The Illinois Human Rights Act (“the Act”) prohibits discrimination against employees based on race, color, religion, sex, disability, national origin, marital status, sexual orientation and military status. The Illinois Department of Human Rights (“IDHR”) and the Illinois Human Rights Commission (“the Commission”) are the state administrative agencies traditionally responsible for enforcing the Act. In years past, employees were limited to a single administrative course of action by filing a charge with the IDHR, which would investigate the charge and determine whether there was substantial evidence to support it. Where substantial evidence was found, a formal complaint would be filed with and litigated solely before an Administrative Law Judge of the Commission. Claims without substantial evidence would be dismissed. However, 2008 amendment to the Act have given employees a new forum: Illinois circuit courts.
Although charges of discrimination must still initially be filed with the IDHR, employees now have the opportunity to demand jury trials in state court, regardless of whether the IDHR finds substantial evidence of discrimination. There are several circumstances under which employees may file in state court. The first circumstance is upon expiration of the 365-day period in which the IDHR must complete its investigation and issue its report. Unless the parties agree to an extension of the deadline, the employee has 90 days after the one-year period expires to file their complaint in circuit court. A complaint may also be filed upon notice to the employee of the IDHR’s post-investigation findings. Thus, where the IDHR dismisses a charge for lack of substantial evidence, a complainant may still choose to file a complaint in circuit court within 90 days of the dismissal. Likewise, the employee may also choose to file a complaint in circuit court within 90 days of a finding that there is substantial evidence of a violation.
Perhaps the most significant effect of the amendments is the employee’s right to a trial by jury. Awards before the Commission have traditionally been somewhat miserly, compelling most employees to pursue action in Federal District Court under Title VII of the Civil Rights Act, whenever possible. It is no secret that juries in many Illinois counties have been consistently plaintiff-friendly – much more so, perhaps, than the Commission and Federal District Courts. The tendency of federal judges to dispose of Title VII complaints on summary judgment also makes the option of proceeding in state court even more attractive to employees and their attorneys.
Although the amendments to the Act were made almost two years ago, circuit courts have had little opportunity to feel their effects. Before the amendments, employment litigation took place largely in federal courts or before the Commission. As a consequence, state court judges enforcing the Act are establishing new precedent without the guidance of their predecessors, making the new system somewhat unpredictable.
With the potential for larger jury awards and less risk of losing on summary judgment, many employees will chose to raise employment discrimination claims with the IDHR and proceed to state court under the IHRA, rather than rely on the procedures of the EEOC and subsequent federal court action under Title VII. So what are employers to do? Larger employers who are accustomed to litigation in the federal system should prepare themselves for change and familiarize themselves with the Act. Similarly, employers with less than 15 employees who may already be familiar with the IHRA should be prepared to engage in litigation that is more lengthy and costly than the typical administrative course of action. More importantly, all employers should keep in mind that charges of discrimination can be settled at any point during an investigation. Accordingly, employers should assess the strengths and weaknesses of their defense at an early stage so that any possible settlement may be achieved before a complaint is filed in state court.