As of Jan. 1, 2008, employees have new rights under the Illinois Human Rights Act. The new amendment, signed last August, permits employees for the first time to bring civil actions in circuit court and have their cases heard by juries.
Originally, the Illinois Human Rights Act was a completely administrative, nonjury process for resolving employment discrimination claims. Unlike an ordinary trial, in which the litigants can conduct extensive (and expensive) discovery, the parties could seek only administrative relief. The cases were heard solely by administrative law judges.
That’s all changed. Before the amendment, the only judicial forum for employment discrimination claims was federal court. Now employees will be able to have juries hear the evidence and decide employment discrimination cases. The new amendment allows employees the full state litigation toolbox, including depositions and various discovery techniques that other civil litigants have the right to use in Illinois courts.
Choose either option: Commission review or civil court
Under the new amendment, when the Illinois Department of Human Rights (IDHR) dismisses charges, it must give complainants notice of their rights to either:
- Seek review of the dismissal order before the Illinois Human Rights Commission or
- Initiate a civil action in the appropriate civil court and have their cases heard by a jury.
Previously, only the IDHR’s chief legal counsel heard requests for review.
Here’s how the process now works. Once the IDHR has dismissed a charge, the complainant faces a fork-in-the-road decision.
An employee who decides to file a request for review with the commission forfeits the option to have a jury trial in circuit court. An employee has 30 days after receiving the IDHR’s notice of dismissal to file a request for commission review.
Alternatively, an employee who wants to file a civil action in circuit court must do so within 90 days after receiving the IDHR’s notice of dismissal.
Note: What if IDHR determines there is substantial evidence to a charge? The department must notify the parties that the complainant has the right to either request that the IDHR file a complaint with the commission on his or her behalf or initiate a civil action in the appropriate circuit court.
The calendar is critical
Employees must begin civil actions within 90 days of receiving notice from the IDHR.
If an employee decides to have the IDHR file a complaint with the commission, the individual must make such a request in writing within 14 days of receipt of the IDHR’s notice. If the complainant misses the deadline for asking the IDHR to file the complaint, the complainant may file only a civil action.
Everyone involved in the process must keep an eye on the calendar. When the IDHR issues a finding of substantial evidence and attempts conciliation between the parties, that does not stay or extend the time for filing the complaint with the commission or the circuit court.
If IDHR does not issue a report of its investigatory findings within 365 days after the charge is filed (or any such longer period agreed to by the parties), complainants have 90 days to file their complaint with the commission or commence a civil action in the appropriate court.
The new rights apply solely to charges filed on or after Jan. 1, 2008.
Implications for employers
Prepare for the financial stakes to get higher when discrimination claims arise.
Plaintiffs’ attorneys will seize this new opportunity to bypass administrative remedies to get their cases heard by juries in state court, where they will hope to win larger recoveries for their clients. The Illinois Human Rights Act provides for successful complainants to recover compensatory damages (including back pay), front pay, punitive damages, attorneys’ fees and equitable relief.
Historically, the trend always has been for jury verdicts to be larger and less predictable than judgments rendered by administrative agencies. Notably, state court jury verdicts have been significantly larger than those of their federal court counterparts.
The costs of defending a claim in state court will be greater than defending one before the IDHR. The discovery process in state court is far more costly because of the new right to use depositions as well as the ability to file more motions. Both of these new tools can quickly drive up the costs of defense.
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