In Short
The Situation: Recent amendments to the Illinois Human Rights Act (“IHRA”) restrict Illinois employers from relying upon conviction records to make adverse employment decisions unless they comply with new substantive and procedural safeguards.
The Result: Illinois employers cannot rely upon conviction records to make adverse employment decisions unless, after providing notice, an opportunity to respond, and considering any mitigating factors, the employer concludes there is a “substantial relationship” between the conviction and the job at issue and/or the individual’s employment presents an “unreasonable risk” to property, safety, or individual welfare.
Looking Forward: Employers should modify their background check policies and practices in Illinois to comply with the new substantive and procedural requirements. Moreover, given similar laws recently enacted in New York City and Philadelphia, multistate employers should be on watch for a trend taking shape in state and local jurisdictions nationwide.
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…
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