For years, Illinois employment lawyers have had the frustrating experience of trying to explain the quirks of Illinois Human Rights Act1 (IHRA) practice before the Illinois Department of Human Rights (IDHR) and Illinois Human Rights Commission (IHRC) to out-of-state clients and colleagues. For instance, the IDHR required a verified response, styled like an answer, to be submitted within 60 days, and did not permit extensions. It also maintained a 180-day charge-filing deadline, despite the fact that most charges in Illinois are cross-filed with the EEOC, which has a 300-day deadline, resulting in confusion as to timeliness. Cases lingered before the IHRC for years and the long-awaited decisions seemed, at times, insufficiently reasoned and just plain wrong. Illinois recently enacted legislation addressing these issues, which will hopefully make practice before these agencies quicker, smoother, and more in line with what practitioners and clients are used to from the EEOC and other state agencies.
What Are The Recent Amendments And What Do They Accomplish?
The Illinois legislature took several steps in the last year to bring about these crucial changes. Most recently, on August 24, 2018, Illinois Governor Bruce Rauner signed Senate Bill 0020, which took effect immediately.2
Senate Bill 0020 extends the filing period for charges under the IHRA to 300 days. Prior to this amendment, charging parties were required to file a charge alleging a violation of the IHRA with the IDHR within 180 days of the alleged violation. This deadline was a source of confusion for complaining employees, as charges filed with the EEOC are timely so long as they are within 300 days. Further complicating matters, in Illinois, charges filed with the EEOC are cross-filed with the IDHR, sometimes resulting in the EEOC charge being timely, while the charge based on the same conduct was untimely before the IDHR. This change will alleviate the confusion, but likely will result in employers having to defend against charges at the IDHR that would previously have been dismissed as untimely.
Another source of frustration for employers and charging parties alike was that the EEOC permitted charging parties to request a right to sue at any point during the investigation, while the IHRA required the IDHR to complete its investigation, or a certain period of time to lapse, before a right-to-sue letter could be issued. Senate Bill 0020 changes this framework under the IHRA, so that charging parties who intend to litigate can bypass the IDHR investigation process and receive a right-to-sue letter more immediately, reducing administrative inefficiencies.
The new law also amends the section of the statute regarding how charges are handled if the charging party initiates litigation. That section now provides:
[I]f the charging party has initiated litigation for the purpose of seeking final relief in a State or federal court or before an administrative law judge or hearing officer in an administrative proceeding before a local government administrative agency, and if a final decision on the merits in that litigation or administrative hearing would preclude the charging party from bringing another action based on the pending charge, the Department shall cease its investigation and dismiss the pending charge by order of the Director.
Previously, the IDHR would issue a stay in such circumstances, rather than a dismissal.
Lastly, the amendment revises the structure of the IHRC, and makes additional changes that appear designed to address both the case backlog and concerns regarding the quality of decisions issued. The amendment reduces the number of commissioners from 13 to 7, and significantly raises their compensation from $20,000-22,500 a year to $119,000-125,000 per year. Commissioners are now required to devote full time to their duties and not engage in any other business, employment, or vocation. The amendment authorizes each Commissioner to hire and supervise a staff attorney, and implements a formalized training program designed to better train commissioners to understand the legal issues with which they will be presented. Perhaps most significantly, the amendment has addressed the lengthy backlog of cases currently awaiting review by creating a special three-member, temporary panel.
Additional Changes To The IHRA
Apart from the newly-enacted Senate Bill 0020, other amendments to the IHRA have improved IDHR practice. In September 2017, the Illinois legislature revised the IHRA3 to eliminate the “verified response” requirement for responding to a charge of discrimination from the IDHR. Employers were formerly obligated to submit a verified response within 60 days of receiving a charge, in which they had to admit or deny each allegation, similar to answering a complaint. This requirement was burdensome for employers, which were also required to submit a position statement and questionnaire response along with the verified response stating much of the same information. Now, employers no longer have to provide a verified response. The IDHR must make a request for response to start the 60-day clock for the position statement and questionnaire response deadline.
What Will These Changes Mean For Employers?
Taken as a whole, these amendments should make practice under the IHRA before these state agencies more efficient and less confusing. Employers should be aware that they may see an uptick in timely-filed charges under the IHRA, and, as a result, a potential increase in exposure.