Local and National Companies with Illinois Employees Take Heed

Under an amendment to the Illinois Human Rights Act ("IHRA") that goes into law effective January 1, 2008, complainants who file claims of discrimination with the Illinois Department of Human Rights ("IDHR") now will have the option of having their claims heard by a jury in Illinois state courts. Currently, if a charge of discrimination is filed with the IDHR and investigated by the administrative agency and a cause finding results, the only option available to complainants under the IHRA is to continue pursuing their claims administratively with the Illinois Human Rights Commission ("IHRC"), an administrative agency.

Although the amendment brings Illinois' human rights law in line with the majority of similar laws in other states which allow claims to be brought in state courts, the impact on employers forced to defend employees' charges of discrimination under the IHRA likely will be significant for a number of reasons:

• Most plaintiffs' attorneys will consider the possibility of presenting their clients' discrimination cases to a jury, especially in such traditionally plaintiff-friendly venues as Cook County and other jurisdictions in Illinois, to be highly desirable. Jury verdicts in Illinois, as elsewhere, generally are significantly larger and far less predictable than an award from either an administrative agency, such as the IHRC, or even from federal court judges or juries hearing discrimination cases.
• Illinois state courts have very little experience handling employment discrimination cases since currently the vast majority of such cases brought in Illinois are tried either before the IHRC or in federal court. Illinois state courts, unlike federal courts, historically also are unlikely to grant summary judgment motions in lieu of allowing an employee's claims to proceed to trial. Published state law precedent that the courts can turn to for guidance also is limited for the same reasons. In addition, state courts are not required to follow the vast amount of federal case law on employment discrimination issues arising out of similar federal laws. As a result of all these factors, predicting potential litigation outcomes for the purpose of preparing risk-benefit analyses and deciding defense strategy likely will be more difficult for both management and defense attorneys under the new law.
• Discovery in actions proceeding before the IHRC is limited mainly to written forms of discovery (e.g., interrogatories, document production requests). Depositions generally are not allowed. This limited amount of discovery makes actions in the administrative process far less time consuming and less expensive to defend. However, employment discrimination actions brought in state courts under the new law will have the full genre of state court discovery and motion-practice techniques available, thus significantly increasing the time and costs of litigating these actions.

What Does This Mean for Employers?

Employers should be prepared for the fact that the changes to the IHRA likely will increase the number of charges of discrimination pursued by employees past the initial investigation stage at the IDHR, which would necessarily increase the costs of defense of any such actions. However, obtaining a dismissal or "no substantial evidence" finding from the IDHR will continue to be an important tool for employers that are defending employment discrimination actions. Unrepresented complainants who are not successful at the initial IDHR investigation stage may continue to have difficulty obtaining counsel to represent them either before the IHRC or in the state courts. Employers may want to retain counsel to represent them during the IDHR investigation process to increase the odds of obtaining dismissals or no substantial evidence findings or, alternatively, to be better prepared for any future litigation.

For Further Information

If you have any questions about this Alert or would like more information, please contact Cheryl Blackwell Bryson, Howard L. Mocerf or Jon Zimring of our Employment & Immigration Practice Group in the Chicago office, or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.