Federal and Illinois laws prohibit employers or potential employers from failing or refusing to hire job applicants because of an individual’s actual or perceived:
- national origin
- sexual orientation
- physical or mental disability
- arrest record
- martial status
- genetic information
- concerted activity of employees on terms of employment
- order of protection status
- military status
- unfavorable discharge from military service
- assertion of a workers’ compensation claim
- gender identity and/or expression
Employers are also prohibited from using any form of employment applications or making any inquiry in connection with prospective employment that expresses, directly or indirectly, any limitation, specification or discrimination based on any of the factors stated previously. Unlike federal law, Illinois discrimination statutes apply to Illinois employers with one or more employees. Although anti-discrimination prohibitions seem relatively simple, a significant number of discrimination charges arise from the job interview process. As a result, every company should make sure that the employees who conduct interviews on its behalf have been trained (and are periodically retrained) regarding legal and proper interviewing processes.
Federal and state laws make it unlawful to publish (or cause to be published) an advertisement that indicates, or could reasonably be understood as indicating, an intention by anyone to commit an act of discrimination. Advertisements also may not contain terms or phrases that would deter members of a particular class from applying by implying or expressing a preference for certain types of applicants.
An “advertisement” has been interpreted to include advertising in the media, on the Internet, direct-mail advertising, in-company advertising, and career films. In Illinois, employers are encouraged to contact the Illinois Department of Human Rights (IDHR) if they have a question about whether their advertisement appropriately refers to a protected class or characteristic, and the IDHR may render an informal opinion.
Employers should carefully review their proposed written job advertisements before they are published to ensure that announcements and ads do not directly or indirectly contain discriminatory language. The EEOC’s Compliance Manual advises that the following types of “trigger” phrases should not be placed in advertisements:
- “Recent college graduate desired” (ADEA violation)
- “Zero to one years of experience” (ADEA violation)
- “Young, energetic” (ADEA violation)
- “Young executive position” (ADEA violation)
- “A few good men wanted” (Title VII violation)
- “Hostess or waitress” (Title VII violation)
- “Christian carpenter wanted” (Title VII violation).
In general terms, it is good practice for an advertisement with illustrations to represent both sexes fairly, in both numbers and prominence. If this is not feasible, then the advertisement should include a statement that the employer is an equal opportunity employer, which is sufficiently prominent and clear to counterbalance the message conveyed by the illustration.
The Internet has been touted as breaking down communication barriers and expanding everyone’s ability to seek new opportunities. Although true on many levels, this praise ignores certain realities of the Internet that may be important for employment law purposes:
- Computer use is concentrated among the population segment that is more highly educated and affluent.
- The use of many computer systems and the ability to retrieve and comprehend all the information available on a website may be limited for those who have certain disabilities.
As a result, an organization that relies exclusively or predominately on Internet advertising and recruiting to create a pool of applicants from which hiring decisions are made may face allegations of discrimination and claims of disparate impact. For certain industries, as well as certain positions, the use of Internet recruiting is particularly appropriate.
Example - It is reasonable that a software company or e-commerce company will utilize the Internet as a way to reach potential employees. Similarly, an organization that seeks to hire a systems manager or website developer would likely have the ability to use the Internet listed as an essential function of the job, thereby making Internet recruiting a reasonable tool for locating qualified applicants.
For employers who seek to fill positions unrelated to the Internet, certain cautionary steps should be taken. The following actions may be sufficient recruitment methods:
- Advertising simultaneously on the Internet and other media. This may include newspaper advertising, job hotlines, postings at schools or community organizations or even radio advertising.
- Permitting applicants to respond to the advertisement by means other than the Internet. It is important to remember the challenges faced earlier by employers who would only accept resumes via facsimile. An applicant may learn of a position that is listed on the Internet, but not be able to use the Internet to respond.
- Making screening and hiring determinations based upon the qualifications of the applicant and not on whether the applicant used a particular means of communication to apply.
Once the need for a new employee is established, one of the most important aspects of screening and selecting a new employee is to develop a job description that clearly and accurately defines the essential requirements and functions of the position. In addition to the obvious function of identifying the employer’s hiring needs, the job description also serves an important legal purpose by providing an objective standard by which a prospective employee’s qualification can be measured. A prospective employee who does not meet the standard typically does not have a basis for a claim of unlawful discrimination. The job description also becomes an important document in the event of a dispute between the employer and employee regarding his or her ability to perform the essential functions of the position and, therefore, should be maintained in the permanent employment record.
