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Plaintiffs’ attorneys are lauding changes to
state law, effective as of Jan. 1, that permit workers to sue their
employers for race, sex, and other forms of discrimination in circuit court
in a manner similar to that of other small-claims issues, such as traffic
accidents. “It’s a great opportunity to get these
cases heard,” says Springfield attorney Thomas Dorsey, who’s
handled several discrimination cases. Previously employees had to file their complaints with
the Illinois Department of Human Rights, which has 365 days to investigate
a complaint and may request an extension after that year is up.
When the investigation is complete, the IDHR’s
chief legal counsel determines whether there exists substantial evidence of
a violation of the Illinois Human Rights Act, which prohibits
discrimination based on age, national origin, physical or mental
disability, race, religion, sex, sexual orientation, and other factors. If the department finds substantial evidence of
discrimination, the worker may then take the case before an administrative
law judge with the Illinois Human Rights Commission. After a hearing, the
commission will either dismiss or uphold the complaint, and either party
has the option of appealing the decision to a state appellate court.
Chuck Watson, who specializes in employment law,
including legal assistance for state workers, says that a lack of options
was the old system’s most glaring flaw. “No matter what, you had to go to the
commission, and that’s if you made it through the department. It was
a very arduous process, and a lot of people thought it was a very
problematic process. People hope that the state court system will be more
efficient,” he says. Under the new law, sponsored in the Legislature by
state Rep. Barbara Flynn Currie and state Sen. Carol Ronen, both Chicago
Democrats, the initial complaint still has to start with the IDHR, but
complainants can sue in circuit court whether or not the agency finds
substantial evidence or if the investigation is not concluded within one
year. Both Dorsey and Watson say that bias cases are tough
because plaintiffs must prove an employer’s motivation and intent to
discriminate and that cases filed in circuit courts are more likely to be
heard before a jury. “That’s what plaintiff attorneys
want,” Watson says. Dorsey agrees that state courts may be faster, adding
that that the IDHR is understaffed and the state has done little to help
fix the situation. “The system really underestimated the volume of
discrimination cases and human-rights violations going on,” he says. According to the agency’s most recent annual
report, the IDHR employed 111 charge processors for the 3,555 charges of
discrimination it received in the 2006 fiscal year. Of the 3,240 completed
investigations, processors found substantial evidence in 214 instances. Sangamon County, home to approximately one-fifth of
the state’s 50,000-person workforce, ranked third, behind Cook and
Lake counties, in employment claims filed and could be inundated with
discrimination-charge filings in the coming months.
Even with the new law, Dorsey and Watson say that the
state should beef up funding for the IDHR, as well as for the human-rights
commission. Ultimately, Dorsey isn’t convinced that the new law will
do much to deter employers from discriminating. “They’ve got the time and the resources
to take these things all the way,” he says.
Contact R.L. Nave at rnave@illinoistimes.com.
This article appears in Jan 10-16, 2008.
