Employment Discrimination

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Author: Attorney Desk Reference Manual
Last updated: June 2008

Applicable Laws
Enforcement Agencies
Protected Classes
Who Can Be Sued
Statutes of Limitation
Geographic Limitations
Filing a Charge
Notification of Respondent
Worksharing and Referral Agreements
Investigation
Reasonable Cause/Substantial Evidence
Conciliation
Private Right of Action
Hearing Process
Relief Available 

Applicable Laws

Federal

Title VII of the Civil Rights Act of 1964, as amended (Title VII)
Civil Rights Act of 1991, as amended (CRA)
Titles I and V of the Americans With Disabilities Act of 1990 (ADA)
Rehabilitation Act of 1973
Equal Pay Act of 1963 (EPA)
Age Discrimination in Employment Act of 1967, as amended (ADEA)

State

lllinois Human Rights Act (IHRA)

Enforcement Agencies

Federal

Equal Employment Opportunity Commission (EEOC)

State

Illinois Department of Human Rights (IDHR)
Illinois Human Rights Commission (IHRC)

Protected Classes

Federal

  • Race
  • Color
  • Religion
  • Sex (including sexual harassment)[1]
  • National Origin
  • Ancestry (included in National Origin)
  • Age
  • Disability
  • Retaliation (no charge needs to have been filed)

State

  • Race
  • Color
  • Religion
  • Sex
  • Sexual Harassment (delineated specifically)[2]
  • National Origin
  • Ancestry
  • Age
  • Marital Status
  • Sexual Orientation
  • Disability
  • Unfavorable Military Discharge
  • Military Status Retaliation (no charge needs to have been filed)
  • Aiding/Abetting
  • Willful Interference Coercion
  • Arrest Record
  • Citizenship Status

Who Can Be Sued

Federal

  • Minimum number of employees:

    - Title VII & ADA Claims: 15 employees 
    - ADEA Claims: 20 employees
    - EPA Claims: 1 employee
    - Claims against state and local governments and educational institutions:  
      1 employee (U.S. Govt. not included)
    - Labor Organizations
    - Apprenticeship/Training Programs
    - Employment Agencies

State

  • Employers with at least 15 employees
  • Employers with at least 1 employee for disability and sexual harassment claims and claim against public contractors, state and local government units, or apprenticeship/training programs
  • Labor Organizations
  • Employment Agencies
  • Individual Sexual Harassers

Statutes of Limitation

Federal

  • Title VII, ADEA, ADA - Within 300 days of alleged violation
  • EEOC will only investigate charges filed within 300 days of the alleged violation

State

Within 180 days of alleged violation

Geographic Limitations

Federal

  • Violations that occurred within the U.S.
  • Violations against a U.S. citizen that occurred at a U.S. Company located outside the U.S.

State

  • Violations that occurred within Illinois

Filing a Charge

Federal/EEOC

  • The person claiming unlawful discrimination or person acting on behalf of that person may file a charge;
  • Filing in person is encouraged, but filing by mail is accepted.

Charge:

  • Is written and signed (as opposed to oral)
  • Identifies parties
  • Generally describes actions or practices complained of, including relevant dates

The charge is considered filed when the fully executed charge is received in person or by mail.

Notification of Respondent

Federal/EEOC

  • Within 10 days of filing of charge, Respondent is served a copy or other notice of the charge by mail or in person;
  • Respondent is not required to file a response in specified time;
  • Requests for position statement or other information within 30 days of receiving notice is common;
  • EEOC has subpoena power to compel production of evidence or testimony.

State/IDHR

  • Within 10 days of filing of charge - Respondent is sent notice of the charge and generally a request to answer a questionnaire;
  • Respondent is required to file a verified response to the charge within 60 days of receipt of notice of charge.

Worksharing & Referral Agreement – EEOC & IDHR

(Concurrent jurisdiction may exist between EEOC & IDHR)

Charge filed with IDHR is automatically cross/dual filed with EEOC

  • If identical charges are filed at both EEOC and IDHR; IDHR has commenced the investigation;
  • EEOC administratively closes the charge and defers the investigation to IDHR;
  • After all administrative actions and recourses have been finalized, IDHR submits the charge as a final action to EEOC;
  • Upon submission, an EEOC reviewer will see if it concurs with the outcome, then closes the file and notifies the parties. If not, it may re-open its investigation.

