On April 24, 2023, the Chicago City Council voted to amend the city’s ban-the-box ordinance, which restricts when and how private employers may ask about a job applicant’s criminal history. The amendments expand the ordinance’s coverage and impose new compliance obligations on Chicago employers. Many employers that were exempt under the old rules no longer are, and penalties have significantly increased.
What is Chicago’s Ban-the-Box Law?
Chicago enacted its original ban-the-box ordinance in 2014. It prohibited employers from asking applicants about their criminal record until after making a conditional job offer. After that point, employers could only withdraw the offer based on the applicant’s criminal history if they performed an individualized assessment showing the conviction history disqualified the applicant from the position.
The original law only applied to private employers who are located in or do business in Chicago and have 15 or more employees. It did not apply to certain positions, like jobs requiring a government-issued security clearance. Violations carried fines of $500 to $1,000 per offense.
Chicago’s ban-the-box ordinance aimed to improve employment opportunities for individuals with conviction histories. Nationwide, over 70 million Americans have a criminal record. Advocates argue questions about criminal history early in the hiring process disproportionately screen out minority applicants and those who were incarcerated. Ban-the-box laws allow employers to consider criminal records later, but only after judging applicants on their qualifications.
Key Changes Under the Amended Ordinance
The April 2023 amendments significantly expand Chicago’s ban-the-box law. Key changes include:
- Broader employer coverage. The law now covers all private employers who employ one or more employees in Chicago. The prior 15-employee minimum no longer applies.
- Additional banned inquiries. Employers cannot ask applicants to disclose any information about their criminal record before making a conditional offer. This bars not only direct questions, but also indirect inquiries about background checks, bonding eligibility, and the applicant’s willingness to submit to a background check before receiving an offer.
- Strict compliance required. The amendments overhaul the ordinance’s enforcement provisions. Violations now trigger automatic liability, regardless of the employer’s intent. Each discriminatory question or advertisement constitutes a separate offense subject to civil fines.
- Expanded applicant rights. Applicants may file a complaint with the Chicago Commission on Human Rights and file a lawsuit to recover damages and attorneys’ fees if an inquiry violates the law.
What Should Employers Do?
Many small businesses now fall under ban the box rules even though they did not previously. To comply with Chicago’s strengthened ban-the-box rules, employers should:
- Revise job applications and remove any questions about criminal histories, background checks, or bonding.
- Train staff not to ask about or discuss criminal records with applicants until after extending a conditional offer.
- Delay asking applicants to self-disclose their criminal history until the post-offer stage.
- Conduct individualized assessments before withdrawing offers based on conviction histories.
- Review job ads to ensure they do not state applicants must pass a background check or have a clear record.
- For adverse action notices, it is necessary to (1) include the specific reasoning for the disqualification from employment within both the pre-adverse action notice and final adverse action notice; and (2) state within the final adverse action notice that the individual has the right to file a charge within the Chicago Commission on Human Relations.
Chicago’s ban-the-box amendments significantly impact hiring practices. You should review your policies, forms, postings, and training practices to ensure full compliance with the law’s broader prohibitions and increased penalties.
If you are looking for a compliant background check provider, we are happy to help.