Arrest Record Discrimination Laws in Illinois

Federal law addresses arrest record discrimination primarily through Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) and the Fair Credit Reporting Act (FCRA, 42 U.S.C. § 1681 et seq.). The EEOC has issued guidance stating that employers cannot categorically exclude individuals with arrest histories, as such blanket policies disproportionately impact protected classes and violate Title VII. The FCRA requires that employers obtain written consent before conducting background checks and must provide notice and opportunity to dispute inaccurate information.

Under federal law, arrests resulting in no conviction have limited relevance to employment decisions. The EEOC considers arrest records alone (without conviction) as generally unreliable indicators of criminal conduct. Federal law applies to employers with 15 or more employees. The EEOC enforces these provisions and can award back pay, front pay, damages, and attorney fees. However, federal law does not explicitly protect against arrest record discrimination; the protection emerges from disparate impact and class-based discrimination theories. Employers with fewer than 15 employees are not covered by Title VII, creating a significant gap in federal protection.

Illinois law provides substantially stronger protection against arrest record discrimination than federal law. The Illinois Human Rights Act (775 ILCS 5/1-101 et seq.) explicitly prohibits discrimination based on arrest records, not just convictions. Under Section 2-103 of the IHRA, it is unlawful for an employer to refuse to hire, discharge, or otherwise discriminate against an individual because of an arrest record that did not result in conviction.

Illinois' reach is broader than federal law. The IHRA applies to employers with as few as one employee, whereas Title VII requires 15 or more. This means virtually all Illinois employers—including small businesses—are covered by state law. The statute goes beyond federal standards by explicitly stating that an arrest record standing alone is insufficient grounds for adverse employment action. Illinois also recognizes that arrests disproportionately affect certain communities and therefore treats arrest-based discrimination as inherently suspect.

Illinois employers must conduct an individualized assessment if they consider an arrest record in any employment decision. The employer must demonstrate that the arrest record is directly related to the specific job duties and that refusal to hire or termination is necessary for the safe and efficient operation of the business. This is a higher bar than federal disparate impact analysis. Additionally, the Illinois Conviction Information Act (20 ILCS 2630/2630-325) restricts employer access to sealed and expunged records—employers may not use sealed or expunged arrests or convictions against applicants or employees.

Remedies under Illinois law include compensatory damages (including emotional distress), punitive damages (when discrimination is willful or malicious), back pay, front pay, reinstatement, injunctive relief, and attorney fees and costs. The Illinois Department of Human Rights enforces the statute with powers that include investigation, attempted conciliation, and civil action. Employees also have a private right of action to sue in state court under the IHRA.

Illinois law contains limited explicit exceptions to arrest record protection, but important nuances exist. First, conviction records (as opposed to arrest records alone) receive different treatment—employers have broader discretion to consider convictions using individualized assessment, particularly for jobs involving public safety, children, or vulnerable populations. Second, sealed and expunged records are protected from employer access; employers who access sealed records without court authorization may face additional liability.

However, a critical exception arises from the individualized assessment requirement itself: if an employer can demonstrate that an arrest record is directly related to the essential functions of the job and that exclusion is necessary for safe operation, the employer may lawfully consider it. For example, an arrest for embezzlement may be job-related for a bank teller position, though the employer must still conduct individualized review rather than apply a blanket policy. The exception does not apply to categories of arrests unrelated to job duties.

At-will employment principles apply in Illinois, but they cannot override anti-discrimination law. An employer cannot fire an at-will employee for an arrest-based reason that violates the IHRA, even though it could ordinarily fire for any non-discriminatory reason. Federal contractor exceptions and government employment may operate differently under federal rules, though Illinois law typically applies concurrently.

Another important limitation: the IHRA exception for religious institutions in hiring ministerial positions does not extend to arrest record discrimination. Additionally, employers relying on third-party background check companies remain liable for compliance; contracting with a background check vendor does not shield the employer from liability if the vendor obtains sealed records or if the employer uses information unlawfully.

Step 1: Document the Discriminatory Act. Immediately record the date, time, location, and specific words or actions constituting the alleged discrimination. If your arrest record was mentioned in a job rejection letter, interview feedback, termination notice, or email, save those documents. Take screenshots or obtain copies of any employment records, performance reviews, or communications showing your arrest record was considered. Write down the names and titles of all witnesses. Keep a contemporaneous log of any retaliatory conduct following your complaint. If you were denied a job, note exactly what the employer said about your arrest record. If you were fired, document whether management referenced your arrest record and when.

Step 2: Understand the Internal Complaint Process. Many employers have internal complaint procedures; however, Illinois law does not require you to exhaust internal remedies before filing with IDHR. If your employer has an HR complaint process, filing internally can create a paper trail and demonstrate good faith, but it is not mandatory. Sending a written complaint to HR documenting the arrest-based discrimination is advisable if you feel safe doing so. Keep a copy of any internal complaint you file and all responses from the employer. Be aware that retaliation for filing an internal complaint is itself unlawful under the IHRA. However, you are not required to risk retaliation by complaining internally first; you may proceed directly to IDHR.

Step 3: File a Complaint with the Illinois Department of Human Rights. You must file within 180 days of the discriminatory act. Visit the IDHR website at cyberdriveillinois.com/departments/index/civil_rights or contact IDHR directly at 217-785-5100 (Springfield office) or 312-814-6200 (Chicago office). Alternatively, file by mail: Illinois Department of Human Rights, James R. Thompson Center, 100 W. Randolph St., Suite 10-100, Chicago, IL 60601. Provide detailed information including your name, address, phone, employer's name and address, date of the alleged discrimination, description of what happened (mentioning your arrest record was the reason), witnesses, and copies of supporting documents. You may file online through their complaints portal or by mail. The complaint must be in writing; phone complaints are not accepted for filing purposes, though IDHR staff can assist you by phone.

Step 4: Expect the Investigation Process. IDHR will acknowledge receipt of your complaint within 10 days. An investigator will be assigned and will contact both you and the employer to gather facts. The investigation typically takes 90–180 days but can extend longer in complex cases. IDHR may request documents, interview witnesses, and ask the employer to respond to your allegations. You will receive notice of the investigation outcome. If IDHR finds probable cause to believe discrimination occurred, it will attempt conciliation. If conciliation fails, IDHR can either issue a finding of substantial evidence (allowing you to file a civil action) or seek judicial relief on your behalf. The employer cannot legally retaliate against you for participating in an IDHR investigation.

Step 5: Consult an Employment Attorney. Consider retaining an employment law attorney before filing your complaint, particularly if you were terminated or denied a significant job opportunity. An attorney can help evaluate whether your case has merit, preserve evidence, and strengthen your complaint filing. Illinois employment attorneys often work on contingency (no upfront fee; they take a percentage of recovery), making representation affordable. If IDHR finds probable cause or fails to resolve the matter, an attorney will advise you on filing a civil lawsuit in Illinois state court, where you can seek damages. An employment lawyer will ensure all deadlines are met and all legal theories are properly pleaded.