Latest And Proposed Modifications To Illinois Human Rights Act: Incapacity, Work Authorization Discrimination, And What Could Be On The Horizon – Employment and HR
Recent and Planned Changes to Illinois Human Rights Act: Disability, Work Permit Discrimination, and What May Be Ahead of It
August 19, 2021
Ford & Harrison LLP
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Work Eligibility Status
On August 2, 2021, Governor JB Pritzker signed Public Act 102-0233, adding work permit status to the list of protected classifications in Illinois. Effective immediately, the Illinois Human Rights Act (IHRA) makes it a civil rights violation for employers to discriminate in employment activities (i.e., hiring, discipline, promotion, dismissal, etc.) based on an employee’s work permit status. “Permit to Work Status” means the status of a person born outside of the United States who is not a US citizen and who has been authorized by the federal government to work in the United States.
“Association” Disability Discrimination
Illinois legislature passed an amendment to the Illinois Human Rights Act (HB 1838) and submitted it to Governor Pritzker for signature on June 25, 2021. The new law adds to the definition of discrimination on the basis of a disability to include “unlawful discrimination against a person based on the person’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 with one or more employees. Governor Pritzker has not yet signed the law but is unlikely to veto it. Without a veto, the law will come into force on August 24, 2021 at the latest.
Protective Hairstyles / KRONE Act
In 2020, Illinois lawmakers 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. HB 3499 was introduced in February 2021 and is now working its way, albeit slowly, through the Illinois legislature. The bill would change the definition of “race” in the Illinois Human Rights Act to “include racial traits such as hair texture and protective hairstyles such as braids, curls and twists”. If passed, Illinois would join 13 other states that have already passed similar laws. We will follow up on this in the further course of the legislative period.
Pregnancy and other medical vacations
On March 17, 2021, Illinois House introduced HB 4053, which IHRA would amend to allow Illinois employers to give four months of vacation to an employee who is “disabled by pregnancy, childbirth, or an illness related thereto.” Employers would also have to “maintain and pay” insurance cover “at the level and under the conditions” that would have been granted even if the employee had continued to work for the duration of the vacation. Employers would then have to return workers to work in the same manner as under the Federal Law on Family and Sick Leave (FMLA). The proposed legislation does not define “hindered by” pregnancy, childbirth or any related illness. In 2015, the IHRA began requiring employers to provide women with reasonable accommodation for medical and general illnesses related to pregnancy or childbirth. Reasonable accommodation included pregnancy-related vacation, and there was no limit to length of vacation (unlike the FMLA, which is limited to 12 weeks). The current version of the draft law does not clarify whether there should be a distinction between “disability caused by” pregnancy, childbirth or an illness associated with it and “medical and common illnesses associated with pregnancy or childbirth”.
HB 4053 would also require employers to submit an application from an employee who has been with the employer for more than 12 months and who has worked at least 1250 hours in the previous 12 months for up to 12 weeks for “family care and Sick leave “and guarantee employment in the same or a comparable position after the end of the leave. “Family and sick leave” is defined as 1) leave due to child birth or adoption / foster care; 2) Parental leave for a child, parent, grandparent, grandchild, sibling, spouse or partner who is seriously ill; 3) vacation because of the employee’s own serious health condition; 4) Vacation due to a qualifying requirement in connection with the insured active service or call to the insured active service of the spouse, partner, child or parent of an employee in the military. Therefore, the definition of “family care and sick leave” is broader than in the FMLA when it comes to who counts as “family”, ie only “spouse, child or parent” with a serious state of health as defined by the FMLA.
This legislative proposal could also be a significant burden for employers, especially smaller employers. While the FMLA applies to employers with 50 or more employees, the IHRA applies to employers with one or more employees. As a result, very small employers may have to go three to four months without key employees and then still bring employees back to their previous jobs under this proposed law.
Job advertisements in the primary language
On February 19, 2021, Illinois lawmakers began reviewing an amendment to the Illinois Human Rights Act in HB 3284 that would require employers to use all “reasonable efforts” to ensure that notices to employees who receive the Summarize IHRA requirements (such as the right to be free from unlawful discrimination and sexual harassment, and the right to certain reasonable accommodation) and information regarding filing a complaint for discrimination is provided to employees in their primary language, if English is not the main language. The proposed law would also allow the Illinois Department of Human Rights to make the notices available in multiple languages and to charge a “reasonable” fee for the notices. This invoice is currently pending.
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