Illinois Employee Background Fairness Act

AdminAssist May 13, 2021
5-minute read
Manager interviewing a female applicant in his office

HR professionals and recruitment teams need to understand an important change under the IHRA, or Illinois Human Rights Act. The Employee Background Fairness Act fundamentally changes the hiring process of individuals who have previously committed felonies.

Previously, an employer could decline an employment application based on that applicant having a criminal history, regardless of the nature. As of March 23, 2021, that is no longer the case. Illinois employers, including employment agencies and labor organizations, cannot use a record of previous convictions to decline employment. This includes:

  • Initial hiring
  • Promotion
  • Reducing the tenure of a contract
  • Training opportunities
  • Apprenticeships

Employers may also not segregate these individuals or apply different disciplinary procedures. In short, employees with criminal records must receive treatment the same as any other employee or prospective employee.

Exceptions to the Rule

Although now broadly an offense to refuse to hire someone based on their criminal record, there are certain exceptions. If there’s a substantial relationship between a recorded criminal offense and the role to which the individual is applying, this may be a reason to deny employment. The employer may also deny employment if:

  • Hiring the individual, either new or continued, involves an unreasonable risk to property.
  • Engaging the individual poses a threat to the welfare or safety of the public or specific individuals.
  • Circumstances of employment may lead to a repetition of the offense in question.

The IHRA amendments require all employers to consider certain factors when determining whether there is a substantial connection between the criminal offense and the role of employment. These factors include:

  • Length of time between conviction and application for employment
  • The nature of the conviction and the severity of the offense
  • How many times the individual was convicted
  • Any mitigating circumstances or the context of the conviction
  • How old the potential employee was at the time of the conviction
  • Any evidence of rehabilitation

If these factors don’t provide enough evidence to suggest an employee could be a risk, there is no legal basis for denying employment opportunities.

Disqualifying Employees

Of course, there may be instances where an employer follows these criteria and decides that an individual would be too much of a risk to employ. If that’s the case, then according to the amendments to the IHRA, employers must notify the applicant in writing of their initial decision. This notice must include the reason for disqualification, including the specific conviction that’s the basis for the decision. It must also include the conviction history report, if applicable, and inform the applicant that they have the right to respond.

That’s because this decision is not final. Applicants are part of what’s now called an interactive assessment, meaning the individual can respond and challenge the initial decision, if appropriate. Applicants or employees have five business days to respond and must include evidence of either inaccuracy or mitigation. For example, if the employee suggests that the conviction history report is incorrect, they must provide proof of that fact. If they state they are fully rehabilitated, they must be able to prove this assertation.

By law, employers must fully consider any response and evidence the applicant or employee has sent. If an employer continues with a final decision to disqualify, they must notify that individual and include:

  • Notification of the conviction that has prompted the final decision to disqualify.
  • Any additional policies the individual can follow to challenge the procedure – these may be organization-specific.
  • Acknowledgement that the individual has the right to file charges with the Illinois Department of Human Rights.

Amendments Take Immediate Effect

There’s no time delay before these amendments become a part of the law. Illinois Governor J.B. Pritzker signed the amendments into law in March, with them taking effect immediately. That means it is now a state civil rights violation to use anyone’s criminal record as part of an employment decision – apart from the examples cited above.

It’s particularly important for multi-state employers and staffing and recruiting companies to note these changes. If you’re hiring in several states, you might find that you need to adjust your HR policies to be in line with the IHRA amendments. For more information on staffing and recruitment services and news, follow the Admin Assist blog.