Job seekers in Illinois will soon likely have fewer reasons to worry that past convictions will stand in the way of future employment opportunities. The Illinois legislature recently passed amendments to the Illinois Human Rights Act (IHRA) that expand “ban the box” protections against employment and hiring discrimination based on criminal history. If signed by Gov. J.B. Pritzker as expected, SB 1480 will make it more difficult for employers to justify using past convictions for adverse hiring decisions.
The state’s existing “ban the box” law generally prohibits employers from asking about an applicant’s criminal history until after an interview. The IHRA also makes it unlawful for employers to take adverse employment action against a candidate or employee based solely on the fact that the person had been arrested for a crime.
When signed into law, the amendments to the IHRA will make it a civil rights violation for an employer to use a candidate’s “conviction record” when making employment decisions unless they can show they analyzed the specifics of the conviction and its relationship, if any, with the position in question.
A “Substantial Relationship” Between the Conviction and Position
Specifically, an employer must demonstrate one of the following before using a conviction record as a basis for refusing to hire, disqualifying, or taking adverse action against a candidate:
- There is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held.
- The granting or continuation of the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.
A “substantial relationship” for purposes of this requirement means “a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.”
Factors Employers Must Consider When Evaluating a Conviction
In making the previous determination, an employer must consider all the following factors:
- The length of time since the conviction.
- The number of convictions that appear on the conviction record.
- The nature and severity of the conviction and its relationship to the safety and security of others.
- The facts or circumstances surrounding the conviction.
- The age of the employee at the time of the conviction.
- Evidence of rehabilitation efforts.
Notice and Opportunity for Candidate to Respond
If, after completing this analysis, an employer decides that an applicant’s conviction record precludes them from consideration for a position, the employer must notify the applicant of their decision in writing. The notice must:
- Identify the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification.
- Contain a copy of the conviction history report, if any.
- Explain the applicant’s right to respond to the notice of the employer’s preliminary decision within five days before that decision becomes final. The explanation shall inform the applicant that their response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence in mitigation, such as rehabilitation.
After considering a candidate’s response, an employer that stands by its preliminary decision to disqualify the candidate must provide notice of their decision along with an explanation of the basis for that decision. The notice must also advise the candidate of their right to file a charge of discrimination with the Illinois Department of Human Rights (IDHR).
Outten & Golden: Protecting the Rights of Workers
Illinois’ pending expansion of worker protections from discrimination based on criminal history mirrors similar changes in states and cities across the country. While these changes to the law are certainly a positive development, it doesn’t mean that all employers will comply with their obligations, nor does it guarantee that applicants or employees won’t still face discrimination because of their criminal backgrounds or credit history. When that happens, the discrimination and harassment attorneys at Outten & Golden stand ready to help. If you have questions or concerns about employment discrimination in Illinois, please contact us today.
