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Bench & Bar
The newsletter of the ISBA’s Bench & Bar Section Council

October 2006, vol. 37, no. 3

What you may not ask

When Lou Grant interviewed Mary Richards for a job at WJM-TV, he asked her about her religion. Said Mary: “You’re not allowed to ask that when someone’s applying for a job. It’s against the law.” Said Lou: “Wanna call a cop?”

If Mary had applied for a job at WGN, the Illinois law she would be referring to is the Illinois Human Rights Act, 775 ILCS 5/1-101 et. seq. Besides religion, this Act also regulates the use of a prospective employee’s criminal history in hiring practices. Section 2-103(A) of the Act states: 

Unless otherwise authorized by law, it is a civil rights violation for any employer, employment agency or labor organization to inquire into or to use the fact of an arrest or criminal history record information ordered expunged, sealed or impounded under Section 5 of the Criminal Identification Act as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment.

So if Lou had asked Mary about her past sentence of court supervision, could Mary’s response have been the same as for a query about her religion?

For years criminal defense attorneys have advised clients to consider pleading guilty in exchange for a sentence of court supervision. Since court supervision is not a “conviction” under 730 ILCS 5/5-6-3.1(f), it was the common wisdom among defense attorneys that “a discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime.” Thus if Mary had successfully completed her court supervision sentence, and her case was discharged, her attorney would have advised her to tell Lou at her employment interview that she had not been convicted of a crime. 

However, two Appellate Court decisions, and one Illinois Supreme Court decision, have called into question this once sage advice. The first case is Sroga v. Personnel Board, 359 Ill. App.3d 107, 833 N.E.2d 1001 (2005). The City of Chicago Personnel Board had removed Sroga from the list of persons eligible to become a Chicago Police Officer because Sroga had received a disposition of court supervision on a theft case. Sroga filed an action in the circuit court asking to be reinstated on the list. The trial court ruled in his favor. The judge explained:

…a per se prohibition against an individual becoming a Chicago Police officer after being prosecuted and successfully completing a period of supervision for an offense arising out of that incident would be in contravention of State law” as espoused by section 5-6-3.1 of the Unified Code of Corrections (730 ILCS 5/5-6-3.1 (West 2002) (incidents and conditions of supervision))… “As the Hearing Officer found the sole basis for removing Mr. Sroga from the eligibility list was his conduct in committing the 1994 theft, he must be restored to the eligibility list.

The City appealed and the First District reversed. The Appellate Court based its decision in part on the fact that Sroga had himself supplied the information as to the facts which were the basis of the theft charge, and on the timing of these admissions before his arrest was expunged. But the court also made the following comment as to Section 2-103(B), the companion of Section 2-103(A):

Finally, section 2-103(B) does not bar the Personnel Board from considering an applicant’s real conduct. According to that statute, the “prohibition against the use of the fact of an arrest contained in this Section shall not be construed to prohibit an employer * * * from obtaining or using 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) (West 2002). [fn4] In disqualifying Sroga, the Personnel Board relied upon Sroga’s actual conduct as told to Officer Rebich by Sroga himself. 

An employer therefore can consider a criminal act in employment evaluation even if no conviction resulted from the conduct.

The second case in this line is Beard v. Spectrum, 359 Ill. App.3d 315, 833 N.E.2d 449 (2005). Beard had applied for a job with Sprint (Spectrum). The employment application contained the following question:

Have you ever been charged with a crime (including misdemeanors but not minor traffic violations) which resulted in a conviction?

The application further stated:

For the purposes of this question, convictions also include guilty pleas (including No Contest pleas), suspended impositions of sentence, adjudications deferred or withheld (except in Montana), diversion programs (except in California or Ohio) (beyond the probationary period), first offender programs (except in Massachusetts and Georgia), non-prosecutions with leave to reinstate, pre-trial interventions (beyond the probationary period), stays of imposition to vacate and dismiss (beyond the probationary period), and set dockets (beyond the probationary period).

In response to this question, Beard answered “no.” Beard also authorized Sprint to obtain a consumer background report on him. That report revealed a sentence of one month of court supervision and a twenty-five dollar fine for a public morals offense. Sprint declined to hire Beard.

Beard filed a complaint with the Illinois Department of Human Rights and cited the Human Rights Act and the court supervision statute as the basis of his complaint. When the Department of Human Rights denied his complaint, Beard appealed to the Third District Appellate Court. They, too, ruled against Beard. The Court said that the a disposition of court supervision does not free a defendant completely from the consequences of a crime, and that not receiving a private job was not one of the legal disabilities to which the legislature referred in the supervision statute.

As to the human rights violation, the court stated that Section 2-103(A) allows for a company to define conviction in a way to avoid the Act:

The Illinois legislature has not prohibited employers from defining “conviction” as Sprint did. In enacting section 2-103(A), the intent of the legislature was to prevent inquiry into mere charges or allegations of criminal behavior but to allow inquiry where criminal conduct has been proven. The background investigation conducted by ChoicePoint indicated that the circuit court criminal record indices for Will, Du Page, and Cook Counties were searched. In that petitioner never had his record expunged, the court record still reflected the conviction. 

Viewed together, the Appellate Courts have ruled that employers may ask prospective employees about sentences of court supervision and may refuse employment based on those dispositions without running afoul of the Human Rights Act or of the court supervision statute. 

The Illinois Supreme Court denied Sroga’s petition for leave to appeal. Apparently Beard did not file a PLA. The Supreme Court, though, has not left these cases unnoticed. In People v. Jordan, 218 Ill.2d 255, 843 N.E.2d 870 (2006), the Supreme Court was considering the issue of whether an appeal from a disposition of court supervision was moot because the trial court had dismissed the case after the defendant had successfully completed the supervision period. In ruling that the matter was not moot, the court cited the above cases:

We note in passing, without expressing either approval or disapproval, that recent appellate decisions have upheld the adverse consideration of dispositions of supervision in employment decisions. See Beard v. Sprint Spectrum, LP, 359 Ill. App. 3d 315, 319-20 (2005); cf. Sroga v. Personnel Board, 359 Ill. App. 3d 107, 111-14 (2005).

Clearly, a defendant subject to an order of supervision may suffer collateral legal consequences as a result of that disposition. 

We need not wonder about the outcome in the Illinois Supreme Court of Mary Richards’ appeal against Lou Grant and WJM-TV. What defense attorneys must now do is reevaluate our initial advice to Mary about the consequences of a plea to supervision.

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