Employers, including local governments, are preparing to defend a new type of case in circuit court. Because of a recent amendment to the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq., persons who allege employment discrimination by filing a charge at the Illinois Department of Human Rights (IDHR) can elect to sue in circuit court. See Public Act 95-243, effective January 1, 2008. Previously, complainants who brought discrimination charges at the IDHR could have an administrative hearing before an administrative law judge at the Illinois Human Rights Commission. With the new amendment, complainants can choose to have a hearing at the Commission or file a complaint in circuit court.

The IDHR investigates charges of employment discrimination based on, among other things, “race, * * * sex, * * * physical or mental handicap, * * * or sexual orientation[.]” See generally 775 ILCS 5/1-102. Generally, the IDHR has 365 days to investigate a charge of discrimination. The IDHR determines whether there is substantial evidence of discrimination or no substantial evidence of discrimination. Prior to the amendment, if the IDHR found no substantial evidence of discrimination, the complainant could seek review of the finding at the agency, and if the agency affirmed the finding, seek recourse in the Illinois Appellate Court. 775 ILCS 5/7A-102. Under Public Act 95-243, however, a complainant can elect to sue in circuit court even if the IDHR finds no substantial evidence of discrimination.

The amendment allows a complainant to bring an action in circuit court if one of three things occurs. First, if the IDHR finds substantial evidence of discrimination, the agency notifies the parties “that the complainant has the right to either commence a civil action in the appropriate circuit court or request that the IDHR file a complaint with the Human Rights Commission on his or her behalf.” 775 ILCS 5/7A-102(D)(4). The complainant must file a suit in circuit court within ninety days of receipt of the finding. Id.

Second, if the IDHR finds no substantial evidence, then the complainant can choose to request that the Human Rights Commission review the finding or elect to file a complaint in circuit court. 775 ILCS 5/7A-102(D)(3). “If the complainant chooses to file a request for review with the Commission, he or she may not later commence a civil action in a circuit court. If the complainant chooses to commence a civil action in a circuit court, he or she must do so within 90 days after receipt of the Director’s notice.“ Id. The circuit court in the county where the discrimination allegedly took place is the court in which the action must be brought. 775 ILCS 5/7A-102(F)(2).

Third, if the IDHR fails to complete its investigation within 365 days of the filing of the charge, or a later date agreed to by the parties, the complainant can bring an action in circuit court or file his or her own complaint at the Human Rights Commission. 775 ILCS 5/7A-102(G)(2). In each instance the complainant must decide which forum to pursue—circuit court or the Commission. For instance, if the complainant files a complaint with the Commission, he or she cannot later sue in circuit court.

The amendment is effective for all charges of discrimination filed on or after January 1, 2008. The legislative history of the amendment indicates that the amendment follows the law already in place in 38 other states. See Remarks of Rep. Currie, April 17, 2007, House Debate on House Bill No. 1509, (95th Gen. Assem.) at 9-10. The legislative history provides that a complainant determines whether “to go to the commission or to go to court.” Id.

The amendments to the Human Rights Act were reviewed in some detail in previous editions of the Illinois Bar Journal. The September 2007 edition of the Journal included an article entitled, “New law allows Human Rights Act plaintiffs to file in circuit court.” Also, the January 2008 edition of the Journal included the article, “The New Illinois Right-to-Sue Law for Employment Discrimination.”

Employers may not need to wait until January 2009 or after to see employment discrimination suits filed against them. A January 2009 date would allow for the 365 days provided for investigation by the IDHR for a charge of discrimination filed in January 2008, just after the effective date of the new amendment. However, for cases where the IDHR completes its investigation in less than 365 days, the complainants will have their opportunity to seek relief in circuit court even before January 2009.