New Legislation Provides Illinois Employees With Workplace Bias Claims Access To Circuit Court

Illinois employers be aware: amendments to the Illinois Human Rights Act now allow employees to commence civil actions in a circuit court.  In May 2007, the Illinois Senate and House passed House Bill 1509, and Governor Rod Blagojevich signed the bill into law on August 17, 2007.  The amendments will go into effect on January 1, 2008.

The new law is a significant development for Illinois employers.  In its original form, the Illinois Human Rights Act contemplated an entirely administrative, non-jury process for the trial of employment discrimination claims with few litigation tools available to the parties.  The recently enacted amendments now make available to employees all of the litigation tools (including depositions) that civil litigants employ in the Illinois courts and, similar to plaintiffs in federal discrimination cases, allow juries to judge the facts of each case.

The amendments specifically provide that when the Illinois Department of Human Rights (IDHR) dismisses a charge, the IDHR must give notice to the complainant of his or her right to seek review of the dismissal order before the Illinois Human Rights Commission or to commence a civil action in the appropriate circuit court and, for the first time under Illinois law, have their case heard by a jury.  Prior to the amendments, requests for review were directed solely to the IDHR’s Chief Legal Counsel.

If the complainant chooses to have the Commission review a dismissal order, a request for review must be filed with the Commission within 30 days after receipt of the IDHR’s notice of dismissal.  If the complainant chooses to file a request for review with the Commission, a direct action in circuit court is forfeited.  On the other hand, if the complainant chooses to commence a civil action in circuit court, he or she must do so within 90 days after receipt of the IDHR’s notice of dismissal. 

In the event that the IDHR determines that there is substantial evidence to a charge, the IDHR must notify the parties that the complainant has the right to either commence a civil action in the appropriate circuit court or request that the IDHR file a complaint with the Commission on his or her behalf.  Civil actions must be commenced within 90 days of receiving the IDHR’s notice.  If the complainant chooses to have the IDHR file a complaint with the Commission, the complainant must make such a request in writing within 14 days of receipt of the IDHR’s notice.  If the complainant fails to timely request that the IDHR file the complaint, the complainant may only commence a civil action.  It is also important to note that when the IDHR issues a finding of substantial evidence and attempts conciliation between the parties, the IDHR’s efforts to conciliate the matter do not stay or extend the time for filing the complaint with the Commission or the circuit court.

Additionally, in the event that the IDHR has not issued a report of its investigatory findings within 365 days after the charge is filed, or any such longer period agreed to in writing by all parties, the complainant has 90 days to either file his or her own complaint with the Commission or commence a civil action in the appropriate circuit court.

The rights created by these amendments apply solely to charges filed on or after January 1, 2008.  It remains to be seen whether complainants will flood the circuit court with cases or whether they will choose to have their cases heard by the Commission.

Note: This article was published in the December 2007 issue of the Illinois eAuthority.