LGLJ recently participated in an Illinois Chamber of Commerce Employment Law & Litigation Committee meeting that included representatives from the Illinois Department of Human Rights and Human Rights Commission. The meeting included a discussion of recent state legislative and agency initiatives. Here are some of the highlights from the discussion:
Dual Employment Discrimination Investigations
Employers often find themselves defending against the same allegations of employment discrimination filed in multiple forums, such as federal court and the Department of Human Rights. The current language of the Illinois Human Rights Act allows the Department to administratively close such dual-filed charges, but does not require them to do so. A bill introduced in the state Senate in spring 2016 to circumvent this problem passed that chamber unanimously, but has stalled in the state House of Representatives. If the bill passes, the law would require that the Department administratively close all charges that have been filed with the Department where there is already litigation pending in state or federal court which would result in a final decision on the merits. For example, if a complainant files a lawsuit against an employer in federal court alleging age discrimination under federal law, the Department would not continue to investigate the same allegations under the Illinois Human Rights Act. The Department will work with municipalities that have their own employment discrimination law to eradicate the forum selection problem that exists with those local government units.
Mediation at the Department of Human Rights
Currently, the Department offers mediation to parties after a charge is filed. If the charge fails to resolve at mediation, it is sent to investigation for processing. On December 1, 2016, the Department will implement a “beefed up” mediation program, offering multiple opportunities to resolve a charge. In addition to mediation after a charge is filed, the Department will offer mediation to parties right before a finding of substantial evidence of discrimination is issued. The Department will also offer opportunities for mediation or conciliation after a finding of substantial evidence, but before the charge is proceeds to the Human Rights Commission as either a complaint or a request for review. The Department is hopeful that this more robust mediation program will reduce the number of cases that proceed to the Commission, where there is a significant backlog of charges. The most significant cause of the backlog is requests for reviews, which can take 6 to 10 years to complete.
Streamlining Charge Processing
The Department acknowledged that certain aspects of its initial intake and processing of a charge could be candidates for streamlining. Department officials agreed that it could be prudent to consider whether the 60-day deadline to file a verified response after a charge has been filed can be extended if the parties elect mediation. The questionnaire issued to parties, on the other hand, is important for the Department’s agreement with the EEOC to investigate charges and needs to be completed when issued. Importantly, the Department stressed the need to educate state legislators on what the Department and Human Rights Commission do, as this will help the Department and the Commission obtain necessary resources for conducting investigations and processing requests for review. In light of the Illinois statutory requirement that each charge filed receive a “full investigation” before a complainant can file a lawsuit alleging a violation of the Human Rights Act, the Department is wary of taking any steps which may violate complainants’ due process rights.