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Employment Discrimination

EVERETT E. NICHOLAS, JR. Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd. Decatur

FRANK B. GARRETT III RACHEL E. LUTNER Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd. Chicago

SUSAN E. NICHOLAS Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd. Decatur

©COPYRIGHT 2010 BY IICLE.

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I. [6.1] Overview of State and Federal Antidiscrimination Laws II. Filing Claims of Discrimination Before the Equal Employment Opportunity Commission and the Illinois Human Rights Act A. [6.2] EEOC Process and Procedure 1. [6.3] Laws Enforced by the EEOC 2. [6.4] Filing a Charge with the EEOC a. [6.5] Perfecting a Charge b. [6.6] Amending a Charge 3. [6.7] Time for Filing a Charge 4. [6.8] Continuing-Violation Theory 5. [6.9] Statutory Defenses to Discrimination Claims a. [6.10] Bona Fide Occupational Qualification b. [6.11] Bona Fide Seniority Systems c. [6.12] Mandatory Arbitration Agreements d. [6.13] Professionally Developed Ability Tests e. [6.14] Is the Defendant an “Employer”? 6. Procedures Before the EEOC a. [6.15] Service b. [6.16] Investigation c. [6.17] Determination and Conciliation d. [6.18] Right To Sue Letter B. The Illinois Human Rights Act and Human Rights Commission 1. [6.19] The Illinois Human Rights Act 2. [6.20] Entities Subject to the IHRA 3. [6.21] Department of Human Rights Procedures 4. [6.22] Charging Party’s Option of Filing a State Court Lawsuit in Lieu of Proceeding Before the Illinois Human Rights Commission 5. [6.23] Human Rights Commission Procedures III. [6.24] Race and National Origin Discrimination A. [6.25] Ordinary Disparate Treatment 1. [6.26] Hiring and Firing 2. [6.27] Terms and Conditions of Employment 3. [6.28] Legitimate Business Reasons and Pretext B. [6.29] Pattern and Practice C. [6.30] Disparate Impact D. [6.31] Retaliation

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E. [6.32] Reverse Discrimination F. [6.33] Affirmative Action IV. [6.34] Sex Discrimination A. [6.35] Hiring B. [6.36] Firing C. [6.37] Terms and Conditions 1. [6.38] Sexual Harassment 2. [6.39] Pregnancy 3. [6.40] Marital Status and Work Assignments 4. [6.41] Sexual Orientation D. [6.42] Title IX E. [6.43] The Equal Pay Act and Title VII F. [6.44] Minimum Wage Law V. Religious Discrimination A. Prohibitions Against Discrimination Based on Religion 1. [6.45] Title VII 2. [6.46] Illinois Human Rights Act 3. [6.47] Religious Freedom Restoration Act 4. [6.48] Constitutional Claims B. [6.49] Prohibited Practices C. [6.50] Employer’s Duty To Accommodate Religious Beliefs VI. [6.51] Age Discrimination A. B. C. D. E. F.

[6.52] Hiring [6.53] Termination and Reduction in Force [6.54] Disparate Impact [6.55] Retaliation [6.56] Reverse Age Discrimination Terms and Conditions of Employment 1. [6.57] Pension Plans 2. [6.58] Harassment G. Procedures Under the ADEA and the IHRA 1. [6.59] Charge Filing 2. [6.60] Investigation 3. [6.61] Litigation

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4. [6.62] Remedies a. [6.63] Hiring, Reinstatement, and Promotions b. [6.64] Compensatory Damages c. [6.65] Liquidated Damages d. [6.66] Attorneys’ Fees e. [6.67] Front Pay H. Defenses 1. [6.68] Bona Fide Occupational Qualification 2. [6.69] Bona Fide Seniority Systems 3. [6.70] Bona Fide Benefit Plans 4. [6.71] Number of Employees 5. [6.72] Executive Employee Exception 6. [6.73] Waivers VII. [6.74] The Americans with Disabilities Act A. [6.75] Entities Covered by the ADA B. [6.76] Employment Coverage of the ADA 1. [6.77] Defining an Individual with a Disability 2. [6.78] Major Life Activities 3. [6.79] Having a Record of an Impairment 4. [6.80] Being Regarded as Having an Impairment 5. [6.81] Exclusions from ADA Protections C. [6.82] Qualified Individual with a Disability D. [6.83] Reasonable Accommodation Requirement E. [6.84] Medical Examination and Inquiries Under the ADA F. [6.85] Remedies VIII. Family and Medical Leave Act and Victims’ Economic Security and Safety Act A. [6.86] Family and Medical Leave Act 1. [6.87] Interference with Exercise of Leave Rights 2. [6.88] Retaliation Claims 3. Remedies a. [6.89] Compensatory Damages b. [6.90] Interest c. [6.91] Liquidated Damages d. [6.92] Equitable Relief B. [6.93] Family Military Leave Act

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C. [6.94] Victims’ Economic Security and Safety Act 1. [6.95] Enforcement 2. [6.96] Remedies IX. [6.97] Genetic Information Discrimination A. [6.98] Genetic Information 1. [6.99] Obtaining Genetic Information 2. [6.100] Maintaining Genetic Information B. [6.101] Hiring, Termination, and Reduction in Force C. [6.102] Retaliation D. [6.103] Procedures Under GINA E. [6.104] Remedies X. [6.105] Conclusion

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I. [6.1] OVERVIEW OF STATE AND FEDERAL ANTIDISCRIMINATION LAWS School district employees are protected from unlawful acts of discrimination by various state and federal statutes as well as the Illinois and U.S. Constitutions. It is imperative that school districts and their counsel be aware of the many prohibitions against discrimination afforded employees. The antidiscrimination statutes that are applicable to school districts and other local governmental units include the following: a. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., prohibits discrimination by employers, employees, agencies, and labor organizations on the basis of race, color, religion, sex, or national origin. Coverage under Title VII is very broad. In general, it applies to employers with 15 or more employees, employment agencies, and labor organizations. Title VII applies to hiring, discharge, compensation, promotion, classification, training, apprenticeship, referrals for employment, and union membership. The Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103, amended Title VII to extend its coverage to state and local governments and eliminated the exemption for educational institutions. Thus, school districts are subject to Title VII on the same basis as other employers. b. The Civil Rights Act of 1871, Ch. 22, 17 Stat. 13, provides a vehicle for enforcement of an individual’s constitutional rights. Specifically, the 1871 Act bars anyone acting “under color” of any state or local law from depriving an individual of rights “secured by the Constitution and laws.” 42 U.S.C. §1983. The key in determining whether a person is acting “under color” of state law is whether the alleged infringement on federal rights is fairly attributed to the state. The 1871 Act does not apply to purely private conduct or to the actions of federal agencies and officials in most instances. c. The Civil Rights Act of 1866, Ch. 31, 14 Stat. 27, provides that all persons have the same right to make and enforce contracts as that enjoyed by white citizens. 42 U.S.C. §1981. This provision was enacted after the Civil War to provide a means of enforcement for the constitutional amendments (Thirteenth, Fourteenth, and Fifteenth) that granted rights to the former slaves. The 1866 Act clearly covers claims of racial discrimination. Section 1981 protects both white and nonwhite persons against racial discrimination. Included in the term “race” for purposes of §1981 are Arabs, Hispanics, Asians, and other racial groups. The 1866 Act is separate and distinct from Title VII, and employees may file suit under both. d. The Equal Pay Act of 1963, Pub.L. No. 88–38, 77 Stat. 56, amended the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §201, et seq., to prohibit differentials in pay between sexes. 29 U.S.C. §206(d). Although the Equal Pay Act remedies are different from those under Title VII, a violation under the Equal Pay Act may also be a violation under Title VII. In general, the Equal Pay Act applies to employers who are engaged in commerce, who are engaged in the production of goods for commerce, or who are employed in an enterprise engaged in commerce. While there are exceptions to the Equal Pay Act, it applies to federal and state employers as well as local government employers.

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e. The Lilly Ledbetter Fair Pay Act of 2009 (Fair Pay Act), Pub.L. No. 111-2, 123 Stat. 5, extends the times for filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) from 180 (or 300) days from the last pay decision that affected the employee’s pay to 180 days (or 300 days “in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof”) from each new paycheck issued. 42 U.S.C. §2000e-5(e)(1). f. The Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101, et seq., prohibits discrimination and retaliation against individuals on the basis of race, color, religion, sex, national origin, ancestry, age, marital or familial status, physical or mental disability, sexual orientation, or unfavorable discharge from military service. The IHRA is comprehensive and preempts local ordinances that govern employment discrimination. The IHRA is administered by the Illinois Department of Human Rights (IDHR) and the Illinois Human Rights Commission (IHRC). Administrative decisions by the IHRC are subject to judicial review. Effective January 1, 2008, the IHRA was amended to allow certain complainants to bring actions under the Act in Illinois circuit courts. P.A. 95-243 (eff. Jan. 1, 2008). NOTE: Two amendments to the IHRA were enacted in 1995. P.A. 89-370 (eff. Aug. 18, 1995) contained elements to expedite the investigation and adjudication of charges and complaints of discrimination. See 775 ILCS 5/7A-102. It also amended §2-103 of the IHRA regarding arrest records to clarify that an employer cannot discriminate because of an arrest but can obtain or use other information that shows that the person engaged in the conduct for which the arrest occurred. 775 ILCS 5/2-103. P.A. 89-348 (eff. Jan. 1, 1996) was initiated by the IHRC and amended the review procedures under the IHRA and provided for direct appellate review of interlocutory orders of the IHRC in accordance with Illinois Supreme Court Rule 308. See 775 ILCS 5/8-111. g. Title IX of the Education Amendments of 1972, 20 U.S.C. §1681, et seq., prohibits discrimination on the basis of sex in any educational program or activity that receives federal financial assistance. For Title IX purposes, “educational institutions” include any public or private school, institutions of higher education, and vocational and professional schools. If any federal funds are received by an educational institution, Title IX applies. h. Executive Order No. 11,246 (Sept. 24, 1965), 30 Fed.Reg. 12,319 (Sept. 24, 1965), reprinted as amended in 42 U.S.C. §2000e, requires affirmative action efforts in all federal and federally assisted contracts in excess of $10,000. i. The Rehabilitation Act of 1973, 29 U.S.C. §701, et seq., relates to individuals with handicaps. Section 501 requires each department of the federal government to establish an action plan for the employment of individuals with handicaps. 29 U.S.C. §791(b). Section 503 requires that affirmative action be used to employ qualified handicapped individuals in connection with government contracts in excess of $10,000 that relate to personal property or services, including construction. 29 U.S.C. §793(a). Section 504 prohibits discrimination against any “qualified individual with a disability” by programs or activities that receive federal funds and applies to local governmental entities and local governments that distribute or receive federal funds or financial assistance. 29 U.S.C. §794(a).

