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Illinois Poised To Bar Criminal Conviction Discrimination

Posted: January 27, 2021

In 2015, Illinois became one of the first states to enact a “ban the box” law, preventing employers from inquiring about criminal histories on employment applications. The “ban the box” law followed a general prohibition in Illinois under the Illinois Human Rights Act (IHRA) on basing any employment decisions on an applicant’s or employee’s arrest history. Now, Illinois is set to go one step further and ban the use of criminal convictions in employment actions, with limited exceptions.

On January 13, 2021, the last day before the previous General Assembly adjourned, the Illinois legislature passed Senate Bill 1480 as part of  an ambitious lame duck legislative agenda. The bill amends the IHRA to make it a civil rights violation to use a conviction record in any employment-related decision, unless (1) there is a “substantial relationship” between the criminal offense and the position or (2) it would involve an “unreasonable risk” to property or the safety of a specific individual or the general public.

The bill defines “substantial relationship” as a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the employment circumstances are likely to result in a recurrence of the criminal conduct.

In determining whether one of the two exceptions apply, employers will be required to consider the following factors:

(1) the length of time since the conviction;

(2) the number of convictions that appear on the conviction record;

(3) the nature and severity of the conviction and its relationship to the safety and security of others;

(4) the facts or circumstances surrounding the conviction;

(5) the age of the employee at the time of the conviction; and

(6) evidence of rehabilitation efforts.

If an employer wishes to apply one of the two exceptions, the bill requires the employer to notify the employee or applicant in writing with a copy of the conviction report, and to give the employee or applicant five days to submit information that may convince the employer not to take the adverse action. The employer may not make a final decision until the employee is given this five-day window.

If, after providing the five-day window, an employer decides to proceed with the adverse action, it must issue the employee or applicant another notice, explaining the basis for the decision, advising of any internal procedures for requesting reconsideration, and notifying the employee or applicant of his or her right to file a charge of discrimination with the Illinois Department of Human Rights (IDHR).

The Senate has until February 12, 2021 to send the bill to Governor Pritzker for signature and, by tradition, usually waits the full 30 days unless requested earlier by the Governor, who then has up to 60 days to act on the bill. While Governor Pritzker has not, to date, specifically addressed SB 1480, we anticipate that he will eventually sign the bill into law. The bill will take effect immediately upon the Governor’s signature.

The anticipated law puts Illinois employers in a precarious position. While employers are still allowed to conduct criminal background checks, they are not able to use the information unless they can meet the standard for one of the two enumerated exceptions. And, if an employer does perform a background check on an applicant that reveals a prior conviction, and then rejects the applicant for an unrelated reason, the employer may have to defend its reasoning and prove that the conviction was not the basis for the decision. Moreover, employers will have to comply with the notice requirements set forth in the bill. Ultimately, it may be less burdensome for employers to forego criminal history checks altogether, unless operating in a particularly sensitive industry that requires such measures. The bill creates a number of thorny issues that, if signed into law, are sure to be worked out in the court system.

If you have any questions about this bill or need help navigating any personnel issues, please contact your regular Saul Ewing Arnstein & Lehr LLP attorney.