Illinois employers now have yet another law to navigate. The state human rights statute now bans discrimination based on a candidate’s or employee’s criminal conviction unless the employer can show a “substantial relationship” exists between the conviction and the job or that the employment would involve an “unreasonable risk” to property or safety.
Conviction Records Now Protected
On March 23, 2021, Governor J.B. Pritzker signed into law Senate Bill (SB) 1480, which makes important changes to the Illinois Human Rights Act (IHRA). The new provisions took effect immediately.
The amendment adds “conviction record” to the list of protected categories under the IHRA. A conviction record is defined to include information indicating a person has been convicted of a felony, misdemeanor, or other criminal offense, placed on probation, fined, imprisoned, or paroled under any law enforcement or military authority. Up until now, the Act prohibited discrimination on the basis of an arrest record but not actual criminal convictions.
The new provision states a criminal conviction may not be used as a basis to refuse to recruit, hire, promote, discipline, discharge, or otherwise affect the terms and conditions of employment unless the employer can show either:
- There is a substantial relationship between the conviction and the employment sought or held; or
- Employing the individual in the job in question would “involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”
Limitations on Use of Conviction Records
To determine if a “substantial relationship” exists under the first prong, an employer must consider whether (1) the job in question offers the opportunity for the same or similar offense to occur and (2) the circumstances leading to the conduct that was the basis for the criminal conviction will recur in the employment position. The new law further specifies a number of factors you must consider in determining whether a “substantial relationship” exists:
- Length of time since the conviction;
- Number of convictions;
- Nature and severity of the convictions and their relationship to others’ safety and security;
- Facts and circumstances surrounding the conviction;
- Age of the employee or applicant at the time of the conviction; and
- Evidence of rehabilitation efforts.
Interactive Process and Notice
In addition, the new law imposes interactive procedural requirements on your business if you make a preliminary decision, in light of the above factors, that a criminal conviction disqualifies the candidate or employee. First, you must notify the employee or candidate in writing of the preliminary disqualifying decision. The notice must include:
- Information about which convictions are deemed disqualifying and the company’s reasoning;
- A copy of the conviction history report; and
- An explanation of the individual’s right to respond to the notice before the decision becomes final.
Under the last component, be sure to mention the individual may respond with evidence challenging the conviction record’s accuracy or with proof of mitigation, such as rehabilitation efforts. You must give the person at least five business days to respond with the information.
After the interactive process, you must consider any information submitted by the individual before making a final decision. If you stick with the decision to disqualify, the law once again requires you to provide a written notice that includes (1) a list of the disqualifying convictions that are the basis for the final decision and your reasoning, (2) any process you have for the individual to challenge the decision or request reconsideration, and (3) an explanation that the person has the right to file a discrimination charge with the Illinois Department of Human Rights.
Handcuffed
How will the new law affect Illinois employers? Most directly, it requires you to abandon any clear rules for recruiting and hiring individuals with criminal convictions. Gone are the days when you may impose a blanket rule against employing anyone with a felony conviction (or even a recent violent felony conviction).
Instead, you must engage in an evaluative process to determine whether the conviction bears a substantial relationship with the job in question or would create a risk to safety or property. For example, even a recent drug possession conviction may not stand in the way of an individual performing a factory assembly job. On the other hand, a conviction for a financial crime would likely be relevant for a person whose job involves handling or managing money. And in each instance, you must make the time and effort to communicate the factors interactively with the candidate or employee.
Trends Favor Protecting Employees, Applicants
The new provisions continue a trend of expanding employment protections for individuals with a criminal record:
- In 2015, Illinois passed a “ban the box” law that restricted employers from asking about criminal history on job applications. (The inquiry can be made only at the time of an interview or conditional job offer.)
- Similarly, the Equal Employment Opportunity Commission (EEOC) in 2012 updated its guidance on using criminal backgrounds in employment decisions. The agency’s position is that use of criminal convictions in making employment decisions has a disparate impact on certain minority groups.
- The federal Fair Credit Reporting Act (FCRA) already imposes some (but not all) of the procedural hoops employers must jump through before making a decision to disqualify an individual based on a criminal record or credit history report.
The new amendment to the IHRA extends the existing measures a few steps further and imposes very specific criteria and procedures Illinois employers must now follow before making any employment decision based in whole or part on an individual’s criminal conviction. You must make immediate adjustments to your recruiting, hiring, and other employment policies and practices to ensure compliance with the new requirements.
Steven L. Brenneman is a partner with Fox, Swibel, Levin & Carroll, LLP, in Chicago. You can reach him at sbrenneman@foxswibel.com.