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New IHRA Amendments Severely Limit Employers’ Ability to Consider Criminal Background

Labor & Employment Publications

On March 23, 2021, Governor Pritzker signed into law amendments to the Illinois Human Rights Act (IHRA) that substantially limit employers’ ability to consider an applicant or employee’s criminal history. Under the new protections provided by the amendments, unless otherwise required by law, an employer can no longer disqualify a job applicant with a conviction record without first determining whether there is a substantial relationship between the conviction and the job, or an unreasonable risk in employing the individual in the particular job. Similarly, for current employees, an employer can no longer use an employee’s conviction record as a basis for employment decisions such as whether to promote, select for training, discipline or discharge the employee without first determining whether there is a substantial relationship between the conviction record and the job, or an unreasonable risk in allowing the employee to hold a particular job.

What does the “otherwise required by law” exception mean?

The “otherwise required by law” language means that if an employer is prohibited by some other federal or state law from employing someone with certain criminal convictions, the employer does not have to go through the “substantial relationship” or “unreasonable risk” analysis before disqualifying the individual from employment. For example, Illinois school districts must continue to disqualify any applicants for employment who have been convicted of the disqualifying offenses set forth in the Illinois School Code. However, the Illinois Department of Human Rights (IDHR) has issued FAQs stating that an employer must still notify a candidate of the reason they are being disqualified and allow the candidate at least five days to dispute the disqualification. It remains an open question as to whether these new provisions would apply to the consideration by school districts of other felony convictions (although the likely answer is yes), so districts should consult counsel before making an employment decision without following the new provisions based on a felony conviction for an offense that is not automatically disqualifying. To the extent school districts consider other non-felony convictions, these new provisions would certainly apply.

What constitutes a “substantial relationship” between the employee’s crime and the job in question?

As defined in the amendments, there is a “substantial relationship” between an applicant/employee’s conviction record and the job in question where the job creates an opportunity for the employee to engage in the same or a similar criminal offense and where the circumstances leading to the conduct for which the person was convicted will recur in the job. 775 ILCS 5/2-103.1(A).

What factors must an employer consider before disqualifying an applicant/employee based on a criminal conviction?

In assessing whether a substantial relationship exists between an applicant/employee’s prior criminal conviction and a job or whether there is an unreasonable risk in allowing an applicant/employee to hold a particular job, the IHRA now requires employers to consider the following mitigating factors:

• The length of time since the conviction;
• The number of convictions that appear on the applicant/employee’s 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 (note that juvenile records cannot be considered); and
• Evidence of rehabilitation efforts.

The employer’s duty to engage in an “interactive assessment” before disqualification:

If an employer determines that the applicant/employee’s criminal record disqualifies them, the employer must engage in an “interactive assessment” and notification process, including the following steps:

• The employer must notify the applicant/employee of its preliminary disqualification decision and the reasoning behind it. This notice must include a copy of the conviction history report relied upon as well as a detailed explanation of the applicant/employee’s right to respond. This is not unlike the requirements of the federal Fair Credit Reporting Act (FCRA);
• The employee must be afforded at least five business days to respond where they can dispute the accuracy of the conviction record and present evidence in mitigation, such as rehabilitation.
• The employer must give the applicant/employee an opportunity to respond before making a final decision to disqualify the individual.

775 ILCS 5/2-103.1(C)(1).

Can an employer have a policy of not hiring individuals who have a criminal conviction record?

Not anymore, unless another state or federal law authorizes the disqualification, as discussed above.

What are the legal consequences if an employer takes action based on an individual’s conviction record without following the steps outlined above?

If an employer disqualifies an applicant/employee based on their conviction record without first determining substantial relationship/unreasonable risk, engaging in the interactive assessment and providing proper notice of preliminary disqualification, the employer may be liable for committing a civil rights violation under the IHRA. Relief available to a negatively impacted applicant or employee includes actual damages, including back pay; hiring, reinstatement or promotion with back pay and benefits; and attorney’s fees and costs.

Are all Illinois employers covered by the new criminal record limitations?

Yes. The amendments cover all Illinois employers with at least one employee, both public and private, as well as employment agencies and labor unions.

What steps do employers need to take to comply?

The IHRA amendments became effective on March 23 when the Governor signed the legislation. Employers should take the following steps to ensure compliance:

• Review employment policies and procedures and revise as necessary to remove any blanket disqualification language based upon an applicant/employee’s criminal history.
• Train Human Resources and hiring managers on the new restrictions and “substantial relationship” determination and “interactive assessment” requirements.
• Develop a written notice to send to an applicant/employee who is preliminarily disqualified based on their criminal record.
• Review the IDHR’s FAQ document on the new criminal conviction protections.

For questions about the amendments, the contents of the required disqualification notice and other related issues, please contact the Franczek attorney with whom you regularly work.