IL: Discrimination

December 22nd, 2020
Peter J. Gillespie
Laner Muchin

Under various state and federal laws, employers are prohibited from discriminating against individuals on the basis of:

  • race
  • color
  • national origin or ancestry
  • religion
  • sex
  • sexual orientation
  • pregnancy
  • genetics
  • age
  • disability
  • arrest record
  • citizenship
  • language
  • military record
  • order of protection status
  • concerted activity of employees on terms of employment
  • a complaint of illegal activity or a serious safety violation
  • current assertion of a workers' compensation claim against an employer
  • previous assertion of a workers' compensation claim or right against an employer
  • availability or use of a benefit plan.

Finally, employers may not take any adverse steps – that is, “retaliate” – against an employee for alleging discrimination by the employer.

Because an employer may be held liable under each applicable statute, it is important to know which law protects which protected class from discrimination.

The primary state statute that prohibits discrimination in employment is the Illinois Human Rights Act (IHRA). The IHRA prohibits employment discrimination based on an employee's actual or “perceived:”

  • race
  • color
  • national origin
  • religion
  • ancestry
  • age
  • sex
  • sexual harassment
  • marital status
  • order of protection status
  • disability
  • military record or status
  • sexual orientation
  • pregnancy, childbirth or related medical condition
  • arrest record
  • citizenship status
  • language
  • retaliation
  • coercion/aiding and abetting (helping or forcing a person to commit unlawful discrimination).

Unlike the federal statutes, the IHRA applies to all employers within the state, with one or more employees.

In general, the provisions of the IHRA overlap with the requirements of Title VII, the EPA and the ADEA. Accordingly, the requirements of Title VII, the EPA and the ADEA noted in this chapter, should be considered to apply equally to the IHRA. To the extent the IHRA differs from federal law, it will be noted herein.

The federal statutes that prohibit discrimination in employment against individuals based on   certain protected class memberships include:

  • Title VII of the Civil Rights Act of 1964, as amended (Title VII), which prohibits employment discrimination based on race, color, religion, sex, and national origin. It covers public and private employers with 15 or more employees.
  • The Pregnancy Discrimination Act of (PDA), amended Title VII to prohibit discrimination based on pregnancy, childbirth or related medical conditions. It covers employers with 15 or more employees.
  • The Equal Pay Act (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. It applies to virtually all employers, regardless of number of employees.
  • The Age Discrimination in Employment Act (ADEA), which prohibits discrimination in employment against individuals who are 40 years of age or older. The Act applies to employers with twenty or more employees.
  • Title I and Title V of the Americans with Disabilities Act, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments (see Chapter 13: Disabilities and reasonable accommodations).
  • Sections 501 and 505 of the Rehabilitation Act, which prohibit discrimination against qualified individuals with disabilities who work for the federal government.
  • Title II of the Genetic Information Nondiscrimination Act (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee.
  • The Civil Rights Act of 1991, which, among other things, increased the monetary damages in cases of intentional employment discrimination under Title VII, the EPA and the ADA.
  • The National Labor Relations Act (NLRA), which, among other things, prohibits employers from discriminating against employees for discussing amongst themselves the terms and conditions of their employment.
  • The Employee Retirement Income Security Act (ERISA), which prohibits having retirement plans and “welfare benefit plans,” i.e. health, disability insurance, etc. (and even severance plans) from being discriminatory as well as action or inaction by the employer taken for the purpose of interfering with the attainment of any right to which such participant may become entitled under a plan.

Illegal discrimination practices

An employer is prohibited from considering an employee’s protected class status when making the following employment decisions:

  • hiring and firing
  • compensation, assignment, or classification of employees
  • transfer, promotion, layoff, or recall
  • disciplinary actions that constitute adverse employment actions
  • demotions
  • job advertisements
  • recruitment
  • testing
  • use of company facilities
  • training and apprenticeships programs
  • fringe benefits
  • pay, retirement plans, and disability leave
  • other terms, conditions or privileges of employment.

Other practices that are considered discriminatory include:

  • harassment on the basis of race, color, religion, sex, sexual orientation, national origin, disability, genetic information, or age
  • retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices
  • employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, sexual orientation, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual’s genetic information
  • denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

Racial discrimination

Both Title VII and the IHRA make it unlawful for an employer to discriminate in employment based on an individual’s race or color. Race discrimination means treating someone less favorably based on the individual’s race or color. An employer may not refuse to hire, promote, terminate, or harass, segregate or classify employees on the basis of race.

As discussed above, employees may file claims based on race discrimination under Title VII and the IHRA. Employers should be aware that individuals may also file claims of race discrimination under Section 1981 of the Civil Rights Act of 1866 (Section 1981). Section 1981 is often invoked by employees who are seeking to avoid Title VII’s procedural requirements, and in some cases, to gain access to additional damages. Both Title VII and Section 1981 prohibit discriminatory employment decisions based on race or stereotypes often associated with race. In addition, both laws protect against racial harassment and retaliation.

