Illinois Limits Employers’ Use of Criminal Conviction Records with Amendment to IHRA
Chicago, Ill. (April 13, 2021) - On March 23, 2021, Governor J.B. Pritzker signed Senate Bill 1480 (SB 1480) into law, amending the Illinois Human Rights Act (IHRA) by restricting the use of criminal conviction records. The IHRA prohibits discrimination based on race, color, national origin, ancestry, national citizenship status, sex, pregnancy, religion, age, physical or mental disability, marital status, military status, order of protection status, sexual orientation, or gender identity. A covered employer is now required to follow certain procedures, including engaging in an interactive process with the applicant or employee, if it seeks to disqualify the individual based on a record of criminal conviction.
An employer may use or otherwise consider an individual’s conviction record in making an employment decision only when: (1) there is a “substantial relationship” between the criminal offense and the individual’s employment, or (2) an unreasonable risk to the safety or welfare of others or property would otherwise exist.
“Substantial Relationship” Determination
Before making such a decision, SB 1480 requires an employer to conduct a fact-specific inquiry and analyze several mitigating factors to determine whether a substantial relationship exists between the criminal offense and the employment role or creates an unreasonable safety risk. Those mitigating factors are:
- the length of time since conviction,
- the number of convictions that appear on an individual’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(s),
- the age of the employee at the time of the conviction(s), and
- evidence of rehabilitation efforts.
Absent compliance with these criteria, an employer is presumed to have discriminated against an individual based upon his/her conviction record.
SB 1480 also requires employers to conduct an interactive assessment to use a disqualifying conviction in the decision-making process. First, after making a preliminary decision, the employer must notify the individual in writing of the intent to take an adverse employment action and provide the individual with a copy of the “at issue” conviction report. The individual is thereafter entitled to a five-business day waiting period to respond to the notice, during which time the employer cannot finalize the adverse employment action.
If the employer still decides to take adverse employment action after considering the individual’s response, the employer must: (1) provide written notice of the termination and the basis for the final decision, (2) identify any existing internal procedures for appealing the determination, and (3) inform the individual of the right to file a charge of discrimination with the Illinois Department of Human Rights (IDHR).
This amendment continues a trend in Illinois for greater transparency in the employer-employee relationship. For more information on this development, contact the author or editor of this alert, or visit our Labor & Employment Practice page to find an attorney in your area.
Alishba N. Malik, Associate
Stephen L. Sitley, Partner