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j. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §621, et seq., prohibits discrimination against employees who are 40 years of age or older. The ADEA covers employers with 20 or more employees. Congress specifically extended ADEA coverage to local governments in 1974. The ADEA does not prohibit employers, employment agencies, or labor organizations from discriminating on the basis of age (1) if age is a “bona fide occupational qualification,” (2) in cases observing the terms of a bona fide seniority system, or (3) if hiring, discharging, or otherwise disciplining an individual for good cause is unrelated to age. 29 U.S.C. §623(f). k. The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101, et seq., prohibits discrimination against individuals with disabilities in employment, public services, public accommodations, and telecommunications. The ADA applies to employers with 15 or more employees and prohibits discrimination against a qualified individual with a disability. “Disability” under the ADA is defined as “a physical or mental impairment that substantially limits one or more major life activities” and applies to a person who has “a record of such an impairment” or a person who is “regarded as having such an impairment.” 42 U.S.C. §12102(1). On September 25, 2008, the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), Pub.L. No. 110-325, 122 Stat. 3553, was passed. The ADAAA is intended to restore Congress’ original purpose of providing broad protection of individuals with disabilities. l. Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, et seq., prohibits discrimination on the basis of race, color, or national origin under federally assisted programs. m. The Illinois Constitution of 1970 contains three provisions that are directly applicable to the employment practices of school districts and other local governmental entities: 1. Article I, §17, of the Illinois Constitution prohibits discrimination on the basis of race, color, creed, national ancestry, or sex in the hiring and promotion of any employee. 2. Article I, §18, of the Illinois Constitution provides, “The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.” 3. Article I, §19, of the Illinois Constitution prohibits discrimination in the hiring and promotion of any employee on the basis of a physical or mental handicap unrelated to ability. n. The School Code, 105 ILCS 5/1-1, et seq., contains several antidiscrimination sections: 1. Section 24-4 of the School Code prohibits discrimination on the basis of color, race, sex, nationality, or religious affiliation in the hiring of employees and the assignment of positions (including school superintendents and principals). 105 ILCS 5/24-4. 2. Sections 10-20.7, 10-21.1, and 24-7 of the School Code prohibit discrimination on the basis of sex in the fixing of salaries for certified employees. 105 ILCS 5/10-20.7, 5/10-21.1, 5/24-7.

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3. Section 10-20.7a of the School Code requires school districts to develop a policy on minority recruitment and hiring. 105 ILCS 5/10-20.7a. 4. Section 10-22.4 of the School Code prohibits the dismissal of a teacher because of marriage or temporary mental or physical incapacity to perform teaching duties. 105 ILCS 5/1022.4. 5. Section 10-21.3 of the School Code requires boards of education to take into consideration the prevention and elimination of segregation of children in the public schools because of race, color, or nationality in the changing or creating of attendance units. 105 ILCS 5/10-21.3. o. The Minimum Wage Law, 820 ILCS 105/1, et seq., prohibits differentials in pay between the sexes. The Wages of Women and Minors Act, 820 ILCS 125/0.01, et seq., prohibits payment of an oppressive and unreasonable wage to women. p. The Family and Medical Leave Act of 1993 (FMLA), Pub.L. No. 103-3, 107 Stat. 6 (codified generally at 29 U.S.C. §2601, et seq., and 5 U.S.C. §6381, et seq.), entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave each year for specified family and medical reasons. See 29 C.F.R. pt. 825. The FMLA provides that an employer may not discriminate against or interfere with any employees exercising their rights under the FMLA. The FMLA was amended effective January 16, 2009, to expand job-protected leave rights for military personnel and their families. See 29 C.F.R. §825.126, et seq. q. The Equal Pay Act of 2003, 820 ILCS 112/1, et seq., prohibits unequal wages on the basis of sex. The Act applies to employers who employ four or more employees and is enforced by the Illinois Department of Labor. r. The Victims’ Economic Security and Safety Act (VESSA), 820 ILCS 180/1, et seq., requires employers to provide victims of domestic or sexual violence up to 12 weeks of unpaid leave for a variety of reasons. An employee who has a family member who is a victim may also qualify for leave. Employers may not discriminate against any employees who have exercised their rights under the Act.

II. FILING CLAIMS OF DISCRIMINATION BEFORE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND THE ILLINOIS HUMAN RIGHTS ACT A. [6.2]

EEOC Process and Procedure

The United States Equal Employment Opportunity Commission enforces federal laws prohibiting discrimination. In general, employers with 15 or more employees are covered by the EEOC (20 or more employees in age discrimination cases). In addition to employers, the EEOC also has jurisdiction over labor unions and employment agencies.

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1. [6.3] Laws Enforced by the EEOC The Equal Employment Opportunity Commission is responsible for investigation and enforcement of the following statutes: a. Title VII of the Civil Rights of 1964; b. the Age Discrimination in Employment Act of 1967; c. the Equal Pay Act of 1963; d. Title I of the Americans with Disabilities Act of 1990; e. the Family and Medical Leave Act of 1993; f.

the Pregnancy Discrimination Act of 1978, Pub.L. No. 95-555, 92 Stat. 2076;

g. §§102 and 103 of the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (42 U.S.C. §§1981a, 1988); h. The Lilly Ledbetter Fair Pay Act of 2009; and i.

the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. §2000ff, et seq.

Note that while a claim under the FMLA is generally enforced by the U.S. Department of Labor, an ADA or Title VII action accompanied by an FMLA charge may be investigated by the EEOC. 2. [6.4] Filing a Charge with the EEOC An individual claiming to be aggrieved by unlawful employment discrimination usually must file a charge of discrimination with the Equal Employment Opportunity Commission. Both Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act provide that a charge may be filed “by or on behalf of a person claiming to be aggrieved.” 42 U.S.C. §2000e-5(b). See also 42 U.S.C. §12117(a). Note that the aggrieved person may be an illegal alien working in the United States. Charges filed with the EEOC must be submitted in writing and verified. 42 U.S.C. §2000e-5(b). The charge may be filed in person or by mail. a. [6.5] Perfecting a Charge A perfected charge should contain 1. the full name, address, and telephone number of the person making the charge and the person against whom the charge is made;

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2. a clear and concise statement of the facts; 3. the number of employees of the respondent, if known; and 4. a statement of whether a state or local proceeding has been initiated. 29 C.F.R. §1601.12(a). b. [6.6] Amending a Charge The Equal Employment Opportunity Commission may allow a charging party to amend an otherwise defective charge if the initial charge was sufficiently precise to identify the parties and the action or complained-of policies. 29 C.F.R. §1601.12(b). 3. [6.7] Time for Filing a Charge In a jurisdiction such as Illinois with a state or local agency that has authority to adjudicate charges of discrimination, the time frame for filing a charge with the Equal Employment Opportunity Commission is 300 days. In a jurisdiction with no such state or local agency, a charge must be filed within 180 days of the alleged discriminatory conduct. 42 U.S.C. §2000e-5(e). Note that federal employees and job applicants have a different complaint process and generally must contact an agency EEO counselor within 45 days. A timely charge is not a jurisdictional requirement to suit but is similar to a statute of limitations and is subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71 L.Ed.2d 234, 102 S.Ct. 1127, 1132 (1982). Tolling of the time period for filing a charge with the EEOC may be allowed when a charging party is misled by another to the detriment of his or her claim. See Sarsha v. Sears Roebuck & Co., 747 F.Supp. 454 (N.D.Ill. 1990); Young v. Lincoln National Corp., 937 F. Supp. 1326, 1335 (N.D.Ind. 1996). Additionally, “equitable tolling” is appropriate when the EEOC misleads a party into filing an untimely charge. Early v. Bankers & Casualty Co., 959 F.2d 75, 80 (7th Cir. 1992). In some cases, an automatic extension of the filing period by the length of the tolling period is not always provided; rather, the courts will give the plaintiff extra time only if needed. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452 (7th Cir. 1990), cert. denied, 111 S.Ct. 2916 (1991). 4. [6.8] Continuing-Violation Theory One commonly litigated equitable exception to the filing requirement of Title VII of the Civil Rights Act of 1964 is the theory of “continuing violation.” Generally, if a plaintiff can show that there was a single act that violated Title VII during the applicable limitations period, that the violation began earlier than the limitations period, and that the earlier manifestation of the violation also caused the plaintiff injury, the plaintiff may obtain a remedy for the earlier injuries even though they are outside the limitations period. Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1989) (pattern of promotion denials provides notice of discrimination). In June 2002, the U.S. Supreme Court ruled that while the continuing-violation theory does not apply to discrete discriminatory acts such as termination, failure to promote, or refusal to hire,

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it does apply to hostile environment claims. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 153 L.Ed.2d 106, 122 S.Ct. 2061 (2002). The Court stated that hostile environment claims, as opposed to discrete discriminatory acts, involve repeated conduct that “cannot be said to occur on any particular day [but rather] occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” 122 S.Ct. at 2066 – 2067. As such, the Court ruled that while the plaintiff’s claim was based on many acts occurring outside the 300-day period, they were related to acts occurring within the statutory time period and therefore could properly be considered by the Court. However, in 2009, Congress passed the Lilly Ledbetter Fair Pay Act of 2009. The Fair Pay Act reversed the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 167 L.Ed.2d 982, 127 S.Ct. 2162 (2007), holding that an employee who files a discriminatory pay charge under Title VII must file that charge within 180 days (or 300 days “in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof”) of the initial pay decision or be forever barred. 42 U.S.C. §2000e-5(e)(1). The Fair Pay Act extends the time for filing a charge of discrimination from 180 (or 300) days from the last pay decision that affected the employee’s pay during the EEOC charging period to 180 (or 300) days from each new paycheck issued pursuant to the discriminatory compensation. The Fair Pay Act applies to discriminatory pay actions based on sex, race, national origin, age, religion, and disability. Additionally, recent EEOC guidelines have made clear that any continuing harassment violation charge can survive the general statute of limitations standard. While the charge must be filed within 180 or 300 days of the last incident of harassment, the EEOC will look at all earlier incidents of harassment when investigating the charge. EEOC COMPLIANCE MANUAL §2-IV.C. 5. [6.9] Statutory Defenses to Discrimination Claims Title VII of the Civil Rights Act of 1964 expressly provides that certain persons, employment policies, and practices are exempt from its protections. Sections 6.10 – 6.14 below discuss some of the more common statutorily provided exemptions. a. [6.10] Bona Fide Occupational Qualification Both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act state that it is not unlawful to take any action otherwise prohibited when an employee’s religion, sex, national origin (but not race), or age is a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” See 42 U.S.C. §2000e-2(e); 29 U.S.C. §623(f)(1). The regulations of the Equal Employment Opportunity Commission and the courts make clear that this exception is to be construed narrowly although a somewhat broader scope is afforded the bona fide occupational qualification defense under the ADEA because of the reality that employee productivity and effectiveness ultimately diminish with age, and certain safety-sensitive jobs may be at issue.

