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  1. #1
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    Mar 2012
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    Default Terminated After 5 Years Due to Arrest That Was Acquitted

    My question involves labor and employment law for the state of: Pennsylvania Im hoping and praying that there is someone that can help me or give me some advice on the following. Here's a short summary of my situation. I was recently (03-08-12) terminated from my job position as a counselor of adjudicated youth.. I have been an employee ofthis company since (01-02-07) during that time I have been dedicated and professional. I have never been given a written reprimand, child lined, or had a negative performance evaluation. I was terminated due to a situation that occurred in 2003, when I was a public school teacher in the State of Virginia. I was charge with sexual assault of a student. I was acquitted of those charges by a jury. My direct supervisor called me in for a meeting and stated that information regarding my past was discovered and that I was a liability to the company should anything ever happen they would be liable and I was terminated. They (HR)were aware of the facts of my previous arrest and acquittal for several years. Due to my FBI clearance that clearly stated those charges and the acquittal. It was never asked about it then. I have the clearances required in order to perform this job Act 33 & 34, and the FBI clearance. I was never questioned about my past and also never attempted to hide it. I am somewhat sure that this was information that was maliciously presented to someone within the company, due to the fact that this just suddenly came to their attention. They gave me no other explanation for my termination. I would like to know, if I have any possible legal action to pursue. I think that it is unbelievable that I was acquitted and I am still being treated as if I was guilty. I have done some research and know that PA has a statute 9125 and the following case law.

    In Hunter v. Port Kauth of Allegany Cty., 277 Pa. Super. 4, 419 A.2d 631 (1980) the
    Pennsylvania Superior Court held that denying employment based upon prior criminal
    conviction not related to the position was a violation of public policy. A statutory provision that permits an employer to consider felony and misdemeanor convictions only to the extent to which they relate to the applicant's suitability for employment in the position for which he has applied. 18 Pa. Cons. Stat. Ann. § 9125(b) (West 2003).
    ing case law.

  2. #2
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    Default Re: Terminated After 5 Years Due to Arrest That Was Acquitted

    Did your employer actually state in writing the reason for your termination?

  3. #3
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    Default Re: Terminated After 5 Years Due to Arrest That Was Acquitted

    denying employment based upon prior criminal conviction not related to the position was a violation of public policy

    I understand that you were not convicted. But the bolded part is very important. There IS a relationship between what you were charged with, and the job you were just terminated for. I don't know about PA, but there are some states where the fact that you were CHARGED, even though acquitted, would automatically disqualify you BY LAW for any job working with youth.

  4. #4
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    Default Re: Terminated After 5 Years Due to Arrest That Was Acquitted

    an acquittal is not the same thing as being ruled innocent. Not saying you are not innocent but you need to realize there is a huge difference between committing a crime and being convicted of said crime. Many criminals go unpunished simply because the state cannot prove the charges. That doesn't mean they aren't guilty, just that it could not be proven. In a situation such as yours, the fact there were even charges shows the state believed there was enough evidence to charge you and try you. They merely failed to win a conviction. If the there was an investigation that did not result in charges or especially a trial or at least where the charges were dropped, you would have a much stronger argument that the situation is not relevant to your chosen occupation. As it stands, given the fact you went all the way to trial, it is definitely relevant to your occupation.

  5. #5
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    Default Re: Terminated After 5 Years Due to Arrest That Was Acquitted

    To answer a few questions about my case from those who posted replies: Yes, they specifically stated that the reson for my termination was due to the charges that were found. Secondly, they knew about them for some time due to the clearances that are required to perform my job. I have all of the required clearances from the state and FBI.
    THe law in PA 9125 Section 9125 allows potential employers to use criminal history record information in the
    hiring process. Felony and misdemeanor convictions may be considered only to the extent to
    which they relate to the applicant(s) suitability for employment in the position for which he has
    applied. As in the previous section, the applicant shall be notified in writing if the decision not
    to hire is based in whole or part on criminal history record information.

    It does not state that an arrest can be utilized. I was not CONVICTED, I was acquitted by a jury beyond a reasonable doubt and that us the highest standard of proof. The constitution states that a person who is acquitted "is as if it never happen and permitted to return to the same standing as they were prior to the case". You can't go back an retry the case and say that I was quilty of any wrong doing or that the prosecuting attorney did not prove the facts of the case. A jury of my peers listen to all of the testimony and unaminously ACQUITTED me of all charges.

