EEO Compliance Dispatch

On July 31, Gov. J.B. Pritzker (D) signed the Civil Rights Safeguard Act, which amends the Illinois Human Rights Act to expressly recognize disparate impact liability in the context of employment decisions, among others. The new law will take effect on January 1.

The Act does not create a new legal theory. Disparate impact discrimination has long been recognized, and the concept is simple: in certain circumstances, an employer does not have to intend to discriminate to be liable. Neutral employment practices that disproportionately affect members of a protected group can still result in liability.

The Act makes it a civil rights violation for an employer, employment agency, or labor organization to use employment criteria or methods, including practices or policies, that disproportionately affect individuals of a protected class.

“Protected classes” include actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, reproductive decisions, and unfavorable discharge from military service. They also include citizenship and work authorization status, family responsibilities, arrest record, and conviction record.

The Act applies to employment decisions, as well as public accommodations and applications for credit.

An employer may defend a challenged practice by showing that it is job-related and consistent with business necessity. However, a complainant may still prevail by showing that the employer’s needs could have been served by another practice that had less of a discriminatory effect.

This change to Illinois law was prompted by the federal government’s shift away from enforcing disparate impact liability and a desire to ensure protections exist at the state level.  

The Illinois Human Rights Act already recognizes disparate impact in housing, and since January 1 of this year, Illinois employers have been prohibited from using artificial intelligence in employment decisions when the use of AI has a disparate impact based on a protected class.

The new Civil Rights Safeguard Act adds an express disparate impact standard that applies to employment criteria and methods.

What should Illinois employers do now?

Employers should not need to overhaul every workplace policy. Instead, they should look at the practices that affect who is hired, promoted, disciplined, and retained. Hiring criteria, screening and assessment tools, promotion requirements, attendance rules, background checks, and physical requirements are good places to start.

For practices in these areas, employers should be able to answer three questions:

No. 1: Why did we adopt this policy or practice?

No. 2: What does this policy or practice actually achieve?

No. 3: Is our policy or practice job-related and consistent with business necessity, and if so, can we prove it?

If the answer to the first question is “we’ve always done it that way,” that is a good reason to examine it closely. Employers should understand the business purpose behind the requirement, whether it is actually connected to the job or employment decision, and if there is adverse impact, whether the same objective could reasonably be accomplished another way.

Employers should also pay attention to their data. A neutral policy can produce very different results in practice. The same is true for third-party screening and assessment tools. Using a vendor to help make an employment decision does not eliminate the need to understand how the process works or what results it produces. For employers already evaluating their practices for adverse impact, much of this will be familiar.

Illinois has made its position clear, and employers have several months before the new law takes effect. That is enough time to ask the important questions now, rather than later in response to a complaint.

For guidance or assistance in this area, please contact a member of Constangy’s EEO/Contractor Compliance, Reporting & Analytics Practice Group or an attorney in our Chicago, IL office.