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b. [6.11] Bona Fide Seniority Systems Title VII of the Civil Rights Act of 1964 contains a specific exemption for “bona fide seniority systems”: Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin. 42 U.S.C. §2000e-2(h). The Supreme Court has held that a seniority system that has discriminatory impact does not constitute unlawful discrimination. American Tobacco Co. v. Patterson, 456 U.S. 63, 71 L.Ed.2d 748, 102 S.Ct. 1534, 1535 (1982). In California Brewers Ass’n v. Bryant, 444 U.S. 598, 63 L.Ed.2d 55, 100 S.Ct. 814, reh’g denied, 100 S.Ct. 1672 (1980), the Supreme Court addressed what constitutes an exempt seniority system. The Court concluded that the principal feature of a seniority system is that “preferential treatment is dispensed on the basis of some measure of time served on employment.” 100 S.Ct. at 819. The Court also stated “every seniority system must include rules that delineate how and when the seniority time clock begins ticking, as well as rules that specify how and when a particular person’s seniority may be forfeited.” 100 S.Ct. at 820. Assuming that a challenged seniority system is covered by statute, the only remaining issue is whether the system is in fact bona fide (i.e., not motivated by discriminatory intent). The Supreme Court has held that this question is one of pure fact. Pullman-Standard, Division of Pullman, Inc. v. Swint, 456 U.S. 273, 72 L.Ed.2d 69, 102 S.Ct. 1781 (1982). The existence of a bona fide seniority system is not an affirmative defense. It is the plaintiff’s burden to establish a system is not bona fide. Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 104 L.Ed.2d 961, 109 S.Ct. 2261, 2267 – 2268 (1989). Section 112 of the Civil Rights Act of 1991 amended Title VII by adding the following paragraph: For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchapter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system. 42 U.S.C. §2000e-5(e)(2). c. [6.12] Mandatory Arbitration Agreements The Supreme Court, in Wright v. Universal Maritime Service Corp., 525 U.S. 70, 142 L.Ed.2d 361, 119 S.Ct. 391 (1998), held that a general arbitration clause in a collective

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bargaining agreement did not require the employee to arbitrate an alleged violation of the Americans with Disabilities Act. The Court held the clause was too general and did not satisfy the requirement that any agreement to arbitrate be clear and unmistakable. In Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 149 L.Ed.2d 234, 121 S.Ct. 1302, 1306 (2001), the Supreme Court ruled that an employee’s agreement with his employer to arbitrate all “claims, disputes or controversies arising out of or relating to [his] application or candidacy for employment, employment and/or cessation of employment” was enforceable under the Federal Arbitration Act, 9 U.S.C. §1, et seq., and did not contravene federal antidiscrimination laws. See also Equal Employment Opportunity Commission v. Waffle House, Inc., 534 U.S. 279, 151 L.Ed.2d 755, 122 S.Ct. 754 (2002). d. [6.13] Professionally Developed Ability Tests Title VII of the Civil Rights Act of 1964 permits the use of a “professionally developed ability test [that] is not designed, intended or used to discriminate.” 42 U.S.C. §2000e-2(h). However, such a test may violate Title VII if it has disparate impact on applicants or employees in a protected class. See the Equal Employment Opportunity Commission’s Uniform Guidelines on Employee Selection Procedures in 29 C.F.R. pt. 1607. e. [6.14] Is the Defendant an “Employer”? Section 701(b) of Title VII of the Civil Rights Act of 1964 defines an “employer” as a person engaged in industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and any agent of such a person. 42 U.S.C. §2000e(b). Note that individual members of a school board are not considered employers under Title VII. The payroll method should be used to determine whether an employer has 15 or more individuals for each working day in 20 or more calendar weeks. Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 136 L.Ed.2d 644, 117 S.Ct. 660 (1997). The Walters Court noted that any whole workweeks should be counted, and it is not relevant whether an employee was at work for every day in the workweek. 6. Procedures Before the EEOC a. [6.15] Service Service of the notice of charge under Title VII of the Civil Rights Act of 1964 must be made by the Equal Employment Opportunity Commission on the respondent employer within ten days of the filing of the charge. 42 U.S.C. §2000e-5(e)(1). b. [6.16] Investigation The Equal Employment Opportunity Commission is required to investigate a charge of discrimination and determine whether there is reasonable cause to believe it is true. 42 U.S.C.

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§2000e-5(b). The EEOC views its investigative process not as adversarial but rather as gathering information. The scope of the EEOC’s investigatory power is broad. Included within its power is the authority to issue subpoenas. 42 U.S.C. §2000e-9. Any member of the EEOC or a designated representative of the EEOC may issue a subpoena requiring the attendance and testimony of a witness, the production of evidence, or access to evidence for purposes of examination and copying. 29 C.F.R. §1601.16(a). The EEOC regulations, however, set forth procedures for challenging subpoenas. 29 C.F.R. §1601.16(b). c. [6.17] Determination and Conciliation If, at the conclusion of its investigation, the Equal Employment Opportunity Commission determines that there is not reasonable cause to support the charge, it will then dismiss the charge and provide the charging party with a notice of dismissal and right to sue letter. If the EEOC determines that reasonable cause exists to support the charge, it must attempt “to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. §2000e-5(b); Equal Employment Opportunity Commission v. Shell Oil Co., 466 U.S. 54, 80 L.Ed.2d 41, 104 S.Ct. 1621, 1641 (1984). Generally, the EEOC will attempt to conciliate the alleged violation by sending the employer a letter outlining the actions needed to remedy the violations. If conciliation is unsuccessful, the EEOC will notify both parties and then determine whether to file suit against the employer or issue the charging party a right to sue letter allowing him or her to proceed with a lawsuit. d. [6.18] Right To Sue Letter At the conclusion of the Equal Employment Opportunity Commission proceeding and after receipt of the right to sue letter, a charging party may file suit in federal district court. The suit must be brought within 90 days of receipt of the right to sue letter, and the complaint must be based on the allegations contained in the EEOC charge. Cheek v. Western & Southern Life Insurance Co., 31 F.3d 497 (7th Cir. 1994); Harper v. Godfrey Co., 45 F.3d 143 (7th Cir. 1995). B. The Illinois Human Rights Act and Human Rights Commission 1. [6.19] The Illinois Human Rights Act The Illinois Human Rights Act prohibits discrimination in employment, real estate transactions, financial credit, and access to public accommodations. The IHRA prohibits discrimination on the basis of “race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, or unfavorable discharge from military service.” 775 ILCS 5/1-103(Q). It is also a civil rights violation to retaliate against someone for filing a charge of discrimination or who opposes discrimination. Additionally, the IHRA was amended effective January 1, 2004, to make it a violation for an employer to prohibit a foreign language from being spoken by employees in communications unrelated to their duties. See 775 ILCS 5/2-102(A-5).

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§6.20

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

2. [6.20] Entities Subject to the IHRA All public and private employers located or operating in Illinois and employing 15 or more persons within the state during at least 20 weeks of a year are covered under the Illinois Human Rights Act. 775 ILCS 5/2-101(B)(1)(a). Part-time employees are considered in determining whether an employer has the requisite number of employees. The IHRA provides exceptions to the required number of employees when there are charges of handicap discrimination or sexual harassment. In both instances, there is no minimum number of employees requirement. 3. [6.21] Department of Human Rights Procedures Within 180 days after the occurrence of an act of employment discrimination, a person aggrieved by a civil rights violation must file a charge of discrimination with the Illinois Department of Human Rights. 775 ILCS 5/7A-102(A)(1). The charge must be in such detail as to substantially apprise any party properly concerned as to the time, place, and facts surrounding the alleged civil rights violation. 775 ILCS 5/7A-102(A)(2). Both the complainant and the respondent may file a position statement with the IDHR within 60 days of receipt of the notice of the charge. The respondent must file a verified response to the charge within 60 days after the charge was filed and must serve a copy on the IDHR and the complainant. 775 ILCS 5/7A-102(B). While failure to serve a response on the IDHR within 60 days subjects respondents to a possible default by the IDHR, the current IDHR practice is to exact no penalty for a failure to serve the complainant. It is also current IDHR practice to provide a late-filing respondent with written notice and a window period to cure the default before instituting default procedures. Within 30 days of the respondent’s filing of the verified response, the complainant may file a reply. Id. Once a response is filed, the complainant has a right to file a reply within 30 days of receipt of the response. The chief legal counsel makes a de novo review of any request for review. The IDHR is statutorily required to investigate each charge of employment discrimination filed with it. 775 ILCS 5/7A-102(C)(1). Like the Equal Employment Opportunity Commission, the IDHR has subpoena power to obtain documents and testimony. 775 ILCS 5/7A-102(C)(2). It is IDHR practice to request position statements and answers to questionnaires from all respondents. Position statements are due 60 days after receipt of the notice of charge. Unlike the EEOC, the IDHR must conduct a fact-finding conference unless the director has made the IDHR’s final determination before 365 days after filing. 775 ILCS 5/7A-102(C)(4). The parties may agree in writing to hold the fact-finding conference after the 365-day limit. Fact-finding conference procedures vary considerably among investigators. However, a respondent is always required to attend a fact-finding conference with at least one person personally familiar with the facts of the case or the respondent faces default. Id.; 56 Ill.Admin. Code §2520.440(d). At the fact-finding conference, the charge is always read and affirmed or denied by each of the parties. Further exploration of the facts may occur as well as settlement discussions. Attorneys are not permitted to present the parties’ positions or examine the witnesses in attendance. The parties may agree to submit the matter to mediation without waiving any rights. 775 ILCS 5/7A-102(B-1).

