For nearly a decade, Chicago has maintained a "ban-the-box" ordinance restricting employer's use of criminal records in employment screening. This ordinance largely mirrored the requirements of Illinois' state-wide Job Opportunities for Qualified Applicants Act (JOQAA), albeit with some important differences.

Illinois law on this subject has since been amended substantially, and on April 24, 2023, the City of Chicago followed suit by publishing an amended ban-the-box ordinance that takes immediate effect. Chicago's new ordinance: (1) creates a new individualized assessment requirement; (2) requires a pre-adverse and final adverse action notice when employers are assessing criminal records; and (3) requires additional language in an adverse action notice.

Prior Restrictions

Since 2015, Chicago's ban-the-box ordinance has placed restrictions on employers similar to those imposed by the Illinois JOQAA, but with three key departures:

First, Chicago's ordinance has an expanded scope, applying to employers of any size with a business facility within the City of Chicago, or to those employers subject to Chicago's licensing requirements. The Illinois JOQAA, on the other hand, applies only to employers with 15 or more employees.

Second, employers must inform applicants of the basis for a rejection if that decision is based in whole or in part on the applicant's criminal history.

And third, the Chicago ordinance provides steeper penalties, including fines of up to $1,000 per violation, and license-related discipline.

New Chicago Requirements

In mid-2021, amendments to the Illinois Human Rights Act went into effect, which supplement the JOQAA's requirements and place additional obligations on employers operating within the state. The new Chicago ban-the-box ordinance followed suit, and now imposes three new key requirements on employers:

First, an employer may base an adverse employment action on an individual's criminal conviction record only if (1) there is a "substantial relationship" between the individual's criminal offense(s) and the job sought or held; or (2) based on the individual's criminal offense(s), the employer believes that the individual poses an unreasonable risk to the property or safety of the company's workforce, customers, or members of the public. In making this determination, the employer must perform an "individualized assessment" and consider several mitigating factors, including:

• the length of time since the conviction;
• the number of convictions that appear on the conviction record;
• the nature and severity of the conviction and its relationship to the safety and security of others;
• the facts or circumstances surrounding the conviction;
• the age of the employee at the time of the conviction; and
• evidence of rehabilitation efforts.

In addition, the amended ordinance also requires that employers provide a "pre-adverse action notice" and "final adverse action notice" to any individual subject to an adverse employment decision on the basis of criminal history whether the criminal history information comes from a background report, the candidate, or both. Many employers will be familiar with this process, as the federal Fair Credit Reporting Act (FCRA) requires these notices when using third-party background screening vendors to conduct criminal history checks. But the new Chicago ordinance also requires employers to: (1) include the employer's specific reasoning for the disqualification from employment within both the pre-adverse action notice and final adverse action notice; and (2) state within their final adverse action notice that the individual has the right to file a charge within the Chicago Commission on Human Relations.

Recommendations for Employers

Similar to the Chicago ban-the-box ordinance when originally enacted, the new Chicago ordinance is designed to mirror the requirements of Illinois law. Chicago employers that are not subject to Illinois' state-wide restrictions, such as those with only 14 employees, must now generally follow the requirements of Illinois law, including conducting an individualized assessment, and providing pre-adverse and final adverse action notices to individuals including the specific language required by the ordinance.

Although multistate employers that comply with the FCRA and Illinois law will already meet the majority of these new requirements, the amended Chicago ban-the-box ordinance creates one notable departure. Multistate employers must update their adverse action notice to include a statement that Chicago residents have the right to file a charge with the Chicago Commission on Human Relations.

All employers operating in Chicago should keep in mind that the expanded penalties imposed by the Chicago ban-the-box ordinance remain present: a failure to fully comply with these new requirements could give rise to a charge of discrimination, fines from the Chicago Commission on Human Relations, and potential licensing issues. Employers operating in Chicago should review their background screening policies and ensure that these new requirements are followed.

Posted: May 11, 2023