United States: Recent And Upcoming Changes To The Illinois Human Rights Act

On August 24, 2018, Governor Bruce Rauner signed into law Public Act 100-1066, which makes several significant changes to the Illinois Human Rights Act (IHRA). One additional important change occurred effective June 8, 2018. Additionally, with the November 6, 2018, election of Democratic Governor J. B. Pritzker, employers can expect more changes in the future, many of which may not be particularly employer-friendly.

Time to File Charge of Discrimination

The first change, which went into effect on June 8, 2018, after Public Act 100-588 was signed into law, gives Illinois employees 300 days to file a Charge of Discrimination with the Illinois Department of Human Rights (IDHR) for alleged violations of the IHRA. (This change was made with no publicity, possibly because it was quietly inserted at the end of a much longer bill amending an entirely different law.) Previously, Illinois employees only had 180 days to file a charge at the IDHR. Under federal law, however, Illinois employees have 300 days to file a charge at the EEOC. The different time frames created confusion and arguably, inconsistency, since charges filed at the EEOC are "cross-filed" at the IDHR. If the EEOC dismissed a charge, the employee would only be able to proceed at the IDHR if the charge was filed within 180 days, even though it was considered timely filed at the EEOC up to 300 days. Additional confusion occurred when charges contained some allegations covered under both state and federal law, and some only covered under state law.

Under the amended IHRA, employees now have 300 days to file charges at the IDHR. The effect of this change on employers is that charges that were once considered untimely (those filed 181 to 300 days after the alleged discriminatory act) under the IHRA, will now be considered timely, whether initially filed at the EEOC or at the IDHR.

Right to Sue Requests

The second change to the IHRA involves an employee's ability to request a "right to sue" from the IDHR, which permits the employee to opt out of administrative investigation and sue the employer in court. At the EEOC, an employee can request a right to sue "letter" at any time after filing a charge. Such requests are automatically granted if 180 days have passed since the charge was filed, and may be granted if less time has passed if the EEOC determines it will not be able to complete the investigation within 180 days. This allows the employee to more quickly be able to file suit in federal court, which is often used as a tactic to prompt settlement discussions. Prior to the amendment to the IHRA, employees could only request a right to sue from the IDHR if the agency determined that it would not be able to complete its investigation within 365 days. If the IDHR denied the request, the employee had to proceed with an IDHR investigation, which includes attending a fact-finding conference. It has been common practice for the IDHR investigators to request one or more extensions of time to complete investigations, since an insufficient number of investigators means investigations are rarely completed in one year. If one or both parties do not agree to the extension, the case expires and the charging party then has the right to file suit in court or a complaint with the Illinois Human Rights Commission (IHRC). Under the amendment to the IHRA, employees can receive a right to sue the employer in state court from the IDHR immediately after filing a charge, without having to wait for the investigation to be completed.

Unfortunately, the timing of when employees must decide whether to opt out of investigation currently does not favor employers. The IHRA gives an employer 60 days from the receipt of the charge to file a position statement and respond to the IDHR's questionnaire (a combination of questions and requests for information). Under the amendment, the IDHR must notify the employee within 10 days of filing a charge of his or her right to opt out of the IDHR's investigation process, but the employee has 60 days to decide whether to opt out. Meanwhile, the employer must prepare its position statement and response to the questionnaire, which may never need to be filed if the employee opts out. It may be possible for employers to request a brief extension from the IDHR to provide their position statements and responses to the questionnaires until the employee decides whether to opt out of investigation. Importantly, unless the employee follows through with filing suit after opting out of investigation, the IDHR will continue to investigate the claim. Thus, an opt-out by an employee will almost never end the case at that time, even if the employee chooses not to file suit.

Changes to the Illinois Human Rights Commission

The final change to the IHRA deals with the Illinois Human Rights Commission, which has been plagued with extreme delays in processing claims, often taking five or more years to simply approve a dismissal from an Administrative Law Judge (ALJ) or rule on a request for review of a dismissal by the IDHR. Effective January 1, 2019, the amendment provides for hiring seven full-time commissioners rather than 13 part-time commissioners, at significantly higher compensation levels. The governor will select the commissioners, and the state senate must approve them. No more than four commissioners can be from the same political party. The new commissioners will be required to devote their full professional time to their duties and not engage in other business or employment. The amendment also defines the qualifications to be a commissioner. These include being a licensed attorney and having at least three years of experience as a hearing officer (ALJ) at the IHRC, or at least four years of professional experience working with individuals or corporations affected by the IHRA or similar laws in other jurisdictions. The new commissioners will also be required to undergo significant initial and ongoing training and continuing legal education. Additionally, the amendment creates a temporary panel of three commissioners to handle the current backlog of requests for review. Hopefully, these changes will clear up the backlog of pending cases, prevent such an unacceptable backlog from occurring in the future, and improve the quality of the decisions issued.

Impact on Employers

How these procedural changes to the IHRA will affect employers remains to be seen. Even though charging parties at the EEOC have long had the ability to request a right to sue immediately after filing, most employees have opted to go through the EEOC investigation process. We expect the number of employees who opt out of IDHR investigations will be similar to the number who opt out of EEOC investigations. Thus, it is difficult to broadly conclude that the opt-out option is good or bad for employers, as every case is different, and some are more conducive to investigation (or mediation) than others.

Obviously, fixing the extreme backlog of cases and overall quality and efficiency at the IHRC will benefit everyone. Eventually, employers will no longer face delays of five or more years for the IHRC to consider requests for review or approval of ALJ determinations, only to ultimately have a case sent back for further investigation long after witnesses can be found and events and details can be recalled.

Possible Future Changes

The Illinois legislature has also passed a bill that would eliminate the minimum employee threshold, making an employer with only one employee subject to all anti-discrimination laws in the IHRA. (Currently, only the prohibitions on sexual harassment, pregnancy discrimination, and disability discrimination apply to employers with a minimum of one employee. The prohibitions on other types of discrimination such as race and age, apply to employers with 15 or more employees.) Republican Governor Bruce Rauner vetoed this bill on August 13, 2018. With a new Democratic governor soon to take office, however, it is likely the bill will land back on the governor's desk. A change like this would have a more significant impact on employers than any of the recent IHRA changes.

Additionally, there is an effort underway to expand the definition of "employee" under the IHRA to include independent contractors, vendors, consultants and any "other person providing services pursuant to a contract." The Illinois Senate is currently seeking to expand employer liability as well as reporting and notice requirements for claims of sexual harassment, and to give victims of sexual harassment two years to file a charge with the IDHR. There has also been an effort to expand the Victim's Economic Security and Safety Act, which allows leaves for employees who are victims of domestic or sexual violence, to employees who are victims of sexual harassment. We will continue to monitor these, and other potential changes to employment laws in Illinois.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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