The Illinois Human Rights Act was recently amended, effective March 23, 2021. Public Act 1010656. The Illinois Human Right Act generally covers unlawful discrimination. This amendment covers the use of criminal convictions in employment decisions.
A different Illinois Law already makes it unlawful to inquire about or consider or require disclosure of a criminal record or criminal activity of an applicant for employment until that applicant has been determined qualified for the position and has been notified that the applicant has been selected for an interview or a conditional offer of employment has been made to the applicant. See the Job Opportunities for Qualified Applicants Act, 820 ILCS 75 et.seq. (This law does not apply if employers are prohibited by law from hiring someone with certain criminal convictions or if an applicant must be eligible for fidelity bonding, and that criminal conviction would prohibit such bonding.)
In general terms this new amendment states it is a civil rights violation for any employer, employment agency, or labor organization to use a conviction record 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 with limited exceptions. Those exceptions are:
1. If there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held;
2. The granting or continuation of employment would involve an unreasonable risk to property or to the safety, welfare of specific individuals or the general public; or
3. The employer’s actions are otherwise authorized by law.
The employer is required to consider a number of factors in making a decision.
1. The length of time since the conviction.
2. The number of convictions that appear on the record.
3. The nature and severity of the conviction and its relationship to the safety and security of others.
4. The facts or circumstances surrounding the conviction.
5. The age of the employee at the time of the conviction.
6. Evidence of rehabilitation efforts.
If, after considering these factors, an employer makes a preliminary decision that the employee’s criminal conviction disqualifies him or her, then the employer is required to notify the employee of this preliminary decision in writing. That written notice must contain all of the following:
1. Notice of the conviction(s) that form the basis of the disqualification.
2. A copy of the conviction history report, if any.
3. An explanation of the employee’s right to respond to the preliminary decision before it becomes final. That explanation must inform the employee that a response may include, but is not limited to, evidence challenging the accuracy of the information, or evidence of mitigation such as rehabilitation.
The employee must have a minimum of 5 business days to respond before the employer makes a final decision, and the employer must consider any such response in making that final decision.
If that final decision is to disqualify or take an adverse action solely or partly because of the conviction, the employer must then notify the employee in writing of the following:
1. Notice of the conviction that formed all or part of the basis for disqualification or adverse action and the employer’s reasoning.
2. Any procedures the employer may have in place for the employee to contest the decision or to request reconsideration.
3. The employee’s right to file a charge alleging discrimination with the Illinois Department of Human Rights.
This new law does not seem to require a procedure to allow an employee to contest a decision, but employers should carefully consider whether to adopt such a procedure and what it should look like. Employers such make sure those charged with making these decisions are up to date on these laws. They should amend whatever forms are used in these processes to take this new law into account. If a final decision is being made to disqualify, consult with a lawyer to ensure compliance.
Also, in Illinois, you cannot use criminal history records of arrests or convictions in your decision to hire if those records have been ordered expunged. See 775 ILCS 5/2-103.
A lot has been written about the use of criminal arrest and conviction records in employment decisions. Generally, do not use arrest records in your decision making unless you have independent proof the applicant engaged in the criminal conduct. Do not have a blanket policy of refusing to hire solely on any type of criminal arrest or conviction record. Develop a narrowly written policy for screening that should include how recent a conviction must be to affect your decision, the types of convictions considered in making employment decisions, i.e. those involving dishonesty, and of course keep these records confidential.
In addition to Illinois laws, federal law applies to employment practices. Both Cook County and the City of Chicago have also adopted ordinances specifically on the use of criminal convictions in employment decisions. This area of the law is extremely complicated and has harsh consequences for failure to comply. All employers should review their policies on finding new employees, hiring them, and on promotions and renewals of employment, to ensure compliance.