    The EEOC also states that Conviction records constitute reliable evidence that a person engaged in the conduct alleged since the criminal justice system requires the highest degree of proof (“beyond a reasonable doubt”) for a conviction. In contrast, arrests alone are not reliable evidence that a person has actually committed a crime. Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957) (“[t]he mere fact that a [person] has been arrested has very little, if any, probative value in showing that he has engaged in misconduct”). Thus, the Commission concludes that to justify the use of arrest records, an additional inquiry must be made. Even where the conduct alleged in the arrest record is related to the job at issue, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he\she was arrested and that conduct is job related, the Commission further concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests.

    I have worked with youths for 23 years. Had a perfect record as a teacher for 17 years and in my 5 years with this company never had a reprimand or negative job evaluation. It may sound like I'm trying to prove my case here but, I'm just trying to seek the advice of anyone who is experienced in the area of pa and federal employment law. Thanks for any replies

  6. #6
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    Default Re: Terminated After 5 Years Due to Arrest That Was Acquitted

    I agree with you that, on its face, 18 Pa.CSA § 9122 prohibits discrimination based upon an arrest with no conviction. Further, it appears that a former version of the statute was broader, allowing consideration of charges that did not result in conviction, but that the legislature narrowed the statute. There appear to be a few other provisions in the Pennsylvania Statutes and Code pertaining to criminal convictions, but I've not spotted one that authorizes employment discrimination based upon acquittals. I also don't see anything in the Sentencing Project's summary of rights following charges or convictions, available here. (See also this material).

    So if the only reason for the termination of your employment was that you had once been acquitted of a criminal charge, it sounds like it would be worth it to have your case evaluated by an employment lawyer.

  7. #7

    Default Re: Terminated After 5 Years Due to Arrest That Was Acquitted

    Follow Mr. Knowitall’s advice.

    Pennsylvania is one of the five jurisdictions which prohibit this form of employment discrimination in the private sector. The fact you were acquitted and you disclosed your criminal history to your former employer will likely only assist you in pursuing a lawsuit under state law challenging your termination.

    For the future, you may want to explore seeking to expunge your arrest record. While your former employer was “honest” enough to cite your arrest record as the reason for your discharge, a prospective employer may be less than forthcoming in denying you a job.

    If an employee or job applicant with an “applicable” criminal record can successfully have his record expunged under state law, then the state will remove reference of this criminal activity from court, police and motor vehicle records and files. Moreover, the effect of the expungement order allows the affected individual to “truthfully” deny the existence of the charge or conviction when seeking prospective employment.

    For more general information on the expunging of criminal records and related issues, you may want to review the following article, "Is Your Criminal History Thwarting Your Job Search? How to Improve Your Employment Prospects," http://ezinearticles.com/?Is-Your-Cr...cts&id=6691498

  8. #8
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    Mar 2012
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    3

    Default Re: Terminated After 5 Years Due to Arrest That Was Acquitted

    I really appreciate your reply to my post! I have read and read again almost everything that is on the internet. I also have not seen anything regarding the use of a previous arrest record that resulted in an acquittal that was utilized in terminating someone from employment. I know for a fact that acquittal on criminal charges are rare, I'm not Casey Anthony. I am meeting with a local attorney this week.Do you think that the EEOC would be a better choice to pursue? Not sure how it works, apparently they will review your case and then if they feel that you have the right to pursue the case they will write you a letter stating so and then you have to find your own attorney? Sometimes they will take the case, not always. I don't have any discriminating factors except that most people accused of sexual assault are white and I'm over 40 but, I don't think that could be a factor. I really hope that an attorney will take my case and the courts will at least listen to it.

    The EEOC does state the following:I. Introduction
    The question addressed in this policy guidance is “to what extent may arrest records be used in making employment decisions?” The Commission concludes that since the use of arrest records as an absolute bar to employment has a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment. However, conduct which indicates unsuitability for a particular position is a basis for exclusion. Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.