Charge filed directly with EEOC is not dual-filed with IDHR

  • A copy of the charge is sent to IDHR but it is not docketed or investigated by IDHR.

Investigation

Federal/EEOC

Once a charge is filed, EEOC assesses and classifies:

  •  “A” - investigation will probably result in reasonable cause finding
  •  “B” - additional investigation required to determine if it is an “A” or “C”
  •  “C” - dismissed without further investigation

Investigation may include any or all of the following:

  • Interviewing witnesses
  • Requesting documents
  • Issuing subpoenas to uncooperative parties
  • Seeking temporary or preliminary relief to maintain status quo pending final disposition of complaint

Aggrieved parties may also petition for temporary or preliminary relief.

Access to EEOC file limited to:

  • FOIA Requests
  • Section 83 of EEOC Compliance Manual:
        - To complainants in 90 day right to sue period
        - To complainants and respondents after lawsuit is filed
  • Some information is not disclosed, e.g.:
        - To complainants: charges filed by others against respondent
        - To respondent: other charges filed by complainant

State/IDHR

  • After respondent has been notified IDHR conducts a full investigation of the charge;
  • Fact-finding conferences are convened for most investigations;
  • IDHR may request IHRC to issue subpoenas to facilitate its investigation or seek temporary relief pending final disposition of the charge;
  • At the conclusion of the investigation, IDHR serves parties with an investigation report, which documents the evidence and findings of IDHR;
  • Access to non-confidential parts of the investigation file is permitted by parties after notice of substantial evidence or dismissal is served.

Reasonable Cause/Substantial Evidence

Federal/EEOC

At conclusion of investigation EEOC may issue:

  • Reasonable cause determination: Investigation established reasonable cause to believe violation of statute has occurred, or
  • Dismissal and Notice of Right to Sue (Form 161): Investigation did not establish violation of statute has occurred – Informs complainants of right to file a lawsuit in federal court within 90 days of receipt of notice (Form 161)
  • No Formal or Regulatory Right to Appeal: Either party may request reconsideration appealing a dismissal or reasonable cause determination by writing to the EEOC District Director

Prior to or before completion of the investigation, a charge may be withdrawn by complainant or dismissed for lack of jurisdiction, lack of cooperation or other administrative reasons.

State/IDHR

With the investigation report, IDHR serves the parties either:

  • Notice of substantial evidence that violation of IDHR has occurred, or
  • Notice of Dismissal: Lack of substantial evidence that violation of IHRA has occurred or lack of jurisdiction

When IDHR dismisses a charge, it must give notice to the complainant of his or her right to file a Request for Review appealing the dismissal with the Chief Legal Counsel of IHRA. The complainant has 30 days after receipt of the notice of dismissal to do this.

As of January 1, 2008, complainants may also commence a civil action in the appropriate circuit court and have the case heard by a jury, of which IDHR must also give the complainant notice. If the complainant files a Request for Review with the Commission, the direct circuit court action is forfeited. If the complainant commences a civil action in circuit court, he or she has 90 days after receipt of the IDHR’s notice of dismissal.

Conciliation

Federal/EEOC

After reasonable cause determination: EEOC will invite the parties to attempt conciliation. If during the course of the investigation, EEOC determines individuals other than the complainant have been affected by unlawful discrimination, it will attempt to conciliate for all.

If conciliation effort fails: EEOC may initiate a civil suit in federal court with EEOC as plaintiff but seeking relief for the complainant.

EEOC issues relief Notice of Right to Sue to the complainant notifying the complainant of having a right to file a federal lawsuit within 90 days of notice. The complainant may file pro se and request the appointment of an attorney by the court if able to meet the financial hardship requirements.

State/IDHR

Determination of substantial evidence: IDHR attorneys attempt to conciliate.

  • IDHR’s Legal Division acts as conciliator or if parties agree, case is transferred to IDHR’S Mediation Unit for formal settlement conference
  • 35 days from date of notice of substantial evidence mailed attempt is made to conciliate

If conciliation effort fails:

  • IDHR files complaint with IHRC on behalf of complainant
  • IDHR is not a party to the complaint – complainant is responsible for pursuing matter at hearing before IHRC
  • No appointed counsel available for indigent complainants

As of January 1, 2008, if the IDHR finds substantial evidence to a charge, the IDHR must notify the parties that the complainant also has the right to commence a civil action in the appropriate circuit court (or ask the IDHR to file a complaint with IHRC on his or her behalf.)