Title VII vs. Section 1981

  • Unlike Title VII, which protects employees against discrimination based on race, color, sex, national origin and religion, Section 1981 only protects against race discrimination.
  • Unlike Title VII, which covers only those employers with 15 or more employees, Section 1981 covers all private employers, regardless of the number of employees.
  • The administrative prerequisites to filing a suit in federal court under Title VII do not apply to Section 1981 claims. Thus, an employee with a Section 1981 claim does not have to first file a charge with the EEOC, nor must he or she wait for his or her right-to-sue-letter.
  • Unlike Title VII, which requires a charge of discrimination to be filed with the EEOC within 180 days of the alleged discriminatory event, the courts have determined that Section 1981 generally permits claims brought within a maximum of four years of the alleged discriminatory conduct, depending on the circumstances.
  • While Title VII allows claims under either disparate treatment or disparate impact, Section 1981 is appropriate only for cases in which the employer is charged with intentional discrimination (disparate treatment).
  • Unlike Title VII, Section 1981 does not provide a statutory cap to its punitive damage awards.

National origin discrimination

Title VII and the IHRA prohibit discrimination in employment based on an individual’s national origin or ancestry. National origin discrimination means treating someone less favorably because he or she comes from a particular place, because of his or her ethnicity or accent, or because it is believed that he or she has a particular ethnic background. Title VII also protects employees who associate with persons of a particular national origin. Therefore, according to EEOC guidelines, Title VII’s protections cover:

  • marriage with a member of a particular national origin
  • use of a spouse’s name that is associated with a particular national origin
  • membership in schools, churches, temples, or mosques generally used by persons of a particular national origin
  • membership in an organization which promotes the interests of national groups.

Employment verification

The Immigration Reform and Control Act (IRCA) makes it unlawful for any employer to hire any person who is not legally authorized to work in the United States. Since this law may cause employers to discriminate against foreign-looking or foreign-sounding job applicants, IRCA also contains two anti-discrimination provisions:

  1. The first provision extends Title VII’s existing prohibition against national origin discrimination to cover employers with four or more employees and applies to employers that are otherwise outside Title VII’s coverage.
  2. The Act’s second provision prohibits discrimination based on citizenship status and applies to all employers with at least four employees, subject to certain limitations.

Religious discrimination

Title VII of the Civil Rights Act (Title VII) and the Illinois Human Rights Act (IHRA) prohibit discrimination in employment based on an individual’s religion. “Religion” is not defined by the statutes. Courts define it broadly as a sincerely held religious belief, regardless of whether such belief is approved or required by an established church or other religious institution. The law protects all aspects of a religion, its observances and its practices.

Under Title VII and the IHRA, religious discrimination includes an employer’s failure to accommodate an employee’s religious beliefs, thereby forcing the employee to choose between his religion and his job. In particular, the IHRA restricts the use of dress codes or grooming standards in ways that interfere with an employee’s religious belief, practice or observance. Therefore, these prohibitions against religious discrimination create an affirmative duty for an employer to reasonably accommodate an employee’s religious beliefs and practices.

A plaintiff who claims his employer discriminated against him by failing to accommodate his or her religious beliefs must first establish all three of the following elements:

  1. the employee has a sincere belief that compliance with a work requirement is contrary to his or her religious faith
  2. the employee informs his employer of this conflict
  3. the employee is discharged or disciplined for failing to comply with the work requirement.

If the plaintiff establishes all three of these elements, the employer must then prove that it attempted to accommodate the plaintiff’s religious beliefs or was unable to provide an accommodation without undue hardship. Therefore, the issue in most religious discrimination claims is whether the employer’s accommodation is reasonable.

The extent of the duty to accommodate

It is well settled that an employer, in order to fulfill its duty to accommodate, does not have to provide an employee with the “best accommodation” or the accommodation preferred or proposed by the employee. In order to defend against a failure to accommodate claim, an employer simply must show that it offered a reasonable accommodation to the employee.

An employer does not have to implement any accommodation at all, if doing so would result in an undue hardship. For example, under Illinois law, employers are expressly allowed to implement dress codes or grooming standards that protect workplace safety or food sanitation. The Supreme Court has defined “undue hardship“ as any accommodation that would impose more than a minimal cost for the employer to implement. Whether an accommodation is reasonable depends on the facts of each case.

Gender discrimination

Title VII and the IHRA prohibit employment decisions based on sex (that is, gender) or sexual stereotypes. Other issues included under the broad umbrella of “sex discrimination” include compensation discrimination, pregnancy discrimination, and sexual harassment.

Under Title VII, an employer may not make employment decisions based on sex, nor may it implement employment practices that help foster sexual stereotypes. The sole exception to this prohibition is the bona fide occupational qualification (BFOQ) defense.

Bona fide occupational qualification 

A bona fide occupational qualification (BFOQ) is a quality or attribute (here, sex) that an employer may consider when making decisions, even though it may be considered discriminatory in other contexts.

Example - A manufacturer of men’s clothing might be able to lawfully argue that no woman can be hired as one of its models. The fact that she is a female could disqualify her from consideration – being male is a BFOQ for the position.

