Appellate Court Finds that the City of Chicago Impermissibly Used an Employee’s Arrest Record to Terminate Her Employment

Nov 28, 2016

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In an oftentimes confusing and ever changing employment area, criminal background checks, the Illinois Appellate Court recently addressed the Illinois Human Rights Act (“IHRA” or “Act”) prohibition against “using” the fact of an arrest as a basis to discriminate. In Murillo v. City of Chicago (August 2016), the City of Chicago’s reliance on the mere fact of an employee’s arrest as grounds to terminate was determined to be a violation of the Act.

The Facts

In 2006, Plaintiff Arcadia Murillo began working through a contractor as a janitor at a Chicago Police station. After three (3) years of employment without incident, the City changed contractors and required all employees to submit background checks in order to be issued security badges. Murillo’s fingerprint-based background check subsequently revealed a 1999 arrest for a drug charge though the criminal history report also reflected that the case had been dismissed for lack of probable cause.

Based on the results of the background check, the City refused to issue Murillo the necessary security clearance to retain her position and thereafter her employer, Triad Consulting Services, terminated her. Murillo filed suit alleging her termination violated the IHRA, which prohibits employers from “inquir[ing] into or [using] the fact of an arrest” as a basis for adverse employment action against the employee. The trial court agreed with Murillo and awarded her $87,227.75 in damages and $183,796.83 in attorney’s fees and costs.

The Appellate Court’s Decision

On appeal, the Illinois Appellate Court, First District, affirmed the trial court’s judgment that the City violated the IHRA by using the fact of Murillo’s arrest to terminate her employment. The Court rejected the City’s argument that the use of the arrest report was permissible because the Act allows employers to “[obtain] or [use] other information which indicates that a person actually engaged in the conduct for which he or she was arrested.” Noting that Murillo’s arrest records provided no information that she actually engaged in criminal conduct, the Court concluded that the City’s use of the arrest report, as a basis to determine that Murillo actually engaged in the conduct for which she was arrested, violated the Act because the report did not “indicate” or “serve as a sign” that Murillo actually committed any offense. The Court made clear that an arrest report could qualify as “other information” which indicates that a person actually engaged in the conduct for which she was arrested because an arrest report can include a wealth of detail on which an employer might rely.  However, this was not the case here and the City’s investigator’s deposition testimony revealed that he concluded Murillo committed the offenses because she had been arrested for them.  Additionally, the investigator did not even meet with Murillo to question her about the circumstances of the arrest.

The Significance of the Court’s Decision

Criminal background checks perform a useful security function, but employers must be aware that they are limited in what criminal history information they are legally permitted to use to screen applicants or employees. The Murillo decision confirms that employers cannot alter the terms and conditions of employment based solely on the fact that a person was arrested for particular conduct.

Significantly, however, the Murillo court cautioned that the IHRA is not violated if an employer gathers information sufficiently persuasive to “indicate” that the person actually engaged in the conduct for which he or she was arrested. We strongly recommend that legal counsel be consulted when an employer is contemplating an adverse employment action based upon information indicating that an applicant or employee engaged in the conduct for which he or she was arrested.