Illinois Restricts Employers From Using Conviction Records in Making Employment Decisions

Recent amendments to the IHRA that took effect March 23, 2021, prohibit employers from relying upon conviction records to make adverse employment decisions unless they determine that an exception applies and they adhere to new procedural requirements.

The law defines conviction records broadly to include information showing that a person has been convicted of a felony, misdemeanor, or other crime, placed on probation, fined, imprisoned or paroled by any law enforcement agency or military authority.

Under the amended IHRA, an employer cannot base an adverse employment decision on an individual's conviction record unless: 

• The employer can establish a "substantial relationship" between the conviction record and the type of role sought or held. This means the role either creates an opportunity for the individual to engage in a similar offense or the circumstances leading to the offense will occur in the job.

- or -

• The employer can establish that the individual's employment raises an "unreasonable risk to property, safety, or welfare of individuals." 

In reaching a preliminary conclusion that one or both of the above exceptions applies, the employer must consider mitigating factors, including: length of time since the conviction; number of convictions; nature and severity of the conviction; facts and circumstances surrounding the conviction; age at the time of the conviction; and rehabilitation efforts.

Before relying upon an exception to take an adverse action against an employee based in whole or in part on an individual's conviction record, an employer must provide written notice to the individual identifying the conviction record as the basis for its employment decision, providing a copy of the conviction history report, if any, and explaining its reasoning. The employer also must notify the individual that he or she has at least five business days to respond, such as by disputing the accuracy of the conviction record or presenting evidence of mitigation, such as rehabilitation, which the employer must consider before making a final decision. If an employer stands by its decision to take an adverse action after considering the individual's response, it must provide the individual with another written notice reflecting the disqualifying conviction, the employer's reasoning, any procedure available to challenge or seek reconsideration of the decision, and notify the individual of the right to file a charge with the Illinois Department of Human Rights.

An employer that unlawfully discriminates on the basis of a conviction record may be held liable for, among other relief, actual damages; hiring, reinstatement, or promotion with backpay and lost fringe benefits; and attorneys' fees and costs.

Prior to the recent amendments, the IHRA already prohibited employers from inquiring into or using an arrest record as the basis for an employment decision. Moreover, since 2015, Illinois law has prohibited employers from asking about an employee's criminal background on employment applications or in the early part of the selection process. Under Illinois' Job Opportunities for Qualified Applicants Act, an employer cannot inquire about, consider, or require disclosure of an applicant's criminal record until the applicant has been determined qualified for the position and notified of selection for an interview or, if there is no interview, until after a conditional offer of employment has been made. The new amendments contain additional substantive and procedural requirements employers must comply with when using conviction records.

In light of the recent amendments, employers in Illinois must review and, if necessary, revise their background check policies and procedures to ensure they are consistent with the new requirements. In particular, employers must now evaluate an employee or applicant's conviction(s) in light of the job in question and the unique circumstances of the employee or applicant. Policies that contain bright-line exclusions from employment based upon a particular type of conviction alone will be difficult to justify under the new law. 

The new amendments share similarities with recent amendments to New York City's Fair Chance Act and Philadelphia's Fair Criminal Records Screening Standards. Each of these laws now requires employers to provide notice, permit an opportunity to respond, and consider individual mitigating factors before making employment decisions based upon a criminal record. Thus, passage of the IHRA amendments may reflect an emerging trend in state and local background check schemes that employers that operate in multiple jurisdictions should monitor going forward.