Anatomy of the Recent Amendment to the Illinois Human Rights Act
The Illinois Human Rights Act has been amended, effective August 24, 2018. The new Illinois employment law allows a complainant to skip the Illinois Department of Human Rights investigation by opting out within a 60-day period and then filing a lawsuit directly in court within a 90-day period.
The New Opt-out ProvisionEffective August 24, 2018, the Illinois Human Rights Act ("IHRA") is amended by Public Act 100-1066. Under the amended IHRA, complainants may opt out of the Illinois Department of Human Rights ("IDHR") investigation and commence a lawsuit in circuit court. To do so, complainants must submit, within 60 days after receipt of notice of the right to opt out, a written request seeking notice from the Director indicating that the Complainant has opted out of the investigation and may commence a civil action in the appropriate circuit court. The amendment applies to many types of Illinois employment law claims under the IHRA, including but not limited to sexual harassment, retaliation, wrongful discharge, and employment discrimination.
Effect of the AmendmentThis amendment may dramatically change Illinois employment law litigation. Plaintiff-side Illinois employment lawyers may choose to take advantage of the opt-out provision by quickly opting out of the IDHR investigation and filing employment lawsuits with jury demands in state court. Before the amendment, IDHR complainants were required to wait 365 days from the charge filing date or until the IDHR investigator completed her investigation, before they could file a lawsuit in court. With the long wait out of the way, the new opt-out provision may also influence plaintiff-side Illinois employment lawyers to file charges of discrimination first at the IDHR, rather than first at the EEOC. It will still be crucial for complaining parties to have their charges cross-filed with both the IDHR and the EEOC, and to perfect all federal law and state law employment discrimination claims, in order to preserve the right to obtain complete relief.
The Mechanics of the Opt-out ProcedureThe mechanics of the opt-out amendment provide as follows. Within 10 days of the date the charge is filed, the IDHR shall serve a copy of the charge on the respondent and provide all parties with a notice of the complainant's right to opt out of the investigation within the 60-day opt-out period. At any time within 60 days after receipt of notice of the right to opt out, a complainant may submit a written request seeking notice from the Director that the complainant has opted out of the investigation and may commence a civil action in circuit court. The IDHR shall respond to a complainant's opt-out request within 10 business days by issuing the complainant a notice of right to commence an action in circuit court within 90 days after receipt of the notice. The complainant must notify the IDHR and the respondent that a complaint has been filed with the circuit court and mail a copy of the complaint to the IDHR and the respondent on the same date that the complaint is filed.
Relationship to Federal Employment LawThe amendment essentially conforms certain key procedures under the IHRA to parallel procedures under federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, including the federal 90-day notice of right to sue period after receipt of a notice of right to sue from the EEOC.