The employment application is a good starting point from which an employer may identify candidates who likely possess the qualifications to perform the requirements and functions for the position stated in the job description. Whether the employer uses a written application or other means of collecting information, an employer must seek only information that enables the employer to assess if the applicant has the skills and experience to perform the requirements of the job description; if a college degree is not needed, do not advertise the position as requiring a college degree. If an employer chooses to use an employment application, the application should also:
- ask the applicant whether he or she is legally eligible for employment in the United States (not ask if the applicant is a U.S. citizen)
- indicate that it is not an offer of employment or contract, and that, if hired, the employment will be “at-will”
- include a statement that the employer is an Equal Opportunity Employer.
The employment application should not include questions regarding the applicant’s criminal history. The Illinois Job Opportunities for Qualified Applicants Act, also known as “ban the box,” went into effect in Illinois on January 1, 2015. This law prevents companies with more than 15 employees from asking about job applicants’ criminal histories until after they have been deemed qualified for the position and either selected for an interview or given a conditional offer of employment. The act imposes penalties ranging from a written warning for the first violation to up to $1,500 every 30 days for continuing violations.
The employment application should not include questions regarding the applicant’s criminal history. The Illinois Job Opportunities for Qualified Applicants Act, also known as “ban the box,” prevents companies with more than 15 employees from asking about job applicants’ criminal histories until after they have been deemed qualified for the position and either selected for an interview or given a conditional offer of employment. The act imposes penalties ranging from a written warning for the first violation to up to $1,500 every 30 days for continuing violations. Therefore, employers in Illinois should not inquire or consider an applicant’s criminal history in reaching a hiring decision until after the applicant has been deemed qualified for the position and either selected for an interview or given a conditional offer of employment.
Further, the EEOC has taken the position that using conviction records as an absolute bar to employment disproportionately excludes certain minorities from employment opportunities and has advised employers that those records should only be used based on business necessity. Therefore, consideration of prior misdemeanors or felony convictions that are remote in time and/or unrelated to the job duties of the specific position at issue is potentially discriminatory under federal law.
Wage and salary history
The Illinois Equal Pay Act was amended in 2019 to prohibit employers and employment agencies from requesting prior wage, salary, benefit or other compensation history of job applicants as a condition of employment. This information also may not be collected as a screening tool and employers may not seek this information from prior employers of applicants.
If an applicant inadvertently discloses prior compensation history, the employer is not allowed to consider the information when making a hiring decision.
Employers should review their applications and hiring practices to ensure that compensation information is not being solicited.
While employers are prohibited from inquiring about salary history in the application process, they may provide information about compensation for the position applied to and discuss the applicant's salary and benefits expectations for the position.
General interviewing guidelines
Job interviews are conducted to eliminate unqualified employment candidates and to evaluate qualified candidates. Interviews may also, however, intentionally or unintentionally have the effect of denying employment opportunities to members of protected classes or with protected characteristics.
The law, interpreted through court rulings and EEOC decisions, prohibits the use of all pre-employment questions that can disproportionally screen out members of a protected class. Questions should be valid predictors of successful job performance and justified by “business necessity.” Employers should avoid questions on written application forms and during an interview concerning any protected class.
In questioning job applicants, managers should ask themselves:
- Will the answer to the question, if used in making a selection, have the effect of screening out members of a protected class (for example, those with a disability, or of a certain race, gender, sexual orientation, or older than 40 years of age)?
- Is this information really necessary to judge an applicant’s competence or qualifications for the job in question?
Things you should do
- DO ask questions that are job-related. Logically, an employer would only ask these questions on which he/she intended to base a hiring decision.
- DO ask the applicant about prior employment to develop a general work attitude.
- DO ask reasons for leaving prior positions and about gaps in employment history.
- DO ask whether the applicant has any educational background that is pertinent to the position.
- DO ask whether the applicant has any training or experience in the military that is related or useful to the position.
- DO ask whether the applicant is at least 18 years of age.
- DO inform applicants that he or she must, if hired, establish identity and authorization to work in the United States in order to comply with the Immigration Reform and Control Act (IRCA).
- DO inform an applicant that the company is an equal opportunity employer. Ensure that the applicant is aware of the company’s policy that the company does not consider factors such as age, race, national origin, religion, disability, sexual orientation, sex or any other protected category under federal or state law,in any employment decisions.
- DO require the applicant to fill out the application completely, sign and date the application and require the applicant to specify the position(s) applied for and availability.
- DO evaluate the capability of an applicant by using specific, written job criteria, and refer to these criteria when specifying the reason for rejecting an applicant.
- DO document objective reasons for not hiring an applicant.
- DO reduce the number of persons involved in the decision-making and, where possible, limit them to the person who conducts the preliminary interview and ultimate decision maker.
- DO train the interviewer to follow these requirements.
Things you may not do
- DO NOT ask questions regarding race or color. Do not ask:
- “How do you feel about working with members of a different race?”
- “Your supervisor is white (or black, etc.), does that create any difficulties for you?”
- DO NOT ask females different questions than you ask males. Do not ask females:
- “Who watches your children while you’re at work?”
