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Illinois Court Discusses Standard for Discrimination Based on Arrest Record Under IHRA

The Illinois Human Rights Act (the "Act") was enacted to provide protections to Illinois workers beyond those offered under federal law. Among many other protections, the Act makes it illegal in Illinois to inquire about or use arrest information or expunged, sealed or impounded criminal history information with respect to a person's employment. However, the Act allows an employer to act against (fire, not hire, demote, etc.) an employee or job applicant if the employer is acting on "other information" which indicates that the person actually engaged in the conduct that was the subject of the arrest (besides the basic fact that the employee or applicant was arrested). Arrest information can appear on routine background checks commonly performed as part of the hiring process but employers must be aware of how they can and cannot use this arrest information. The Act generally applies to employers with 15 or more employees employed at least 20 weeks of the year, and also to employment agencies and labor organizations.

In a recent case, the Illinois Appellate Court fleshed out what this "other information" must be in order for an employer to act on the arrest record of an employee or applicant. In Murillo v. City of Chicago, 2016 IL App (1st) 143002, 61 N.E. 3d 152, the plaintiff, working as a janitor for a contractor at a Chicago police station, was fired when a background check revealed an arrest 10 years prior. The plaintiff was arrested for drug possession and failure to cooperate with police when cocaine was found hanging from the ceiling of the bar where she was bartending at the time. She was taken into custody after police arrested a man outside the establishment for possession and then found more cocaine inside the bar. The trial judge dismissed the charges against the plaintiff for lack of probable cause. The arrest report, arrest report abstract, and case report contained no further details about the woman's arrest, only about the arrest of the other man outside the bar. The plaintiff worked for the contractor at the police station for three years before the City conducted the background check, and based on the results, the Chicago Police Department instructed her supervisor to terminate her employment.

A jury granted the plaintiff damages for her lost wages and pension benefits and the court also assessed six-figures worth of attorneys' fees against the City as the plaintiff's employer. The appellate court upheld the jury verdict and discussed what the Act means by prohibiting employers from solely "using the fact of an arrest" versus allowing employers to use "other information" indicating that the employee or applicant actually acted illegally. The court ruled that the various arrest reports and abstracts in the Murillo case contained so little information about the plaintiff's arrest that they did not constitute anything that indicated she was guilty, as required under the Act. However, the court stated that arrest reports which do contain "a wealth of detail" such as a confession, or witness statements implicating the arrestee, could be sufficient to show the person actually engaged in the illegal conduct. The court stated that an employer could also rely on civil legal penalties or confessions that did not result in arrests or convictions. In such situations, an employer may then have cause to act against the employee or applicant (e.g. termination, not hiring an applicant, or removal of security clearance). Remember that it is important to consult qualified employment and labor counsel prior to making any such decisions based on arrest and conviction records to avoid liability! This is a very fact-sensitive area of the law and other provisions of the IHRA and other state and federal statutes are almost always implicated. It is an area of potentially high liability for Illinois employers.

The Illinois Human Rights Act also prohibits discrimination in the terms and conditions of employment based on a person's marital status, pregnancy, sexual harassment, age, disability, sexual orientation, military status, and citizenship status. The Act applies to employers with only one employee in claims of discrimination by disability, pregnancy, and sexual harassment (where it normally applies to companies with 15 or more employees in other claims).

Call Wessels Sherman attorney Tyler J. Bohman at 312-629-9300 for guidance on all your employment issues, including the IHRA issues discussed above.

Tyler J. Bohman is an attorney at Wessels Sherman, a management-side labor and employment attorney in Chicago, Illinois. Mr. Bohman successfully defends Businesses in all areas of Employment and Labor law in both State and Federal courts. Mr. Bohman can be contacted at tybohman@wesselssherman.com or 312-629-9300.

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