Lorna Geiler's Employment E-Bulletin: Criminal Conviction is Now a Protected Class in Illinois

On March 23, 2021 the Illinois Human Rights Act was formally amended to add conviction history to the protected classes. Under this provision, an employer is limited in taking adverse employment action based, in whole or in part, on an individual’s criminal conviction history. The new law makes it an Illinois Human Rights Act violation for an employer to use “conviction record" for any employment purpose unless it can establish one of the follow: (1) “a substantial relationship between one or more of the previous criminal offenses and the employment sought or held”; or (2) “an unreasonable risk to property or the safety or welfare of specific individuals or the general public.”

Historically, Illinois employers could have general policies that resulted in employment disqualification of an applicant with certain criminal convictions. For example, it was not uncommon for employers to reject applicants who had felony conviction demonstrating violent inclinations. That is no longer legal under Illinois law. Under the new law, employers are required to do a case-by-case analysis. In determining whether it is a “unreasonable risk” or “substantial relationship” (see above) the employer can consider: (1) the length of time since the conviction(s); (2) the number of convictions; (3) the nature and severity of the conviction(s) and their relationship to the safety and security of others; (4) the facts or circumstances surrounding the conviction(s); (5) the age of the applicant or employee at the time of the conviction; and (6) any evidence of rehabilitation efforts by the applicant or employee.

If, after reviewing the employee/applicant’s criminal conviction history and applying the aforementioned factors to its analysis, an employer determines that it will not hire or continue the employment of the individual, a “pre-adverse action notice” must be given. Essentially, this is written advice to the employee/applicant that the employer is not going to hire, promote or maintain their employment due to their criminal conviction. The notice must contain; (1) a copy of the conviction history report, if any; (2) a notice of the disqualifying conviction(s) that provides the underlying support for the preliminary decision, as well as the employer’s reason for the disqualification; and (3) an explanation to the applicant/employee of his right to respond before the employer’s decision becomes final. Specifically, this explanation must include advice to the employee that he may submit evidence challenging the accuracy of the conviction record, evidence of mitigation (such as underlying facts relating to the conviction) and rehabilitation efforts. The employee/applicant has five business days before the preliminary decision becomes final.
If the employee/applicant provides no additional information, or having provided the additional information, the employer’s initial decision is not modified, the employer must provide the applicant/employee a final written notice which contains the following information; (1) the conviction at issue; (2) the basis for the decision (this may be the same as in the pre-adverse action notice but may have changed as a result of additional information acquired subsequent thereto); (3) any existing internal procedures to appeal or request reconsideration of the decision; and (4) affirmatively advise the applicant or employee of his right to file a charge of discrimination with the Illinois Department of Human Rights.

It may well be that portions of this notice are already being given by employers or a third-party service who provides background checks through the use of similar forms under the Fair Credit Reporting Act. While the notice under the Fair Credit Reporting Act can be used, the Illinois statute has additional requirements. Therefore, those additional provisions will need to be incorporated into the FCRA notice to be compliant.
For those employers who regularly use criminal background checks and rely upon criminal convictions in forming the basis for employment decisions, this amendment is a game changer. The analysis now is similar to a disability accommodation analysis insofar as it must be done on a case-by-case basis and there is now a burden on the employer to justify its decision.

The first few times employers go through this analysis and determine that a criminal conviction will be disqualifying, I encourage them to consult with legal counsel to make sure all appropriate factors are being considered.