On August 17, 2007, Governor Blagojevich signed an amendment to the Illinois Human Rights Act-an amendment that will usher in a seachange in how charges of discrimination are processed and adjudicated in Illinois. Although the first effects of the amendment allowing discrimination claims to be pursued in state court may not be felt until late 2008 or early 2009, the change in the law will fundamentally alter the litigation strategies of employment discrimination plaintiffs and defendants in Illinois – as well as the risks to employers.
To fully understand the effect of the amendment, it is important to understand the current process. Currently, any charge filed under the Illinois Human Rights Act (“IHRA”) is initially investigated by the Illinois Department of Human Rights (“IDHR”). The IDHR ultimately issues a decision on the charge, either finding substantial evidence to support the charge or finding no substantial evidence. A substantial evidence finding results in the charge being sent to the Illinois Human Rights Commission (“IHRC”), where the case would be heard by an Administrative Law Judge in a process similar to court litigation. A finding of no substantial evidence means that the case is terminated, unless the complainant is successful in appealing the decision to the Chief Legal Counsel of the IDHR, or the charge has been “cross-filed” with the EEOC and the complainant obtains a Right to Sue letter from the EEOC and files a lawsuit in federal court.
Now, beginning with charges filed January 1, 2008, complainants will be able to bypass the IHRC and take their claims to a jury in Illinois Circuit Court. If the IDHR dismisses the charge, the complainant will have the choice between appealing the “no substantial evidence” finding to IHRC or filing a lawsuit in state court. Even if the IDHR finds “substantial evidence,” the complainant will have the option of proceeding before the IHRC or the state court.
It is expected that most complainants who are successful in front of the IDHR will avoid the IHRC (where the administrative law judges generally did not award significant compensatory damages) and will file in state court. Plaintiffs’ attorneys will probably feel that they have a better chance of succeeding – and recovering large damage awards – before a state court jury than before an IHRC Administrative Law Judge. Therefore, we are likely to see many more cases where the IDHR found “no substantial evidence” landing in court. In fact, many discrimination cases that would now go to federal court are likely to be filed in state court.
At this point, the ultimate impact of the IHRA amendment cannot be known. But judging from how employment discrimination cases are handled in other states that allow for state court trials of employment claims, by the end of the decade it is likely that a substantial portion of employment discrimination cases in Illinois will be filed in state court – and the overall cost to many Illinois employers will be much higher than they experienced in IHRC proceedings.