The U.S. Court of Appeals for the Seventh Circuit has weighed in on an issue that can arise in the employment selection context – whether an employer can lawfully reject an applicant for lying about their criminal arrest record, even though adverse action taken because of that record may have been unlawful.
The ruling by the appeals court in Sweatt v. Union Pacific, No. 14-2451 (7th Cir. Aug. 6, 2015), held that an applicant who was rejected for failing to disclose an arrest record could not sue for unlawful race and age discrimination, where he had been warned about the consequences of not providing truthful answers and there was no evidence that other similarly-situated individuals were treated more favorably under the same circumstances.
The plaintiff was not selected for a position after repeatedly failing to disclose a prior arrest record. His lawsuit claimed that the company had hired others with prior arrest and/or conviction records, which he claimed was evidence that the company must have used his arrest record as a pretext for discrimination.
The Seventh Circuit rejected his claim, stating that his undoing was not the result of the criminal record itself, but rather was caused by “the cover-up, the persistence in the lie.” The court noted that despite being informed that a criminal record would not automatically result in rejection, but that lying about it would, the plaintiff still failed repeatedly to answer truthfully when asked.
A copy of the Seventh Circuit’s decision is available online.