February 4, 2023

Volume XIII, Number 35

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February 03, 2023

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February 01, 2023

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Illinois Human Rights Act Amended to Give Employees Direct Access to Illinois State Court and Jury Trials in Discrimination Complaints

On January 1, 2008, a new law will go into effect that will enable employees to bypass the current administrative process for discrimination claims under the Illinois Human Rights Act and to assert those claims in state court where they may be heard by a jury. This major development will give employees the option of taking charges to the Illinois circuit court, regardless of the outcome when they file the charges with the Illinois Department of Human Rights.

Under the current statute, employees are allowed to proceed before an administrative law judge of the Illinois Human Rights Commission, but only in cases where the Department of Human Rights first finds substantial evidence or does not complete its investigation on time. There is currently no right to trial in state court, nor is there a right of appellate review (except when the Commission has issued a final order).

Under the amended law, however, employees will also have the option of filing a lawsuit in Illinois circuit court within 90 days of one of the following events:

  1. The employer defaults by failing to file a timely verified response to a charge or otherwise fails to cooperate with the Department of Human Rights without a showing of good cause
  2. The Department of Human Rights fails to complete its investigation and render a decision within 365 days of the charge filing date (or within an extended period as agreed to by all parties in writing)
  3. The Department of Human Rights makes a determination that there is substantial evidence to support the charge
  4. The Department of Human Rights dismisses the charge for lack of substantial evidence

These changes to the Illinois statute bring it more in line with the federal law that allows employees who file discrimination charges with the Equal Employment Opportunity Commission (EEOC) to sue in federal court regardless of the outcome of the investigation.

After the amended law goes into effect, employees opting to sue may file in the Illinois circuit court in the county where the alleged violation occurred. The state court may award the same remedies as the Illinois Human Rights Commission, including attorneys’ fees, actual damages, back pay, interest and reinstatement.

Why is this development so important to employers? There are several reasons:

  • First and foremost, it is generally perceived that it is easier for a plaintiff to prevail in state court (particularly in Cook County), especially in jury trials. Also, state court judges by and large have limited experience presiding over employment discrimination cases. Previously, many plaintiff's lawyers, especially those in outlying areas, would opt to proceed before an administrative law judge of the Illinois Human Rights Commission rather than travel the distance required to pursue an EEOC charge in federal court. In many cases, they were also uncomfortable in the federal court environment. The new access to state courts should change that dynamic.
  • Punitive damages are not as available under the Illinois Human Rights Act as they are under Title VII of the federal Civil Rights Act. However, compensatory damages (for emotional distress, pain and suffering, etc.) are progressively capped depending on the employer's employee population in lawsuits under Title VII, while they are not limited by the Illinois Human Rights Act. While administrative law judges traditionally do not award large dollar amounts for such damages, a state court jury may be more likely to do so.
  • Discovery is limited in proceedings before an administrative law judge of the Illinois Human Rights Commission. For example, depositions are generally not allowed. However, employees in state court should be able to proceed with the same full discovery as in any other state court proceeding.
  • The Illinois Human Rights Act has protections against certain types of discrimination that are not currently available under Title VII, including discrimination based on marital status and sexual orientation. For the first time ever, Illinois employees alleging this type of discrimination will have access to the courts. Additionally, the Illinois Human Rights Act allows claims of sexual harassment or physical/mental handicap against employers with less than 15 employees, something that Title VII does not afford. As a result, these smaller employers can now be sued in state court on such claims. 

Given the uncertainty of new state court litigation in this area, along with the exposure to jury verdicts and the attendant higher costs of such litigation, employers will be under increased pressure to avoid such claims or settle them. In this new landscape, it will be increasingly important to implement good EEO policies and procedures, and to respond appropriately when charges are brought.

© 2023 Much Shelist, P.C.National Law Review, Volume , Number 151

About this Author

Irving M. Geslewitz Much Shelist Labor Employment Attorney

Irv is a one-stop shop when it comes to representing and counseling his clients on anything related to employment law and labor relations. Irv has extensive experience representing employers and executives on issues or disputes arising out of the employment relationship. He also handles the gamut of labor relations issues that confront management in a unionized setting. His experience ranges from reviewing and helping prepare employment contracts, policies, and manuals to representing clients in employment-related litigation in state and federal courts as well as before...