Illinois “Ban The Box” Law – Best Practices for Employers

As discussed in related articles in the Workplace Report, the “Ban the Box” law effective January 1, 2015, prohibits prescreening a job applicant’s criminal history.  However, the Act does not prohibit an employer from basing employment decisions in part on an applicant’s criminal history.  Nevertheless, employers should be aware that the Equal Employment Opportunity Commission (EEOC) has issued specific guidance on this issue. In the Guidance, the EEOC explains that federal law does not prohibit employers from asking a potential candidate for employment about prior criminal history.  However, the EEOC, building on its existing case law, suggests that an employer’s use of criminal history in hiring decisions may under certain circumstances violate Title VII of the Civil Rights Act of 1964, as amended.

Title VII prohibits employers from using policies or practices that screen individuals based upon criminal history information if those policies have a disparate impact upon employees based upon race, color, religion, sex or national origin, and if they do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

In light of the new “Ban the Box” Law in Illinois, employers should take the opportunity to review their recruitment and hiring procedures, including job application forms, and ensure that they are in compliance with the Act and other applicable laws.

If an employer believes that an applicant’s criminal conviction is relevant to hiring decisions, the basis for that policy should be clearly articulated in a written guideline, including the particular types of convictions that are relevant, and how they are related to performance of the particular position.  All supervisory and human resource personnel should be made aware that these inquiries are prohibited early in the interview process.

Finally, every step should be taken to ensure that the information collected is confidential.