Recent and Proposed Changes to Illinois Human Rights Act: Disability, Work Authorization Discrimination, and What May Be on the Horizon

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Work Authorization Status

On August 2, 2021, Governor J.B. Pritzker signed into law Public Act 102-0233, which adds work authorization status to the list of protected classifications in Illinois. Effective immediately, the Illinois Human Rights Act (IHRA) now makes it a civil rights violation for an employer to discriminate in any employment action (i.e. hiring, discipline, promotion, termination, etc.) based on an employee’s Work Authorization Status. “Work Authorization Status” means the status of being a person born outside of the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States.

“Association” Disability Discrimination

The Illinois Legislature has passed an amendment to the Illinois Human Rights Act (HB 1838), and on June 25, 2021, presented it to Governor Pritzker for his signature. The new law adds to the definition of disability discrimination, now including “unlawful discrimination against an individual because of the individual’s association with a person with a disability.” This definition brings Illinois’ law in line with the federal Americans with Disabilities Act (ADA). The difference, however, is that the ADA applies to employers with 15 or more employees and the IHRA defines employers as having one or more employees. Governor Pritzker has not yet signed the law but is not expected to veto it. Assuming no veto, the law will go into effect no later than August 24, 2021.

Protective Hairstyles/CROWN Act

In 2020, Illinois legislators introduced a version of a CROWN Act (Create a Respectful and Open Workplace for Natural Hair Act) to prevent discrimination based on hairstyle or texture (SB 3477). The bill died in the Rules Committee. In February 2021, HB 3499 was introduced and is now working its way through the Illinois Legislature, albeit slowly. The bill would amend the definition of “Race” in the Illinois Human Rights Act to include “traits associated with race, including hair texture and protective hairstyles such as braids, locks, and twists.” If passed, Illinois would join 13 other states that have already enacted similar laws. We will continue to follow this as it proceeds through the Legislature.

Pregnancy and Other Medical Leaves

On March 17, 2021, the Illinois House introduced HB 4053, which would amend the IHRA to require Illinois employers to provide four months of leave to an employee “disabled by pregnancy, childbirth, or a related medical condition.” Employers would also need to “maintain and pay for” insurance coverage during the leave “at the level and under the conditions” that coverage would have been provided if the employee had continued in employment for the duration of the leave. Employers would then need to return employees to work in the same manner as they would under the federal Family and Medical Leave Act (FMLA). The proposed legislation does not define “disabled by” pregnancy, childbirth, or a related medical condition. In 2015, the IHRA began requiring employers to provide reasonable accommodations to women for medical and common conditions related to pregnancy or childbirth. One of the reasonable accommodations included leave necessitated by the pregnancy, and there was no limit to the length of the leave (unlike under the FMLA, which is limited to 12 weeks). The current version of the proposed bill does not clarify whether there is intended to be any difference between “disabled by” pregnancy, childbirth, or a related medical condition and “medical and common conditions related to pregnancy or childbirth.”

HB 4053 would also require employers to grant a request by any employee with more than 12 months of service with the employer and who worked at least 1250 hours during the previous 12-month period to take up to 12 weeks in any 12-month period for “family care and medical leave,” and guarantee employment in the same or comparable position upon termination of the leave. “Family care and medical leave” is defined as 1) leave for reason of the birth of a child or adoption/foster care; 2) leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition; 3) leave because of the employee’s own serious health condition; 4) leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the military. Thus, the definition of “family care and medical leave” is broader than under the FMLA in terms of who qualifies as “family,” which is only “spouse, child, or parent” with a serious health condition under FMLA.

This proposed law could also pose a significant burden on employers, particularly smaller employers. While the FMLA applies to employers with 50 or more employees, the IHRA applies to employers with one or more employees. Thus, very small employers would potentially have to go three to four months without key employees, and then still return employees to their prior jobs under this proposed legislation.

Employment Notices in Primary Language

On February 19, 2021, Illinois legislators began consideration of an amendment to the Illinois Human Rights Act in HB 3284, which would require employers to take all “reasonable efforts” to ensure that the notices to employees summarizing the requirements of the IHRA (such as the right to be free from unlawful discrimination and sexual harassment and the right to certain reasonable accommodations), and information pertaining to the filing of a Charge of Discrimination, be made available to employees in their primary language if English is not the primary language. The proposed law would also allow the Illinois Department of Human Rights to make the notices available in different languages and charge a “reasonable” fee for the notices. This bill is currently pending.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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