In order to establish a BFOQ defense, the employer must demonstrate the following:

Direct relationship between an employee’s sex and his or her ability to perform the job

An employer may demonstrate a direct relationship by showing that all, or substantially all, individuals of one sex would be unable to safely and efficiently perform the duties of a particular position. However, courts will not uphold a rule that is based on sexual stereotypes.

Example - An employer may not implement a policy excluding women from a position that regularly requires lifting over 30 pounds. This policy is based on the stereotype that all women are inherently weak.

Essence of business

Discrimination based on sex is lawful only when the essence of the business operation would be undermined if the employer is forced to hire members of both sexes.

Example - Hooters restaurant attempted to exclude all male servers, claiming that male servers did not fit within Hooters’ chosen entertainment theme. The court disagreed, finding that Hooters marketed itself as a family restaurant instead of an entertainment business, and therefore had no right to exclude men from service positions. In other words, a server did not have to be female in order to facilitate the essence of Hooters’ business as a family restaurant.

No reasonable alternative

Although not universally required, many courts require that an employer must also be able to demonstrate that no less restrictive alternative is available other than the exclusion of a gender from the position.

Example - A nursing home primarily servicing female patients rejected the application of a male nursing assistant because of his sex. The medical center argued that it was entitled to reject male applicants in order to protect its patients’ privacy rights. However, the court rejected this contention, in part because allowing male nursing assistants to work with male patients and non-objecting female patients was a less restrictive alternative available to the medical center.

Factors to consider

Factors that courts consider when determining whether a sex-based discriminatory practice is lawful are:

Safety of others

The safety of others, not the safety of the employee, has traditionally been the most successful factor in justifying discriminatory practices.

Privacy

Courts occasionally uphold sex-based employment policies that are motivated by privacy interests of third parties.

Example - Courts traditionally have allowed health club owners who refuse to hire male personal trainers for their female-only clubs to show that sex is a BFOQ. Under this theory, club owners argue that hiring males for a position that often requires close, intimate contact with the female clients would be an intrusion into the clients’ privacy.

Customer preference

Normally, customer preference is not sufficient to support a BFOQ defense.

Compensation discrimination

An employee may sue for compensation discrimination under the Equal Pay Act, which prohibits an employer from paying men and women who perform substantially equal work in the same workplace different rates of compensation due to gender. Title VII and the Americans with Disabilities Act (ADA) and the recently amended Illinois Equal Pay Act also prohibit an employer from paying an individual a lesser rate of pay based on any protected class covered by the respective acts.

The Lilly Ledbetter Fair Pay Act (Ledbetter Act) expanded the definition of a “violation” under Title VII to include more than the initial pay decision. Under this Act, a violation occurs with each payment of wages, benefits, or other compensation that are the result of a discriminatory pay decision. Therefore, an employee’s claim for compensation discrimination under Title VII would be timely so long as it is filed within 180 days of his or her last paycheck – even if the actual discriminatory pay decision occurred many years in the past.

The Ledbetter Act, along with recent amendments to the Illinois Equal Pay Act, raises the stakes for compensation discrimination claims. More than ever, an employer should ensure that its employees are compensated in a consistent manner. If they are not, the employer should be sure that it has proper documentation of the legitimate nondiscriminatory reasons for any differential treatment.

Discrimination is prohibited between employees in the same establishment who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions who do not share the same gender or ethnicity. Under the Acts, the term “wages” encompasses all forms of compensation. Therefore, a differential in fringe benefits may serve as the basis for a claim, even when all other compensation is equal.

In order to prevail, a plaintiff must be able to identify an employee of the opposite sex or of a different race who is within the same establishment and receives higher compensation for performing equal work. Courts are clear that they will not compare wages paid to employees from separate places of business unless the plaintiff can show that the employer’s operations are integrated within the separate facilities and that the administration of these facilities is centralized.

When determining whether two jobs are equal, it is the content of the job that is determinative, not the formal job description. Therefore, courts will consider the following factors:

  • Skill - Courts will consider factors such as education, ability, experience, and training.
    • Note: Courts will focus on what skills are required to do the job, not what skills an individual employee happens to possess. In other words, a difference in pay between two security guards cannot be justified by the fact that one has a master’s degree in classical music because that type of degree is not required for the security guard position.
  • Effort - The EEOC defines effort as the amount of physical or mental exertion needed to perform the job. Therefore, under this definition, two workers on a factory assembly line could hold the same job title, but if one worker’s job duties require more manual labor, the employer would be justified in paying him more. In addition, courts will also consider differences in the volume of work performed.
  • Responsibility - The EEOC defines responsibility as the degree of accountability inherent in the job.
    • Example - A retail supervisor who is responsible for balancing registers and locking the store at the end of the day may be paid more than a sales associate, even if the two individuals perform much of the same duties.
  • Working conditions - Working conditions refer to “surroundings” (elements regularly encountered by a worker) and “hazards” (the physical hazards regularly encountered, their frequency and the severity of injury they can cause). Therefore, an employer is justified in paying more to an employee if his position exposes him to greater hazardous conditions.

