either of them, then I apologize, but you clearly have a grasp of the English language, which is what I'm trying to get at. So given past statements made by you, I'd carefully think about the way you phrase things.

I was not saying "convicted criminals are more likely to be African-American/men than [convicted criminals are likely to be part of] the general population" - which as you say is a nonsensical statement when African-Americans and men are both subsets of "the general population". I was saying "convicted criminals are more likely to be African-American/men than the general population [is likely to be African-American/men]".

It's true that I could have worded it better but since the alternative reading makes no logical sense, I failed to consider it might be necessary to explicitly rule it out.

Yeah, I think I get what you were saying now. More of a bit of a confusing statement by you and my sick as hell med-clouded brain not quite getting it but knowing it might not be the worst I can interpret it as, and wanting clarification before I started calling you names I find amusing.

If everyone's okay with cutting it down to an hour and a half of fighting to explain how and why Flagg's reading of the text is wrong, we can move on. We're both on the same side, here.

Don't be a dick. That's mah job!

[amigocabal]

And it's purely a numbers game. But since the game is rigged against blacks and other minorities due to institutional racism, especially in the justice system, then you're wrong on the facts.

Of course, this does beg the question of why instituitional racism contionues to exist. Surely the courts would strike it down as a violation of equal protection.

However, I agree that the policies regarding hiring felons used by the vast majorities of businesses is not intentionally racist simply because, as you said "Corralation is not causality."

If it applies equally to all felons regardless of ethnic descent, by definition it is not racist.