The State of Illinois recently joined a handful of other states that have passed so-called “ban the box” legislation in light of a growing concern by lawmakers that using criminal background information to screen out job applicants before determining whether they are qualified for the position may, in some instances, have an unlawful disparate impact that limits employment opportunities on the basis of race, color or national origin. The legislation is called the “Job Opportunities for Qualified Applicants Act” and it becomes effective in Illinois on January 1, 2015.1 The “box” in question is routinely contained in employment applications requesting that a job applicant “check the box” to disclose any prior convictions for felony or misdemeanor offenses. Studies have shown that one in four adults have a criminal record,2 and that among those individuals with a criminal record, there is a particularly high arrest and incarceration rate for African American and Hispanic men.3 Any employment practice, including a hiring process, that creates a disparate impact based on a protected trait like race or national origin violates federal and state nondiscrimination laws unless the practice is justified by a legitimate, nondiscriminatory business necessity.4 As a result, relying on criminal history to screen out job applicants may inadvertently create a disparate impact based on race, color or national origin and subject an employer to substantial liability.5
Effective January 1, 2015, Illinois joins California, Colorado, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, and Rhode Island as states that have recently enacted “ban the box” legislation.6 The Illinois “Job Opportunities for Qualified Applicants Act”7 prohibits private sector employers in certain situations from asking about an applicant’s criminal record or criminal history on an employment application. The Act applies to an “employer,” which is broadly defined in Section 10 as any person or private entity that has 15 or more employees in the current or preceding calendar year, and any agent of such an entity or person, and it applies to an “employment agency,” which means any person or entity regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.8
Section 15 of the Act contains the key substantive provision: An employer or employment agency may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer or employment agency or, if there is not an interview, until after a conditional offer of employment is made to the applicant by the employer or employment agency.9
It should be noted, however, that the Act is not a blanket prohibition on an employer’s prerogative to investigate an applicant’s criminal history.10 For example, the Act does not apply to positions for which federal or state law prohibits the employment of individuals who have been convicted of certain crimes, or positions for which individuals are licensed under the Emergency Medical Services Systems Act.11
It also exempts employers that require a standard fidelity or equivalent bond where one or more specific criminal convictions would disqualify the applicant.12
Additionally, the Act does not prohibit private sector employers from asking about an applicant’s criminal record, so long as it is after the employer has deemed the applicant qualified and set an interview.13 If the employer makes hiring decisions without an interview, then the employer may not inquire about an applicant’s criminal record until after the employer has made a conditional offer of employment to the applicant.14
The Act will be enforced by the Illinois Department of Labor. If the Department finds that a violation has occurred, the Director of Labor may impose civil penalties that begin with a written warning for the first violation and increase to $1,500 for every 30 days that pass without the employer or employment agency coming into compliance with the Act.15 The Department is authorized to file a civil lawsuit, but no private right of action is specified in the Act.16 All moneys recovered as civil penalties under the Act will be deposited into the Job Opportunities for Qualified Applicants Enforcement Fund, a special fund which is created in the State treasury.17
The Act gives rise to a number of questions that are not easily answered in the language of the Act itself. For example, the Act does not state what it means for an applicant to have been determined “qualified for the position,” such that criminal record questions are then permissible.18
The Act does authorize the Illinois Department of Labor to “adopt rules necessary to administer this Act,”19 and perhaps the Department will publish regulations that clarify this area of uncertainty.
The passage of the Act in Illinois is not surprising given recent regulatory activity by the U.S. Equal Employment Opportunity Commission (“EEOC”) in this area. The EEOC is the federal agency responsible for enforcing laws, such as Title VII of the Civil Rights Act of 1964, that prohibit discrimination in employment.
