Chicago’s Amended “Ban the Box” Ordinance Imposes Stricter Criminal History Use and Notification Requirements on Employers

Chicago has amended its “Ban the Box” Ordinance (the “Ordinance”) to further align with Illinois law. The Ordinance, which originally took effect in 2015, provides protections for both prospective and current employees. Historically, the Ordinance restricted when Chicago employers with fewer than 15 employees and certain public employers could inquire about or consider an individual’s criminal record or criminal history. The new amendments, which took immediate effect, expand application of the Ordinance to almost all Chicago employers and impose significant new assessment and notice requirements thereon. The amendments also expressly incorporate into the Ordinance provisions from the Illinois Human Rights Act (IHRA) that prohibit employers from inquiring about or considering an individual’s arrest record. The amendments did not modify the Ordinance’s penalties, however, so employers are still liable for fines of up to $1,000 per violation, license-related disciplinary actions, and potential discrimination charges before the Chicago Commission on Human Relations.

New Employer Coverage

When initially enacted, the Ordinance was only applicable to employers not subject to the Illinois Job Opportunities for Qualified Applicants Act (i.e., employers with fewer than 15 employees and certain public employers). The Ordinance now applies to all employers that have at least one employee and are required to: (1) have a Chicago license to conduct business and/or (2) maintain a facility within Chicago.

New Individualized Assessment Requirements

Similar to the IHRA, the Ordinance now distinguishes employers’ obligations depending on whether the employer intends to consider arrest records or conviction records (both of which are now defined terms).

The updated Ordinance, like the IHRA, prohibits employers from inquiring or using arrest records as a basis for refusing to recruit, hire, promote, renew, train, discharge, or discipline an individual, or for establishing other conditions of employment. Arrest records are broadly defined as: (1) an arrest not leading to conviction; (2) a juvenile record; or (3) criminal history record information that has been expunged, sealed, or impounded. Certain exceptions apply, including when employers use sealed felony convictions during legally required criminal background checks as a basis for evaluating the qualifications or character of a prospective employee.

Also similar to the IHRA, the Ordinance now requires employers to conduct individualized assessments to determine if/when they may rely on conviction records to make an employment decision. Specifically, the Ordinance prohibits employers from taking adverse action against an applicant or current employee based on that individual’s conviction record unless one of the following applies:

• Applicable law requires the exclusion of the applicant or employee from the position based on the conviction record;
• A fidelity or similar bond is required for the position and the individual’s conviction of more than one criminal offense would disqualify them from obtaining the bond;
• There is a substantial relationship between one of more of the individual’s criminal offenses and the employment sought or held; or
• Granting or continuing employment would involve unreasonable risk to the property, safety, or welfare of others or the general public.

In determining whether a “substantial relationship” exists, employers must consider: (1) the length of time since the conviction(s); (2) the number of convictions; (3) the nature and severity of the conviction(s) and its relationship to the safety and security of others; (4) the age of the individual at the time of the conviction(s); (5) the unique circumstances surrounding the conviction(s); and (6) evidence of rehabilitation efforts.

New Notice Requirements

The Ordinance also now implements stricter notification requirements for employers, similar to those outlined in the IHRA. If an employer makes a preliminary decision that the prospective or current employee’s conviction record disqualifies them from employment, the employer must provide the individual with a written notice that contains the following information:

• A description of the disqualifying conviction(s), along with the employer’s reasoning for the disqualification;
• A copy of the conviction record; and
• An explanation of the individual’s right to respond to the notice at least five (5) days prior to the decision becoming final, and that any such response may include, but is not limited to, evidence challenging the accuracy of the conviction record or  mitigating evidence, such as evidence of rehabilitation.

If, after considering any response from the employee or prospective employee, the employer determines that the individual remains disqualified or that adverse action is otherwise justified, the employer must also give written notice to the employee or prospective employee of this final decision. The final written notice must describe the disqualifying conviction(s), identify any internal recourse the individual may have to appeal the final decision with the employer, and state that the individual has the right to file a complaint with the Chicago Commission on Human Relations.