On March 23, 2021, the Governor of Illinois J.B. Pritzker signed into law an amendment to the Illinois Human Rights Act (IHRA) which went into effect immediately. The amendment creates significant new limitations on hiring, while adding procedural obligations for employers—specifically, how the existence of criminal records can be utilized in employment decisions.
The law states that unless otherwise authorized by law, it is a civil rights violation for any employer to use a conviction record to refuse employment or discharge an existing employee unless there is a “substantial relationship between one or more of the previous criminal offense and the employment sought or held.” In addition to this clause, employment may be refused or discharged if “the granting or continuation of the employment would involve unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”
The law further elaborates on the “substantial relationship” clause by defining it and presenting new procedure for employers to follow. Accordingly, “substantial relationship” means a “consideration as to whether or not the employment position offers the opportunity for the same or a similar offense to occur.”
For example, if an individual was convicted for embezzlement, under the substantial relationship clause, employment could be withheld if the individual was applying for a CFO position, as that combination would present and unreasonable risk and the opportunity for the same or similar offense to occur. However, procedural obligations employers must now follow determine whether or not the individual should be refused. When making this determination, employers must consider the following:
- 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.
In the example of the embezzler, had they been convicted only recently, had a history of same or similar convictions, and showed no evidence of attempts at rehabilitation, employment could rightfully be refused. However, if the individual was convicted 20 years ago and it was their only offense, and they had since done pro bono accounting work for non-profit organizations as a way of demonstrating rehabilitation, then, under such circumstances, refusal of employment could be considered an Illinois Human Rights violation, unless the employer can show enough cause as to why the employment was refused.
Should employers to find enough cause to refuse or discharge employment, existing procedure under the FCRA is required: The individual must receive a Pre-Adverse Action letter, be given at least five business days to respond, and then, if a dispute is not lodged, be informed of a final decision in an Adverse Action letter.
Failure to follow the new regulations in Illinois could result in the prosecution of civil rights violations. To read the entire amendment to the IHRA, click here.
The new IHRA regulations follow on the heels of similar laws passed in New York City and Philadelphia, which extend “Ban the Box” laws in those cities.
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