- “Do you get along with other women?”
- “Do you plan to have children (get married, etc.)?”
- “Will it bother you if men swear?”
- “Are you supplementing the household income?”
- DO NOT ask for salary histories or information about salaries or pay rates paid at prior jobs.
- DO NOT ask whether the applicant has been arrested (but to avoid negligent hiring issues, investigating convictions may be necessary) or if the applicant has ever been discharged from the military.
- DO NOT make any notation or comment on the application that indicates, for example, the age, sex, race, color, or physical disability of the applicant (Fair Credit Reporting Act).
- DO NOT ask about the applicant’s credit references, credit history, or home ownership without carefully studying and following the Fair Credit Reporting Act (FCRA).
- DO NOT ask questions regarding religious beliefs, affiliation or holidays, or about the applicant’s church or pastor. For example, do not ask whether an applicant is active in any church or whether an applicant will miss work to attend services on religious holidays.
- DO NOT ask an applicant’s age, either directly or indirectly.
- Example - Date of birth is a direct inquiry. Date of graduation from high school is an indirect inquiry.
- DO NOT ask questions about national origin, either directly or indirectly.
- Example - “Were you born in this country?” is a direct inquiry. “That’s an unusual name. What nationality?” is an indirect inquiry.
- DO NOT ask for the applicant’s “maiden name.” This constitutes a question as to the marital status of female applicants, but not of males. It is acceptable to ask about previous names (without inquiry into reasons for the change, such as previous married name) if previous employers or references would know the applicant by another name.
- DO NOT ask about marital status, regardless of gender.
- DO NOT ask about pregnancy and family plans, name of spouse, spouse’s occupation or place of employment, or names and ages of children.
- DO NOT require the applicant to submit a photograph with the application.
- DO NOT ask about political affiliations, union membership, or sympathies.
- DO NOT ask if the applicant can read, write, or speak a foreign language, unless necessary to perform the job.
The interviewer is encouraged to write out all of the questions that he or she believes are necessary for a sound interview in advance. This list of questions should be used in each interview for the pertinent position. The interviewer is not confined to just these questions and may ask additional questions depending on information provided during the interview. The list, however, helps to ensure consistent questioning amongst candidates and helps the interviewer to respond to an allegation that the questions and focus were different for one applicant to another.
During the interview, the interviewer should feel free to take notes regarding the applicant’s responses to questions and qualifications (directly on the list of questions if possible). Employers may also make notes about an applicant’s:
- general appearance (that is, professional or unprofessional)
- interpersonal communication skills
- other subjective factors concerning the applicant’s ability to perform the job in question.
The interviewer is encouraged to be careful about the type of notes he or she writes down concerning an applicant because such notes likely will be subject to disclosure in any later lawsuit or charge of discrimination. Notes relating directly or indirectly (through codes) to an applicant’s protected status category will be strong evidence of illegal discrimination and must be avoided. Only factors relevant to an applicant’s ability to perform the job should be considered and/or recorded during the hiring process.
Interview questions regarding disabilities
Things you can do
- DO attach a job description to the application form with information about specific job functions, or simply describe the functions to the applicant during the job interview. The interviewer can then ask the applicant:
- “Are you able to perform the essential functions of the job, including attendance requirements, if provided with reasonable accommodations for disability-related reasons?”
- For food handling positions, whether applicant has a listed infectious or communicable disease that is transmitted to others through the handling of food.
- DO ask questions regarding ability to perform all job functions or duties, not merely those functions or duties that are “essential” to the job.
- DO provide information on the employer’s regular work hours, leave policies and any special attendance requirements, and ask if the applicant can meet these requirements.
- DO obtain information about the applicant’s previous work attendance on the application form, during the interview or in reference checks, but questions should not refer to illness or disability.
Things you cannot do
- DO NOT ask whether the applicant ever suffered from or was treated for conditions or diseases presented as a checklist.
- DO NOT ask the applicant to list conditions or diseases for which he/she has been treated.
- DO NOT ask whether the applicant has ever been hospitalized and if so, for what condition(s).
- DO NOT ask whether the applicant has ever been treated by a psychiatrist or psychologist.
- DO NOT ask whether the applicant has ever been treated for any mental condition.
- DO NOT ask whether there is any health-related reason the applicant may not be able to perform the job for which he/she is applying.
- DO NOT ask whether the applicant has had a major illness.
- DO NOT ask the applicant how many days he/she was absent from work because of illness last year.
- DO NOT ask whether the applicant has any physical defects or impairments that preclude him/her from performing certain kinds of work and/or to describe such defects or impairments and the specific work limitations.
- DO NOT ask whether the applicant has any disability or impairments that may affect his/her performance in the position for which he/she is applying.
- DO NOT ask whether the applicant is currently taking any prescribed drugs.
