“Fact of an Arrest” to Terminate an Employee

When companies decide whether to hire or fire an employee, they are sometimes tempted to use arrest and conviction records to assist their determination.  However, some federal and state laws limit what arrest records can be used in making employment decisions.


The Illinois Human Rights Act (IHRA) generally prohibits employers “to inquire into or to use the fact of an arrest or criminal history record information ordered expunged, sealed or impounded …” to take any adverse employment action against the employee. 775 ILCS 5/2-103(A).  Although companies are not allowed to consider an employee or applicant’s fact of arrest in making an employment decision, employers are still permitted to obtain and 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).

If an employer is found to have violated the IHRA, the employee is entitled to damages, including actual damages (to compensate the injury or loss actually suffered by the Plaintiff), reinstatement, costs in bringing the action, and reasonable attorney fees.

Murillo v. City of Chicago

The City of Chicago recently learned the hard way that it is impermissible to use a fact of an arrest as grounds to fire an employee.  In Murillo v. City of Chicago, the Plaintiff was arrested in the late 1990s for allegedly possessing cocaine.  However, the trial judge in the case promptly dismissed the charges against Plaintiff for lack of probable cause.  Nearly ten years later, the Plaintiff obtained a job as a janitor for the City of Chicago.  The City eventually obtained the arrest report from the 90s, revoked the Plaintiff’s security clearance, and terminated his employment.  Plaintiff sued because the City used the fact of his arrest as the sole basis of his termination.

The trial court agreed with the Plaintiff, finding the City violated the IHRA by using the fact of his arrest in firing him.  The jury found Plaintiff was entitled to damages for lost wages, pension benefits, and emotion distress in the sum of $87,227.75.  The trial court also granted Plaintiff’s motion for attorneys’ fees, but only granted $183.796.83 of the requested $300.497.50.

The Illinois Court of Appeals upheld the trial court’s decision that the City of Chicago violated the IHRA by using Plaintiff’s fact of arrest in terminating his employment.  However, the Court remanded the case back to the trial court to provide a reason why the attorneys’ fee award was slashed in half for no apparent reason.

Lessons from Murillo

This case shows employers should take the IHRA’s prohibition of using the fact of an arrest in employment decisions seriously.  Here, the City of Chicago is looking at damages of close to half-a-million dollars for not following the law.  Moreover, it remains unclear why the City of Chicago deemed an arrest ten years ago relevant as to whether the gentlemen could successfully perform his job duties today.  Unfortunately, while most would agree the arrest itself is not helpful in evaluating an employee, the IHRA protects employees from the companies that do.