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In this series, we will explore some of the ways states vary from one another in their employment laws.
Many states have some protections in place for employees and applicants with criminal convictions, ranging from ban-the-box laws that prohibit inquiries into criminal records until the interview stage to opinion letters that adverse employment decisions based on conviction record have an adverse impact on minority applicants and employees. But no state goes as far with these protections as Illinois, which has explicitly included conviction record as a protected class pursuant to the Illinois Human Rights Act (the "Act").
The Act declares it a civil rights violation for any employer to refuse to hire, discipline, or terminate an applicant or employee based on a conviction unless: (1) there is a substantial relationship between the conviction and the job or (2) hiring the applicant or continuing to employ the employee would involve an unreasonable risk to property or the safety and welfare of specific individuals or public safety.
Before refusing to hire an applicant or terminating an employee based on a criminal history, regardless of the severity of that history, an Illinois employer must go through a detailed interactive process. It must consider the length of time since the conviction(s), the number of convictions, the nature and severity of the conviction(s), the facts surrounding the conviction(s), the age of the individual at the time of the conviction(s), and evidence of rehabilitation efforts. It must send the employee a pre-adverse action letter informing the applicant or employee of the reasoning behind the potential adverse action and providing the applicant or employee a chance to provide information.
Once the applicant or employee has had such a chance, if the employer still wishes not to hire the applicant or to terminate the employee, the employer must send another letter that again explains the decision-making process, details any appeal rights in place, and notifies the applicant or employee that they have the right to file a charge of discrimination with the Illinois Department of Human Rights.
Notably, the Act does not require Illinois employers to hire every applicant with a conviction or absolutely prohibit such employers from disqualifying applicants based on their conviction records. However, it puts stringent rules in place for the process an employer must use to make its decision. As such, Illinois employers must pay special attention to their hiring processes to ensure that applicants are not automatically rejected because of a conviction, even a serious one.
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