Illinois Human Rights Act Amendments

March 24th, 2021 | Angela Preston, Senior Vice President and Counsel, Corporate Ethics and Compliance with Ryan Hannan, Compliance Associate

On March 23, 2021, Illinois Governor J.B. Pritzker signed SB 1480 into law, which includes amendments to the Illinois Human Rights Act (the “Amendments”) as it relates to employers’ consideration of applicants’ and employees’ conviction records. Effective immediately, the Amendments establish that it shall be considered a civil rights violation for any employer, employment agency, or labor organization to disqualify or take adverse action against an individual on the basis of their conviction record, unless the following criteria are met:

• There is a substantial relationship between one or more of the offenses on their record, and employment sought or held, determined by whether the employment offers opportunities for the same or similar offenses or conduct to occur
• The granting or continuation of employment would pose unreasonable risk to property, or the safety or welfare of persons or the public

To determine if the above criteria are met, employers must conduct an individualized assessment in which they consider six factors, each of which are included among the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act. These factors are:

• The length of time since the conviction
• The number of convictions that appear on the individual’s conviction record
• The nature and severity of the conviction, and its bearing on the safety and security of others
• The facts or circumstances surrounding the conviction
• The age of the individual at the time of the conviction
• Evidence of rehabilitation efforts

If, after such an assessment is completed, the employer tentatively determines the individual to be precluded, they must notify them in writing of such a preliminary decision. This notice must indicate the conviction or convictions that are the reason for their potential disqualification, include a copy of the conviction history report, provide an explanation of their right to dispute their record or provide mitigating evidence before a final decision is made, and allow 5 days for such responses before making a final decision. When making a final decision, employers must consider any information submitted by the individual during this period. If the final decision results in disqualification or other adverse action, the employer must notify the individual again in writing of their final decision, explaining that the decision was made in response to their conviction history with the specific conviction(s) identified, and provide any procedures they may have for the employee to challenge the decision or to request that the employer reconsider. This final notice must also reference an individual’s right to file a charge with the Illinois Department of Human Rights.

Illinois employers should review the Amendments against their current onboarding, screening, and adverse action practices in consultation with their legal counsel. In addition, Chicago employers should review and consider any practices in place to comply with the city’s Human Rights Ordinance, as the state requirements are more exacting in that they apply to current employees as well as applicants, require individualized assessments by private employers, and require employers to denote the reason for potential disqualification on both initial and final adverse action notices.

Sterling clients should contact their account representative if they would like to make updates to their services to more closely align with the requirements of the Amendments, such as modifying their adverse action settings and notices.

In addition to amending the Illinois Human Rights Act, SB 1480 also amends the state’s Business Corporation Act to require applicable businesses to include data substantially similar to that included in Section D of their EEO-1 filing in their annual report to the Secretary of State, and Equal Pay Act to require certain businesses to apply for equal pay certificates and submit compliance statements to the Director of Labor. Employers should similarly review these updates and consult with their counsel on the potential impacts to their business.

The full text of SB 1480 can be found here.

The Information contained herein is for informational purposes only. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice. Clients are encouraged to consult with their legal counsel about the impacts of any requirements. This and other important legislative updates can be found on the Sterling website: www.sterlingcheck.com/resources/compliance-updates/.

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