A 37 Year Old Murder Conviction and the EEOC Guidance: Stuck Between a Rock and a Hard Place

Angela Preston

Here’s a question for you: What would you do with an applicant who has a 37 year old open warrant for first degree murder? It sounds far-fetched, I know. But trust me, I didn’t make this up.  Meet Bobby Coley, 63, of Southeast Washington D.C.  Last week the Montgomery County, Virginia sheriff’s department confirmed the results of a commercial background check that uncovered the open warrant.

Coley was applying for a temporary position, which prompted the background check.  The background investigation turned up the warrant, and the temp agency instructed Coley to go to the Sheriff’s department to clear it up.  Without any further prompting, Coley voluntarily went to the sheriff’s office to take care of the open case, and was told it was for a first degree murder charge dating back to 1975.  “We weren’t finding anything, and so we finally looked in judicial case search and we actually saw that a warrant popped up under that name, Bobby Coley, and it said, ‘first-degree murder,’” Montgomery County Sheriff Darren Popkin said.

News agencies have reported the specifics of the 1975 case, ripped straight from an episode of Cold Case. The victim, Leopold Lynwood Chromak, disappeared on July 26, 1975. Two days later his wife contacted police and reported him missing. According to MSNBC, in 1984, a detective learned that the missing person case was actually a murder-for-hire, and that Chromak’s wife, Frances, had hired three men — Griffin, Smitty and Bobby Coley — to kill her husband. According to police documents, the woman said her husband was abusive and had beaten her. The three men allegedly smothered Chromak at Winexburg Manor Apartments in Silver Spring, Md., wrapped his body in a rug or carpet, took it to a van and dumped it along Central Avenue. His body was never found.

Coley was originally held by authorities, but ultimately released last week based on the lack of evidence.  Montgomery County has re-opened the investigation, but investigators will need to start from scratch. Mrs. Chromak has changed her name and disappeared, and the original anonymous informants are also long gone.

So back to Mr. Coley, and what to do about that open warrant.  Does a 37 year old, first degree murder conviction make Mr. Coley, who happens to be a member of a protected class, unemployable? I thought it would be interesting to apply the new EEOC guidance to this real life example.  While I don’t have all of the facts, just bear with me.  This is for illustration purposes only.  So here it goes:

For reasons we covered in last month’s BTW, the EEOC presumes that the use of any criminal history is potentially discriminatory, so the burden shifts immediately to an employer to defend the use of the information in their hiring process.  So the first step in using any criminal history information in an employment decision is to demonstrate job relatedness consistent with business necessity.  There are essentially two ways outlined in the guidance to do this. The first is with a validation study, which is, for all practical purposes, non-existent.  So we will go with the second method: conduct a targeted screen with a very tight nexus to the position, and a) apply the Green factors (nature of offense, time elapsed and nature of job).  For good measure,  b) conduct an individualized assessment, which, while not mandated by Title VII, is strongly advised.
The 63-year-old Coley has been in and out of federal custody on various charges since 1968. In fact, he was in the D.C. jail when the arrest warrant was filed in 1984. He wasn’t detained afterward and apparently never knew of the warrant. Applying the Green factors, let’s look at the nature of offense, time elapsed and nature of job.  We don’t know much about the nature of the job, other than it is temporary work.  Let’s assume it is an hourly position that does not involve public interaction, or exposure to children or the elderly, or any people, for that matter. So looking next at time elapsed, a significant amount of time has passed since the issuance of the warrant. 37 years is a long time. And recidivism studies show that the risk of a repeat offense reduces with the amount of time lapsed. So far, so good, for Mr. Coley.

Looking at the nature of the offense, we have a few issues to discuss. First of all, the offense we are looking at is an open warrant—not a conviction.  The guidance is pretty clear that arrests are not definitive, people are innocent until proven guilty, and certainly in this case, there is no evidence available due to the age of the case.  But it is an open case.  And the charge is First Degree Murder. It doesn’t get much more serious than that.

So in the spirit of the new guidance, we move on to the individualized assessment.  One next step would be to question Mr. Coley about the underlying facts surrounding the warrant. Let’s assume he denies everything. Do you believe him? The guidance allows for employers to make a decision based on the credibility of the candidate and the responses concerning the underlying conduct of the offense.  What about the other string of convictions alluded to above—the various charges since 1968, and the jail time served in 1984? Again, giving Mr. Coley the benefit of the doubt, if he last served time in 1984, 28 years ago, he was 35 years old.  And the studies show that the older an individual is at the conclusion of their last sentence, the less likely they are to re-offend. Has he completed any rehabilitation? Has he been successfully employed since his release?  Perhaps he has some character references that can vouch for him.

Do you hire Mr. Coley? Admittedly, I have played around with the facts here, but in most scenarios given the assumptions I have made here, the EEOC would say hire this fellow. Do you agree?

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