by Ryan R. Morton (Fall 2016)

Employers can terminate employees because of prior arrests, even without a corresponding conviction, but the employer must base its decision on more than just the arrest itself. An Illinois appellate court explained this concept earlier this year in Murillo v. City of Chicago, 2016 IL App (1st) 143002.

Arcadia Murillo worked for three years as a janitor for the Chicago Police Department. In 2009, the City of Chicago conducted background checks on its custodial employees and learned that Murillo had been arrested in 1999 for possession of a controlled substance. The trial judge dismissed the charge, though, for lack of probable cause. A Chicago police sergeant obtained a copy of Murillo’s arrest report, which included little information. The report simply stated that police found bags of cocaine in a bar, and Murillo was arrested because she oversaw the establishment at the time. There were no details on Murillo’s involvement in the crime or her conduct. The police sergeant did not investigate further. Instead, he denied Murillo’s security clearance, leading to her termination.

Murillo sued, alleging that the City violated the Illinois Human Rights Act (IRHA), which prohibits employers from discriminating against an employee solely because that employee had been arrested (775 ILCS 5/2-103(A)). Murillo argued that her termination was based only on the fact that she was arrested, not for any underlying crime she committed. However, the Act also states that employers can fire employees if they have information indicating that illegal conduct occurred (775 ILCS 5/2-103(B)). The City argued that Murillo’s arrest report indicated she was involved in drug possession. The trial court found in Murillo’s favor.

On appeal, the Illinois Appellate Court for the First District affirmed the trial court’s decision. The appellate court held that Murillo’s arrest report did not indicate, or “serve as a sign,” that Murillo possessed cocaine that day. It only showed that Murillo had been arrested. The basic report provided no details connecting her to the charges, which meant there was no specific information about Murillo’s involvement in the alleged crime. The investigating officer also did not uncover “other information” through additional research, such as talking to the arresting officer.

A mere arrest, without more information on the crime or violation, is not enough to justify firing an employee. Employers must acquire additional details before taking any potentially prejudicial action against an employee based on criminal history. This approach gives employers latitude to avoid potential problems, while at the same time protecting employees from arbitrary discrimination.

The Murillo decision does not prevent employers from using arrest reports under different circumstances, however. If the report includes statements from witnesses or the accused, or it references physical evidence linking the employee to a crime, then that might be enough to protect employers from discrimination claims. Those details would be more persuasive, indicating that the employee committed the transgression. Additionally, employers do not need to prove beyond  a reasonable doubt that an employee committed a crime. (See Decatur Police Benevolent & Protective Association Labor Committee v. City of Decatur, 2012 IL App (4th) 110764. We encourage you to confer with legal counsel before taking any employment action arising out of an employee’s arrest.