Employers Persist in Asking Improper Criminal History Questions. How Does a Job Applicant Respond?

Recently I was contacted by an individual who was certain an employer had asked him an illegal criminal history question.

The employer had offered the caller a job contingent on “passing” a criminal background check. At the same time, the caller was given an employment application to fill out that included this question:

Have you ever been named a party in a civil or criminal case?

Clever? Sort of. Lawful? Absolutely not. It’s amazing the lengths some employers will go to avoid complying with the legal protections enacted in Illinois to help people overcome barriers to employment due to a criminal background.

This gamesmenship runs the gamut from illegal questions, failing to provide a copy of a background report to the applicant so s/he can verify its accuracy, to ignoring the requirement of giving someone an opportunity to explain their background before withdrawing a job offer due to a criminal record.

The Rules of Engagement: Private v. Public

This remarks in this article apply to private employers. Public sector employers (e.g., state, city, federal agencies) or private employers subject to state/federal regulation (e.g., childcare services), are subject to different guidelines with respect to criminal history inquires.

Criminal History Questions Not Permitted in Illinois

In Illinois, there is only one question a private employer can legally ask: Have you ever been convicted of a crime? Illinois Human Rights Act, 775 ILCS 5/2-103-103.1.

Based on anecdotal evidence, however, employers persist in asking about things they know (or should know) they can’t ask about:

  • Arrests

  • Admissions of guilt (in the absence of a conviction)

  • Convictions that have been sealed or expunged (following a pardon from the governor).

How Do I Respond to a Prohibited Criminal History Question?

How should one respond to an improper criminal history question? There’s only one answer to such a question: NO.

Applicants also have the option of filing a complaint with the Illinois Department of Human Rights, provided they are willing to forfeit a job opportunity with that employer.

In the Future

If you come across a criminal history question you can’t make sense of, I’m happy to help translate its meaning. No one should answer a criminal history question without understanding it.

Over the years I’ve seen my share of poorly drafted and tossed word salad criminal history questions. One such question nearly got a client expelled from medical school. (He’s graduating this year.)

I often tell my clients that there’s no such thing as a dumb question. I wish I could say there’s no such thing as an improper criminal history question.  

Ina Silvergleid