Defenses

An employer may defend against a compensation claim by proving that the difference in pay rate is based on:

  • an established seniority system
  • an established merit system
  • a system which measures earnings by quantity or quality of production
  • any factor other than sex.

Employers should note that in correcting a pay differential, no employee’s pay may be reduced. Instead, the pay of the lower-paid employee should be increased.

Pregnancy discrimination

The Pregnancy Discrimination Act (PDA), amended Title VII to prohibit discrimination based on pregnancy, childbirth, or related medical conditions. The PDA and IHRA prohibit employers from discriminating against pregnant employees or maintaining policies that adversely affect pregnant employees. The PDA and IHRA require employers to treat woman who are pregnant or affected by pregnancy-related conditions in the same manner as other applicants or employees with similar abilities or limitations.

Protections

The PDA prohibits discrimination because of pregnancy, pregnancy-related conditions or child birth only. However, a court recently held that the PDA protects women from discrimination for having an abortion.

  • An employer cannot refuse to hire someone because she is pregnant or has a pregnancy-related condition.

  • An employer cannot require a pregnant woman to submit to special procedures in order to determine whether she can perform her job duties unless the employer requires all employees to submit to those procedures.
  • An employer must treat a pregnant woman who cannot perform her job due to a medical condition related to her pregnancy the same way he treats all temporarily disabled employees.
  • An employer may not keep a pregnant woman from working or prohibit a woman from returning to work after giving birth.
  • Pregnant employees cannot be made to pay a larger health insurance deductible than other employees pay.

Right to voluntary leave

The PDA requires that pregnant women be given at least the same benefits and leave time as any other employee.

Example 1 - An employer grants short-term disability to all employees. That employer must then allow a pregnant woman sufficient leave to recover from childbirth.

Example 2 - An employer allows employees to take leave for personal or family reasons. That employer must then grant this same leave to pregnant employees.

Health insurance

The PDA prohibits employers from discriminating against pregnancy in their health insurance programs. Under the PDA, an employer must do all of the following:

  • provide the same pregnancy benefits to unmarried employees that it provides to married employees
  • reimburse pregnancy-related expenses under the same method used to reimburse other medical conditions
  • provide the same level of health insurance for spouses of male employees as it does for spouses of female employees.

Protection from hazardous work conditions

An employer faces a unique dilemma when employing individuals to work under hazardous work conditions. If it forbids a pregnant woman from working in hazardous areas, it risks Title VII litigation. If it chooses not to exclude pregnant women from hazardous areas, it increases its exposure to claims if the child is born with injuries that can be tied to the hazardous environment. The Supreme Court has held that it is a violation of Title VII to exclude pregnant women from hazardous positions and has suggested that an employer that fully informs a woman of the risks involved could shield itself from liability.

Pregnancy accommodations in Illinois

The IHRA was amended, effective January 1, 2015, to impose a duty on employers to provide reasonable accommodations for any condition related to pregnancy, childbirth or related condition upon request. Reasonable accommodations may include:

  • more frequent or longer bathroom breaks
  • breaks for increased water intake
  • breaks for periodic rest
  • private non-bathroom space for expressing breast milk
  • seating
  • assistance with manual labor
  • light duty
  • temporary transfer to less strenuous or hazardous position
  • the provision of accessible worksite
  • acquisition or modification of equipment
  • job restructuring
  • a part-time or modified work schedule
  • reassignment to vacant position
  • leave.

Employers may also need to reinstate an employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position. An employer may defend against a failure to accommodate claim by demonstrating that the accommodation would impose an undue hardship on the ordinary operation of the business of the employer.

Sexual orientation discrimination

Discrimination based on sexual orientation is illegal under the IHRA. An employer commits an unlawful employment practice if it:

  • fails to hire, terminates or otherwise discriminates against an individual based on his or her sexual orientation
  • segregates or classifies employees in such a way that would deprive them of employment opportunities  or would otherwise adversely affect their status as an employee, due to their sexual orientation
  • considers membership in any of the protected classes a motivating factor for any employment decision,  even if other factors also motivated the decision
  • subjects an employee to a harassment or a hostile work environment due to his or her sexual orientation.

Age discrimination

It is unlawful for an employer to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

The IHRA prohibits discrimination based on age and protects employees who are over 40 years of age.

Additionally, Congress enacted the Age Discrimination in Employment Act of 1967 (ADEA) to encourage the employment of older individuals based on their ability rather than age and to prohibit acts of arbitrary age discrimination in employment. The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age, and its protections apply to both employees and applicants in public and private employment.