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§6.22

At the conclusion of the investigation, the IDHR Director determines whether the charge is supported by substantial evidence and whether the charge is within the IDHR’s jurisdiction. 775 ILCS 5/7A-102(D)(2). The Illinois Human Rights Act defines “substantial evidence” as “evidence which a reasonable mind accepts as sufficient to support a particular conclusion and which consists of more than a mere scintilla but may be somewhat less than a preponderance.” Id. If found to lack substantial evidence or jurisdiction, the charge is dismissed, subject to review before the chief legal counsel of the IDHR. 775 ILCS 5/7A-102(D)(3). A substantial evidence finding must be conciliated by an IDHR staff attorney. The IDHR may order a formal conciliation conference if it determines one is necessary. 775 ILCS 5/7A-102(E)(1). If a conference is held, the IDHR may not disclose any new information it has obtained at the conference unless the parties agree in writing to the disclosure. 775 ILCS 5/7A-102(E)(4). The IHRA permits settlement of a charge or complaint at any time on agreement of the parties and approval of the IDHR or the Illinois Human Rights Commission. 775 ILCS 5/7A-103(A), 5/8-105(A). The IDHR dismisses a charge if a complainant refuses to accept a settlement offer if certain conditions are met. 775 ILCS 5/7A-103(D)(2). Although these conditions place strict requirements on the dismissal of claims for failure to settle, this provision may prove valuable when there is a clear-cut case of discrimination but the complainant’s settlement demand is highly inflated. However, the IDHR has seldom used this authority. After a charge has been filed, the IDHR has 365 days to either dismiss the charge or file a complaint. 775 ILCS 5/7A-102(G)(1). The parties can agree to extend this time limit. If neither the complainant nor the IDHR files a complaint within the time-period, the case is closed, and IDHR loses its jurisdiction. The IDHR requires that all employment transaction records be retained for one year. Job descriptions must be retained for one year after they cease to be effective. 56 Ill.Admin. Code §2520.110(a). When a charge is filed, all relevant records must be retained until the investigation is completed. 56 Ill.Admin. Code §2520.110(d). 4. [6.22] Charging Party’s Option of Filing a State Court Lawsuit in Lieu of Proceeding Before the Illinois Human Rights Commission Effective January 1, 2008, P.A. 95-243 amended the Human Rights Act to allow complainants to bring actions in the Illinois circuit courts alleging violations of the Illinois Human Rights Act. This significant change gives employees the option of proceeding in circuit court regardless of the outcome of their Department of Human Rights charge. Currently, employees are allowed to proceed before an administrative law judge (ALJ) of the Human Rights Commission (HRC) when the Department of Human Rights finds substantial evidence or does not complete its investigation in a timely manner. For charges filed on or after January 1, 2008, employees have 90 days to file their state court claim after the IDHR

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§6.23

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

a. dismisses the charge for lack of substantial evidence; b. makes a substantial evidence determination; or c. fails to complete its investigation and issue a report within 365 days after the charge is filed. 5. [6.23] Human Rights Commission Procedures If there is a finding of substantial evidence of discrimination by the Illinois Department of Human Rights and conciliation has failed, the IDHR must file a formal complaint of discrimination with the Illinois Human Rights Commission. 775 ILCS 5/7A-102(F). Within five days after a complaint is filed, the IHRC must serve the complaint on the respondent together with a notice of hearing. 775 ILCS 5/8A-102(A). Upon service of the complaint, the employer has 30 days to file an answer or otherwise plead (e.g., motion to dismiss). 775 ILCS 5/8A102(D). Note the discussion in §6.22 above regarding the situations in which an employee may now bring his or her claim before the IHRC or an Illinois circuit court. The Illinois Human Rights Act permits parties to move for summary disposition of cases pending before the IHRC. 775 ILCS 5/8-106.1. In practice, this permits parties to make motions to dismiss and motions for summary judgment. Babcock & Wilcox Co. v. Department of Human Rights, 189 Ill.App.3d 827, 545 N.E.2d 799, 137 Ill.Dec. 146 (2d Dist. 1989). Discovery motions, scheduling motions, and motions to amend pleadings or add parties are also permitted by the IHRC rules. Motions must set forth the authorities and arguments relied on. All motions must be served by mail at least five state business days before hearing. Hand-delivered motions must be delivered by 4:00 p.m. on the second state business day preceding the hearing. 56 Ill.Admin. Code §5300.730(d)(1). Discovery before the IHRC is more limited than discovery in state courts. See 56 Ill.Admin. Code §5300.710, et seq. The major distinction is that depositions are available only with the prior approval of the administrative law judge. 775 ILCS 5/8A-102(F). The ALJ, who is a duly licensed attorney, is required to conduct an evidentiary hearing. An ALJ must set the hearing not less than 30 nor more than 90 days after service of the complaint, but it may be continued. 775 ILCS 5/8A-102(B). The hearing is governed by the Illinois rules of evidence. 775 ILCS 5/8A-102(G)(3). A complainant must prove his or her case by a preponderance of the evidence. 775 ILCS 5/8A-102(I)(1). The hearing officer may issue a recommended order of dismissal with prejudice or an order of default as a sanction for the failure of a party to prosecute the case, file a required pleading, appear at a hearing, or otherwise comply with the IHRA or an order of the hearing officer. 775 ILCS 5/8A-102(I)(6). After the hearing, the ALJ must issue a recommended decision containing findings of fact. 775 ILCS 5/8A-102(I)(2), 5/8A-102(I)(3). An aggrieved party may appeal the decision to the IHRC within 30 days of receipt of the ALJ’s decision by filing written exceptions. The appellant

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§6.23

may supplement the exceptions by written arguments at the time the exceptions are filed. 775 ILCS 5/8A-103(A). Exceptions should contain a request to remand the matter to the hearing officer to reconsider evidence or hear additional evidence as necessary. A party may request oral argument at the time of filing exceptions or a response to exceptions. 775 ILCS 5/8A-103(C). Responses to the exceptions are due within 21 days after receipt of service. 775 ILCS 5/8A-103(B). The IHRC must adopt the hearing officer’s findings of fact unless they are contrary to the manifest weight of the evidence. 775 ILCS 5/8A-103(E)(2). The IHRC has the power to adopt, modify, or reverse, in whole or in part, the findings and recommendations of the hearing officer. See 775 ILCS 5/8A-103(D) through 5/8A-103(G). Appeals are normally heard by a panel of three commissioners. 775 ILCS 5/8A-103(E)(1). If either party is dissatisfied with the panel’s decision, the dissatisfied party may request a rehearing by the full IHRC within 30 days of the receipt of the panel order. 775 ILCS 5/8A-103(F)(1). Such requests are viewed with disfavor. The full IHRC may grant a rehearing only on a vote by four commissioners when a “clear demonstration” has been made that there are legal issues of significant impact or that three-member panel decisions are in conflict. 775 ILCS 5/8A-103(F)(2). Damages in IHRA proceedings parallel those available under Title VII of the Civil Rights Act of 1964. Backpay, injunctive relief including reinstatement, and attorneys’ fees are recoverable. 775 ILCS 5/8A-104. In addition, the IHRA explicitly authorizes an award of interest on a judgment. 775 ILCS 5/8A-104(J). Section 8A-104(B) of the IHRA empowers the IHRC to order an employer to pay “actual damages . . . for injury or loss suffered by the complainant.” Section 8A-104(B) has been interpreted by the IHRC to permit recovery of pain and suffering damages not recoverable under Title VII. In re Smith & Cook County Sheriff’s Office, 19 Ill.H.R.C.Rep. 131 (1985). However, there have been few pain and suffering awards, perhaps because the IDHR at the direction of the IHRC or the aggrieved party usually commences an action directly in circuit court. 775 ILCS 5/8111(B)(1), 5/8-111(B)(2). On a petition for enforcement of an IHRC order, the circuit court is free to fashion a remedy in addition to the one provided by the IHRC. 775 ILCS 5/8-111(B)(3). But see Micro Switch, Division of Honeywell, Inc. v. Human Rights Commission of State of Illinois, 164 Ill.App.3d 582, 517 N.E.2d 587, 115 Ill.Dec. 176 (1st Dist. 1987). As in other proceedings under the Administrative Review Law, 735 ILCS 5/3-101, et seq., final orders of the IHRC are subject to review under the manifest weight of evidence standard. 735 ILCS 5/3-110; Burnham City Hospital v. Human Rights Commission, 126 Ill.App.3d 999, 467 N.E.2d 635, 81 Ill.Dec. 764 (4th Dist. 1984); Department of Corrections v. Adams, 146 Ill.App.3d 173, 496 N.E.2d 1138, 100 Ill.Dec. 73 (1st Dist. 1986). As long as the IHRC’s decision was founded on such evidence as a reasonable mind could base a conclusion on, it will be upheld. Castillo v. Illinois Human Rights Commission, 159 Ill.App.3d 158, 512 N.E.2d 72, 111 Ill.Dec. 168 (1st Dist. 1987). A party challenging an IHRC decision must file its appeal within 35 days after entry of the final order. Final orders of the IHRC are subject to review in the appellate court for the district in which the civil rights violation was allegedly committed. 775 ILCS 5/8-111(A). The appellate

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§6.24

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

court will review the IHRC’s decision to determine whether it is against the manifest weight of the evidence. Zaderaka v. Illinois Human Rights Commission, 131 Ill.2d 172, 545 N.E.2d 684, 137 Ill.Dec. 31 (1989). As long as there is a basis in the record to support the IHRC’s findings, the appellate court generally will not disturb these findings on appeal. Habinka v. Human Rights Commission, 192 Ill.App.3d 343, 548 N.E.2d 702, 139 Ill.Dec. 317 (1st Dist. 1989).

III. [6.24] RACE AND NATIONAL ORIGIN DISCRIMINATION Employment discrimination on the basis of race and national origin is prohibited by a number of statutes, from the U.S. Constitution to local ordinances. The primary legal vehicles for challenging race or national origin discrimination in Illinois are Title VII of the Civil Rights Act of 1964, the Civil Rights Acts of 1866 and 1871, and the Illinois Human Rights Act. Although there have been significant differences in the interpretation of these enactments, decisions have tended toward the adoption of a more uniform analytical framework for all allegations of employment discrimination. A. [6.25] Ordinary Disparate Treatment An unsuccessful job applicant who is in a protected category can pursue an action under Title VII of the Civil Rights Act of 1964 pursuant to two theories of relief: disparate treatment or disparate impact. Under the disparate treatment theory, an applicant must establish by direct evidence, such as statements of racial animus by a decision maker, or by circumstantial evidence, such as unequal treatment of similarly situated persons, that the applicant was a victim of intentional adverse action because of race or national origin. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 52 L.Ed.2d 396, 97 S.Ct. 1843 (1977). Direct evidence of intent to discriminate includes statements by the decision maker indicating a bias in the particular employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L.Ed.2d 268, 109 S.Ct. 1775 (1989). Despite its name, proof of discrimination under the direct method “is not limited to near-admissions by the employer that its decisions were based on a proscribed criterion.” Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir. 2006). Rather, an employee also can provide circumstantial evidence “which suggests discrimination albeit through a longer chain of inferences.” Id. The key to the direct method of proof is that the evidence, whether direct or circumstantial, “ ‘points directly’ to a discriminatory reason for the employer’s action.” Hasan v. Foley & Lardner LLP, 552 F.3d 520, 527 (7th Cir. 2008), quoting Atanus v. Perry, 520 F.3d 662, 671 (7th Cir. 2008). Circumstantial evidence that can establish discrimination under the direct approach includes “suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other employees in the protected group” (552 F.3d at 527, quoting Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir. 2007)) and evidence that “the plaintiff is qualified for and fails to receive the desired treatment, and the employer’s stated reason for the difference is unworthy of belief” (552 F.3d at 527, quoting Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 725 (7th Cir. 1998)). More commonly, however, disparate treatment cases are proven by inferences drawn from indirect evidence. The Seventh Circuit has held that statistics are improper vehicles to prove

