On August 13, 2018, Illinois Governor Bruce V. Rauner vetoed legislation that would have lowered the threshold requirement for liability under the Illinois Human Rights Act (IHRA) from 15 employees to one. The Legislature returns for the veto session next month, although an override is considered unlikely.
The IHRA, 775 ILCS 5/1-101 et seq., is the primary anti-discrimination statute in Illinois. It prohibits discrimination with respect to employment, financial credit, public accommodations, and real estate transactions on the bases of race, color, religion, sex (including sexual harassment), national origin, ancestry, military status, age (40 and over), order of protection status, marital status, sexual orientation (including gender-related identity), unfavorable military discharge, and physical and mental disability. The IHRA also prohibits sexual harassment in education, discrimination because of citizenship status and arrest record in employment, and discrimination based on familial status in real estate transactions. It is administered by the Illinois Department of Human Rights (IDHR).
The IHRA presently applies to employers "employing 15 or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation[.]" 775 ILCS 5/2-101(B)(1)(a). A proposed amendment to the IHRA had the potential to upend employment law in the state and subject a wider range of employers to potential liability.
On February 6, 2018, Rep. Will Guzzardi (D) filed HB4572, seeking to amend the IHRA. It passed both houses in May and provides that "employer" includes any person employing one, instead of 15 or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation.
On August 23, 2018, Governor Rauner vetoed that legislation, stating that the current 15-employee threshold mirrors the federal definition of employer in Title VII of the Civil Rights Act, the Americans with Disabilities Act, and other anti-discrimination statutes enforced by the U.S. Equal Employment Opportunity Commission. In his veto, Rauner wrote, "This longstanding and well-reasoned threshold balances the need to foster fair, equitable, and harassment-free workplaces across the state with the lopsided burden that discrimination claims impose upon small businesses and startups, in comparison to large organizations with in-house compliance, human resources, risk management, and litigation defense functions. . . Moving away from federal best practices and Illinois' own current practices will discourage business creation, while maintaining greater consistency with this standard provides small businesses with predictability in their compliance efforts, and recognizes the distinct challenges that liability may pose for them."
Although the Legislature returns for veto session next month, override is considered unlikely. Should HB4572 become law over the governor's veto, the implications for the employment landscape in Illinois will be profound. Not only will it subject established small businesses to liability under the IDHR but will certainly factor into start ups' calculus in determining whether and where to launch their businesses. It likely will also further clog an already-backlogged IDHR.
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