The state of Illinois should not allow employers to check an applicant’s criminal history if the job seeker was arrested but not convicted, according to a set of recommendations released late last year by the Illinois Disproportionate Justice Impact Study Commission.
The report also recommended that Illinois county clerks and third-party background search firms doing business in Illinois should be held liable for the unauthorized release of information in which a job seeker was arrested but not convicted of a crime.
The Justice Commission was created in 2008 in response to “alarming evidence of disproportionately high rates of drug-related arrests, sentences, and incarceration among minority communities—and especially African-American populations—in Illinois,” according to the commission’s mission statement.
State Sen. Kimberly Lightford (D-4th district) has recently reintroduced SB1284, which would make it clear to employers that it is illegal not to hire a candidate based on an arrest that did not result in conviction.
Even though a provision in the Illinois Human Rights Act addresses this issue, Lightford said many employers do not understand the difference between an arrest and a conviction.
Sen. Lightford, who worked for the Illinois Department of Corrections before being elected to the legislator, said she was inspired to reintroduce the bill after meeting a college graduate who had trouble getting a job because of an arrest in his past.
“Once you get on bad paper, it’s hard to clear yourself,” she said.
Lightford stressed that being convicted of a crime has more serious ramifications than being arrested, and that an employer should know the difference between the two.
“I think it is a barrier to employment,” Lightford said. “I think it shouldn’t be a basis for whether or not you get that job.”
Dr. Terry A. Solomon is the executive director of the Illinois African-American Family Commission. She was one of the appointed members on the Illinois Disproportionate Justice Impact Study Commission.
Other members included Attorney General Lisa Madigan, Cook County Sheriff Tom Dart, and Cook County State’s Attorney Anita Alvarez.
Solomon said it is important to look at the role race still plays in the hiring process.
“African-Americans are disproportionately impacted throughout the criminal justice system,” Solomon said. “And African-Americans are more likely to be arrested for criminal offenses than other racial groups.”
She said this is why it’s important that employers change their applications so that instead of asking an applicant if they have ever been arrested for a crime, the application asks only if they have ever been convicted of a crime.
But Jim Nelson, vice president of communications for the Illinois Manufacturers’ Association, said employers need to be able to know what the person that they’re hiring is capable of doing.
“I don’t think it’s a race issue at all. You deal with the applicant in front of you,” Nelson said.
But there is also the question of how the legislation would be effectively enforced, as it can be difficult to prove that an arrest was the direct reason that a candidate was not hired.
Chicago Attorney Chris Wilmes, who represented workers in hiring cases, said enforcement should not be an issue, because the bill would require an employer to provide a copy of the background check to the candidate.
“Just to make it super clear for employers,” he said.
Wilmes said it would work in the same way as a new federal law called the Fair Credit Reporting Act, which states that if an employer uses a background check to deny someone a job, they have to first provide the individual a copy of the report.
“I would submit to you that I’ve represented at least a dozen people in discrimination claims where it seemed pretty clear to me what the reason was that somebody got denied a job,” Wilmes said.
He said background checks are fairly expensive—between $20 and $30—and companies typically will not order a background check unless they are seriously considering a candidate.
Margaret Stapleton is an attorney for the Sargent Shriver National Center on Poverty Law who worked with Sen. Lightford to develop the legislation.
Stapleton said, while some employers may be initially resistant to the bill, it would ultimately help employers better understand the current law.
“Some employers don’t like to be told that they can’t do something,” she said. “But I think many employers would appreciate the clarification here.”
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