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§6.26

discrimination in disparate treatment (as opposed to disparate impact) cases and that, standing alone, statistics cannot establish a case of individual disparate treatment. Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343 (7th Cir. 1997). Once a plaintiff has established a prima facie case of employment discrimination under the McDonnell Douglas test, the burden shifts to the defendant to articulate a legitimate business reason for the unfavorable employment decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973); §6.26 below. The defendant’s burden at this stage is only to produce some evidence of its legitimate business reason. The burden of persuading the trier of fact that an act of discrimination occurred remains with the plaintiff if indirect proof is used. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L.Ed.2d 207, 101 S.Ct. 1089, 1093 (1981). If a defendant meets its burden of production, the burden shifts back to the plaintiff to show that the articulated reason is a pretext for discrimination. The burden of persuasion on the pretext issue remains with the plaintiff. See §6.28 below for a discussion of St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 125 L.Ed.2d 407, 113 S.Ct. 2742 (1993), in which the Supreme Court revisited and clarified the burden of proof standard for discrimination claims set forth in McDonnell Douglas. The McDonnell Douglas test is also applicable in cases brought under the U.S. Constitution via 42 U.S.C. §1983 (Hicks, supra), cases brought under 42 U.S.C. §1981 (General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 73 L.Ed.2d 835, 102 S.Ct. 3141 (1982)), and cases brought under the Illinois Human Rights Act (Zaderaka v. Illinois Human Rights Commission, 131 Ill.2d 172, 545 N.E.2d 684, 137 Ill.Dec. 31 (1989)). 1. [6.26] Hiring and Firing To satisfy the initial burden of inferential proof under Title VII, an applicant must show that he or she (a) was a member of a protected group, (b) was qualified for the job applied for, and (c) was turned down while (d) the employer continued to seek applicants to fill the position. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). The Supreme Court has held that courts can draw an inference of intent to discriminate when these elements are established because “we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 57 L.Ed.2d 957, 98 S.Ct. 2943, 2949 – 2950 (1978). Termination for cause or for budgetary or programmatic reasons is also subject to the McDonnell Douglas test. See the discussion of McDonnell Douglas in §6.25 above. In the context of a termination, a prima facie case is established by demonstrating that (a) the plaintiff was a member of a protected class, (b) the plaintiff met the employer’s legitimate job expectations, (c) the plaintiff was terminated or laid off, and (d) the employer filled the position with someone who was not a member of the protected class. See, e.g., Brand v. Tele-Communications of South Suburbia, Inc., No. 86 C 9387, 1989 WL 99552 (N.D.Ill. Aug. 18, 1989). Occasionally, the fourth element is not required to establish a prima facie case. Rather, “[a] prima facie case is established when plaintiff produces sufficient evidence of disparate treatment so that a causal link between plaintiff’s race and plaintiff’s discharge can be inferred.” Morgan v. Harris Trust & Savings Bank of Chicago, 867 F.2d 1023, 1026 (7th Cir. 1989). In Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025 (7th Cir. 1998), the Seventh Circuit held that a disparate treatment claim with

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§6.27

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

regard to termination can be established by showing that (a) the plaintiff was in a protected class, (b) the plaintiff’s job performance was satisfactory, (c) the plaintiff was the subject of a materially adverse employment action, and (d) others outside the protected group were treated more favorably. Mere stray remarks in the workplace will not suffice to establish that race was a motivating factor in an employment decision. Smith v. Firestone Tire & Rubber Co., 875 F.2d 1325 (7th Cir. 1989). Ordinarily, courts will defer to an employer’s objective reasons for hiring. A mere suspicion that race was a factor in a teacher hiring decision is insufficient to rebut an employer’s legitimate business reason, such as greater experience. Boudreaux v. Helena-West Helena School District, 819 F.2d 854 (8th Cir. 1987). However, in Brown v. East Mississippi Electric Power Ass’n, 989 F.2d 858 (5th Cir. 1993), the Fifth Circuit Court of Appeals held that a white supervisor’s use of a racial phrase constituted direct evidence of racial animus, shifting the burden to the employer to prove that it would have made the same employment decision in any event. 2. [6.27] Terms and Conditions of Employment Virtually all terms and conditions of employment are subject to employment discrimination actions under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1871, and the Illinois Human Rights Act. For example, a black employee stated a claim for disparate treatment when he was scheduled to work on Saturday and Sunday for two years while whites always had one weekend day off. Gibson v. American Broadcasting Cos., 892 F.2d 1128 (2d Cir. 1989). Similarly, allegedly racially biased performance evaluations and promotional testing were presented in Gilty v. Village of Oak Park, 919 F.2d 1247 (7th Cir. 1990). See, e.g., Benjamin v. Aluminum Company of America, 921 F.2d 170 (8th Cir. 1990) (training and demotion); Dandy v. United Parcel Service, Inc., 388 F.3d 263 (7th Cir. 2004) (promotion and salary claim); Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002) (promotion). A prima facie case in a termsand-conditions case is ordinarily established by direct evidence of discriminatory intent or by evidence of unequal treatment between the plaintiff and named nonminority comparatives. In Patterson v. McLean Credit Union, 491 U.S. 164, 105 L.Ed.2d 132, 109 S.Ct. 2363 (1989), the Supreme Court held that a claim of racial harassment is not actionable under 42 U.S.C. §1981 if the claim is based on conduct by an employer relating to terms and conditions of continuing employment because the right to make contracts under §1981 “extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment.” 109 S.Ct. at 2372. The Court found that a promotion claim could be actionable under §1981 “[o]nly where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer.” 109 S.Ct. at 2377. The Civil Rights Act of 1991 legislatively overruled Patterson, supra, by adding 42 U.S.C. §1981(b), which redefines the “make and enforce contracts” language to include “termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” In Hrobowski v. Worthington Steel Co., 358 F.3d 473 (7th Cir. 2004), the Seventh Circuit held that a plaintiff may establish a violation of §1981 and Title VII by proving that the plaintiff’s employer subjected him or her to a hostile work environment. The plaintiff must show

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§6.28

“(1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive working environment that seriously affected his psychological well-being; and (4) there is a basis for employer liability.” 358 F.3d at 476. The Seventh Circuit explained that a plaintiff can establish the third element of this test by proving that the harassing words or conduct were severe or pervasive. This can be established by proving that the work environment was both subjectively and objectively offensive. 358 F.3d at 476 – 477. See also Herron v. DaimlerChrysler Corp., 388 F.3d 293 (7th Cir. 2004). In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 153 L.Ed.2d 106, 122 S.Ct. 2061, 2074 (2002), the Supreme Court held that an employee could recover on a hostile work environment claim under Title VII for acts occurring outside the statutory time period to file a timely charge “[p]rovided that an act contributing to the claim occurs within the filing period.” In Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 158 L.Ed.2d 645, 124 S.Ct. 1836 (2004), the Supreme Court reversed the Seventh Circuit and applied a federal, four-year “catchall” statute of limitations to a §1981 claim of racial discrimination that was made possible by the Civil Rights Act of 1991 amendment. See also Dandy, supra. 3. [6.28] Legitimate Business Reasons and Pretext After the employer articulates its legitimate business reason for its actions, the employee’s burden of proving pretext is difficult to meet, absent comparative data. Thus, although polygraph tests are generally inadmissible evidence, a black employee who twice failed a polygraph test was properly terminated when no white employee who flunked the test was retained. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 153 L.Ed.2d 106, 122 S.Ct. 2061 (2002). Similarly, a black employee who refused a lateral transfer and missed a meeting was properly terminated when no white comparative refused such a transfer without articulated good cause. Henderson v. United Parcel Service, Inc., 731 F.Supp. 1374 (S.D.Ind. 1990). Even if the employer’s decision to discharge was ill-informed or ill-considered, absent evidence that the decision was made for a discriminatory reason, it will not be overturned. Billups v. Methodist Hospital of Chicago, 922 F.2d 1300 (7th Cir. 1991); Pugh v. State of Wisconsin Department of Natural Resources, 749 F.Supp. 205 (E.D.Wis. 1990). In St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 125 L.Ed.2d 407, 113 S.Ct. 2742 (1993), the Supreme Court revisited and clarified the McDonnell Douglas three-step burden of proof standard utilized in claims of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). Before Hicks, most courts held that an employee could prevail in a claim of discrimination by showing that the employer’s articulated reason for its action was untrue. However, the Hicks Court stated that once an employer articulates a reason for its action (the second step of the process), the employee must show that the employer’s reason is false and that the real reason for the action was a discriminatory one. The Court further stated that the mere fact that an employer’s explanation is not believable or is untrue does not equate with a finding of unlawful discrimination. The four dissenting Justices in Hicks vehemently argued that the majority’s holding greatly disfavors the plaintiff under Title VII of the Civil Rights Act of 1964 without the good luck to have direct evidence of discriminatory intent.

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§6.29

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

The Supreme Court elaborated on the standard for establishing pretext in Ash v. Tyson Foods, Inc., 546 U.S. 454, 163 L.Ed.2d 1053, 126 S.Ct. 1195 (2006). In Ash, two African-Americans sued after they were denied promotions. The Supreme Court ruled that the Eleventh Circuit had not applied the proper standard for assessing whether the employer’s articulated reasons for its actions constituted a pretext for discrimination. While not setting out an explicit standard, the Supreme Court directed the lower court, on remand, to consider in the pretext analysis evidence that the plant manager, who made the disputed hiring decisions, had referred to each of the petitioners as “boy.” 126 S.Ct. at 1197. Further, when assessing whether the employer’s explanation, that the petitioners were not as qualified as those who were promoted, was truthful, the Court rejected the Eleventh Circuit’s standard in which pretext existed only if “the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face” and suggested that pretext could be established by a lesser standard based on a comparison of the successful and unsuccessful candidates’ qualifications. Id. In Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994), the Seventh Circuit held that when considering a motion for summary judgment, evidence that the employer’s articulated reason is untrue will automatically raise a material issue of fact as to discriminatory intent requiring a trial. Ash, supra, suggests that evidence of discriminatory animus, combined with other evidence, serves to create an issue of fact as to whether the employer’s articulated reason for its actions is pretextual. B. [6.29] Pattern and Practice Occasionally, an applicant for employment may attempt to prove that the failure to hire in the desired position was part of a pattern and practice of racially or ethnically motivated invidious discrimination. Plaintiffs alleging such a pattern and practice of disparate treatment must show by a preponderance of the evidence that prohibited discrimination was the employer’s standard operating procedure (i.e., the regular rather than the unusual practice). International Brotherhood of Teamsters v. United States, 431 U.S. 324, 52 L.Ed.2d 396, 97 S.Ct. 1843 (1977). To prove such intentional discrimination, a plaintiff must identify either an announced policy that treats minorities differently or an unwritten practice revealed by statistical analysis. Id. Although the level of statistical proof required in a pattern and practice case has not been precisely defined, it is quite high. In Hazelwood School District v. United States, 433 U.S. 299, 53 L.Ed.2d 768, 97 S.Ct. 2736 (1977), the Supreme Court found that two or three standard deviations from expected “race free” normative distributions would establish intentional discrimination. Two deviations represent a 95-percent probability that the distribution was not random. It is clear that ordinary variations from an expected distribution will not establish intentional discrimination. See Ottaviani v. State University of New York at New Paltz, 875 F.2d 365 (2d Cir. 1989), cert. denied, 110 S.Ct. 721 (1990). Moreover, even if the statistical disparities are significant, victims of the assertedly discriminatory practice must be identified with particularity to prevail. Equal Employment Opportunity Commission v. Sears, Roebuck & Co., 628 F.Supp. 1264 (N.D.Ill. 1986). In Equal Employment Opportunity Commission v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994), cert. denied, 115 S.Ct. 1270 (1995), the Seventh Circuit Court of Appeals affirmed the lower court’s finding that the employer violated Title VII of the Civil Rights Act of 1964 by failing to hire any blacks over a six-year period, despite a labor market that was at least 22.5 percent black. The court stated that appropriate statistical evidence can be sufficient to establish a pattern and practice of discrimination.