- DO NOT ask whether the applicant has ever been treated for drug addiction or alcoholism.
- DO NOT ask whether the applicant has ever filed a workers’ compensation claim.
Not only should employers not ask an applicant the preceding questions, but they should also not ask an applicant’s references any of these questions regarding the applicant.
What you can and cannot ask
Below is a table with some sample questions in sensitive areas which may be protected under federal or state law. Both improper and proper forms of the questions are provided.
||Applicant's place of residence. How long a resident of this city or state?
||"Do you rent or own you home?"
"Are you at least 18 years of age or older? If not, please state your age."
Dates of education and employment can be asked if used for verification or information given.
"How old are you?"
"What is your date of birth?"
"What are the ages of your children?"
"How old is your spouse?"
Questions asked for the purpose of determining age (date of completion of high school).
Applicants should not be required to produce proof of age in form of birth certificate or baptismal record. This information can be requested after hiring for reasons such as insurance.
If required for job:
"Is there any reason why you cannot work nights or weekends?"
"On occasion overtime work is required, is there any reason why you would not be available?"
Questions regarding refusal or cancellation of bonding.
"Are you pregnant?"
"Are you likely to become pregnant?"
"Who cares for your children?"
"What are the ages of your children?"
"Who will care for your children if they get sick?"
Questions as to the the number of children, plans for future children, views on abortion or birth control are improper.
"In what other cities, states and nations have you lived?"
"Can you, after employment, submit verification of your legal right to work in the United States?"
|Birthplace of applicant or applicant's family is improper if designed to determine national origin of applicant.
"Are you authorized to work in the United States?"
"If you are not a United States citizen, do you have permission to live and work in the United States?"
"Are you a naturalized or native born citizen?"
"What date did you acquire citizenship?"
"Are your family naturalized or native born citizens?"
"On what date did your parents acquire citizenship?"
|Criminal Record/Arrest Record
"Have you ever been convicted of a crime? Please give the details of your conviction."
Questions designed to determine if the conviction relates to a trait necessary to perform the job?
"Have you ever pled guilty or no contest?"
"Have you ever been placed on probation?" (Don't overlook these related issues; however in Illinois, employers are prohibited from disqualifying an applicant whose criminal record has been cleared after serving a term of probation unless they would be working with minor children, in a nursing home, or with people who are mentally ill or mentally retarded.)
Questions related to an individual's criminal record or criminal history cannot be asked until after the applicant has been determined qualified for the position and after the applicant has been notified that he or she has been selected for an interview, or, if there is no interview, until after the conditional offer of employment is made to the applicant.
"Have you ever been arrested?"
Any questions concerning arrests instead of convictions.
The Americans with Disabilities Act (ADA) allows pre-employment inquiries concerning the ability of an applicant to perform job related functions.
Applicants can be asked to describe or demonstrate how they can perform job functions or duties.
Most public and private Illinois businesses are prohibited by the Americans with Disabilities Act from inquiring of an applicant whether he or she has any physical or mental impairment.
Do not ask:
"Do you have a disability?"
"Are you handicapped"
"Do you think a handicapped person could do this job?"
All pre-employment medical examinations and inquiries are prohibited with the exception of a conditional post-offer medical history or examination that is subject to certain requirements.
If related to the job: "Do you possess a valid Illinois driver's license?"
If related to the job: "Do you possess a chauffeur license?"
|Unless there is a job-related reason, applicants should not be required to produce a valid driver's license other than for identity purposes.
||If related to the job: a statement that credit checks are performed on all applicants.
||Questions regarding applicant's current or past arrests, liabilities, or credit ratings, including bankruptcy or garnishments.
All inquiries into the applicant's academic, vocational or educational background, public or private schools, are permissible.
If related to the job: inquiries into grades received, completion of study, course of study and requirements of transcripts.
"Isn't that a girl's school?"
"Is that an all-male institution?"
"Is that a Catholic school?"
||Height, weight and other physical questions can be asked after hiring for business reasons such as insurance.
||Questions concerning height or weight of applicant should not be asked, unless related and proven as a factor relevant to applicant's ability to perform the job.
Inquiries into languages applicant speaks or writes fluently.
If required for the job: applicant can be asked if he or she speaks and/or writes English.
"What is your native language?"
Inquiries into how the applicant acquired the ability to read, write or speak a foreign language.
||"Do you have a family member or relative who works for this company? If so, please identify the person, the relationship, and if known, the person's position with the company."
"Are you married?"
"Do you wish to be addressed as Miss, Mrs., or Ms.?"
"Are you single? Divorced? Separated?"
Inquiries into applicant's military experience in the United States Armed Forces or National Guard.
Inquiries into applicant's service and particular branch of military.
If relevant to the job: "What type of discharge did you receive?"
Type of military discharge should be treated the same as conviction records.
