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In Murillo v. City of Chicago, the First District Appellate Court was asked to interpret a section of the Illinois Human Rights Act (Act) (775 ILCS 5/2-103(A) that prohibits employers from “[using] the fact of an arrest” as a basis to discriminate in employment.  Plaintiff, after about three years working as a janitor for a contractor at a Chicago police station, was required to submit to a background check to keep her job. The background check revealed a 1999 arrest for a drug charge, which had been dismissed for lack of probable cause.  The City refused to give Plaintiff security clearance, and eventually she was fired. The trial court held the City violated the Act by using the fact of Plaintiff’s arrest to alter the terms of her employment.  The First District affirmed.

In 2006, Plaintiff got a job with a contractor as a janitor at the first district station of the Chicago police department. Plaintiff continued this employment without incident until Triad Consulting Services (Triad) took over the contract to clean city facilities. The City asked Triad to submit its employees for background checks so that each employee could be issued a security badge. The Chicago police fingerprinted Plaintiff in January 2009, and the check of criminal records revealed her 1999 arrest. A police sergeant conducted the background check and a criminal history report reflected Plaintiff’s 1999 arrest (for possession of a controlled substance and failing to “cooperate with police re illegal activity in licensed premise”) and that the case had been dismissed for lack of probable cause.

When asked what made the sergeant believe that Murillo had engaged in criminal conduct, he responded, “There is possession of a controlled substance. [She] was a bartender and was aware of the trafficking that was going on and then refused to cooperate in the investigation.” The sergeant did not recall the nature of this “additional information.” He also did not recall trying to contact the officers who arrested Plaintiff or consulting with anyone. When asked why he denied Plaintiff clearance, the sergeant responded “based on the fact that there was possession of a controlled substance and a refusal to cooperate with the police in the investigation.” Plaintiff’s supervisor from Triad told her that the police had said that Plaintiff could no longer work at the police facility. The police would not give the supervisor any information as to why, and Plaintiff was terminated.

Plaintiff filed suit against Triad and the City.  Plaintiff resolved her litigation with Triad and obtained partial summary judgment against the City.  The trial court found that the City had caused Triad to change the terms and conditions of her employment by removing her from the police station. The sergeant only relied on the arrest report in preventing Plaintiff from getting a security badge to clean. The trial court transferred the case for jury trial to assess damages for the terms-and-conditions claim, and to determine liability on whether the City coerced Triad to either segregate or terminate Plaintiff based on the fact of the arrest. Plaintiff prevailed at trial, and the jury awarded her damages for lost wages, pension benefits, and emotional distress in the sum of $87,227.75.

The First District began its analysis noting the Act prohibits employers from “[using] the fact of an arrest” as a basis to discriminate in employment. 775 ILCS 5/2-103(A).   The appellate court noted, however, that the Act also 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.” 775 ILCS 5/2-103(B).

Using the rules of statutory construction, the appellate court stated the word “indicate” means “to serve as a sign, symptom, or token of; signify.” The main problem with the sergeant’s use of the arrest reports was that these reports did not actually “indicate” or “serve as a sign” that Plaintiff possessed the drugs or committed any municipal offense (either illegal conduct on the premises or failure to cooperate with police investigating that conduct). The evidence showed that the City had to be relying on the “fact of the arrest” because there was nothing else on which it could rely. The appellate court recognized that while the word “indicate” in subsection (B) does not mean “proof beyond a reasonable doubt”; it equally does not mean “unsupported assumption of guilt.”

The appellate court concluded that Plaintiff’s arrest records (the original arrest report, the “case report,” and the “criminal history report”) provided no information she actually engaged in criminal conduct. Nothing in the arrest records showed she failed to cooperate with the police, other than the fact that the criminal history report listed one of the charges as failing to cooperate with the police. Furthermore, the sergeant’s deposition testimony revealed that he concluded that Plaintiff actually had committed these offenses because she had been arrested for them.

The appellate court concluded that the sergeant’s use of the arrest report was not permissible under subsection (B) because it did not “indicate” Plaintiff had actually committed the offenses, only the fact of her arrest. The appellate court noted that the outright dismissal for lack of probable cause should have raised immediate doubts on the sergeant’s part.  This information appeared on the first page of Plaintiff’s criminal history report.  The appellate court noted that arrest reports can include a wealth of detail and therefore can, on certain occasions, qualify as “other information” on which an employer might rely.  The report might contain a confession or witness statements or police officer description witnessing commission of the crime. None of those facts existed here.

Additionally, the appellate court noted that the Act does not require the imposition of a criminal penalty. An employer might gather sufficient “other information” indicating a person actually committed a crime even though they were never formally charged or convicted.  In essence, the appellate court concluded that the legislative history reflects an intent to protect a person whose arrest is not an accurate signifier of their character or potential, who was arrested without probable cause or was simply in the wrong place at the wrong time.

Best Practice Lesson To Be Learned

The takeaway from this opinion is that employers cannot simply rely upon blanket arrest reports to make employment decisions. Especially reports that do not “indicate” that the crime was actually committed.  As the court noted, the arrest report might contain a confession or witness statements or a police officer description witnessing commission of the crime.  The employer must insure that it is using “other information” that indicates the crime was in fact committed.  Interviews with arresting officers or others might be necessary where the reports themselves do not contain the requisite other information.