State Accused of Violating Law Banning Use of Arrest Records in Employment Decisions

Posted: Dec, 12, 2019

The R.I. Department of Human Services illegally used an employee’s non-conviction criminal history to terminate her employment, an ACLU of Rhode Island cooperating attorney has claimed in a charge of discrimination filed with the R.I. Commission for Human Rights on behalf of Coventry resident Cheryl Robbio.

Robbio had been hired earlier this year by the state Department of Human Services as an Eligibility Technician. Shortly before she was to start the job, the state terminated her employment, relying on a BCI report she had been required to provide and which indicated she had an arrest that was not followed by a conviction.

In fact, in response to Robbio’s “not guilty” plea to an alleged misdemeanor larceny offense that dated back to 2014, the case was “filed” last year, meaning that it would be (and has been) dismissed and expunged a year after it was entered unless she was charged with another offense. Before the record was recently expunged, Robbio’s “not guilty” plea was never modified, and she made no admissions to the charge. The DHS was aware of this, but still ended her planned employment.

Rhode Island’s Fair Employment Practices Act explicitly bars both public and private employers from inquiring, directly or indirectly, whether an applicant has ever been charged with or arrested for, as opposed to convicted of, a crime. 

The complaint was filed with the Commission yesterday and notes that “by requiring presentation of Mrs. Robbio’s BCI,” the state unlawfully “did inquire as to Mrs. Robbio’s non-conviction criminal history” and illegally relied upon it in terminating her employment. The complaint also cites state personnel rules which authorize only pertinent “convictions” to serve as a basis for making hiring or reclassification decisions.

The complaint, filed by ACLU of RI cooperating attorney David Cass, notes that at all times Robbio had “provided truthful and accurate information” to DHS, and claims that the state’s actions caused her “lost wages, emotional distress and other damages.”

Robbio said today: “I had my employment taken away because of an old and dubious charge that I pled ‘not guilty’ to, and that has been dismissed and filed without any change in that plea.  It is devastating that I would be denied employment by the State of Rhode Island under those circumstances. The intent of the law is to provide protection to people like me who have never been convicted of a crime. By requiring me to provide my entire BCI report and then relying on it to take away my job in the absence of any criminal conviction, the state has undermined both an important law and basic principles of fairness underlying our criminal justice system.”

ACLU of RI executive director Steven Brown added: “If the state is truly serious about job reentry for people with past criminal convictions, it is deeply troubling to see the way that an employee who has never even been convicted of a crime has been treated. Ms. Robbio’s case also highlights a disturbing procedure utilized by the state in its application process: obtaining BCI records that contain a person’s arrest history when the law explicitly prohibits such inquiries. We are hopeful her complaint will put a halt to this troubling and unfair practice.”

More information on the complaint, including a copy of the discrimination charge can be found here.