January 29, 2023

Volume XIII, Number 29


January 27, 2023

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Illinois EPA Amendment Lowers Standard For Discrimination Claims

Earlier this week, we posted a blog on the recent amendment to the Illinois Equal Pay Act concerning its prohibition on inquiring into applicants’ compensation history. Not to be overlooked, however, the amendment also contained significant modifications to the anti-discrimination provisions contained within the Act.

The amendment, set to take effect on September 29, 2019, breaks with federal law by expanding the protections afforded under Illinois law. The Illinois Equal Pay Act previously barred discrimination on the basis of sex and race where employees were paid less for the same or substantially similar work on jobs that required “equal skill, effort, and responsibility.” The amendment now dictates that the job skill requirement need only be “substantially similar,” rather than “equal.” What “substantially similar” means will be left for the courts to decide, but one thing is clear: it does not mean “equal,” which has been the standard under both federal and state law for decades.

The Illinois Equal Pay Act previously made exceptions for pay differentials that were based on a seniority system, a merit system, or a system that measured earnings by quantity or quality of production – or any other factor, provided it would not constitute unlawful discrimination under the Illinois Human Rights Act (the catchall exception). Now, as amended, employers can only use the catchall exception if the factor:

  • Is not based on or derived from a differential in compensation based on a another protected characteristic;

  • Is job-related with respect to the position and consistent with business necessity; and,

  • Accounts for the differential in pay.

While the prohibition on questions of compensation history garnered most of the headlines with the recent amendment to the Equal Pay Act, Illinois’s relaxing of the standard for an employee to show pay discrimination is just as important for employers. In light of the expanded anti-discrimination protections provided by the amendment, Illinois employers may consider reviewing their compensation models to ensure compliance and guard against future claims.

© 2023 BARNES & THORNBURG LLPNational Law Review, Volume IX, Number 220

About this Author

Mark Wallin, Attorney, BT, Chicago, Labor Employment
Of Counsel

In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of...

Peter J. Wozniak Barnes Thornburg Chicago  Labor Employment

Pete Wozniak is a vigorous advocate who strives to help his clients navigate issues that can be fraught with challenges as painlessly and efficiently as possible. He is a candid and personable counselor, offering his clients direct advice by leveraging his deep experience performing a broad range of outcome critical functions for complex labor and employment matters.

Pete represents clients across a number of industries, including transportation and logistics, restaurants, retail, manufacturing, and temporary staffing. Handling a number of high profile matters, he identifies the...

Norma W. Zeitler, Barnes Thornburg Law Firm, Chicago, Employment Law Attorney

Norma W. Zeitler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department and the Associations and Foundations Practice Group. She concentrates her practice on employment law, and represents employers in the defense of employment discrimination, retaliatory discharge, breach-of-contract, workplace tort, and restrictive covenant cases in federal and state courts and administrative agencies. She also provides day-to-day counseling for employers on all matters that impact the employment relationship.