Disparate treatment

Although plaintiffs can bring claims under the ADEA based on a disparate impact theory, most discrimination cases under the ADEA are brought under the disparate treatment theory. The ADEA has adopted the same general principles governing the burdens of proof as those established in Title VII disparate treatment claims. Therefore, the plaintiff attempts to establish an inference case of discrimination; the employer responds with a legitimate, non-discriminatory explanation for the adverse employment action; and the plaintiff must prove that the employer’s reasoning is a falsehood to mask unlawful discrimination. In order to establish an inference of discrimination, a plaintiff must prove all four of the following conditions:

  1. he is a member of the protected age group (40 years of age or older)
  2. he was qualified for the position in question
  3. despite being qualified, he was adversely affected
  4. someone substantially younger, with similar or lesser qualifications, received the position (or other job benefit) denied to the plaintiff.
  • Is it sufficient for a plaintiff to show that he was replaced by someone younger, or must the replacement be outside the protected age group? The Supreme Court has held that an employee is not required to show that he was replaced by someone outside the protected age group. A 56-year-old employee may establish a case of age discrimination by alleging that he was terminated and replaced by an employee who was 40 years old.

    However, the Supreme Court has also stated that the plaintiff’s replacement must be substantially younger. A 68-year-old who is replaced by a 67-year-old will not be able to succeed on an age discrimination claim.

  • May a plaintiff bring a claim if there is no younger replacement? In limited instances, an employee may bring an age claim even though he was not replaced. This situation typically arises after a reduction in force (RIF) when an employee alleges that his job was eliminated altogether because of his age and, he cannot identify a younger replacement.

Defenses to an age discrimination claim

Bona fide occupational qualification 

The bona fide occupational qualification (BFOQ) is a defense in which the employer concedes that age was considered in an employment practice or policy, but asserts that using age as a qualification is “reasonably necessary to the normal operation of the particular business.” The Supreme Court has adopted a two-part test for determining whether the BFOQ is a valid defense:

  • The employer must prove that the challenged policy or practice is “reasonably necessary to the essence of the employer’s business.”
  • The employer must demonstrate that it is compelled to rely on age as the determining factor for its practice or policy.
  • The employer may demonstrate this second factor either by demonstrating that it has a “substantial basis for believing that all or nearly all employees above a certain age lack the qualifications required for the position,” or that it would be very impractical for the employer to test each individual employee to determine if he or she has the necessary qualifications.

Bona fide seniority system

The ADEA permits employers to implement a bona fide seniority system (a system that typically provides benefits based on length of job tenure) so long as it is not intended to evade the purposes of the ADEA. To be valid, a seniority system may not require the involuntary retirement of any employee on the basis of age. Seniority systems typically favor rather than discriminate against older workers, and employees rarely challenge termination decisions based on them.

Employers must ensure that all benefit programs comply with the Older Workers Benefit Protection Act (OWBPA), which amended the ADEA to specifically prohibit employers from denying benefits to older employees. Under the OWBPA, any age-based reductions in an employer’s employee benefit plans must be justified by significant cost considerations.

Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.  The OWBPA contains a few exceptions to this cost-justification defense.

While an early-retirement incentive program is typically legal, it will be deemed invalid if a court finds that it is involuntary or is inconsistent with the purposes of the ADEA.

The OWBPA states that an employer may not reduce contributions to an employee’s pension plan for any age-related reason.

Reasonable factors other than age 

An employment decision based on good cause or a reasonable factor other than age is lawful. Typically, an employer uses this defense by stating the legitimate business reason motivating the decision, such as poor performance. Courts have held that factors that usually correlate with age (such as pension eligibility, tenure, or seniority) usually fail to satisfy the reasonable factor other than age (RFOA) defense.

Bona fide executives or high policymaking employees

The ADEA allows an employer to enforce mandatory retirement at the age of 65 for “bona fide executives” or “high policymaking” employees. When determining whether a particular employee qualifies, courts will consider the nature of the employee’s duties, responsibilities, and authority. The ADEA specifies that the employee must have been serving in the bona fide executive position or the high policymaking position for at least two years, and the employee may be retired only if he or she is entitled to an immediate, nonforfeitable, annual retirement benefit of at least $44,000 from the employer.

Reduction in force 

The central issue raised in ADEA claims involving a reduction in force (RIF) is the validity of the employer’s decision as to which employees to layoff. There are several criteria on which employers may lawfully base layoff selections. Examples include:

  • performance, skill and ability
  • productivity
  • inverse seniority
  • potential pitfalls.

Employers invite liability during an RIF when they fail to articulate clear selection standards and review processes. Thus, it is important for employers to implement layoff procedures and to provide documentation justifying each termination based on factors other than age. Employers should be sure to:

  • Confirm that supervisors are providing and documenting candid and accurate evaluations. Employees should have a good indication of how they are performing and should not be blindsided during an RIF with the revelation that their performance is lacking.
  • Avoid a situation in which an older employee’s performance rapidly deteriorates in the face of an impending RIF. In this situation, the employer must make an effort to document this decline through conduct reports. Without this safety net, employers may have to rely on performance evaluations that may have occurred before the employee’s performance declined.

There are two techniques employers may use to limit the fallout from RIFs:

  1. Consider providing a voluntary separation or early retirement incentive.
  2. Make sure that separation occurs across all age groups.