Private Right of Action

Federal/EEOC

  • Complainant may bring private civil lawsuit within 90 days of receipt of notice of right to sue
  • Right to Sue letter will be issued:
        - If EEOC determines it is unlikely it will complete investigation within 180 days
          of filing of charge
        - If complainant requests notice, in writing, either before or after 180 days
          have passed
        - Dismissal of Charge
        - Failure of conciliation – if EEOC has not filed a civil action
  • Complainant may file pro se and request appointment for attorney by the court if able to meet financial hardship requirements
  • Court decision not binding on IHRC but res judicata or collateral estoppel may apply

State/IDHR

  • Complainant can ask for:
        - Emergency injunctive relief if certified by IDHR
        - Enforcement actions of relief issued by IHRC
  • As of January 1, 2008, the complainant can commence a civil action in circuit court, if the IDHR finds substantial evidence to a charge
  • If within 365 days IDHR has not filed a complaint with IHRC or dismissed charge, complainant may file a complaint with IHRC only from day 365 to day 395 from the date of the filing of the charge (“30-day window”)

Civil actions must be commenced within 90 days of receipt of IDHR’s notice of finding of substantial evidence. To have the IDHR file a complaint with the Commission, the complainant must request this in writing within 14 days of receipt of the IDHR’s notice. If the complainant fails to timely request a complaint with the Commission, only the civil action remains available. 

Also important to note is that attempts at conciliation between the parties do not stay or extend the time for filing a complaint with the Commission or the circuit court.

If the IDHR has not issued a report of its investigatory findings within 365 days after the charge is filed (or a longer period agreed to in writing by the parties), the complainant must file his or her own complaint with the Commission or commence the civil action within 90 days.

Hearing Process

Federal/EEOC           

  • EEOC conducts administrative hearings only in cases of federal sector employment discrimination;
  • All other cases are heard in federal civil court.

State/IHRC

  • After filing of complaint by IDHR or complainant during the 30 day window
  • IDHR is not a party
  • Full evidentiary hearing conducted by administrative law judge (ALJ)
  • Discovery and other aspects of hearing process governed by IHRC procedural rules
  • No appointed counsel for indigent complainant
  • ALJ issues a recommended order and decision (ROD) after hearing is completed
  • Parties have 30 days from receipt of ROD to file exceptions with IHRC
  • Parties have 21 days to file responses to exceptions with IHRC
  • IHRC issues a final order and decision
  • Within 30 days of receipt for final order and decisions either party may request petition for rehearing before full IHRC
  • Within 35 days of service date of final order, any party may file an appeal to the Illinois Appellate Court
  • Decisions by IHRC are not binding for EEOC

Relief Available

Federal/EEOC

  • Hiring
  • Reinstatement
  • Promotion
  • Back Pay
  • Front Pay
  • Benefits
  • Compensatory and actual damages for monetary and non-monetary losses such as emotional distress
  • Punitive and compensatory damages for future monetary and non-monetary losses for intentional discrimination and unlawful harassment (For punitive damages, complainant must prove respondent acted with malice of reckless indifference to complainant’s federally protected rights)
  • Caps on combined compensatory and punitive damages: (does not apply to compensatory damages for past monetary losses)
        - $50,000: employers with more than 14 and fewer than 101 employees
        - $100,000: employers with more 100 and fewer than  201 employees
        - $200,000: employers with more than 200 and fewer than 501 employees
        - $300,000: employers with more than 500 employees
  • Compliance Reporting
  • Attorney’s fees and costs
  • Other relief may be available if found to be appropriate

State/IHRC

  • Hiring
  • Reinstatement
  • Promotion
  • Back Pay
  • Front Pay
  • Benefits
  • Actual and compensatory damages, including emotional distressTemporary and preliminary orders to cease and desist
  • Compliance reporting and posting of notices
  • Attorneys’ fees and costs
  • Other appropriate relief to make complainant whole

 [1] Employers are liable for the conduct of managerial employees. They are also liable for the conduct of non-managerial employees and non-employees when the employer knew or would have known of the conduct and failed to take "immediate and appropriate corrective action."

[2] Employers are liable for the conduct of managerial employees. They are also liable for the conduct of non-managerial employees and non-employees only if employer became aware of the conduct and failed to take "reasonable corrective action."

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