Inquiries into an applicant's military experience other than in the United States Armed Forces or National Guard should be avoided.
||"Have you ever been known by a different name?", "Is additional information concerning a change of name, different names or nick names necessary to enable a check of your work record? Explain."
Applicant's should not be questioned as to their original names or names from a foreign origin.
Do not ask a female applicant her maiden name.
|Notify in Case of Emergency
Name and address of person to be notified in case of an accident or emergency.
It is proper to request this information after hiring.
This information is not related to the job ability. The answer the applicant or employee provides could be the basis for a charge of discrimination (for instance, "contact my mother who lives at the Islamic retirement home").
Requests for emergency contact information should be carefully phrased to avoid responses containing extraneous information. A good rule is to ask for name, address and phone number only.
Inquiry into applicant's membership in job-related organizations that the employer considers relevant to the ability to perform the job.
"Have you ever held any positions of leadership that are relevant to your ability to perform this job?"
|Any questions asking the applicant to list all clubs, societies, lodges and organizations to which he or she has belonged.
||It is permissible to collect a photo of persons after they are hired.
||Photographs should not be taken or collected of applicants prior to hiring.
"Who referred you for a position here?"
Names of persons willing to provide professional and/or character references or applicant.
Questions of an applicant's former employers or acquaintances which list information specifying the applicant's race, color, religion, creed, national origin, handicap, sex, age, or marital status.
Avoid asking a reference anything that would be improper to ask an applicant.
|Race or color
||"Do you have a legal right to live and work in the United States?"
||Questions to applicant's race or color. Any comments or questions concerning complexion, color or skin or coloring.
"What persons (other than your spouse) do you know who work here?
Names of applicant's relatives, other than spouse, already employed by the employer.
"Does your husband work here?"
"Is that female in the warehouse your wife?"
|Religion or Creed
||If related to the job: "Is there any reason why you cannot work overtime or on weekends?"
"Does your religion prevent you from working weekends?"
"What religious holidays do you observe?"
Inquiry into religious denomination, affiliations, parish or church, religious holidays observed.
||Show applicant the job or describe job to applicant and ask if applicant can perform duties required of job.
Questions which indicate applicant's sex, marital status, number or ages of children, provisions for child care, questions about pregnancy, child bearing or birth control.
"Do you live with your parents?"
"With whom do you reside?"
"Are you pregnant?"
|Union Membership or Affiliation
||"Who were your prior employers?"
"Have you ever belonged to a union?"
"At your former employer were you a union member or were the employees represented by a labor union?"
||Any inquiries into prior employment and duties with prior employers are proper, with the exception of salary histories.
||Any inquiries into prior employment and duties with prior employers are proper. Do not request salary histories.
||Any inquiries about workplace safety rules the applicant may have violated.
||Any inquiries regarding prior injuries or claims at work.
||Any reports of violations of law or safety concerns the applicant made, or any times the applicant may have been asked to do something illegal or unsafe and how they responded.
Effective January 1, 2020, employers in Illinois will be restricted under the Illinois' Artificial Intelligence Video Interview Act (AIVIA) in their ability to use artificial intelligence (AI) tools when analyzing job applicants. Employers that ask applicants for positions to record video interviews and use artificial intelligence analysis of the submitted videos must:
- notify the applicant before the interview that AI will be used to analyze the applicant
- provide the applicant with information before the interview explaining how the AI works and what characteristics it uses in the evaluation
- obtain consent form the applicant before using AI
- share the video only with persons whose expertise or technology is necessary to evaluate the applicant
- destroy the video and any copies within 30 days of a request to do so by the applicant.
Recent amendments to the act, effective January 1, 2022, require additional collection and reporting requirements of employers. Information to be collected includes race and ethnicity information for all applicants and all individuals ultimately hired. Starting December 31, 2022, employers must submit annual reports to the Department of Commerce and Economic Opportunity regarding all collected data for the preceding 12-month period ending November 30.
An employer may condition a job offer on the satisfactory result of a post-offer medical inquiry or examination if this inquiry or examination is required of all entering employees in the same job category. A post-offer inquiry does not have to be job related. If an individual is not hired because a post-offer inquiry reveals that the applicant has a disability, however, the reason for not hiring that individual must be job related and necessary for the business or because employing the applicant would be a direct threat to health or safety. The employer also must show that no reasonable accommodation was available that would have enabled this individual to perform the essential job functions.
If an offer of employment has not been extended to an applicant, an employer cannot require an applicant to have a medical examination. An employer may ask the applicant to describe or demonstrate his or her ability to perform the job. An employer can therefore require a physical agility test as long as it is given to all similarly situated applicants regardless of disability. If a test screens out individuals with disabilities, the test must be job related and consistent with business necessity.