Waivers rights

At an employer’s request, an individual may agree to waive any rights or claims he or she may have under the ADEA in exchange for some benefit to which he or she is not otherwise entitled. The OWBPA imposes specific requirements for releases of ADEA claims. According to the OWBPA, in order for a waiver that is part of an individual separation to be valid, it must embody all of the following requirements:

  • be in writing and plainly communicated
  • specifically refer to ADEA rights or claims
  • not waive rights or claims that may arise in the future
  • be in exchange for valuable consideration (money or any other benefit) in addition to any benefits or amounts to which the employee is already entitled
  • advise the employee in writing to consult with an attorney before signing the waiver
  • provide the employee at least 21 days to consider the agreement and at least seven days to revoke  the agreement after signing it.

If the waiver is requested in connection with a termination or exit incentive program offered to a group of employees, the requirements are more extensive. In addition to the requirements, each employee must be given at least 45 days to consider the agreement. Furthermore, at the outset of the 45-day period, the employer must inform each eligible employee, in writing, of:

  • the class of eligible employees
  • the specific eligibility requirements
  • any applicable time limits on participation
  • the job titles and ages of all employees eligible or selected for the program
  • the ages of all employees in the same job classification or organizational unit who are not eligible or selected.

Return of severance benefits

The ADEA claims to prevent employers from forcing employees into early retirement for the economic benefit of the company. Thus, while a release may prevent a separating employee from filing a suit based on claims under the ADEA, the employee is always free to challenge the validity of the release itself.

Example - Suppose an employer implements an early-retirement incentive program and has the participants sign releases in exchange for additional severance benefits. The employees accept the benefits, but later wish to challenge the release, claiming they signed under duress. Must the employees return the benefits they have already accepted as a prerequisite to filing suit?

The Supreme Court has held that employees have no obligation to return benefits before filing a suit challenging the validity of a release. To require employees to tender back their benefits would have a “crippling effect” on the ability of such employees to challenge releases obtained by illegal means, such as misrepresentation or duress.

Genetic information discrimination

Title II of the Genetic Information Nondiscrimination Act (GINA) is unique because it is the first anti-discrimination law that was enacted to work proactively and prevent discrimination before it becomes entrenched in society. Because GINA prohibits discrimination based on an employee’s genetic information, its protections are intended to encourage Americans to take advantage of genetic testing as part of their medical care. GINA borrows its remedial and enforcement structure from Title VII and became effective on November 21, 2009.

“Genetic information” means an individual’s genetic tests, the genetic tests of family members of an individual, and the manifestation of disease or disorder in family members of an individual. Title II of GINA prohibits employers from:

  • discriminating based on genetic information
  • acquiring genetic information, except in certain specific circumstances (such as monitoring the effects of workplace exposure to hazardous materials)
  • using or disclosing genetic information, should an employer acquire it.

Therefore, genetic information cannot be used in making employment decisions such as hiring, firing, job placement, and promotion. Employers should not inquire concerning the family medical history of an applicant or employee. Employers also cannot retaliate against individuals who assert their rights under GINA or treat their employees differently because of their genetic information.

Additionally, whenever lawfully requesting information from an employee that may reveal genetic information (through a wellness program, to support an ADA accommodation request, request for sick leave, FMLA or similar certification, or otherwise), employers are encouraged to include the following notification:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Whenever the notice is properly given it will provide a safe-harbor for employers, and any such acquisition will be considered inadvertent, and therefore not a GINA violation.

Military status discrimination

Discrimination in private employment based on an individual’s status on active duty in or status as a veteran of the Armed Forces of the United States, status as a current member or veteran of any reserve component of the Armed Forces of the United States, including the U.S. Army Reserve, U.S. Marine Corps Reserve, U.S. Navy Reserve, U.S. Air Force Reserve and U.S. Coast Guard Reserve or status as a current member or veteran of the Illinois Army National Guard or Illinois Air National Guard is prohibited under both the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Illinois Human Rights Act (IHRA). Public-sector employees have broader protections available under Illinois law.

Whistleblower protections

The Illinois Whistleblower Act (IWA) renders it unlawful for an employer to discriminate, retaliate, threaten, or penalize an employee because the employee did any of the following:

  • reported a violation of the law to government or law enforcement agency
  • refused to participate in an activity that would result in a violation of a state or federal law, rule, or regulation
  • reported a medical error and the employee is a health care worker
  • reported a serious health or safety risk
  • refused to do something that would endanger his or her life or someone else’s life
  • due to the involvement of an employee in an investigation or hearing held by the government.

The IWA is especially restrictive in Illinois, as employers may also face criminal penalties for willful violations of the IWA.

COVID-19 anti-retaliation ordinance

The Chicago City Council approved an ordinance in May of 2020 ensuring  that covered employees can remain at home for COVID-19-related reasons without fear of being fired, even if they have exhausted any legally mandated or employer-provided leave time.

Covered employees

Employees who perform at least wo hours of work for an employer within a two-week period while physically present within the City of Chicago are covered under this ordinance.

Employer restrictions

Employers cannot demote or terminate a covered employee for obeying an order issued by a state or local government office requiring them to:

  • stay at home to minimize the transmission of COVID-19
  • remain at home while experiencing COVID-19 symptoms or while sick with COVID-19
  • obey a quarantine order
  • obey an isolation order
  • obey and order issued by the Commissioner of Health regarding duties of hospitals and other congregate facilities.

