Tag Archives: Illinois Human Rights Act

Illinois Set to Enact New Law Limiting Criminal Convictions in Employment Decisions

Contributed by Allison P. Sues and Jeff Risch, February 15, 2021

Illinois has long limited employers from considering the criminal history of an applicant or employee in making employment decisions. The Illinois Human Rights Act prohibits employers from considering an employee’s arrest history, for example. In recent years, Illinois’ “Ban the Box” law disallows employers from asking about criminal convictions prior to a job offer or before a candidate is selected for an interview and, therefore, assumed to be otherwise qualified for the position in question. Now, Illinois is poised to go a step further in banning the use of criminal history in employment decisions. 

In January 2021, the Illinois legislature passed Senate Bill 1480, which, in relevant part, provides that unless otherwise authorized by law, an employer may only consider an individual’s criminal conviction history if there is a substantial relationship between the criminal history and the position sought or held, or if the employer can show that the individual’s employment raises an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. Governor Pritzker now has this legislation “on his desk” and is expected to sign this bill into law soon. Upon signing this legislation, the law will go into effect immediately. The law amends the Illinois Human Rights Act.

An employer may show that an individual’s criminal conviction history has a substantial relationship to the position applied for, or currently held, if the position provides an opportunity for the individual to conduct the same or similar offenses.  Six different factors guide this analysis: (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. 

As to the phrase “unreasonable risk,” it is not defined. However, this phrase certainly places the burden on the employer to establish that a risk exists that no reasonable employer in similar circumstances should incur.

If an employer denies employment to an applicant because of a conviction record, the employer must provide written notice to the applicant that specifically identifies the relevant conviction record underlying the decision and the employer’s rationale for why the conviction disqualifies the individual from employment. The employer must then give the applicant at least five (5) business days to respond to the employer’s notice and provide evidence to refute the employer’s concern. If the employer still decides not to hire the individual, the employer must provide another written notice informing the candidate of their right to file a charge of discrimination with the Illinois Department of Human Rights. This same process must be used for employers taking adverse action against existing employees based on criminal convictions.

While this law would not restrict employers from running criminal background checks on applicants or employees, it clearly creates additional hurdles. In reviewing the laws created in other states, Illinois’ new law would be the most restrictive in the country.  Employers must not only justify any actions taken based on a criminal conviction under the Act’s two exceptions, but must also comply with the written notification requirements. 

Be assured that SmithAmundsen LLC’s Labor & Employment Group is working with business groups to try and create better and clearer language relating to this legislation. We are intimately familiar with that process, and will report as soon as we learn more. In the meantime, all employers hiring or operating in Illinois must tread carefully in navigating all aspects of conducting a criminal background check.

The Illinois Human Rights Act is Amended: Increased Filing Timeframes, Opt-Out Provisions, and a Restructured Commission. Oh, My!

Contributed by Julie Proscia, August 29, 2018

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Black and white gavel

On August 24, 2018 Governor Rauner signed PA 100-1066 into law thereby amending the Illinois Human Rights Act which revamps, and sometimes streamlines, discrimination complaints on the state level.  This legislation, effective immediately, comes after months of hearings and recommendations from both the Senate and House Task Forces on Sexual Misconduct.  I have had the privilege of sitting on the Illinois Task Force on Sexual Misconduct and take this opportunity to report on these amendments. During the course of the hearings, the Task Force heard testimony from business organizations, individual plaintiffs, and stakeholders regarding their concerns related to the current administrative system. The core discussions focused on changes that would give individuals the right to opt out of the administrative process, create parity between the filing of claims at the EEOC and the Illinois Department of Human Rights, and reduce the backlog of cases before the Illinois Human Rights Commission. The most significant amendments are:

  • The Illinois Human Rights Act is amended to increase the time frame that individuals have to file a charge, from 180 to 300 calendar days, from the date of the alleged civil rights violation;
  • Sets forth opt out provisions in which an individual may, within 60 days of filing a complaint with the Illinois Department of Human Rights, opt out of an investigation at the Illinois Department of Human Rights and proceed to circuit court; and
  • Restructures the Illinois Human Rights Commission in order to decrease the backlog of cases and theoretically prevent a backlog from occurring in the future. Effective January 2019, the Commission will, amongst other initiatives, be comprised of 7 full time members, as opposed to 13 part-time members, with dedicated staff attorneys and training for newly appointed commissioners.

So what does this mean for employers?  Some good, some bad, and some neutral.  The change from 180 to 300 calendar days is not a significant change, although on the surface it appears to be.  In the State of Illinois, an individual currently has, even before the new legislation, 300 calendar days from the date of alleged harm to file a charge with the EEOC.  As such, the new legislation creates parity in deadlines for filing between the state and its federal administrative counterpart.  The inclusion of opt out provisions can potentially increase the flow of discrimination litigation away from the administrative system, while the restructuring of the Commission is designed to decrease congestion.  In either scenario or design, prevention prior to this level of escalation is paramount.  Good policies, procedures, and annual training can reduce the likelihood of having to test the new amendments.

Sexual Harassment of Lifeguard Yields $3.5m Pain and Suffering Jury Award

Contributed by Terry Fox

On August 24, 2012, a Washington, D.C., jury awarded Carmen Jean-Baptiste $3,500,000 for emotional distress for sexual harassment by her supervisor.  Jean-Baptiste was a 43-year-old lifeguard harassed by her male supervisor, Rodney Weaver.  Despite repeated complaints to others at the Takoma aquatic center about Weaver’s conduct, the harassment did not stop.  When Jean-Baptiste filed a written complaint, she was fired.

The jury foreman felt “embarrassed” by how the complaints by Ms. Jean-Baptiste were handled.  He stated that superiors ignored and stalled any action on the complaints.  The trial court has yet to award back pay damages to Ms. Jean-Baptiste.

This report is provided to those employers without enough worries to keep them up at night.  Some comfort may be taken from the limits provided by Title VII for private employers.  Non-monetary damages are capped by size of the employer to a maximum of $300,000 for a single employee complaint. However, state statutes sometimes have no limitations, as is the case with the Illinois Human Rights Act.  Pain and suffering is not limited in any manner by the Illinois Act, and punitive damages are also available.