Ban the Box Laws in Illinois: Criminal History in Hiring

Illinois' Ban the Box Law (775 ILCS 5/2-103.1), administered by the Illinois Department of Financial and Professional Regulation (IDFPR), is significantly stronger than federal law. The statute applies to all private employers with 6 or more employees and public employers in Illinois. Under the law, employers are prohibited from: (1) requesting that applicants disclose criminal history on written applications; (2) asking about criminal history during initial interviews or communications; (3) conducting criminal background checks before making a conditional job offer; or (4) using any criminal history information obtained in violation of the law as a factor in hiring decisions.

Unlike the EEOC's individualized assessment approach, Illinois law creates an almost absolute ban on early inquiries. Employers are only permitted to inquire about criminal history after extending a conditional offer of employment. Once a conditional offer is made, employers may conduct background checks and ask about criminal convictions directly relevant to the job. However, even after an offer is made, employers cannot simply exclude candidates with any criminal record; they must still apply a case-by-case analysis considering the nature of the offense, time elapsed, job relevance, and other mitigating factors under Illinois' Responsible Hiring Standards (775 ILCS 5/2-103.2).

The law covers private employers with 6+ employees and all public agencies. Remedies include civil liability, injunctive relief, damages (including actual damages and punitive damages up to $250 per violation), attorney's fees, and costs. The Illinois Department of Labor can investigate complaints, and employees may also pursue private lawsuits.

The Ban the Box Law includes several important exceptions where criminal history inquiry is permitted earlier in the hiring process:

(1) Public Safety and Sensitive Positions: Employers may inquire about criminal history during initial application or interview stages if the position involves direct unsupervised contact with children, elderly persons, or individuals with developmental disabilities; positions in law enforcement, corrections, or security; or positions that grant access to controlled substances, firearms, or valuable assets. Examples include teachers, day care workers, nurses, pharmacists, armored car guards, and security officers.

(2) Federal and State Requirements: Inquiries are permitted when required by federal law, state law, or regulatory agency rules. For instance, banking positions subject to federal regulations, positions in gaming establishments regulated by the Illinois Gaming Board, and positions requiring professional licenses (e.g., attorneys, accountants) where the licensing body requires background checks are exempt.

(3) Contractor/Vendor Work: Some courts have interpreted the law as potentially having a narrower application to independent contractors versus direct employees, though this remains contested.

(4) Voluntary Disclosure: If a candidate voluntarily discloses criminal history on an application, an employer may respond to and consider that information, though the employer should still follow individualized assessment standards.

(5) At-Will Employment: The law does not create an implied contract of employment; employers may still decline to hire based on criminal history through proper evaluation, but the timing and process are constrained.

(6) Small Employers: The law does not apply to private employers with fewer than 6 employees, nor to most federal employers (though federal contractors must comply with Executive Order requirements).

Step 1: Document Everything.

Begin documenting any violations of the Ban the Box Law immediately. Keep records of: (1) the job posting and any questions asked on the application form; (2) all written and email communications from the employer or recruiter requesting criminal history; (3) notes from any phone or in-person interviews where criminal history was discussed; (4) the date and time of such communications; (5) the name and title of the person who asked the question; (6) your response and any consequences that followed; (7) copies of your conditional job offer (or lack thereof); (8) any background check authorization forms or disclosure documents; (9) the timeline from application to conditional offer to background check request. Store these documents securely and consider photographing or digitally backing them up.

Step 2: Internal Complaint Process.

Before filing an external complaint, attempt an internal resolution if safe to do so. Send a written complaint (email or certified letter) to the employer's Human Resources department or management, clearly stating: (1) the date and nature of the prohibited inquiry; (2) the name of the person who made the inquiry; (3) how it violated Illinois law (citing 775 ILCS 5/2-103.1); (4) the impact on your application or employment; (5) a request for remediation (e.g., reinstatement of application status, reconsideration without criminal history inquiry, or damages). Maintain a copy of this complaint and any response. The employer is required to have anti-discrimination policies in place; check your employee handbook or company intranet for the formal grievance procedure and follow it precisely. Document the outcome and any retaliation.

Step 3: File a Formal Complaint.

You have multiple filing options:

(A) Illinois Department of Financial and Professional Regulation (IDFPR): File a complaint with the Civil Rights Bureau at the IDFPR, which investigates violations of the Illinois Human Rights Act (including the Ban the Box Law). File at https://www2.illinois.gov/dfipr/bos/Pages/default.aspx or submit a complaint form to the Civil Rights Bureau, Department of Financial and Professional Regulation, 160 North LaSalle Street, Suite 300, Chicago, IL 60601. Phone: (877) 236-4564 or (312) 814-6269. Include in your complaint: your name, address, and contact information; the employer's name, address, and number of employees; a detailed description of the prohibited inquiry and when it occurred; the names of witnesses; copies of all relevant documents (application, emails, offer letter, background check forms); the statute citation (775 ILCS 5/2-103.1); and a statement of the relief sought. There is no explicit filing deadline in the statute, but the IDFPR typically operates under a 300-day rule similar to EEOC deferral state rules (though Illinois is not technically a deferral state for Title VII claims).

(B) Private Civil Action: You may file a lawsuit directly in Illinois Circuit Court without first filing with the IDFPR. Consult an employment attorney to draft the complaint and file it in the appropriate county court. The lawsuit should cite 775 ILCS 5/2-103.1 and seek compensatory damages, punitive damages (up to $250 per violation), injunctive relief, attorney's fees, and costs. No mandatory pre-suit administrative filing is required for a private action under the Ban the Box Law, unlike discrimination claims under the Illinois Human Rights Act.

Step 4: Investigation and Process Expectations.

If you filed with the IDFPR, the agency will: (1) intake your complaint and verify it is timely; (2) send a copy to the employer and provide an opportunity to respond (typically 30-45 days); (3) conduct a preliminary investigation to determine probable cause that a violation occurred; (4) if probable cause is found, the case may proceed to conciliation or mediation; (5) if no settlement is reached, the IDFPR may refer the case to the Illinois Human Rights Commission (IHRC) for a public hearing before an administrative law judge (ALJ); (6) the entire process typically takes 1-2 years from filing to potential hearing. Expect to be contacted for follow-up questions and to provide additional documentation. You will be required to participate in any conciliation efforts.

If you filed a private lawsuit, the case will proceed through Illinois discovery, motion practice, and potentially trial. Your attorney will subpoena the employer's hiring records, interview witnesses, and file pleadings. The employer may file a motion to dismiss; if they do, your attorney must respond. Timeline for resolution is typically 2-4 years, though some cases settle earlier.

Step 5: When to Consult an Attorney.

Consult an employment law attorney immediately if: (1) the employer has retaliated against you (denied the job, terminated employment, or harassed you after you raised concerns about the violation); (2) you suffered significant damages (loss of job opportunity, emotional distress, future earnings impact); (3) the employer has more than 6 employees and intentional violation is clear; (4) you believe this is part of a pattern of discrimination; (5) you intend to file a private lawsuit rather than pursuing administrative relief; (6) the IDFPR investigation has stalled or you disagree with their findings. Many employment law firms in Illinois offer free initial consultations. Seek attorneys licensed in Illinois who specialize in employment law and ban-the-box violations. The attorney can evaluate the strength of your claim, advise on damages, and represent you in settlement negotiations or litigation. Under the statute, prevailing plaintiffs may recover attorney's fees, which incentivizes attorneys to take these cases.