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§6.30

C. [6.30] Disparate Impact Under pre-1989 caselaw, a claimant under Title VII of the Civil Rights Act of 1964 could prove unlawful discrimination by showing that a facially neutral policy, even one neutral in terms of intent, fell more harshly on one group than another in a statistically significant fashion. If shown, such a prima facie case would give rise to liability unless rebutted by proof of legitimate business necessity, including a showing that the employer considered and rejected for good reason all less discriminatory alternatives. Griggs v. Duke Power Co., 401 U.S. 424, 28 L.Ed.2d 158, 91 S.Ct. 849 (1971). The burden of rebutting the plaintiff’s prima facie statistical case (i.e., production of evidence and persuasion of the trier of fact) rested on the defendant. Id. Using such an analysis, courts routinely rejected practices such as internal hiring preferences in predominantly white workplaces. For example, in Local 53 of International Association of Heat & Frost Insulators & Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969), which was cited with approval in Local 28 of Sheet Metal Workers’ International Ass’n v. Equal Employment Opportunity Commission, 478 U.S. 421, 92 L.Ed.2d 344, 106 S.Ct. 3019, 3037 n.28 (1986), the Fifth Circuit found that a predominantly white union violated Title VII by recruiting new members exclusively by referral from the existing predominantly white membership. The Supreme Court radically restructured the required disparate impact analysis, arguably sweeping away much of the 20 previous years of disparate impact precedent, in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 104 L.Ed.2d 733, 109 S.Ct. 2115 (1989). The Court held a plaintiff must show that (1) a particular challenged practice produced a statistically significant disparate impact on minority job applicants, not that an undifferentiated group of challenged practices caused a disparity; and (2) the employer intended to discriminate. Following Wards Cove, the burden of persuasion remained with the plaintiff throughout a disparate impact case. A legitimate business necessity was shown not by establishing that the practice was required, but by showing that the practice served the employment goals of the employer in a legitimate way. Finally, the plaintiff, not the employer, had to show that less discriminatory alternatives were available to the employer, who declined to adopt them. On November 21, 1991, the Civil Rights Act of 1991 became effective, reversing Wards Cove. Section 105(a) of the Act amended Title VII to provide that a disparate impact claim is established when a complaining party demonstrates that a particular employment practice causes a disparate impact and the respondent fails to prove that the challenged practice is job-related and consistent with business necessity. See 42 U.S.C. §2000e-2(k). In the alternative, if the complaining party shows that an alternative business practice would have a lesser discriminatory impact and the respondent fails to adopt the less discriminatory alternative, then disparate impact is also established. Id. If the complaining party demonstrates to the court that the elements of a respondent’s decision-making process are not analytically separable, the decision-making process may be analyzed as a single employment practice. 42 U.S.C. §2000e-2(k)(1)(B)(i). On the other hand, if an employer demonstrates that a specific employment practice does not cause the disparate impact, the employer need not demonstrate the business necessity of the practice. 42 U.S.C. §2000e-2(k)(1)(B)(ii). No disparate impact may be established by a rule barring the current,

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§6.31

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

knowing, unlawful use of a controlled substance unless the rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin. 42 U.S.C. §2000e-2(k)(3). The Equal Employment Opportunity Commission’s Uniform Guidelines on Employee Selection Procedures in 29 C.F.R. pt. 1607 require that hiring, promotion, or membership procedures with a disparate impact must be justified as job-related through elaborate job content or criterion studies. 29 C.F.R. §1607.3. An alternative previously available to employers was to adjust minority and female scores to eliminate the disparate impact. This practice, called “race norming,” was barred by the Civil Rights Act of 1991. See 42 U.S.C. §2000e-2(l). In Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir.), reh’g en banc denied, 13 F.3d 296 (1993), cert. denied, 114 S.Ct. 2726 (1994), the Ninth Circuit Court of Appeals rejected an EEOC guideline that provides an employee can make a prima facie case in a disparate impact cause of action merely by proving the existence of an employer’s English-only policy. See 29 C.F.R. §1606.7(a). The Garcia court, citing Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990), held that in a disparate impact case, a plaintiff must do more than merely raise an inference of discrimination before the burden shifts to the employer; rather, the plaintiff must actually prove the discriminatory impact at issue. The Fifth Circuit Court of Appeals has also held that a rule forbidding employees from speaking anything but English in public areas while on the job did not violate Title VII, but this ruling came before the EEOC guidelines were adopted. Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), cert. denied, 101 S.Ct. 923 (1981). In Equal Employment Opportunity Commission v. Synchro-Start Products, Inc., 29 F.Supp.2d 911, 915 (N.D.Ill. 1999), the Northern District rejected the Ninth Circuit’s ruling in Spun Steak, supra, noting that the Seventh Circuit has not yet ruled on this issue, and held that the EEOC guideline, which provides that an English-only rule violates Title VII unless the employer establishes a business necessity for the rule, “comport[s] with the requirements for a viable Title VII claim.” D. [6.31] Retaliation Claims of retaliation are becoming much more common in employment discrimination litigation. The most common vehicle is §704(a) of Title VII of the Civil Rights Act of 1964, which makes it an unlawful employment practice to retaliate against an employee who either has (1) “opposed” an employer’s discriminatory practices, or (2) “participated” in proceedings to enforce rights under Title VII. 42 U.S.C. §2000e-3(a). Employees may also bring retaliation claims under 42 U.S.C. §§1985(2) and 1981. See CBOCS West, Inc. v. Humphries, 553 U.S. 442, 170 L.Ed.2d 864, 128 S.Ct. 1951 (2008). These statutes can be more attractive to plaintiffs because, unlike Title VII, §§1981 and 1985 do not limit damages or require plaintiffs to first exhaust Equal Employment Opportunity Commission remedies prior to pursuing such claims. In Robinson v. Shell Oil Co., 519 U.S. 337, 136 L.Ed.2d 808, 117 S.Ct. 843 (1997), the Supreme Court held that an employee may maintain a cause of action under Title VII against a former employer for acts of retaliation occurring after the employment has ended. Internal complaints about pay disparity to an employee’s supervisor are protected activities under Title VII. Salas v. Richardson Electronics, Ltd., No. 95 C 1639, 1996 WL 6542 (N.D.Ill. Jan. 5, 1996). Participating

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in an employer’s internal investigation of a complaint of sexual harassment also constitutes protected activity that garners the protection of Title VII’s anti-retaliation provisions. Crawford v. Metropolitan Government of Nashville & Davidson County, Tennessee, ___ U.S. ___, 172 L.Ed.2d 650, 129 S.Ct. 846 (2009). A letter to a congressman about alleged employment discrimination was held to constitute opposition. Robinson v. Southeastern Pennsylvania Transportation Authority, Red Arrow Division, 982 F.2d 892 (3d Cir. 1993). In Evans v. Kansas City, Missouri School District, 65 F.3d 98 (8th Cir. 1995), cert. denied, 116 S.Ct. 1319 (1996), an employee’s complaint about the principal’s alleged discrimination practices was not protected activity because the conduct objected to was not related to employment practices but rather was the principal’s views regarding desegregation and magnet school programs. Note, however, that an individual need not succeed on a discrimination claim in order to make out a prima facie case of retaliation. See Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187 (7th Cir. 1994). In Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 165 L.Ed.2d 345, 126 S.Ct. 2405 (2006), the Supreme Court held that a different standard applies to retaliation claims than to ordinary disparate impact discrimination claims. In particular, an employee establishes a retaliation claim under Title VII when he or she shows that he or she was subjected to retaliatory conduct that would be “materially adverse to a reasonable employee.” Thus, retaliatory conduct is broader than “discriminatory actions,” which are those that “affect the terms and conditions of employment.” 126 S.Ct. at 2413 – 2414. E. [6.32] Reverse Discrimination There is currently a split in the circuits when it comes to applying the McDonnell Douglas test to cases alleging reverse racial discrimination under Title VII of the Civil Rights Act of 1964. See the discussion of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973), in §6.25 above. In Phelan v. City of Chicago, 347 F.3d 679 (7th Cir. 2003), cert. denied, 124 S.Ct. 2034 (2004), the Seventh Circuit held that the first prong of the McDonnell Douglas test, which requires that the plaintiff belong to a racial minority, cannot be used. Instead, the Seventh Circuit required the plaintiff to show “background circumstances” that demonstrate that the employer has a “reason or inclination to discriminate invidiously against whites” or that there is “something ‘fishy’ about the facts at hand.” 347 F.3d at 684, quoting Mills v. Health Care Service Corp., 171 F.3d 450, 455 (7th Cir. 1999). See also Nagle v. Village of Calumet Park, 554 F.3d 1106 (7th Cir. 2009). A number of other circuits also utilize this “background circumstances” approach. See, e.g., Hammer v. Ashcroft, 383 F.3d 722, 724 (8th Cir. 2004); Mattioda v. White, 323 F.3d 1288 (10th Cir. 2003); Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir. 2001). In contrast, other circuits only require a plaintiff alleging reverse racial discrimination to establish that he or she is a member of a protected class, and whites are a protected class under Title VII. See, e.g., Byers v. Dallas Morning News, Inc., 209 F.3d 419 (5th Cir. 2000); Bass v. Board of County Commissioners, Orange County, Florida, 256 F.3d 1095 (11th Cir. 2001). In Iadimarco v. Runyon, 190 F.3d 151, 160 (3d Cir. 1999), the Third Circuit, quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 57 L.Ed.2d 957, 98 S.Ct. 2943, 2949 (1978), rejected the background circumstances requirement and found that a plaintiff establishes a prima facie case of reverse discrimination by presenting sufficient evidence that “the employer is treating some people less favorably than others because of their race, color, religion, sex, or national origin.”

