Changes to Illinois Human Rights Act Provide Access to Jury Trial

September 17, 2007

Employees making claims of discrimination or harassment under state law in Illinois have been limited to litigating their claims in an administrative forum - the Illinois Human Rights Commission. However, that limitation will soon end, due to important amendments recently made to the Illinois Human Rights Act. Beginning next year, for the first time, employees will be able to sue employers for discrimination or harassment in Illinois state courts. Illinois employers now face the prospect of defending their actions before juries.

By way of background, under federal and state fair employment practice laws employees alleging discrimination or harassment based on race, sex, age, disability, or other protected categories are first required to file a "charge of discrimination" with either of two administrative agencies, the federal Equal Employment Opportunity Commission ("EEOC") or the Illinois Department of Human Rights ("IDHR"). These agencies' processes for investigating and mediating such charges are complicated and sometimes lengthy. However, the vast majority of agency proceedings eventually result in employees receiving a "right to sue letter," which gives them a 90-day window to file a lawsuit against the employer. Employees who follow the federal option, file suit in federal court, where they may obtain a jury trial. Employees who file an action under state law, proceed before the Illinois Human Rights Commission.

Recently, however, Governor Rod Blagojevich signed into law House Bill 1509, which amends the Illinois Human Rights Act. The major thrust of the amendments is that employees filing charges with the IDHR will now have the added option, at several points in the IDHR process, to file suit against the employer in Illinois circuit court. The amendments are effective January 1, 2008, meaning that they apply to IDHR charges filed on or after that date.

This change may bring additional uncertainty to employers. Corporate defendants and their counsel generally prefer to litigate in federal court, as there is a widespread perception that federal judges are, on average, more experienced in employment litigation and more predictable than their state counterparts. In particular, federal judges are seen as far more willing to grant dismissal or summary judgment to defendants in meritless cases, whereas state-court proceedings are more likely to reach a jury trial.

It also bears noting that, fairly or not, several Illinois courts have earned a particularly anti-business reputation. For example, the American Tort Reform Association ("ATRA") publishes an annual list of "Judicial Hellholes®," which it describes as "America's most unfair jurisdictions in which to be sued." According to ATRA, these "are places where judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits." On ATRA's 2006 nationwide list, three of the worst six forums were Illinois circuit courts – Cook County (#4), Madison County (#5), and St. Clair County (#6). See http://www.atra.org/reports/hellholes. It is in these forums, nevertheless, that Illinois employers will soon find themselves fending off discrimination and harassment suits.

Jackson Lewis attorneys are available to further explain the amendments to the Illinois Human Rights Act and their implications for employers.

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