The Act’s procedures prior to HB 1509. Adopted in 1980, the Act authorized the creation of two administrative agencies to investigate and adjudicate charges of violation of the Act. The department investigates charges of discrimination to determine whether there is substantial evidence of a violation of the Act. If it finds substantial evidence of a violation, the matter proceeds to the commission, which is an adjudicative body.
Prior to HB 1509, the department had to complete its investigation within 365 days, although the parties could consent to extend this time.3 At the end of this investigatory period, one of three things happened:
First, if the department determined that there was no evidence of a violation, the complainant had the option of filing a request for review by the department’s chief legal counsel.4
Second, if the department determined that there was substantial evidence of a violation, the department would file a complaint with the commission on the complainant’s behalf.5
Third, if the department failed to complete its investigation within the requisite 365 days, the complainant could file a formal complaint with the commission within a 30-day window following day 365.6
Once a complaint was filed with the commission, it would set a hearing date for the complaint before an administrative law judge. Following a hear-ing, the determination of the ALJ could be affirmed, reversed, or remanded by the commission itself, and was then subject to judicial review in the Illinois appellate court.7
There are a couple of other features of the Act that should be noted. First, until the 2007 amendments, the administrative process described above was the exclusive remedy for violation of the Act. In other words, complainants could not bring their claims of violation of the Act in either state or federal court.
Second, the Act’s coverage is somewhat greater than the coverage of analogous federal anti-discrimination laws. The Act includes more protected categories than the federal anti-discrimination laws.
For example, like the federal laws, the Act prohibits discrimination based on race, color, religion, sex, and national origin.8 The Act, however, also prohibits discrimination on the basis of ancestry, age, disability, military status, sexual orientation, marital status, and unfavorable discharge from the military.9
In addition, the Act covers more employers than the federal anti-discrimination laws. As a general rule, an employer must have 15 or more employees to be covered under either the Act or the federal laws.10 The Act, however, also covers employers with only one employee in cases of sexual harassment and disability discrimination.11
Finally, the remedies available under the Act are more limited than under the federal anti-discrimination laws. Both systems provide that successful employees are entitled to back pay, reinstatement, actual damages and attorneys’ fees and costs.12 Punitive damages, on the other hand, are available under the federal laws, but not under the Act.13
Key features of the new law. Under the amended Act, there will be substantial changes in the administrative processes used to investigate and adjudicate claims. The department will still have 365 days in which to investigate a new charge, after which one of three things will still happen. The complainant’s options, however, are different in several major ways.
First, if the department finds that there is no substantial evidence of discrimination, the complainant will have two options:
- He or she may request a review of the department’s findings by the commission (as opposed to the chief legal counsel, who was the reviewer previously) within 30 days, or
- he or she may file suit in the circuit court where the discrimination allegedly took place within 90 days.14 Second, if the department determines that there is substantial evidence of discrimination, the complainant will again have two options:
- He or she may request, within 14 days, that the director file a complaint with the commission on his or her behalf. If the complainant makes this request, the director must file that complaint within 90 days.
- He or she may file, within 90 days, a complainant in state court.15 Third, if the Department fails to issue a report from its investigation within 365 days, the complainant again has two options:
- He or she may file, within 90 days, his or her own complaint with the commission; or
- he or she may file a complaint in the appropriate circuit court.16
The above options are mutually exclusive. Thus, if a complainant chooses to pursue the case in the commission (either through a request for review or by the filing of a complaint with the commission), the complainant may not later file a complaint in state court.17
Several important features of the Act were not changed by the amendment.
Notably, the coverage of the Act was not changed in terms of either protected categories or the coverage of small employers in sexual harassment and disability cases. Also, the amendment did not change the damages available to successful employees in either the commission or state court.18