Illinois Employers Take Note, Human Rights Law Expanded to Require “Interactive Assessments” When Considering Conviction Records for Employment Screening Purposes

Illinois recently enacted SB 1480, which took effect immediately upon signing on March 23, 2021, and includes amendments to the Illinois Human Rights Act (“IHRA” or Act), making it a civil rights violation for an employer to consider “conviction records” in making an adverse employment decision (e.g., refusing to hire, denying a promotion, etc.) unless:

(i) there is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held (i.e., the job position offers the opportunity for the same or similar conduct as the criminal offense to occur); or

(ii) the granting or continuation of the employment would involve an “unreasonable risk” to property or to the safety or welfare of individuals or the general public; or

(iii) consideration of such records is otherwise authorized by law.

SB 1480 defines “conviction record” as “information indicating that a person has been convicted of a felony, misdemeanor or other criminal offense, placed on probation, fined, imprisoned, or paroled pursuant to any law enforcement or military authority.”

Interactive Assessment

SB 1480 requires an employer to conduct an “interactive assessment,” which takes into account the following mitigating factors, prior to disqualifying an applicant or employee because of a conviction record:

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.

Note that pursuant to other Illinois law, inquiry into an applicant’s criminal history cannot be made until after an applicant has been selected for an interview or a conditional offer of employment has been made.

Notice Requirements

Additionally, SB 1480 requires an employer to provide the applicant or employee the following notices if, after considering the required mitigating factors, the employer decides that a conviction record precludes employment.

Preliminary Decision Notice

If, after evaluating the required mitigating factors, an employer decides that the employee or applicant’s conviction record is disqualifying, the employer must notify the employee or applicant in writing which contains: (a) notice of the disqualifying conviction and employer’s reasoning for disqualification; (b) a copy of the conviction history report, if any; and (c) an explanation of the employee’s right to respond to the notice and an explanation that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record, or evidence in mitigation, such as rehabilitation.  The employee must be given at least five (5) business days to respond to the preliminary decision notice.

Final Decision Notice

If, after reviewing the employee’s response to the preliminary decision notice, the employer decides to proceed with the adverse action, the employer must provide a written final notice stating: (a) the disqualifying conviction and the employer’s reasoning for the decision; (b) any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and (c) the employee’s right to file a charge with the Illinois Department of Human Rights.

Penalties

Violations of the IHRA can result in penalties including actual damages, back pay, hiring, reinstatement, and attorneys’ fees and costs.

Also, although the requirements of SB 1480 are imposed upon employers, there is the potential under the IHRA for a consumer reporting agency to be held liable for “aiding and abetting” an employer’s violation of the Act.  This is similar to New York City’s Fair Chance Act that also contains “aiding and abetting” language.

Takeaways

Employers

Current Illinois law prohibits employers from asking about criminal history until after the applicant has been notified of selection for an interview or a conditional offer of employment has been made. Current Illinois law also prohibits employers from inquiring into or considering arrest records when making an adverse employment decision. This new amendment to the IHRA adds another layer—it restricts employers from using conviction records except in certain circumstances and requires employers that consider such information to conduct an individualized assessment; it also requires certain notices, which could be incorporated into the pre-adverse and adverse action required under the Fair Credit Reporting Act.

Consumer Reporting Agencies

Background screening companies should inform their employer clients of this new law, and, because the IHRA allows for “aiding and abetting” liability, consumer reporting agencies (CRAs) should consider whether or not to amend their service agreements to add an express provision stating that Illinois conviction records shall only be used in accordance with the new limitations and requirements imposed on employers by SB 1480.  CRAs that assist Illinois employers with their adverse action processes should also work with their customers to facilitate any changes to workflows that may be required.

For more information, employers and CRAs can also review the Illinois Department of Human Rights FAQs. If you would like help assessing the impact of this new law, or any other state or local ban-the-box requirements, on your organization, please contact members of Arnall Golden Gregory’s Background Screening industry team, Kevin L. Coy, Montserrat C. Miller, or Erin E. Doyle.