If you have a criminal record, applying for jobs can be stressful. Many people worry that their past mistakes will follow them forever, making it hard to find work. But in Illinois, the Illinois Human Rights Act (IHRA) provides important protections that limit how employers can use your criminal history when making hiring, firing, and promotion decisions.
This guide will explain everything you need to know about your rights, including what employers can and cannot do, how to recognize discrimination, and what to do if you believe you’ve been treated unfairly. If you think your criminal history has been used against you illegally, don’t hesitate to contact our firm for legal help.
What Does the IHRA Say About Criminal History Discrimination?
Under the Illinois Human Rights Act (IHRA), it is illegal for most employers to use your criminal history as the sole reason to refuse to hire, promote, or retain you unless certain conditions are met. This law applies to both job applicants and current employees.
The IHRA doesn’t completely ban employers from considering criminal records, but it sets strict rules about how and when they can do so. Employers must follow a process to ensure they are not unfairly discriminating against people with criminal histories.
Who Is Protected Under the IHRA?
You are protected under the IHRA if you are:
- Applying for a job in Illinois
- Currently employed in Illinois
- Seeking a promotion or transfer within your company
The law applies to both private and public employers with one or more employees. Some exceptions exist for certain sensitive jobs, like law enforcement or positions that require background checks under federal law.
When Can an Employer Consider Your Criminal History?
Employers in Illinois can only consider your criminal history in limited situations. They must meet two key conditions:
- The Criminal Offense Has a Substantial Relationship to the Job: This means the nature of the crime is directly related to the duties of the job. For example, a theft conviction might be relevant for a job handling large amounts of cash, but not for a job in construction.
- Unreasonable Risk: If hiring you would pose an unreasonable risk to the safety of people, property, or the business itself, the employer may consider your criminal record.
Important: Employers must consider these factors before making an employment decision based on your criminal history. They cannot automatically reject you just because you have a record.
What Is a “Substantial Relationship”?
The IHRA defines a ”substantial relationship” as a connection between the job and the criminal offense based on:
- The nature of the job: What tasks will you perform? Will you handle money, confidential information, or vulnerable populations?
- The specific offense: What was the crime? How serious was it?
- How much time has passed: Was the conviction recent or many years ago?
- Evidence of rehabilitation: Have you completed programs, maintained steady employment, or demonstrated personal growth since the conviction?
Employers must consider these factors carefully and cannot rely on blanket bans like “no felons allowed.”
What Is an “Unreasonable Risk”?
An unreasonable risk exists when hiring someone with a specific criminal history would likely put others in danger. For example, hiring someone with a recent DUI conviction to drive a school bus could be seen as an unreasonable risk.
However, employers cannot make assumptions. They must have a factual basis for claiming you pose an unreasonable risk, not just a gut feeling.
What Is Illegal Under the IHRA?
Here’s what employers cannot do under the IHRA:
- Automatic Disqualification: Employers cannot automatically reject applicants because of a criminal record without reviewing the nature of the offense and its relevance to the job.
- No Explanation: Employers cannot deny you a job based on your criminal history without explaining their reasoning.
- Failure to Consider Rehabilitation: Employers must consider positive changes you’ve made since your conviction, such as education, steady employment, or community service.
- Unequal Treatment: Employers cannot treat applicants differently based on race, national origin, or other protected characteristics when considering criminal history.
What Employers Must Do Before Making a Decision
If an employer wants to take action based on your criminal history, they must follow a specific process:
- Conduct an Individualized Assessment: The employer must review your case individually, considering factors like the type of offense, how long ago it happened, and whether it’s relevant to the job.
- Provide a Preliminary Notice: Before making a final decision, the employer must give you a written notice explaining:
- That your criminal record may lead to a job denial or other negative action
- The specific convictions they are considering
- A copy of your criminal history report, if applicable
- Give You a Chance to Respond: You have at least 5 business days to respond with additional information, such as:
- Evidence of rehabilitation
- Details about the circumstances of the offense
- Proof of good character, like references or certificates
- Final Decision Notice: If the employer still decides to take negative action, they must send you a written explanation that includes:
- The final decision
- The specific reasons for the decision
- Information on your right to file a discrimination charge with the Illinois Department of Human Rights (IDHR)
Your Rights as an Applicant or Employee
If you believe an employer has violated the IHRA when considering your criminal history, you have the right to:
- File a Charge of Discrimination: You can file a complaint with the IDHR within 300 days of the discriminatory act.
- Seek Legal Remedies: If the IDHR finds evidence of discrimination, you may be entitled to remedies such as back pay, job reinstatement, or compensation for emotional distress.
- Consult an Attorney: A lawyer experienced in employment discrimination can help you understand your rights, gather evidence, and guide you through the legal process.
How to Recognize Criminal History Discrimination
Here are some signs that an employer may have violated the IHRA:
- You Were Rejected Without an Explanation: If you were denied a job after a background check without receiving a written notice explaining why, this could be illegal.
- No Chance to Respond: If the employer didn’t give you an opportunity to provide additional information about your criminal record, that’s a red flag.
- Blanket Policies: If an employer has a policy like “no felons allowed” or automatically rejects people with certain types of convictions without considering the details, this likely violates the IHRA.
- Inconsistent Treatment: If you find out that others with similar records were hired while you were rejected, this could indicate discrimination.
What to Do If You Believe You’ve Been Discriminated Against
- Document Everything: Keep records of your job applications, interview notes, background check reports, and any communications with the employer.
- Request Written Reasons: If you’re denied a job or promotion after a background check, ask for a written explanation if one isn’t provided.
- File a Complaint with the IDHR: You can file a discrimination charge online, by mail, or in person. You have 300 days from the date of the discrimination to file your complaint.
- Consult an Employment Lawyer: A lawyer can help you build a strong case, negotiate with the employer, and represent you if your case goes to court.
Common Employer Defenses (And How to Counter Them)
Employers may try to justify their decisions with common defenses. Here’s what you might hear – and how to respond:
- “It’s company policy not to hire felons.” Response: Blanket policies are illegal in Illinois. Employers must conduct individualized assessments.
- “Your record shows you’re a risk.” Response: The employer must prove that your criminal history creates an unreasonable risk related to the specific job.
- “We didn’t know about these legal requirements.” Response: Ignorance of the law is not a valid defense.
- “We found something in your background check, but we don’t need to tell you why we’re rejecting you.” Response: The IHRA requires employers to provide a written explanation and give you a chance to respond.
How an Employment Lawyer Can Help
Navigating discrimination laws can be complicated. An experienced employment lawyer can:
- Help you understand your rights under the IHRA
- Review your case and determine if your rights were violated
- Gather evidence to support your claim
- File complaints with the IDHR or in court
- Negotiate settlements or represent you at hearings
If you’ve been denied a job, fired, or treated unfairly because of your criminal history, you don’t have to face it alone. Contact our firm today for a confidential consultation. We’ll help you understand your rights and fight for the justice you deserve.