Most employers are aware that Illinois (and most other states) prohibit employers from basing an employment decision based on a record of past arrests, but not convictions. But, what about taking an adverse employment action based on the underlying behavior of the employee or candidate that resulted in the arrest but not conviction?
Earlier this week the First District, Second Division Appellate Court of Illinois affirmed that in order to terminate an employee based on their criminal record, there must be evidence the individual actually engaged in the alleged conduct.
The Illinois Appellate Court recently addressed this issue in the case of Murillo v. City of Chicago. The plaintiff, Arcadia Murillo had been working as a janitor for the Chicago police department for three years when, in 2009, the station’s cleaning service changed management. With this change came a required background check for every employee in order for them to obtain security badges to the building, and therefore continue working. However, the results of the background check on Murillo revealed a 1999 arrest of drug possession and obstruction of justice. Although all charges against Murillo were dismissed for lack of probable cause, which is stated on her record, she was not allowed to continue to work at the police facility. When asked why the department made this decision, a sergeant involved in the process responded that it was made “based on the fact that there was possession of a controlled substance and refusal to cooperate with the police in the investigation.”
The Appellate Court found that the police department violated the plaintiff’s rights under the Illinois Human Rights Act. The court found that while an employer is able to use other information which indicates that an individual actually engaged in disqualifying conduct, this information must go beyond the bare police reports to determine that a crime was, in fact, committed. It was also compelling in Murillo’s case that the charges in question were dismissed for lack of probable cause, meaning that insufficient evidence of a crime existed.
The lesson for employers is clear. Past misconduct which does not result in a conviction may be relevant to an employment decision (emphasis on MAY be relevant), but any such decision must be made after a review of the facts beyond a police report. Ideally, prior to making an adverse employment decision based on past misconduct, a thorough investigation of the incident should be completed, with information gathered from as much first-hand knowledge as is possible. Additionally, it is advisable to allow the employee or candidate to provide information or perspective on the situation. If readers are thinking that this type of investigation is near impossible in some situations, you may be correct. The point, of course, is that without delving into the facts surrounding an arrest in order to determine whether misconduct occurred and that it disqualifies the individual from employment, a decision based on the mere fact that an arrest occurred (therefore, the individual engaged in wrongdoing) will violate the law.