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§6.33

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

In Ricci v. DeStefano, ___ U.S. ___, 174 L.Ed.2d 490, 129 S.Ct. 2658 (2009), the Supreme Court held that a municipality could not, based on fear of incurring charges of racial discrimination, decline to use an exam that would render a disproportionate number of white applicants eligible for promotion. The Court held that, under Title VII, in the absence of evidence that the test was flawed or biased in favor of white test-takers, and notwithstanding the fact that the skewed test results created a prima facie case of a disparate impact employment discrimination claim in favor of minority employees, the city had no basis for refusing to promote the highest test scorers, who were all white. By refusing to find the city’s fear of discriminationbased litigation sufficient to justify the refusal to promote white employees, the Court held that employers who seek to avoid discrimination litigation must also consider whether their actions may give rise to reverse discrimination charges. F. [6.33] Affirmative Action The Supreme Court has grappled with the concept of affirmative action in over a dozen decisions marked by plurality opinions, multiple concurrences, and bitter dissents. Court decisions in the 1990s called into question the continued viability of affirmative action. However, in 2003, the Supreme Court affirmed the use of race as a “plus” factor in university admission decisions. Grutter v. Bollinger, 539 U.S. 306, 156 L.Ed.2d 304, 123 S.Ct. 2325 (2003). “Affirmative action” is generally defined as a program aimed at increasing opportunities for and participation in benefits such as employment, admissions to schools, or government contracts by portions of the population historically underrepresented in these areas. Affirmative action is generally attacked by nonminorities as violative of the nondiscrimination mandate of Title VII of the Civil Rights Act of 1964 and, if by a public employer, the Fourteenth Amendment’s Equal Protection Clause. In United Steelworkers of America v. Weber, 443 U.S. 193, 61 L.Ed.2d 480, 99 S.Ct. 2721 (1979), the Supreme Court held that Title VII’s prohibition against racial discrimination is not violated by affirmative action plans that have purposes that mirror those of the statute and do not unnecessarily trammel the interest of the nonminority employee. The Court did state that the plan must be limited in time, ending when the disparity in employment is eliminated. Thereafter, in Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616, 94 L.Ed.2d 615, 107 S.Ct. 1442 (1987), the Supreme Court upheld the transportation authority’s voluntary affirmative action plan under which sex was used as a factor in promotion decisions. The Court held that a manifest imbalance in traditionally segregated job categories justified use of affirmative action. The Court also noted that the promotion decision did not cause the disgruntled employee to lose a job or benefit and the plan was temporary in nature. Later court decisions and legislative enactments, however, called into question the future of affirmative action. In Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 132 L.Ed.2d 158, 115 S.Ct. 2097 (1995), the Supreme Court placed significant limits on the federal government’s authority to implement programs that favor racial minorities. Adarand Constructors, a whiteowned business, sued various federal officials, alleging that it should have been awarded a contract by the Department of Transportation because it was the lowest bidder. The contract was awarded to a minority-owned construction company in accordance with a federal preference for

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such contracts. The Court, in a five-four decision, remanded the case to the lower court, holding that federal programs that give preference to minorities, like state and local programs, must meet the strict-scrutiny requirement. The Court went on to state that all racial classifications, even those considered benign, are constitutional only if they are narrowly tailored measures that further a compelling governmental interest. The Court struck down most of Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547, 111 L.Ed.2d 445, 110 S.Ct. 2997 (1990), in which the court had applied the more lenient standard of intermediate scrutiny to federal minority preference programs. In 2001, the Supreme Court once again granted a petition for writ of certiorari to review the United States Department of Transportation’s Disadvantaged Business Enterprise program applicable to federal contracting. The Supreme Court expected to review the program’s use of racial and gender preferences in awarding federal construction contracts and whether the program is justified by a compelling interest and narrowly tailored to meet this interest. However, the Supreme Court ultimately dismissed the writ of certiorari as improvidently granted because the petitioner shifted the posture of its challenge and failed to contest in its certiorari petition the Tenth Circuit’s ruling that the petitioner lacked standing to mount that particular challenge. Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 151 L.Ed.2d 489, 122 S.Ct. 511 (2001). In Bennett v. Arrington, 20 F.3d 1525 (11th Cir. 1994), cert. denied, 115 S.Ct. 1695 (1995), the Eleventh Circuit struck down the City of Birmingham’s affirmative action plan for promoting blacks within the city’s fire department. The court held that the city’s racial quota requiring that 50 percent of all new lieutenant positions be filled by blacks was not narrowly tailored to provide a remedy for past discrimination but rather was designed to achieve racial balancing and thus was violative of the Equal Protection Clause of the Fourteenth Amendment. In what many believed would be the most significant school affirmative action case, the Supreme Court granted review in Taxman v. Board of Education of Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996). The issue was whether the school district violated Title VII when it used race as a factor in selecting which of two equally qualified employees to lay off in order to promote diversity. The Third Circuit found that the district’s use of affirmative action violated Title VII because it was not done to eliminate past discrimination and that diversity was not a compelling governmental interest. The court also found that the plan unnecessarily trammeled the interest of the nonminority employee. However, the parties settled the case before the Supreme Court could decide the issue. In Alexander v. Estepp, 95 F.3d 312 (4th Cir. 1996), the Fourth Circuit found an affirmative action plan in the Prince George’s County, Maryland, fire department to be unconstitutional because it was not narrowly tailored. In Messer v. Meno, 130 F.3d 130 (5th Cir. 1997), an affirmative action plan was successfully challenged under the Equal Protection Clause by a white woman who claimed that blacks were promoted over her. The court held that strict scrutiny was the proper standard and rejected diversity as a compelling governmental interest. In contrast, in Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996), cert. denied, 117 S.Ct. 949 (1997), the Seventh Circuit held that the need to have black correctional officers in a male “boot camp” was an appropriate use of affirmative action.

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§6.33

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

In Lutheran Church-Missouri Synod v. Federal Communications Commission, 141 F.3d 344 (D.C.Cir. 1998), the court held that the Federal Communications Commission’s affirmative action regulations for employment of broadcasters were unconstitutional. The court ruled that the Commission’s use of racial classifications could not survive the strict-scrutiny test mandated by Adarand, supra, 115 S.Ct. at 2097. The Lutheran Church court also found that diversity of programming was not a compelling governmental interest. However, in Grutter, supra, the Supreme Court resolved a disagreement between the circuits and ruled that diversity is a compelling governmental interest that can justify the narrowly tailored use of race in university admissions. Previously, in Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996), the Fifth Circuit Court of Appeals had held that diversity was not a compelling state interest. In Smith v. University of Washington, Law School, 233 F.3d 1188 (9th Cir. 2000), the Ninth Circuit Court of Appeals held that diversity was a compelling state interest. In Grutter, the Supreme Court held that the University of Michigan Law School had a compelling interest in attaining a diverse student body and that the admissions program in use was narrowly tailored to serve this compelling governmental interest. The Supreme Court found that “truly individualized consideration demands that race be used in a flexible, nonmechanical way.” 123 S.Ct. at 2342. The Court rejected the use of quotas for members of certain racial groups but upheld the law school’s use of race as a “plus” factor in its individualized consideration of applicants. Significantly, the Court also found that “race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands.” 123 S.Ct. at 2346. The Court anticipated that the use of racial preferences would no longer be necessary in 25 years. On the same day it upheld the affirmative action program utilized by the University of Michigan Law School, the Supreme Court struck down the University of Michigan’s undergraduate admissions policy. The Court ruled that the policy was unconstitutional because it was not narrowly tailored to achieve the asserted compelling governmental interest in diversity. Gratz v. Bollinger, 539 U.S. 244, 156 L.Ed.2d 257, 123 S.Ct. 2411 (2003). The undergraduate admissions policy did not survive strict scrutiny because it automatically awarded 20 points, onefifth the points needed to guarantee admission, to each underrepresented minority applicant based solely on the applicant’s race. The undergraduate admissions policy lacked the level of “individualized consideration” upheld by the Court in Grutter. 123 S.Ct. at 2428. If affirmative action is to be utilized by a governmental entity such as a school district, the entity should be aware that the plan will be subject to strict scrutiny. An affirmative action plan must set forth a compelling governmental interest and be narrowly tailored to achieve this interest. An employer can, and should, utilize race-neutral alternatives to achieve its goals. These factors include (1) advertising in newspapers and magazines with a large number of minority readers, (2) recruiting at colleges and schools with a significant number of minorities, (3) establishing mentor programs for minority employees, and (4) including minorities on the search or hire committees. These measures will generally not be subject to challenge as unlawful discrimination.

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§6.35

IV. [6.34] SEX DISCRIMINATION Historically, men and women were not considered equals. Even after passage of the Fourteenth Amendment to the U.S. Constitution, the courts continued to uphold state legislation that reflected the highly segregated roles of men and women in employment. Change began when the Supreme Court, in Reed v. Reed, 404 U.S. 71, 30 L.Ed.2d 225, 92 S.Ct. 251 (1971), reviewed a statute that discriminated on the basis of sex. While the Court did not apply the strict-scrutiny test, the Court did apply an intermediate standard of review. The intermediate standard of review requires that gender-based classifications “must serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 50 L.Ed.2d 397, 97 S.Ct. 451, 457 (1976), reh’g denied, 97 S.Ct. 1161 (1977). A. [6.35] Hiring The most frequently invoked prohibition against sex-based employment discrimination is found in Title VII of the Civil Rights Act of 1964. Additionally, 42 U.S.C. §1983 has been frequently used as a vehicle for the filing of claims of sex discrimination and sexual harassment in public employment. The Equal Protection Clause of the Fourteenth Amendment is the most widely used source for §1983 claims of sex discrimination or harassment. Bohen v. City of East Chicago, Indiana, 799 F.2d 1180 (7th Cir. 1986); Pontarelli v. Stone, 930 F.2d 104 (1st Cir. 1991); Howard v. Board of Education of Sycamore Community Unit School District No. 427, 893 F.Supp. 808 (N.D.Ill. 1995). Unlike under a Title VII claim, to succeed on a claim under 42 U.S.C. §1983, a plaintiff must show intent to discriminate. Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014 (7th Cir. 2003); Van Houdnos v. Evans, 807 F.2d 648 (7th Cir. 1986); Sanchez v. Alvarado, 101 F.3d 223 (1st Cir. 1996). The intermediate-scrutiny test enunciated by the Supreme Court in Craig v. Boren, 429 U.S. 190, 50 L.Ed.2d 397, 97 S.Ct. 451 (1976), reh’g denied, 97 S.Ct. 1161 (1977), has been applied on a case-by-case basis. The Court has continued to use the “substantial relationship to an important state interest” test when reviewing governmental classifications that are gender based. As in racial discrimination cases, recruitment policies may create or perpetuate unbalanced representation of one sex in a workplace. This result may be unlawful under Title VII unless an employer can demonstrate that the policy can be justified as a business necessity. Hiring and recruiting policies that may violate Title VII include internal workforce job referrals that result in a predominantly male workforce (United States v. State of New York, 475 F.Supp. 1103 (N.D.N.Y. 1979)) or exclusive recruitment by an employer at a predominantly male college or university (United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973)). Title VII’s sexual discrimination prohibitions apply throughout the hiring process — from advertisements to the final hiring decision. For example, an employer may not request preemployment information from female applicants that it does not request from males. Bruno v. City of Crown Point, Indiana, 950 F.2d 355 (7th Cir. 1991); King v. Trans World Airlines, Inc., 738 F.2d 255 (8th Cir. 1984). Preemployment procedures must also be gender neutral. The major

