by Maureen A. Lemon
Recent amendments to the Illinois Human Rights Act limit the ability of most Illinois employers to use an individual’s criminal conviction record as a disqualifying reason to deny employment to that applicant. As explained below, Illinois school districts may continue to deny employment to individuals who have been convicted of specific crimes. However, school districts must now provide such individuals greater due process before denying them a job due to a disqualifying criminal conviction.
Illinois school districts may employ only individuals who are of ‘good character.’ Section 10-21.9(c) of the Illinois School Code prohibits Illinois school districts from employing individuals who have been convicted of one of the criminal offenses listed in 105 ILCS 5/21B-80(c), including enumerated sex offenses, first degree murder, or a Class X felony. (105 ILCS 5/10-21.9(c)) An individual who has been convicted of a drug offense is precluded from being employed in an Illinois school district until at least seven years have passed since the end of the sentence related to the drug offense.
To ensure that individuals disqualified by a prior criminal conviction are not employed in schools, each school district must complete a criminal history records check on each employee and each student teacher in the district. The check consists of two parts:
- Performing a fingerprint-based criminal history records check on each person employed within the district and student teachers. The check must be completed through the Illinois State Police database for an individual’s Criminal History Records Information (CHRI) and through the Federal Bureau of Investigation’s national crime information databases.
- Checking the following two Illinois offender databases for each applicant being considered for employment and, if hired, repeatedly at least once every five years throughout the individual’s employment: The Statewide Sex Offender Registry and the Statewide Murderer and Violent Offender Against Youth Registry. The school district must ensure that these same checks are completed on contracted individuals with daily, direct contact with students.
Since 2010, it has been a violation of the Act for an employer to base employment decisions on an individual’s arrest unless the employer had information indicating that the person actually engaged in the conduct for which they were arrested. 775 ILCS 5/2-103. Effective March 23, 2021, the Act was amended by adding a section on “Conviction Records.” 775 ILCS 5/2-103.1. It is now a civil rights violation for any employer to use a conviction record as a basis to refuse to hire or take other adverse employment action against an individual.
Three exceptions to the general rule regarding the use of conviction records are when (1) there is a substantial relationship between one or more of the previous crimes and the employment sought or held; (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; or (3) otherwise authorized by law.
While the first two exceptions may be invoked in certain scenarios (e.g., a payroll clerk has been convicted for embezzlement), the third exception remains a key exception for school districts to invoke. Because the Illinois School Code explicitly prohibits certain individuals from being employed by school districts due to certain conviction records, this new law regarding criminal conviction records will not have a significant impact on whom the School District can hire. Yet, the recent amendment to the Act requires ALL employers to send written notice to a job applicant of a preliminary decision that the applicant’s conviction record disqualifies the candidate from employment, and to provide the job applicant an opportunity to correct the conviction record.
For purposes of this new requirement, a “conviction record” is defined as any “information indicating that a person has been convicted of a felony, misdemeanor New Conviction or other criminal offense, placed on probation, fined, imprisoned, or paroled, . . .”
Once a preliminary decision is made that a conviction record disqualifies an applicant from employment, the written notice to the applicant must contain:
- The applicable conviction(s) and the employer’s reasoning for disqualifying the applicant;
- A copy of the conviction history report; and
- An explanation of the applicant’s right to respond before the preliminary decision is final. The response may include, but is not limited to, challenging the accuracy of the conviction record or presenting mitigation evidence. (775 ILCS 5/2-103.1(C)(1) and (2)).
The employee/applicant shall be given at least five business days to respond, after which time the school district must consider any information submitted by the applicant before making its final employment decision. If the school district decides to disqualify or take adverse action against the applicant, the school district must send written notice of its final decision to the candidate. This notice must include:
- The disqualifying conviction(s) and reasoning for the employment decision;
- Any internal procedure to challenge the employment decision; and
- The right to file a charge with the Illinois Department of Human Rights. (775 ILCS 5/2-103.1(3))
While these recent amendments may not result in different employment decisions, they will result in additional paperwork for your Human Resource Department. We are available to assist you to interpret background checks, determine if a particular conviction record disqualifies an individual from being employed within the school district, and prepare the preliminary and final notices required by the recent amendments to the Illinois Human Rights Act.