    The analysis set forth in this policy guidance is related to two previously issued policy statements regarding the consideration of conviction records in employment decisions: “Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e et seq. (1982)” (hereinafter referred to as the February 4, 1987 Statement) and “Policy Statement on the use of statistics in charges involving the exclusion of individuals with conviction records from employment” (hereinafter referred to as July 29, 1987 Statement). The February 4, 1987 Statement states that nationally, Blacks and Hispanics are convicted in numbers which are disproportionate to Whites and that barring people from employment based on their conviction records will therefore disproportionately exclude those groups.(1) Due to this adverse impact, an employer may not base an employment decision on the conviction record of an applicant or an employee absent business necessity.(2) Business necessity can be established where the employee or applicant is engaged in conduct which is particularly egregious or related to the position in question.

    Conviction records constitute reliable evidence that a person engaged in the conduct alleged since the criminal justice system requires the highest degree of proof (“beyond a reasonable doubt”) for a conviction. In contrast, arrests alone are not reliable evidence that a person has actually committed a crime. Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957) (“[t]he mere fact that a [person] has been arrested has very little, if any, probative value in showing that he has engaged in misconduct”). Thus, the Commission concludes that to justify the use of arrest records, an additional inquiry must be made. Even where the conduct alleged in the arrest record is related to the job at issue, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he\she was arrested and that conduct is job related, the Commission further concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests.

    The following discussion is offered for guidance in determining the circumstances under which an employer can justify excluding an applicant or an employee on the basis of an arrest record.
    II. Discussion
    A. Adverse Impact of the Use of Arrest Records
    The leading case involving an employer’s use of arrest records is Gregory v. Litton Systems, 316 F. Supp. 401, 2 EPD ¶10,264 (C.D. Cal. 1970), modified on other grounds, 472 F.2d 631, 5 EPD ¶8089 (9th Cir. 1972). Litton held that nationally, Blacks are arrested more often than are Whites. Courts and the Commission have relied on the statistics presented in Litton to establish a prima facie case of discrimination against Blacks where arrest records are used in employment decisions.(3) There are, however, more recent statistics, published by the U.S. Department of Justice, Federal Bureau of Investigation, which are consistent with the Litton finding.(4) It is desirable to use the most current available statistics. In addition, where local statistics are available, it may be helpful to use them, as the court did in Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp. 952, 22 EPD ¶30,739 (D.C. 1980), aff’d., 702 F.2d 221, 25 EPD ¶31,706 (D.C. Cir. 1981). In Reynolds, the court found that the use of arrest records in employment decisions adversely affected Blacks since the 1978 Annual Report of the Metropolitan Police of Washington, D.C., stated that 85.5% of persons arrested in the District of Columbia were nonwhite while the nonwhite population constituted 72.4% of the total population. 498 F. Supp. at 960. The Commission has determined that Hispanics are also adversely affected by arrest record inquiries. Commission Decisions Nos. 77-23 and 76-03, CCH EEOC Decisions (1983) ¶¶6714 and 6598, respectively.(5) However, the courts have not yet addressed this issue(6) and the FBI’s Uniform Crime Reporting Program does not provide information on the arrest rate for Hispanics, nationally or regionally. As with conviction records (see July 29, 1987 Statement), the employer may rebut by presenting statistics which are more current, accurate and/or specific to its region or applicant pool than are the statistics presented in the prima facie case.

    B. Business Justification
    If adverse impact is established, the burden of producing evidence shifts to the employer to show a business justification for the challenged employment practice. Wards Cove Packing Co. v. Atonio, 109 S.Ct. 2115, 2126 (1989).(7) As with conviction records, arrest records may be considered in the employment decision as evidence of conduct which may render an applicant unsuitable for a particular position. However, in the case of arrests, not only must the employer consider the relationship of the charges to the position sought, but also the likelihood that the applicant actually committed the conduct alleged in the charges. Gregory v. Litton Systems, 316 F. Supp. 401; Carter v. Gallagher, 452 F.2d 315, 3 EPD ¶8335 (8th Cir. 1971), cert. denied, 406 U.S. 950, 4 EPD ¶7818 (1972); Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp. 952; Dozier v. Chupka, 395 F. Supp. 836 (D.C. Ohio 1975); U.S. v. City of Chicago, 411 F. Supp. 218 (N.D. Ill. 1974), aff’d. in rel. part, 549 F.2d 415 (7th Cir. 1977); City of Cairo v. Illinois Fair Employment Practice Commission et al. , 8 EPD ¶9682 (Ill. App. Ct. 1974); Commission Decisions Nos. 78-03, 77-23, 76-138, 76-87, 76-54, 76-39, 76-17, 74-92, 74-83, 76-03, 74-90, 78-03, 74-25, CCH EEOC Decisions (1983) ¶¶6714, 6710, 6700, 6665, 6639, 6630, 6612, 6424, 6414, 6598, 6423, 6400 and Commission Decisions Nos. 72-0947, 72-1005, 72-1460, CCH EEOC Decisions (1973) ¶¶6357, 6350 and 6341, respectively.

