The Illinois Legislature has enacted a change to the Illinois Human Rights Act (the Act or the IHRA), effective January 1, 2025, that is likely to create significant concern for Illinois employers.
The Illinois Human Rights Act:
The IHRA is the Illinois law that prohibits employers and others from discriminating against an individual on the basis of protected classifications, such as age, gender, race, religion, national origin, sexual orientation, disability and others. The federal law under Title VII, enforced by the EEOC, provides a similar federal law right to pursue an action for unlawful discrimination.
The Change:
Section 7A-102 of the IHRA (775 ILCS 5/7A-102) is the section that sets forth the time within which an employee must file a Charge of Discrimination under the Act. The failure to file a timely charge means that in most cases the employee will be barred from pursuing a claim for discrimination against their employer for the alleged event.
The Act has for decades provided a limited 300-day period from the date of the alleged discrimination within which the employee must file a charge against the employer with the Illinois Human Rights Department, or for the Department itself to file a Charge. Under certain circumstances the time for filing a Charge of Discrimination could (and still may be) extended.
However, beginning this month an employee or the Department will have the opportunity to file a Charge of Discrimination within two (2) years after the date that the civil rights violation allegedly has been committed.
The Impact On Illinois Employers:
The change is significant. Illinois employers will now be required to respond to a Charge of Discrimination filed with the Department up to two (2) years after the event complained of. Therefore the employer’s potential liability for workplace discrimination violations now extend for a longer period than ever before. Employers will be required to participate in investigations of activities asserted to be discrimination violations for a period of time that extends more than twice the current period.
And remember, the right to file a Charge of Discrimination does not end when the employee leaves, whether voluntarily or involuntarily. If the employee asserts that a discriminatory action was taken during employment or that the discriminatory event was (in whole or in part) the employee’s termination from employment, then the time period for bringing that claim to the Department and initiating the action is now remarkably longer.
What To Do?
Modify Workpace Policies: Illinois employers will need to focus on revising workplace management policies to include some common sense extensions of current management directions. The need to have required procedures for investigating and maintaining information concerning potential discrimination issues is going to be even more important. Information about activities that could be the subject of a claim of unlawful discrimination will likely be harder to gather and to demonstrate as the time is enlarged to twice as long as it used to be. All potential discrimination situations are implicated, but sexual harassment and disability discrimination in particular are often the circumstances most subject to the need for detailed review and information gathering.
Consider implementing third party investigations in appropriate circumstances as part of the protocol, when certain “hot button” situations arise.
Review disciplinary rules for managers who fail to report to upper management or to human resources the circumstances that could give rise to claims of unlawful discrimination.
Exit Interviews: The use of exit interviews or questionaires is going to be a useful and important tool, if not already implemented. If properly used, these can help to determine if there are circumstances that may not be fully known to the employer and that could be a source of a discrimination action involving either the departing employee or other employees during the months and years following.
Use Separation Agreements: The use of separation agreements for voluntary and involuntary termination situations is going to become even more important. In some situations, where there are little or no concerns about unlawful activities, this will continue to be a case-by-case determination. But in others, the importance of simple, understandable separation agreements is going to be hugely important.
A departing employee can waive and release most of the known or unknown claims available to them under the Illinois Human Rights Act and other common law situations and statutory laws. Such a release, backed by consideration, is now going to be even more important for the employer’s ability to try to limit future claims of unlawful discrimination.
Be aware, however, that Separation Agreements must be thoughtfully drafted with the help of, or reviewed by, the employer’s counsel. There are already legal requirements that must be included in some agreements in order to release for example age discrimination claims under federal law. And recent changes to the law prohibit unilateral confidentiality or non-disparagement clauses that purport to cover sexual harassment or discrimination claims. Other considerations are equally important.
Are All Employers Doing Business In Illinois Covered By The New Law?
You bet. The Illinois Human Rights Act applies to all employers who employ at least one (1) person in Illinois. Remember that just because your company has its headquarters outside of Illinois does not mean that it is free from the reach of the Illinois Human Rights Act. This is particularly true with the greater use of remote workers.
Pay attention, reach out to your counsel, and know the law!
If you are not sure what to do, or where to start, we can help. Contact Marc Sherman. https://mshermanlaw.com/contact/