Illinois Prohibition on Sexual Orientation Discrimination Takes Effect

January 26, 2006

On January 1, 2006, it became illegal for employers doing business in Illinois to discriminate against individuals on the basis of sexual orientation.  An amendment to the Illinois Human Rights Act, signed into law almost a year ago but not effective until January 1, added "sexual orientation" to the list of protected categories in hiring and employment.  Under current Illinois law, employers with fifteen or more employees may not discriminate against individuals on the basis of race, color, religion, sex, national origin, citizenship status, age (over 40), martial status, military service or unfavorable discharge, and sexual orientation.  Employers with as few as one employee can be liable for discriminating based on physical or mental handicap or for sexual harassment.

The amendment defines "sexual orientation" as "actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person's designated sex at birth."  The Illinois law adds to the growing list of states that have enacted protection against discrimination in employment for gay, lesbian, bisexual, and transgender employees.

Indeed, a particularly notable wrinkle in the new law is its inclusion of "gender-related identity" in the definition of "sexual orientation."  This means that employers are also prohibited from discriminating against transsexuals (i.e., those with a gender identity disorder).  The law could also be interpreted broadly enough to provide protection to other transgender individuals, such as transvestites (i.e., cross-dressers).

The practical effect of the new law is potentially broad.  Unlike most other states with such laws, Illinois does not provide a specific exemption for churches and other religious organizations, raising the question of whether employers with religious objections to homosexuality, bisexuality, and transgenderism will now be required to make hiring decisions that conflict with their beliefs.  Of broader significance is the host of questions facing all covered employers, from whether they may have to provide benefits to same-sex partners, to which restrooms transgender employees are to use. 

While the uncertainties of the law's application are being explored Illinois employers should act quickly to review their employment policies and practices and ensure they are in compliance.  Jackson Lewis attorneys are available to assist employers with their compliance reviews. 

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