If an offer of employment has been extended to an applicant, an employer may conduct medical examinations to obtain any information it believes to be relevant to an applicant’s ability to perform a job. Similar to pre-offer medical inquiries, an employer may condition a job offer on the satisfactory result of a post-offer medical examination if this is required of all entering employees in the same job category. A post-offer medical examination does not have to be job related. If an individual is not hired and a post-offer medical exam reveals that the applicant has a disability, however, the reason for not hiring that individual must meet either one of the following requirements:
The employer also must show that no reasonable accommodation was available that would have enabled this individual to perform the essential job functions.
Recordkeeping requirements and limitations
An employee’s medical information must be kept confidential. The Americans with Disabilities Act (ADA) and the Illinois Human Rights Act (IHRA) recognize narrow exceptions for disclosing limited information to supervisors and managers, first aid and safety personnel, and government officials investigating compliance with the ADA. While the ADA permits the use of medical examinations and inquiries, there are strict limitations on the use of information obtained from such examinations and inquiries. All information obtained from post-offer medical examinations and inquiries must be collected and maintained on separate forms.
Applicant performance and aptitude testing
An employer may decide to use a pre-employment test as a way to predict the future job performance of an applicant. While these tests are legal, employers should use caution.
Example: Pre-employment tests that tend to screen out individuals with disabilities may constitute discrimination under the ADA unless they are job related and necessary for the business.
Tests must accurately reflect the skills, aptitude, or other factors being measured and not the impaired manual, speaking or sensory skills of an applicant with a disability (unless those are the skills the test is designed to measure).
Example: A psychological test is permitted as long as its purpose is to measure honesty, habits, or other traits of an individual applicant not associated with a medical condition. A skills test is also permissible as long as the testing is related to the essential functions of the particular job.
Duty to accommodate
Under the ADA, Americans with Disabilities Act and Illinois law, the duty to accommodate disabilities exists in the development, administration, and scoring of pre-employment tests. The ADA requires employers to select and administer pre-employment tests in a way that ensures that individuals with disabilities have a fair opportunity to demonstrate the job-related skills the tests seek to measure. Employers must offer reasonable accommodations to disabled applicants to enable them to demonstrate their qualifications during the hiring process. An employer does not have to provide an applicant a reasonable accommodation or alternative method of testing, however, if the pre-employment test is measuring skills necessary to perform an essential function of the job.
An employer is allowed to request, in its test announcement or application form, that individuals inform the employer within a specified amount of time before the test period if they require a reasonable accommodation in order to take the test. The employer is also permitted to request documentation of the need for the requested accommodation unless the disability is obvious. The employer then may seek independent verification of the need rather than rely solely on the individual’s treating physician. Should the applicant fail to notify the employer of his or her need for the accommodation before the test, however, the employer is still responsible for providing the accommodation if the individual first becomes aware of the need during the test administration. Because an employer must make a reasonable accommodation for a qualified individual’s known physical or mental limitations, the duty to determine if an employer needs to make a reasonable accommodation is not triggered until there is a request from the applicant.
That said, if the limitation is psychological or psychiatric in nature, the obligation to provide a reasonable accommodation is not limited only to when the employee requests a reasonable accommodation. In these circumstances where the employer has a reasonable basis for believing that the employee does not understand matters well enough to know that he or she should be asking for a reasonable accommodation, the employer will be considered obligated to investigate the issue of a reasonable accommodation and provide one if possible.
Types of accommodation
The testing accommodations must be geared to the particular individual’s needs.
Example: An applicant with dyslexia may be entitled to an oral test unless reading skills are required to perform an essential job function. Likewise, if an applicant is hearing impaired, an employer may need to provide written questions to the applicant instead of conducting an oral interview.
Testing accommodations may include ensuring accessibility to the testing site, providing the test in an alternate format, providing readers or interpreters, or permitting additional time to complete the test.
The employer does not have to implement an accommodation that would impose an undue hardship. An undue hardship is an action requiring significant difficulty or expense based on a variety of factors, including the nature and cost of the accommodation and the overall financial resources of the employer. If more than one possible non-hardship accommodation exists, the employer may choose which one to implement. The employer may select the simpler or less expensive accommodation so long as it provides meaningful equal employment opportunity.
While the choice of the applicant is a primary consideration, employers are not required to provide applicants the accommodation of their choice so long as the accommodation reasonably enables the applicant to perform the test. Employers should keep in mind, however, that the individual applicant’s active participation in identifying and selecting accommodations is an important factor in any lawsuits over accommodation.
Drug and alcohol testing
There is no law in Illinois that either requires or prohibits private employers from testing employees for drugs or alcohol. Both the state and federal laws require employers to:
- publish a statement announcing the drug free workplace policy
- post and distribute notice/statement to all employees involved in contract to work with the state/federal government
- establish a drug free awareness program to inform employees of potential penalties, available counseling, and dangers of drug use in the workplace
- notify the contracting or granting agency of any criminal drug convictions of employees
- impose penalties or require employees to complete a rehabilitation program in response to any such conviction
- assist employees if drug counseling, treatment and rehabilitation are required
- make a good faith effort at maintaining a drug-free workplace.
