Weighing Conviction History in Illinois Employment Decisions

Jul 19, 2021

by Christine Self

Amendments to the Illinois Human Rights Act (“IHRA”) that took effect March 23, 2021, make it a civil rights violation for an employer to use an individual’s conviction record “as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment unless:  (1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held; or (2) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” 775 ILCS 5/2-103.1(A). The statute defines “substantial relationship” as “a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” 775 ILCS 5/2-103.1(B). The same section of the statute outlines the factors an employer must consider:

  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.

If, after consideration of those factors, an employer makes the determination that the employee’s conviction record disqualifies the employee, the employer shall notify the employee of that decision in writing. 775 ILCS 5/2-103.1(C). The employee has at least 5 business days to respond to the notification before the employer may make a final decision and such response, if submitted, must be considered by the employer prior to a final decision by the employer. If the employer disqualifies an employee or takes adverse employment action based solely or in part on the employee’s conviction record, the employer must notify the employee of the disqualifying conviction or convictions that are the basis for the final decision, the employer’s reasoning for the disqualification, any existing procedure for the employee to challenge the decision or request reconsideration, and the right to file a charge with the Illinois Department of Human Rights.

Illinois employers who conduct background checks, either as required or as allowed, on potential employees must carefully consider the use of the resulting information in weighing employment decisions. When necessary, employers will need to provide the appropriate notice and process provided under the IHRA to candidates and employees who do not meet the employment qualifications as a result of those background checks.

Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.

Illinois Education – Tueth Keeney is proud to be one of the state’s largest Illinois education law practices. The firm has one of the most experienced groups of attorneys in Central and Southern Illinois dedicated to serving public schools. We regularly represent nearly 150 public school districts, including many districts in Central and Southern Illinois. Our Firm is also regularly appointed by insurers of educational institutions to represent districts in complex or difficult cases involving school or civil rights laws.

Christine Self practices in the areas of education law and employment law. She has developed employment policies and advised public employers on labor matters and laws such as the Freedom of Information Act and the Illinois Open Meetings Act. She has experience with collective bargaining and disciplinary investigations into employee misconduct. As a former public school teacher, she is committed to assisting schools navigate the legal requirements of the education environment so school leaders and educators can provide the best educational opportunities for students.