Illinois Adds Criminal Record Discrimination to the Human Rights Act

By: Evan Bonnett,
Allen Galluzzo Hevrin Leake, LLC

Effective on March 23, 2021, the Illinois Human Rights Act was amended to include a “conviction record” as a protected class, along with other long-standing protected classes such as race, disability, religion, sex, pregnancy, gender identity, sexual orientation, and others. Illinois joins a small number of states in adding criminal records as a prohibited basis of discrimination—notably, Wisconsin has had this protected basis for decades.

For Illinois employers, this means that it is now unlawful to refuse to hire an applicant, fire an employee, or take any other adverse action based on a conviction record. Clearly, an employer cannot now maintain a policy that bars all persons with conviction records from employment.

However, there is an exception that allows adverse actions based on particularized circumstances. An employer may still act: 1) if there is a “substantial relationship” between the prior criminal offense and the employment position, or 2) if continuing employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

If an employer wishes to take adverse action and utilize the exceptions noted above, the amended Human Rights Act details a process that employers must follow. Fundamentally, this process requires giving notice to the employee, allowing the employee an opportunity to respond, and considering the employee’s response before making a final decision.

These steps are:

1. Preliminary Decision. In addition to determining whether the conviction record has a substantial relationship or poses an unreasonable risk, employers must also consider six (6) mitigating factors. These are 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; and evidence of rehabilitation efforts.
2. Interactive Assessment. An employer must notify the employee of its preliminary decision,  and its reasoning, and provide a copy of the conviction history report. The employer must then notify the employee of his/her right to respond and give the employee at least five (5) business days to do so. The employee’s response may include disputing the record or presenting evidence in mitigation or rehabilitation.
3. Final Decision. The employer must consider the information the employee provides before making a final decision. If the employer decides to take an adverse action, the employer must provide written notice to the employee of the disqualifying conviction(s) that are the basis for the final decision and the employer’s reasoning for the disqualification; any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and the right to file a charge with the Illinois Department of Human Rights.

Employers should consult with experienced employment attorneys prior to acting based on a conviction record. This is a new area of law, and it must be navigated carefully.