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Illinois Employers Now Subject To Suits by Attorney General for "Pattern & Practice" Discrimination

By Jody Wilner Moran
  • January 20, 2005

The Illinois Attorney General now has authority to bring a civil lawsuit against an employer when there is reasonable cause to believe the employer has engaged in a "pattern and practice" of employment discrimination. A charge of "pattern and practice" discrimination is the functional equivalent of an employment law class action lawsuit: both challenge an employer's practice that affects many employees. The amendment to the Illinois Human Rights Act became effective August 24, 2004, and affords a two-year statute of limitations period to file suit, in contrast to the 300 days for actions by private parties.

While private parties may seek money damages to remedy alleged pattern and practice discrimination, the Attorney General is limited to equitable relief (such as an injunction) and the imposition of a civil penalty. This penalty amount can increase incrementally, up to a maximum penalty of $50,000, if an employer has a history of civil rights violations. First time offenders are subject to a penalty of up to $10,000; repeat offenders up to $25,000 for one other civil rights violation within five years of the alleged violation, and up to $50,000 for two or more civil rights violations within five years of the underlying violation.

Before filing suit, the Attorney General must conduct a preliminary investigation to determine whether there is reasonable cause to believe that a pattern and practice of discrimination is occurring, and whether the dispute can be resolved without litigation. In conducting this investigation, the Attorney General may: (1) require the subject of the investigation to file a statement or report in writing under oath as to all information the Attorney General may consider necessary; (2) examine under oath any person alleged to have participated in, or who has knowledge of, the alleged pattern and practice; and (3) issue subpoenas or conduct hearings. If a person fails or refuses to file any statement or report, or obey any subpoena, the Attorney General may proceed to file suit.

In lieu of a civil lawsuit, the alleged perpetrator may enter into an "Assurance of Voluntary Compliance." This is an enforceable written agreement, which sets out the changes the employer will make to address the alleged discriminatory conduct within a specific timeframe.

The Attorney General may proceed with litigation regardless of whether a charge of discrimination has been filed by a private individual or individuals, and without regard to the status of any charge, unless the Department of Human Rights has obtained a conciliation or settlement agreement or if the parties have entered into an Assurance of Voluntary Compliance. This means an employer can be in the uncomfortable and costly situation of defending a complaint brought by a private individual and a civil suit by the Attorney General under the same set of facts.

This new amendment to the Illinois Human Rights Act substantially increases the risk to employers when pattern and practice discrimination is alleged. As soon as a charge is filed at the Illinois Department of Human Rights alleging a pattern and practice of discrimination, the employer should determine with employment counsel what the potential exposure is and what the defense strategy should be. With the possibility of state initiated civil litigation for violations of the Act, employers are well advised to review their policies to ensure there is no adverse impact on a discrete segment or class of employees.

©2005 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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