If federal law does not prevent an employer from issuing a pre-employment drug test, it is not a violation of the ADA for employers to use drug tests to find out if applicants are currently using illegal drugs. Under the ADA, Americans with Disabilities Act, a drug test is not considered a “medical examination” and therefore is not prohibited pre-employment. Alcohol tests, however, are considered medical examinations under the ADA. Therefore, an employer may test for alcohol use only after making a conditional offer of employment. An individual who abuses alcohol may be considered disabled if he or she is a recovering alcoholic. An employer can withdraw the offer based on the test result, however, if failing the alcohol test establishes that the applicant is unable to perform his or her job.
The ADA specifically provides that any applicant who is currently an illegal drug user is not a qualified individual with a disability. People who have been rehabilitated and do not currently use drugs illegally, however, may be protected by the ADA. In addition to having an approved substance abuse testing program, an employer should follow three general requirements for drug tests:
- the drug test must be mandatory for all incoming employees without taking into consideration any specific disability
- the employer must store the information and test results in confidential medical files – separate from the employees’ personnel file
- the results must be in accordance with the ADA as a whole.
If an applicant’s test results are positive for illegal drug use, the employer may ask the job applicant whether he or she uses lawful drugs or if there are other possible explanations for the positive result. The employer’s ability to test is limited to only testing for illegal drugs.
Effective August 1, 2013, Illinois began allowing qualifying patients to receive up to 2.5 ounces of cannabis in any 14-day period. The law, however, does not prohibit employers from adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical cannabis. Employers, may enforce a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner. As discussed below, effective January 1, 2020, recreational cannabis is legal in Illinois, and, as a result, employers will be prohibited from disciplining an employee based on cannabis use that is entirely outside of the workplace or during hours when the employee is not "on call" if the employee is not impaired in the workplace as a result.
Like many employment actions, drug testing can also trigger Title VII claims, which prohibits discrimination on the basis of race, color, religion, sex or national origin. If drug tests are not administered equally, it could generate a claim of discrimination on the basis of one of these protected categories. Accordingly, employers should implement drug-testing policies that are administered across the board, without regard to race or any other protected characteristic. Ultimately, whatever policy is in place must be applied fairly and equally to all employees.
Recreational marijuana use
Effective January 1, 2020, Illinois becomes the 11th state to permit recreational marijuana use. The Cannabis Regulation and Tax Act allows adults In Illinois to possess and consume marijuana. Employers are expressly permitted to adopt and enforce reasonable zero tolerance and drug-free workplace polices, including policies on drug testing, as well as prohibiting the possession or use of marijuana in the workplace or while on call. An employer may also prohibit its employees from using marijuana in order to comply with state or federal funding requirements or contract obligations. But, on the flip side, employers may not base employment decisions on whether an applicant or current employee lawfully uses marijuana off premises and during nonworking or non-call hours, so long as the employee is not impaired in the workplace or during on-call periods. The law requires that cannabis use be treated the same as alcohol and tobacco. In addition, when an employer disciplines an employee based on a belief that the employee was impaired by cannabis at work, the employer must allow the employee an opportunity to rebut the employer's determination regarding the impairment. Failure to do so may provide a basis for the employee to assert a claim under the Right to Privacy in the Workplace Act.
Preserving at-will employment status
Illinois strongly adheres to what is called the “employment at-will” doctrine. “Employment at-will” means that when an employee is hired for an indefinite duration either the employer or the employee may terminate the employment relationship for any reason at all, other than an illegal one. The only exception to this rule is found when an employee can prove that a clear, express agreement existed between the employee and employer restricting the employer’s right to terminate the employee. One common example would be the existence of a written 30-day notice of termination policy, or an agreement that the employee will only be terminated for “just cause.” In either case, the employee has the burden of proving that the communication was made and that the employer failed to follow its terms.
For employers, the employment at-will doctrine is particularly important because it limits the claims for wrongful discharge and breach of contract that can be brought by employees against their former employers. Employers can further protect themselves from such claims by putting clear disclaimers in applications, offer letters, employee handbooks and other published policies, stating that there is no employment contract other than one on a purely “at will” basis, and that employees may be terminated or laid off at any time and for any reason. This will not necessarily prevent a claim based on allegations of fraud or misrepresentation in the hiring process. In Illinois, if the employer intentionally or negligently misrepresents a fact, opinion, intention or law in order to induce the employee to do something and employee does it, and suffers a loss because of it, the employer may be liable for that loss. For these reasons, employers will want to take appropriate steps to make sure that employees understand the terms and conditions of the job being offered.
