Governor Blagojevich recently signed into law House Bill (“HB”) 1509, which dramatically amends the Illinois Human Rights Act (“IHRA”) by giving employment discrimination complainants access to the Illinois Circuit Courts. The legislation is effective January 1, 2008, and will apply to charges filed on or after that date.

The IHRA currently permits the fi ling of a complaint alleging a civil rights violation only with the Illinois Human Rights Commission (“IHRC”) and only under two circumstances: if the Illinois Department of Human Rights (“IDHR”) first determines following investigation that there is “substantial evidence” that a civil rights violation has been committed, or the IDHR fails to reach a determination within 365 days of the filing of the charge. In those instances, a complaint is filed and the matter is adjudicated by an Administrative Law Judge of the IHRC. HB 1509 dramatically alters this procedural landscape by granting to every complainant who fi les an IDHR charge the right to fi le a civil action in Circuit Court, complete with a right to a jury trial. Specifi - cally, HB 1509 provides for the right to fi le in Circuit Court all IDHR cases as follows:

  • In cases where the IDHR fi nds “substantial evidence” of a civil rights violation, the IDHR must give notice to the complainant of his or her right to either (a) request that the Department fi le a complaint with the IHRC; or (b) fi le a civil action directly in Circuit Court in the county in which the civil rights violation was allegedly committed. The request that the Department file with the IHRC must be made within 14 days of the IDHR’s notice, while the civil action must be fi led within 90 days of the notice.
  • Even in cases where the IDHR investigation results in a “lack of substantial evidence” fi nding, the IDHR must give notice of the right to file either (a) a request for review before the IHRC within 30 days; or (b) a civil action in the appropriate Circuit Court within 90 days of the notice.
  • Finally, in cases where the IDHR fails to make any determination within 365 days after the charge is fi led, the IDHR must give notice of the complainant’s right, within 90 days, to fi le either (a) a complaint with the IHRC; or (b) a civil action in the appropriate Circuit Court.

As a result of these amendments, the potential costs of defense and the risk of high damage awards will be substantially increased. Instead of streamlined discovery proceedings and hearings before Administrative Law Judges who have signifi cant experience in the area of employment discrimination law, complainants will now have access to the county court system, where most judges have limited experience with employment discrimination cases, and juries are often notorious for random and excessive damage awards.

HB 1509 may, however, have some unintended strategic benefi ts for employers as well. For example, under existing IHRC procedural rules, depositions are allowed only for good cause shown or by agreement of the parties, thereby effectively taking away an important employer tool in federal employment discrimination cases – the motion for summary judgment. Under the newly authorized Circuit Court actions, traditional state court procedural rules authorizing depositions and motions for summary judgment will presumably apply. Additionally, in cases where IDHR complainants fi e in Circuit Court and federal court jurisdiction also exists based on diversity of citizenship, employers will have the option to remove such cases to federal court, which is sometimes more favorable for strategic reasons than litigating in the IHRC or Circuit Courts.