Employers also are prohibited from taking an adverse action against a covered employee for caring for an individual subject to stay at home orders.

Employers who violate this ordinance may be subject to legal action by the City of Chicago and civil suits from wrongfully terminated employees.

Union and protected activities rights

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA are protected from certain types of employer conduct. Under the NLRA, employees have the right to:

  • organize a union to negotiate with an employer concerning wages, hours and other terms and conditions of employment
  • form, join or assist a union
  • bargain collectively through representatives of employees’ own choosing for a contract with an employer setting wages, benefits, hours, and other working conditions
  • discuss terms and conditions of employment or organizing with co-workers or a union
  • take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with an employer or with a government agency, and seeking help from a union
  • strike and picket, depending on the purpose or means of the strike or the picketing
  • choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is unlawful for an employer to:

  • prohibit an employee from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms
  • question employees about union support or activities in a manner that discourages the employee from engaging in that activity
  • fire, demote, threaten, or transfer an employee, or reduce the employee’s hours or change a shift, or otherwise take adverse action against an employee, because the employee joined or supports a union, or because he or she engaged in concerted activity for mutual aid and protection, or because the employee choose not to engage in any such activity
  • threaten to close the workplace if workers choose a union to represent them
  • promise or grant promotions, pay raises, or other benefits to discourage or encourage union support
  • prohibit employees from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances
  • spy on or videotape peaceful union activities and gatherings or pretend to do so.

It is important for employers to understand that these prohibitions exist even if there is no union or even a union-organizing effort underway or even contemplated. Two employees talking about the terms and conditions of their employment is a protected concerted activity. Employees can file complaints with the National Labor Relations Board (NLRB), generally within six months of alleged activity that violates the NLRA.

Employees who carry firearms

Under the Firearm Concealed Carry Act, individuals may not carry a firearm into numerous “prohibited areas,” including, schools and universities, daycare facilities, establishments that primarily derive their revenue from the sale of alcohol, licensed gambling establishments, and properties that host college or professional sporting events.

Employers that operate businesses that do not include prohibited areas may also prohibit employees from bringing firearms into the employers’ premises. However, employers may not prohibit employees who have a valid permit issued by the state of Illinois to carry a concealed firearm from keeping a firearm in the employee’s vehicle, provided the vehicle is locked and the firearm is not visible. Employers may only prohibit employees from taking a firearm out of the vehicle and into the workplace.

It’s unclear whether an employer may refuse to hire someone with a concealed firearm permit, in order to avoid having a firearm in a vehicle on the premises. Given this new right, employers are encouraged to consult with security experts when concluding the employment of an employee whom the employer thinks might have a firearm in his or her vehicle.

Retaliation against employees

Title VII, the EPA, ADEA, and the IHRA prohibit employers from retaliating against applicants or employees because they opposed discrimination or participated in Title VII/IHRA processes. The Supreme Court confirmed that employees’ retaliation claims may be brought under Section 1981 as well as Title VII. In order to establish a case of retaliation, an employee must be able to show all of the following:

  • He or she engaged in a statutorily protected act.
  • He or she suffered an adverse employment action.
  • There is some causal connection between the two events.

Protected acts

Under Title VII’s participation clause, an employer may not discriminate against an employee because the employee participated in Title VII processes. Protected Title VII processes include:

  • filing a formal charge of discrimination against the employer
  • expressing an intention to file a charge
  • acting as a witness or testifying for a co-worker
  • refusing to act as a witness for the employer
  • and assisting fellow workers in their discrimination claims.

Under the opposition clause, an employer may not discriminate against an employee because that employee opposed an employment practice made unlawful under Title VII. In situations where the practice opposed is not deemed unlawful under Title VII, the employee’s opposition is still protected so long as the employee had a reasonable and good-faith belief that the practice opposed constituted a violation of Title VII. Often times, it may not be clear what type of conduct qualifies as protected “opposition.” Courts have held that the following activities do constitute opposition and therefore are protected under Title VII:

  • complaining about sexual harassment
  • contacting an attorney to complain about sexual harassment
  • asking an employer whether race played a part in an employment decision
  • criticizing in an allegedly discriminatory hiring practice a “quasi-social setting”
  • indicating to a supervisor support for another employee who filed an EEOC charge
  • filing an Equal Pay Act complaint
  • discussing discriminatory activity – during an employer’s internal investigation – even if by merely responding to questions.

Remedies available for claims

In remedying meritorious claims of discrimination, courts seek to eliminate discrimination and to “make whole” individual victims of discrimination by restoring them to the position they would have been in had the discrimination never occurred.