Verifying employment authorization
Employers must complete a Form I-9 each time any person is hired to perform labor or services in the United States in return for wages or other compensation. Form I-9 helps employers to verify individuals who are authorized to work in the United States. The employee must fully complete Section 1 of Form I-9 at the time of hire (when the employee begins work). The employer must:
- review the employee's document(s)
- fully complete Section 2 of Form I-9 within three business days of the first day of work.
An employer should not hire someone who will not fill out the form. If an employee cannot present the required documents within three days of hire, an employer may terminate that individual if that is the employer’s policy for all employees.
If a person is hired for less than three business days, Sections 1 and 2 of Form I-9 must be fully completed when the employee begins work.
An I-9 is not required for persons who fall into any of the following categories:
- They were hired before November 7, 1986, are continuing in their employment, and have a reasonable expectation of employment at all times.
- They are employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis.
- They are independent contractors.
- They are providing labor to an employer but are employed by another contractor, such as an employee leasing agency or a temp agency.
- They are not physically working on U.S. soil.
The most recent I-9 has a "REV" date of 10/21/2019 on the lower left-hand corner and an expiration date of 10/31/2022 in the upper right-hand corner. It is available for download at:
Discrimination during authorization
Employers should be careful not to engage in unlawful discrimination based on citizenship or national origin when completing the I-9. The United States Citizenship and Immigration Services (USCIS), a bureau of the United States Department of Homeland Security, advises that employers should not do any of the following:
- Employers should not set different employment eligibility verification standards or require that employees because of their national origin and citizenship status present different documents. Each employee must be allowed to choose the documents that he or she will present from the lists of acceptable Form I-9 documents.
- Employers should not request to see employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen.
- Employers should not refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date.
- Employers should not request that, during reverification, an employee present a new unexpired employment authorization document if he or she presented one during initial verification.
- Employers should not limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law, regulation, executive order, or federal, state, or local government contract. On an individual basis, an employer may legally prefer a U.S. citizen or national over an equally qualified alien to fill a specific position, but may not adopt a blanket policy of always preferring citizens over noncitizens.
Employers must retain completed Forms I-9 for three years after the date of hire or one year after the date employment ends, whichever is later. The form may be signed and retained electronically as long as it is legible and there is no change in the name, content, or sequence of the data. If the documentation of eligibility has expired, the employer must reverify the eligibility with the employee and either complete a new I-9 form or complete section 3 of the original form. Form I-9 must be made available for inspection by officials of U.S. Immigration and Customs Enforcement, Department of Labor and Office of Special Counsel for Immigration Related Unfair Employment Practices.
Tax forms and the hiring process
Income tax is withheld from the pay of most employees. Upon hire, each employee must complete an IRS Form W-4, which, once signed and return, should be kept in the employee’s personnel file. The amount of income tax withheld from an employee’s pay depends on the amount the employee earns and the information provided to the employer on the employee’s W-4. Three types of information determine the level of withholding:
- whether the employee withholds at the single rate or at the lower married rate
- the number of withholding allowances the employee claims
- whether the employee requests an additional amount of pay to be withheld.
If an employee does not submit a W-4, the employer is required to withhold at the highest rate as if the employee is single and claims no withholding allowances.
During the course of employment, an employee may experience changes to marital status or other events that necessitate revisions to the employee’s exemptions, adjustments, deductions, or credits that the employee expects to claim on his or her tax returns. In these circumstances, an employee may provide a revised W-4 to change withholding status or the claimed number of allowances. Generally, an employee can also submit a new W-4 whenever he or she wishes to change the number of withholding allowances for any other reason. In all cases, the deadline for an employer putting into effect any changes made by an employee is the start of the first payroll period ending 30 or more days after the employee submits a new or revised W-4.
The W-4 form is available for download at:
Reporting new hires
All employers must report specific information regarding newly hired employees to the Illinois Department of Employment Security. Multi-state employers may report newly hired employees to the state in which they are working or may select one state to which to report all new hires.
This information must be reported within seven days of the first day services are performed for wages by an individual. Even if the employee quits or is terminated within seven days, the report must be filed. For employees who are laid off or on leave and returning to employment, a new report need be filed only if a new Form W-4 is also being filed for that employee.
Employers may report by sending a copy of the employee’s W-4 or a copy of the Illinois New Hire Reporting Form. Employers may also choose to submit information by:
- voice recognition
- magnetic tape
- the new online reporting system found at:
Health insurance notices
All employers covered by the Fair Labor Standards Act (FLSA) must provide information about the new health insurance marketplaces (also called the Health Insurance Exchanges) to current employees (to have been done before October 1, 2013) and to new employees within 14 days of their start date. Model versions of these notices can be found online at