Due to the significant increase in the number of Americans who had contact with the justice system and the particularly high rates of arrest and incarceration for African American and Hispanic men, the EEOC issued written guidance in April 2012 with a specific focus on criminal background checks.20 The EEOC took the position that while the use of criminal background checks does not per se violate Title VII, it can be evidence of discrimination under either a disparate treatment or disparate impact theory.21 The EEOC stated that if a private or public employer asks about convictions on job application, those inquiries should be “limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”22
In addition to issuing written guidance, the EEOC has brought enforcement actions against employers who use criminal background information in hiring decisions that have a disparate impact on classes protected by Title VII. For example, in June 2013, the EEOC brought Title VII claims of employment discrimination against Dolgencorp LLC, contending that its use of criminal background information in its hiring processes had a disparate impact on African American applicants and as such, violated Title VII.23
The case is pending in the United States District Court for the Northern District of Illinois. Thus, both the EEOC’s revised guidelines and the recent uptick in state-specific legislation indicate that employers must be careful if considering or relying on criminal background information in making hiring decisions. Specifically in Illinois, employers must review their employment applications, and any related pre-employment forms, and either make or plan to make any necessary changes before January 1, 2015.24 Although criminal history need not be ignored entirely, use of that information in the hiring process should be done with care and with full knowledge of the limitations described above with regard to the timing and the manner criminal history information is considered.
1 Public Act 98-774 of the 98th General Assembly (2014).
2 See U.S. Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2012 (Jan. 2014) at Table 1, available at https://www.ncjrs.gov/pdffiles1/bjs/grants/244563.pdf. U.S. Census Bureau, Population Division, available at http://www.census.org/population/age/data/2010comp.html.
3 See Jonathan J. Smith, Banning the Box but Keeping the Discrimination?: Disparate Impact and Employers’ Overreliance on Criminal Background Checks, 49 Harvard C.R.-C.L. L. Rev. 197 (2014).
4 42 U.S. Code § 2000e-2(k)(1), et seq.
5 See id.
6 See Statewide Ban the Box Reducing Unfair Barriers to Employment of People with Criminal Records, National Employment Law Project (July 2014), http://www.nelp.org/page/-/SCLP/ModelStateHiringInitiatives.pdf?nocdn=1; JoelBarras, N.J. Latest State to Limit Employers’ Ability to Ask If Job Applicant Has Criminal Record, FORBES (Aug. 12, 2014), http://www.forbes.com/sites/theemploymentbeat/2014/08/12/newjersey-becomes-latest-to-ban-the-box-prohibiting-employersfrom-inquiring-about-applicants-criminal-record-duringinitial-application-process/
7 Section 1 of Public Act 98-774 of the 98th General Assembly (2014).
8 Id. at § 10.
9 Id. at § 15(a).
10 Illinois employers also should be mindful that the Illinois Human Rights Act prohibits discrimination in employment on the basis of an “arrest record” (see 775 ILCS 5/2-103) and the federal Fair Credit Reporting Act imposes several obligations on an employer’s use of investigative background reports in making hiring or promotion decisions (see 15 USC § 1681 et seq.).
11 Section 15(b)(3) of Public Act 98-774 of the 98th General Assembly (2014).
12 Id. at § 15(a)(b)(2).
13 Id. at § 15(a)
15 Id. at § 20(a)(3).
16 Id. at § 20(b).
17 See id. at § 15(a).
18 Id. at § 15(a).
19 Id. at § 20(d).
20 See EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (April 25, 2012), available at www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
21 See id.
22 See id.
23 See U.S. Equal Employment Opportunity Commission v. Dolgencorp, LLC d/b/a Dollar General, No. 13-cv-04307 (N.D. Ill.).
24 See Section 99 of Public Act 98-774 of the 98th General Assembly (2014).
Jeremy Glenn is a partner in the Labor and Employment Law group at Meckler Bulger Tilson Marick & Pearson. For the past 17 years, Jeremy has represented management in all aspects of the employer-employee relationship. He is the Editor-in-Chief of the Age Discrimination in Employment Law treatise supplement, a member of the senior editorial board for Wage and Hour Laws: A State-by-State Survey, was a chapter author for How to Take a Case Before the NLRB and chairs the ABA subcommittee on the ADEA.
Katelan Little is an associate in MBT’s Chicago office and focuses her practice in the area of labor and employment litigation. Katelan received her J.D. from the Loyola University Chicago School of Law where she graduated magna cum laude, and served as an editor of the Loyola University Chicago Law Journal. Katelan earned her B.A. from Northwestern University, summa cum laude and Phi Beta Kappa, with degrees in history and legal studies.