The newly amended Illinois Human Rights Act ("IHRA") prohibits employers—including employment agencies or labor organizations—from using a conviction record as a basis for refusing to hire, segregate, or act on recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, and privileges or conditions of employment unless there is a "substantial relationship" between one or more of the criminal offenses and the position sought or held. Using a conviction in any of these ways is considered a civil rights violation and subjects the employer to penalties. And the penalties can be large. Lost wages, future wages, attorney fees and emotional distress damage to name a few.
Under the IHRA, a "substantial relationship" places a burden on employers by requiring them to undertake "a consideration of whether the employment position offers the opportunity for the same or similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position." In addition to the substantial relationship test, another basis for relying on a conviction record as a disqualifying factor is the matter of whether employing an applicant or employee would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.
Employers must engage in an interactive assessment with the applicant or employee regarding the conviction and potential employment action. The employer must first consider "mitigating factors," including the length of time since the conviction, the number of convictions, the nature and severity of the conviction, the employee's age at the time of the conviction, and evidence of rehabilitation.
If, after considering those factors, the employer makes the preliminary decision that the employee's conviction record disqualifies the employee, they must notify the employee of the decision in writing. The notice must include the specific information outlined in the IHRA, including notice of the disqualifying conviction, a copy of the conviction history report (if any), and an explanation of the employee's right to respond to the employer's notice.
The employee has five business days to respond to the notice before the employer makes a final decision. Should the employer decide to disqualify or take adverse action "solely or in part" of the conviction, the employer must notify the employee in writing of the disqualifying convictions that are the basis for their final decision.
The notification should also provide the employer's reasoning for the disqualification, describe any existing procedure by which the employee may challenge the decision, and inform the applicant or employee of the right to file a charge with the IDHR.
Because this is a very new area of the law, there is no body of caselaw to draw off of. That means attorneys can't look to what the courts have done in the past on this issue. This is even more reason to contact an experienced employment lawyer on this issue. I have the experience to determine what I think a court will rule regarding conviction record. There will be obvious cases where an employer doesn't have to hire a previous convict. For example, if you were convicted of embezzlement, a bank can probably not hire you and be safe for litigation. The reason is if the conviction is for a crime which the person is now applying for a reasonable person may think the previous actions preclude future employment in that field.
Because this is a very nice area of the law under the IHRA, most employers are unaware of it. This could lead to potential problems for employers if they dismiss applicants out of hand for a previous conviction. If you are an employer, you should let my office give you training on the issue. If you are a convict, you should contact my office if you apply for a job and get turned down, even though you are qualified.
It is very important to contact my office for a free consultation if you believe you have been discriminated against.