Employees who believe that they have been discriminated against in the workplace on the basis of age, disability, gender, race or similar characteristics can file a complaint with the Illinois Department of Human Rights (“IDHR”). The IDHR is charged with the responsibility of investigating such claims, and often, aids in negotiating a resolution to the dispute (referred to as “conciliation”).
For years, employees had to file such complaints within 180 days to avoid having their complaints dismissed as untimely. More recently, however, the time for filing a complaint was extended to 300 days. This timeframe is more consistent with that of the Equal Employment Opportunity Commission, the federal counterpart to the IDHR. And, while there are questions as to the effectiveness of the IDHR’s investigation and conciliation process, many claimants and employers believe that the months and even years that can elapse between the time of filing and resolution is too long.
Due to recent amendments to the Illinois Human Rights Act, claimants can now “opt out” of the IDHR’s investigation process and proceed directly to court. To opt out, the employee must submit a request to the agency within 60 days of the initial filing notice. Upon receipt, the IDHR will terminate its proceedings and issue a notice allowing the employee to go to court.
For employers, this might result in less of an opportunity to evaluate the merits of potential claims before litigation costs begin to escalate. As a result, it might be beneficial for an employer to initiate its own “conciliation” process in an effort minimize exposure. On the other hand, few employees are likely to initiate a lawsuit early, requiring payment of filing fees and other costs, when an IDHR investigation is free of charge to claimants and does not require the assistance of legal counsel.
Employee Handbook Update
Also, among the recent amendments to the Illinois Human Rights Act is a provision requiring employers to include in its personnel handbook or guidelines a notice informing employees of their right to be free from unlawful discrimination and sexual harassment. As part of the policy, employers should include information about reasonable accommodations for pregnancy and/or disabilities, as well as assurances that those who exercise their rights will not be retaliated against. Finally, the notice or policy should include information advising the employee of how they can report discrimination internally or to an agency.