The first thing to check is: Was the Charge of Discrimination filed "timely"? A Charge of Discrimination must be filed within 300 days after the alleged discriminatory actions, or one year for a fair housing case.
Employers accused of discrimination are required to preserve any records pertinent to the Charge. Additionally, employers are prohibited from retaliating against any person because he/she has filed (or has otherwise participated in the investigation of) a Charge. A person who believes he/she has been retaliated against may also file a retaliation Charge with the IDHR.
What steps take place once a Charge of Discrimination is filed?
I. Intake: For free, the IDHR's intake unit will assist people (also called "Complainants") in preparing a Charge of Discrimination.
- The person filing the Charge will have to provide their home address, phone number, information about the employer, the most recent date the alleged discrimination took place, names and contract information of witnesses and copies of relevant documents.
- A Charge can be filed in person or mailed in.
II. Mediation: The IDHR will offer the parties to take the case to mediation. The IDHR will provide a mediator for the case to see if the case can be resolved without a formal investigation by the IDHR. If both parties don't agree to the mediation, or if the parties are unable to reach an agreement at mediation, the Charge will proceed to the investigation stage.
III. Investigation Stage:
The IDHR has the power to subpoena relevant documents and persons. IDHR Investigators may contact and interview relevant witnesses and may obtain pertinent documents from either party.
FACT FINDING CONFERENCE: Employers are required to send a written response to the Charge to the IDHR. The Investigator will then set a Fact Finding Conference which takes place in person at the IDHR. At the Fact Finding Conference, each party can present their side of the dispute and respond to the other side. Failure to attend the Fact Finding Conference without good cause can result in dismissal of the Charge for the Complainant (i.e., the current or former employee filing the Charge) or default for the Respondent (i.e., the employer).
- The IDHR Investigator may identify and request further documentation necessary to investigate the Charge.
- The Illinois Human Rights Act (IHRA) requires that the IDHR conclude all proceedings and make a finding within 365 of the perfected Charge being filed (or an extension which both parties must agree to).
- If the IDHR does not make a finding by the 365th day (plus the number of days for extensions), the Complainant has 90 days to file a complaint with the Illinois Human Rights Commission (IHRC) or to file a complaint in state circuit court.
- After completing the investigation, the IDHR Investigator writes a report summarizing the information obtained and making a recommended finding based upon the relevant evidence. After approval, the IDHR sends a copy of the report to both parties.
IV. Findings and Results
The Investigator's written report either finds "substantial evidence" of a violation of the Act or "lack of substantial evidence."
- LACK OF SUBSTANTIAL EVIDENCE: If a "lack of substantial evidence" is the determination, the Complainant has the option of either 1) filing a request for review with the Illinois Human Rights Commission; or 2) commencing a civil action in a state Circuit Court.
- SUBSTANTIAL EVIDENCE: If "substantial evidence" is found by the IDHR, the Complainant has the option of either: 1) requesting the IDHR to file a complaint on the Complainant's behalf, with the Illinois Human Rights Commission, or 2) commencing a civil action in state Circuit Court.
If the Complainant requests the IDHR to file a complaint with the IHRC, an IDHR attorney will be assigned to help the parties resolve or "conciliate" the Charge. If a settlement agreement is not reached, the IDHR will file a complaint with the IHRC on behalf of the Complainant. The Complainant then has to prosecute his/her Charge and bears the burden of proof of proving the case before the Illinois Human Rights Commission.
Conclusion: Employers are encouraged to promptly investigate situations in the workplace and document their investigations. If a Charge is filed, employers should cooperate with the IDHR Investigator and attend the Fact Finding Conference at the IDHR. Many times, employers will be successful with the IDHR on the merits of their case but at other times they also can be successful by cooperating in the complaint process because the Complainant fails to cooperate with the IDHR.
Knowing about all aspects of the IDHR process increases an Employer's chance of successfully defending against a Charge of Discrimination.
If you have any questions about the complaint process with the IDHR, please contact Attorney Joe Laverty at [email protected] or give him a call at (563) 333-9102.