Monday, August 10, 2015

It’s Not the Initial Lie, It’s the Persistent Cover Up

As Martha Stewart so famously showed us, it’s often not the actual wrongdoing that’s such a problem, as is lying about it.  Last week, the 7th Circuit Court of Appeals confirmed that proposition again recently when it upheld summary judgment in favor of a Union Pacific Railroad Company in an age and race discrimination claim.

The plaintiff in the case, Sweatt, had worked for the company for a number of years as a laborer until an injury prevented him from continuing in his job. Taking advantage of the company’s vocational rehabilitation program,  the plaintiff identified a security officer position for which he applied. According to the company, security officer positions required a higher level of personal integrity, and therefore, the application for these positions asked whether the applicant had been arrested or convicted of any crimes, including traffic citations. The application stated that answering yes to the question did not automatically disqualify the applicant but a false statement would. 

During the course of the interview for that position, the HR representative asked him to reiterate that he had neither been arrested or convicted of a misdemeanor or felony. Sweatt confirmed that he had not. Later, the company learned that Sweatt had actually been arrested once but not convicted.  He was asked again about pasts arrests or convictions and again Sweatt denied having any. The company disqualified Sweatt for the position.

In support of his discrimination claims, the plaintiff offered evidence that others who did not possess his protected characteristics had lied about prior arrests or convictions but were not disqualified from a security officer position. The company offered evidence that while others had lied on their applications, they had been forthcoming about their arrests or convictions during their interviews, while the plaintiff had not.

That difference was enough to allow the court to conclude that Sweatt had not offered evidence, as was his burden, that similarly situated employees who did not possess protected characteristics were treated more favorably. In so ruling, the court stated “it’s not the initial lie; it’s the cover-up; the persistence in the lie” that made Sweatt different from the rest. 

The employer in this case did a few things right. It clearly stated on its application that although it asked for information on prior misdeeds, the existence of such did not automatically disqualify an applicant, although providing a false answer would. This gave clear notice to the applicant that lying about past misconduct would be fatal to their application.

Secondly, the employer apparently made a habit of asking applicants to confirm their answer to these questions, which allowed applicants the opportunity to clarify any misunderstanding. This helped to support the company’s position that it disqualified the plaintiff not because of his arrest, but because of his misrepresentation.

On the other hand, while the company did not use the fact of the plaintiff’s arrest as a disqualifying fact, employer’s are well advised to remove the question of past arrests only from their application. The focus by federal and state enforcement agencies on the prohibition of using arrest information when considering employment applications, it is a best practice to eliminate this line of inquiry altogether.