    1. A Business Justification Can Rarely Be Demonstrated for Blanket Exclusions on the Basis of Arrest Records
    Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny. Gregory v. Litton Systems, 316 F. Supp. 401. Litton held that an employer’s policy of refusing to hire anyone who had been arrested “on a number of occasions” violated Title VII because the policy disproportionately excluded Blacks from consideration and was not justified by business necessity. In Litton, an applicant for a position as a sheet metal worker was disqualified because of his arrest record. The court found no business necessity because the employer had neither examined the particular circumstances surrounding the arrests nor considered the relationship of the charges made against him to the position of sheet metal worker. Since the employer had failed to establish a business necessity for its discriminatory policy, it was enjoined from basing future hiring decisions on arrest records. Accord Carter v. Gallagher, 452 F.2d 315 (firefighter); Dozier v. Chupka, 395 F. Supp. 836 (firefighter); City of Cairo v. Illinois Fair Employment Practice Commission, et al., 8 EPD ¶9682 (police officer).

    The Commission has consistently invalidated employment policies which create a blanket exclusion of persons with arrest records. Commission Decision Nos. 78-03, 76-87, 76-39, 76-17, 76-03, 74-90, 74-25, 72-0947, 72-1005, CCH EEOC Decisions (1983) ¶¶6714 (laborer), 6665 (police officer), 6630 (cashier), 6612 (credit collector), 6598 (catalogue clerk), 6423 (uniformed guard commissioned by police department), 6400 (firefighter), 6357 (line worker) and 6350 (warehouse worker or driver). In several decisions, it appears that the arrest record inquiry was made on a standard company application which was used by the employer to fill various positions and there was no mention of any particular position sought. Commission Decision Nos. 76-138, 76-54, 74-82, 74-83, 74-02 and 72-1460, CCH EEOC Decisions (1983) ¶¶6700, 6639, 6424, 6414, 6386 and 6341 and Commission Decision No. 71-1950, CCH EEOC Decisions (1973) ¶6274, respectively. An employer may not routinely exclude persons with arrest records based on the assumption that an arrest record will prevent an applicant from obtaining necessary credentials to perform a job without giving the applicant an opportunity to obtain those credentials. For example, in Decision 76-87, the Commission rejected an employer’s assertion that employees’ arrest records might hinder its ability to maintain fidelity (bond) insurance since it offered no proof to this effect.

    Even where there is no direct evidence that an employer used an arrest record in an employment decision, a pre-employment inquiry regarding arrest records may violate Title VII. It is generally presumed that an employer only asks questions which he/she deems relevant to the employment decision. Gregory v. Litton Systems, 316 F. Supp. at 403-404. Noting that information which is obtained is likely to be used, the court in Litton enjoined the employer from making any pre-employment inquiries regarding arrests which did not result in convictions. Id.(8) But see EEOC v. Local 638, 532 F.2d 821 (2d Cir. 1976) (inquiry not invalidated where there was no evidence that union actually rejected applicants who had been arrested but not convicted); Jimerson v. Kisco, 404 F. Supp. 338 (E.D. Mo. 1975) (court upheld discharge for falsifying information regarding arrest record on a pre-employment application without considering the inquiry itself violated Title VII).(9) Numerous states have specifically prohibited or advised against pre-employment inquiries in their fair employment laws due to the possible misuse of this information.(10)

  9. #9

    Default Re: Terminated After 5 Years Due to Arrest That Was Acquitted

    You get an “A” for effort in undertaking research. However, your reliance on Title VII and the EEOC appears misplaced.

    As mentioned above, PA and four other states respectively prohibit ex-offender discrimination. Neither Title VII nor any other federal statute explicitly prohibits ex-offender discrimination. Absent a parallel, meritorious claim under a protected category (e.g., race, gender) covered by Title VII or some other statute administered by the EEOC, this federal agency will not be able to assist you with your particular matter.

    Confer with local counsel. Exploring your potential remedies under the state ex-offender anti-discrimination statute appears to be your best potential avenue for seeking redress.

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