Remedies available to claimants in successful Title VII and IHRA claims include:

  • Injunctive relief - When a court awards injunctive relief, it requires an employer to do, or to refrain from doing, certain acts.
    • Example - A court may banish unlawful employment practices such as job requirements, educational requirements, scored tests, and age limits.
  • Reinstatement - Reinstatement is a preferred remedy in cases of discriminatory termination but will not be ordered if the result would be to return the employee to an excessively hostile or antagonistic work environment. In addition, courts generally will not order reinstatement if it would result in another employee’s displacement.
  • Retroactive seniority - Retroactive seniority awards an aggrieved plaintiff the amount of seniority he or she would have enjoyed had the discrimination not occurred.
  • Front pay - Front pay may be allowed where reinstatement is not possible and represents the amount of money the employee would have earned if work had been reinstated.
  • Back pay - Back pay awards typically reflect lost wages and benefits.
  • Promotion - Similar to reinstatement, a court will generally not order an employer to promote a successful Title VII plaintiff if the promotion would result in another employee’s displacement.
  • Compensatory damages - Compensatory damages are only available as a remedy for intentional discrimination. Compensatory damages pay back an employee for non-economic injuries such as pain and suffering, humiliation, and harm to reputation.
  • Punitive damages - Punitive damages (money damages meant to punish an employer and to deter future discriminatory conduct) are also only available as a remedy for intentional discrimination. In determining the appropriateness of a punitive damages award, courts will consider:
    • the degree of reprehensibility of the employer’s conduct
    • the disparity between the harm or potential harm suffered by the plaintiff and the punitive damages award
    • the difference between this particular remedy and the remedies authorized in comparable cases.
  • Under Title VII, combined compensatory and punitive damage awards will be capped at:
    • $50,000 for employers with 15 to 100 employees
    • $100,000 for employers with 101 to 200 employees
    • $200,000 for employers with 201 to 500 employees
    • $300,000 for employers with more than 500 employees.

The IHRA does not have any caps on damages if the claim includes an allegation of racial discrimination and relies on 42 USC Section 1981, there is no cap on the compensatory damages.

Note: If the claim is brought in Illinois state court, the “collateral source rule” will apply – meaning that awards of compensatory damages and “lost pay” will not be reduced by other payments for wage loss such as workers’ compensation or short or long-term disability payments or payment of health expenses claimed by third parties. In contrast, the federal court does not follow the “collateral source rule” and a request for reduction of an award based on these collateral payments is in the discretion of the judge.

Enforcing discrimination laws

Title VII of the Civil Rights Act (Title VII) and the Age Discrimination in Employment Act (ADEA) are enforced by the U.S. Equal Employment Opportunity Commission (EEOC) and through private lawsuits filed in federal court. Before bringing a suit in federal court, a plaintiff must file a charge of discrimination with the EEOC no later than 180 days after the alleged discriminatory event occurred. The IHRA is enforced by the Illinois Department of Human Rights (IDHR) and the Illinois Human Rights Commission (IHRC). A complainant must file a claim with the IDHR within 180 days (300 days with the EEOC) of the alleged act of discrimination. If the employee’s claim is based on allegations that the employer maintained a continuous discriminatory practice, the employee must file his or her charge within 180 or 300 days (depending on whether it is filed with EEOC or the IHRA) of the last incident of the alleged discriminatory acts.

After a charge is filed, the EEOC or the IDHR will investigate the claim using a “reasonable cause” standard which determines whether it is “more likely than not” that discrimination took place. The focus is on whether the employee established an inference of discrimination and whether there exists any reason to doubt the employer’s stated reason for the employment decision. If the EEOC or the IDHR determine that the employee met the reasonable cause standard, it then attempts to eliminate the unlawful discrimination through mediation geared towards encouraging settlements. If the EEOC or IDHR determines that the reasonable cause standard has not been met, it will issue notice to the employee of his right to file a lawsuit (often referred to as a “right-to-sue letter”). In either case, if a claimant decides to bring a civil suit, he or she must do so within 90 days of receipt of a right-to-sue notice or his or her claim is barred as untimely enforcement. The IDHR is prohibited by law from making credibility determinations. Thus, if the claim results in a he said/she said, the IDHR must find reasonable cause.

Under Illinois law, after filing a charge an employee may satisfy his or her administrative prerequisites to filing suit by electing to opt out of the IDHR’s administrative investigation and then immediately bring a lawsuit in an Illinois state court. Within 10 days of an employee filing a charge with the IDHR, the IDHR must notify the employee that he or she may opt out of the IDHR’s investigative process. An employee then has 60-days' notice to submit a written request to opt out of the investigative process. If the employee elects to opt out, the IDHR has ten-days to respond to the employee’s request. The right to opt out does not require a factual or legal determination by the IDHR. Once the IHDR grants the request, the employee has 90 days to file a lawsuit.

The EEOC also enforces the Equal Pay Act. Unlike Title VII, individuals are not required to satisfy any administrative prerequisites before filing suit. Employees must file suit under the EPA within two years of a violation. Discrimination claims can be costly to employers. It is recommended that an employer seek legal counsel immediately upon notification that a charge has been filed.

Claims asserted under the National Labor Relations Act (NLRA) are administered through the National Labor Relations Board (NLRB). Claims asserted under the Illinois Workers’ Compensation Act are prosecuted as civil lawsuits.