On March 23, 2021, Governor Pritzker signed a new law (Senate Bill 1480) that makes several meaningful changes to the Illinois Human Rights Act (IHRA). One significant change under the new law states employers may not use criminal conviction records when making employment decisions unless employers consider specific factors and take certain steps before making a final employment decision. This new law bars employers from basing any adverse employment decisions on a conviction record, unless the employer can show:
- there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held; or
- granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
“Substantial Relationship” Definition
The Illinois Department of Human Rights (IDHR) issued FAQs in which it defines “substantial relationship” as consideration of whether the employment position offers the opportunity for the person to commit the same or a similar offense again and whether “the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” The new law lists six factors employers must consider when evaluating the “substantial relationship”:
- length of time since conviction;
- number of convictions that appear on the conviction record;
- nature and severity of the conviction and its relationship to the safety and security of others;
- facts or circumstances surrounding the conviction;
- age of the employee at the time of the conviction; and
- evidence of rehabilitation efforts.
If an employer decides to disqualify a person from employment or take another adverse action based on a conviction, the employer must engage in an “interactive assessment” before taking action. The first step in that assessment is for the employer to provide written notice to the employee or applicant of the employer’s preliminary decision. This written notification must include: (a) notice of the disqualifying conviction and the employer’s reason for the disqualification; (b) a copy of the conviction report if any; and (c) an explanation of the employee’s right to respond before the decision becomes final.
The employee or applicant then has five business days to respond to the notification before the employer makes the preliminary decision final.
Before making a final decision, the employer must consider the information submitted by the employee. If the employer makes a final decision to disqualify or take an adverse action, the employer must supply the employee or applicant the following in writing:
- notice of the disqualifying conviction along with the employer’s reasoning;
- any existing procedure for the person to request reconsideration or challenge the decision; and
- notice of the right to file a charge with the IDHR.
If the employee or applicant disagrees with the employer’s assessment that a conviction is substantially related to the job in question, the employee can file a charge with the IDHR.
There are several remaining open issues and questions with the background check components of this new law. The interplay between the federal Fair Credit Reporting Act required pre-adverse action process and the new Illinois pre-adverse action process is not well-defined, thus making unclear a pre-adverse action process compliant with both federal and Illinois law. Additionally, despite IDHR’s guidance that employers cannot inquire about a criminal conviction until after a conditional offer, the new law does not change the timing of the inquiry under 820 ILCS 75/15(a) of the original law, which states inquiries may occur: (a) after an applicant has been deemed qualified and notified that the applicant has been selected for an interview (which is earlier than the conditional offer) or (b) if there is no interview after the conditional offer.
Illinois employers should assess how they will use criminal background checks in the future. While the new law does not prohibit an employer from obtaining criminal background checks, the law places a significant requirement on employers if they want to use this information to make any employment-related decisions.