Illinois Amends Human Rights Act, Awaits Governor’s Signature

Illinois recently amended its Human Rights Act impacting how employers may use criminal history information. What began as a focus on line of duty burial benefits in 2019 morphed into an overhaul of the law following a series of amendments in January 2021. SB 1480 was sent to the Governor for signature. If signed, the law will go into effect immediately.

Conviction Record Use

Under the amended Human Rights Act, it is a civil rights violation for an employer to use a conviction record[1] as a basis to refuse to hire or otherwise take adverse action (such as terminating, disciplining or not promoting an individual) unless: (1) there is a substantial relationship between one or more of the convictions and the employment held or sought; or (2) the granting or continuation of employment involves an unreasonable risk to property or to the safety of individuals or the general public.
 
To determine if there is a “substantial relationship”, employers must analyze whether there is an opportunity for the same or similar offense to occur and whether the circumstances leading to the conduct that led to the individual’s conviction will recur in the employment position. As part of making this determination, employers must consider six (6) 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 individual at the time of the conviction; and
6. evidence of rehabilitation efforts.

Adverse Action Impact

If the employer preliminarily decides the conviction record may disqualify the individual based on its analysis of the above factors, it must notify the individual of this preliminary decision in writing. This notification must include:

• The conviction(s) that is the basis for the preliminary decision and the employer’s reasoning for the disqualification,
• A copy of the “conviction history report” (if any) and
• An explanation of the individual’s right to respond to the notice prior to a final decision. This must include informing the individual may submit evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence of mitigation including rehabilitation as an example.

The employer must then allow at least five (5) business days for the individual to respond prior to making a final decision and must consider any information provided to them by the individual. If the adverse decision becomes final based on the individual’s criminal history, the employer must provide written notice of that final decision including again specifying the disqualifying conviction(s) and the employer’s reasoning, along with any existing procedure the employer has for challenging the decision or requesting reconsideration, and the right of the individual to file a charge with the Department of Human Rights.
 
The bill also requires employers with 100 or more employees in Illinois to obtain an equal pay registration certificate or certify in writing that it is exempt from the requirement.
 
Employers should begin assessing necessary changes to come into compliance with this law now given the potential immediate effective date. Asurint also recommends consultation with qualified legal counsel to determine how this law may impact your hiring and employment practices.