Seyfarth Synopsis: A number of changes have been made (and proposed amendments are being considered) to the Illinois Human Rights Act since the beginning of the year. Read on for further information.
Last June, we wrote about a series of amendments to the Illinois Human Rights Act. Since then, several of the amendments being considered back then have been signed into law. Last summer, Governor Bruce Rauner signed Public Acts 100-1066 and 100-0588, which extended the statute of limitations for filing, allows employees to opt-out of the IDHR investigative process, and reshaped the structure of the Illinois Human Rights Commission. One Bill, House Bill 4572, attempting to re-define the term “employer” under the act, didn’t make the cut.
Last year, the Illinois General Assembly proposed and passed numerous amendments to the Illinois Human Rights Act. Here’s what changed:
The first, and likely most notable change, is that employees who have filed a charge under the IHRA may now opt-out of the IDHR’s investigative process and proceed directly to Illinois state courts. The new amendment provides employees with the following timetable:
- 10 Days: Within 10 days of receiving an employee’s filed charge, the IDHR must send an employee notice of their right to opt-out of the department’s investigation procedures and proceed to state court.
- 60 Days: Within 60 days of receiving the notice, an employee must submit a written request to opt out of the investigative process.
- 10 Days: The IDHR must respond to the employees request within 10 days, and notify the employer that the employee has opted out.
- 90 Days: The employee must commence an action in circuit court within 90 days of the IDHR’s response. 775 ILCS 5/7A-102(B)
Statute of Limitations
Employees now have up to 300 days following an alleged discriminatory incident to file a claim under the IHRA. The Illinois statute now mirrors the Equal Employment Opportunity’s 300-day filing period. 775 ILCS 5/7A-102(A).
The IHRA requires employers to post a notice informing employees of their right to be free from unlawful discrimination and sexual harassment. The Act also requires that the same information be provided in employee handbooks.
The Illinois Human Rights Commission
The amendments also changed the structure of the Illinois Human Rights Commission and how it handles the existing backlog of claims. The changes include:
- Decreasing the size of the Commission from 13, part-time members to 7, full-time members who must either be licensed to practice law in Illinois, served as a hearing officer at the Commission for at least 3 years, or has at least 4 years of experience working for or dealing with individuals or corporations affected by the IHRA or similar laws in other jurisdictions.
- Each commissioner will be provided one staff attorney.
- Created training requirements for Commissioners and further requires ongoing training of at least 20 hours every two years.
- A temporary panel of 3 Commissioners was created to specifically address the backlog of charges and requests for review. The panel also has one staff attorney to assist them in addressing the backlog.
In an effort to create more transparency in Commission and IDHR proceedings the statute provides new requirements for how claims are processed, litigated, decided, and ultimately published.
- If an employee has filed allegations of employment discrimination at the IDHR and in another forum, such as a municipal human relations agency, and if the employee makes the choice to have his or her claim of discrimination adjudicated in the other forum (such as in front of a federal judge, a hearing officer, or an administrative law judge), the IDHR will be required to dismiss the state-level charge and cease its investigation.
- The statute now requires that Commission decisions are based on neutral interpretation of the law and the facts.
- The IDHR is permitted to allow an attorney representing the respondent or the complainant to file a response on a request for review.
- The Commission website must provide its decisions on requests for review or complaints within 14 days of publishing of the decision.
- The IDHR must provide a new notice within 10 business days following the receipt of the EEOC’s findings, the EEOC’s determination, or after the expiration of the 35-day period when a decision of the EEOC has been adopted by the IDHR for a lack of substantial evidence.
- The Commission must provide notice within 30 days if no exceptions have been filed with respect to a hearing officer’s order or when a Commission panel decides to decline review.
- Each Commission decision must be published within 180 days of the decision.
775 ILCS 5/7-109.1 – 5/8B-103
Employers Covered under the Act
Currently, the IHRA only covers employers who employ 15 or more employees within Illinois for at least 20 weeks during the year. In 2018, House Bill 4572 proposed an amendment to the IHRA to allow employers of any size to be liable under the IHRA. On May 18, 2018, the bill passed through both chambers of the Assembly passing the House 64-37 and the Senate 33-13. However, on August 13, 2018, Governor Rauner vetoed HB 4572.
More recently, a similar bill was proposed. On January 9, 2019 House Bill 252 was introduced to the Assembly. Like House Bill 4572, the bill seeks to change the covered employer standard from 15 employees to 1. On January 29, 2019 the bill was assigned to the Labor & Commerce Committee for further review. Employers should stay alert for additional developments.