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§6.36

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

exception to gender-neutral hiring requirements is when a particular sex is a bona fide occupational qualification. Whether a qualification is a bona fide occupational qualification is a question of fact. This exception is narrowly construed. See §6.10 above. Physical requirements may also be discriminatory. Dothard v. Rawlinson, 433 U.S. 321, 53 L.Ed.2d 786, 97 S.Ct. 2720 (1977). In Dothard, the physical restrictions were height and weight requirements. The Court reasoned that the requirements excluded a disproportionate percentage of women. Rules preventing the hiring of unwed mothers have also been found discriminatory. Clark v. Hamilton Community Schools, No. F84-136, 1985 WL 383 (N.D.Ind. June 18, 1985); Grayson v. Wickes Corp., 607 F.2d 1194 (7th Cir. 1979); Chambers v. Omaha Girls Club, Inc., 834 F.2d 697 (8th Cir. 1987). In International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 113 L.Ed.2d 158, 111 S.Ct. 1196 (1991), the Supreme Court ruled that an employer that excluded women with childbearing capacity from lead-exposed jobs created a facially discriminatory classification based on gender and explicitly discriminated against women on the basis of their sex under Title VII. While federal statutes provide a large measure of protection from sex discrimination, virtually all discriminatory practices that are prohibited by Title VII and the Equal Pay Act are also prohibited by the Illinois Human Rights Act, which prohibits employers from discriminating against employees or applicants for employment with respect to recruitment, hiring, firing, selection for training or apprenticeship, and other terms and conditions of employment. 775 ILCS 5/2-102(A). Also, §24-4 of the School Code prohibits school officials from considering color, race, sex, nationality, religion, or religious affiliation either as a qualification or disqualification for employment or in assigning an employee to an office, position, or school in the system. 105 ILCS 5/24-4. Section 24-4 further prohibits school officials from “directly or indirectly” requesting, asking, or seeking information concerning the color, race, sex, nationality, or religious affiliation of any person in connection with the person’s employment or assignment within the system. Finally, there are general prohibitions against discrimination in the Illinois Constitution, which provides that equal protection of the laws of the state shall not be denied or abridged on account of sex by the state or its units of local government. ILL.CONST. art. I, §18. This constitutional prohibition is enforced via the IHRA. The adoption and application of standard hiring and promotional procedures are helpful in insulating employers against charges of sex discrimination under these provisions. B. [6.36] Firing Allegations of sex discrimination in discharge decisions are governed by the same general principles applied to allegations of racial discrimination. See §§6.24 – 6.33 above. Title VII of the Civil Rights Act of 1964 prohibits an employer from imposing discipline based on sex discrimination. An exception to this prohibition would be antinepotism policies that

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have resulted in a female employee being fired, as opposed to a male spouse. Yuhas v. LibbeyOwens-Ford Co., 562 F.2d 496 (7th Cir. 1977). However, subsequent Illinois caselaw has also addressed this issue of employers’ use of anti-spouse policies and their effects on hiring and firing decisions. In River Bend Community Unit School District No. 2 v. Human Rights Commission, 232 Ill.App.3d 838, 597 N.E.2d 842, 173 Ill.Dec. 868 (3d Dist.), appeal denied, 147 Ill.2d 637 (1992), the court held that the Illinois Human Rights Act prohibits marital status discrimination, based not only on whether the employee is single, married, divorced, or legally separated but also on the identity of the employee’s spouse. In Boaden v. Department of Law Enforcement, 171 Ill.2d 230, 664 N.E.2d 61, 215 Ill.Dec. 664 (1996), the Supreme Court of Illinois held that marital status discrimination under the IHRA does not include nepotism policies that prohibit spouses from working together. In Boaden, two Illinois State Police troopers were informed, upon announcing their engagement, that there was an unwritten policy that prohibited married couples from working on the same shift in the same patrol area for safety and operational reasons. Their supervisors presented several options for dealing with the situation, including remaining in the same patrol area but on different shifts, or the husband’s transferring to a different patrol area and working the same hours with the same days off as his wife. In the end, the husband decided to work on a different shift in the same patrol area. In making its decision, the Illinois Supreme Court interpreted the IHRA contrary to the Third District’s ruling in River Bend, supra, and the Illinois Human Rights Commission’s prior rulings. The court held that the IHRA statutory definition of marital status discrimination does not encompass policies based on the identity of one’s spouse. The court reasoned that the IHRA’s prohibition of discrimination based on marital status is defined as discrimination based on the legal status of being married, single, separated, divorced, or widowed. The court felt that nepotism policies that included spouses did not discriminate on the basis of legal status but on an individual’s relationship to another employee. The court concluded that if the legislature intended to include such discrimination in the IHRA, it would have specified the conduct as other legislatures had done. The IHRA expressly prohibits sexually discriminatory firing (775 ILCS 5/1-102), and the School Code prohibits dismissal of a teacher because of marriage (105 ILCS 5/10-22.4). C. [6.37] Terms and Conditions All terms and conditions of employment are covered under Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer to discriminate, limit, segregate, or classify employees on the basis of sex. The Equal Employment Opportunity Commission issued its Guidelines on Discrimination Because of Sex, 29 C.F.R. pt. 1604, in 1972. These guidelines provide that it is unlawful under Title VII to classify jobs as either a “Male” or “Female” job or advertise a job as such. 29 C.F.R. §1604.5. The EEOC guidelines also state that it is illegal to maintain separate lines of progression or separate seniority lists based on sex or to discriminate in promotions in any way based on sex. 29 C.F.R. §1604.3. The EEOC guidelines regulate preemployment inquiries (29 C.F.R. §1604.7) and fringe benefits (29 C.F.R. §1604.9). Employers are required to maintain gender-neutral workplace policies to avoid sex discrimination under Title VII. Scherr v. Woodland School Community Consolidated District No. 50, 867 F.2d 974 (7th Cir. 1988); Thompkins v. Morris Brown College, 752 F.2d 558 (11th Cir. 1985).

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§6.38

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

While Title VII allows an employer to promote the best candidate with regard to qualifications, the decision must be made without regard to gender. If gender plays a role in the decision, Title VII is presumed to be violated. The lead “mixed motive” case is Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L.Ed.2d 268, 109 S.Ct. 1775, 1788 (1989), in which the Supreme Court held that once sex is shown to be a motivating factor, an employer must show by a preponderance of the evidence that “it would have made the same decision even if it had not allowed gender to play such a role.” However, direct evidence of intent to discriminate must be causally related to the allegedly discriminatory conduct. Kozlowski v. Fry, 238 F.Supp.2d 996 (N.D.Ill. 2002); Brown v. Trustees of Boston University, 891 F.2d 337 (1st Cir. 1989), cert. denied, 110 S.Ct. 3217 (1990). Generally, the statute of limitations on a Title VII claim begins to run at the time that the discriminatory decision was made. In accordance with this principal, the Supreme Court held in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 167 L.Ed.2d 982, 127 S.Ct. 2162 (2007), that the Title VII statute of limitations on the plaintiff’s claim that she was paid less than male coworkers ran when the discriminatory pay decisions were made by the employer and the time to sue expired 180 days later. Congress responded to Ledbetter by enacting the Lilly Ledbetter Fair Pay Act of 2009, which became effective on January 29, 2009, in order to negate the impact of the Ledbetter decision. The Fair Pay Act amends Title VII so that the 180-day statute of limitations for filing a claim regarding unequal pay resets with each new discriminatory paycheck. Thus, every time the employer issues another paycheck that reflects the gender or other Title VII-covered discrimination, the Title VII statute of limitations begins to run again. 1. [6.38] Sexual Harassment “Sexual harassment” is not defined explicitly in Title VII of the Civil Rights Act of 1964, but it is recognized by the courts as a form of sex discrimination. In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 91 L.Ed.2d 49, 106 S.Ct. 2399 (1986), the Supreme Court ruled that sexual harassment can constitute illegal discrimination under Title VII. The Equal Employment Opportunity Commission’s Guidelines on Discrimination Because of Sex provide a definition for sexual harassment that is mirrored by the Illinois Human Rights Act at 775 ILCS 5/2-102(D). 29 C.F.R. §1604.11. The definition includes any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (a) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (b) submission to or rejection of this conduct by an individual is used as the basis for employment decisions affecting the individual, or (c) the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. There are two types of sexual harassment the courts recognize. The first is called “quid pro quo harassment” and involves submission to sexual advances, requests, or sexual favors as a term or condition of an individual’s employment. In Meritor, supra, the Supreme Court held that if an employer demands sexual favors from an employee in return for a job benefit, the behavior constitutes discrimination under Title VII.

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The second type of sexual harassment recognized by the courts is “hostile environment.” One of the most difficult problems in this area is determining when an employer has permitted a hostile environment of sexual harassment to exist. Actionable harassment is that which is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 126 L.Ed.2d 295, 114 S.Ct. 367 (1993), the Supreme Court stated that determining whether conduct is severe or pervasive enough to constitute a hostile environment requires an examination of the frequency of the conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with one’s work performance. On June 26, 1998, the Supreme Court issued two decisions that clarified an employer’s liability for a supervisor’s sexual harassment. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 141 L.Ed.2d 633, 118 S.Ct. 2257 (1998), the Court held that an employer can be held vicariously liable for sexual harassment by a supervisor even if the employee harassed did not suffer a tangible job detriment. In Burlington, the employee alleged that she was subjected to quid pro quo harassment in that her supervisor subjected her to comments indicating that terms and conditions of her employment would be affected if she did not submit to his advances. However, the employee did not suffer any tangible job detriment and in fact received a promotion and then resigned. The Court held that because the claim involved only unfulfilled threats, it should be categorized as a hostile work environment claim, which requires a showing of severe or pervasive conduct. The Court then went on to hold that an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, even when the threats are not fulfilled. However, this liability is subject to an employer’s affirmative defense that (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm. Also, in Faragher v. City of Boca Raton, 524 U.S. 775, 141 L.Ed.2d 662, 118 S.Ct. 2275 (1998), the Supreme Court held that in a hostile environment claim, an employer is vicariously liable for harassment caused by a supervisor subject to the affirmative defense stated above. These two decisions make it clear that the harassing conduct of supervisors will make an employer automatically liable for the harassment subject to a showing that it exercised reasonable care, it responded promptly to any harassing behavior, and the employee acted unreasonably. Burlington and Faragher make clear the need for employers to promulgate and disseminate sexual harassment policies. Several federal courts of appeal, including the Seventh Circuit, had set forth the requirement that to establish a case of hostile environment sexual harassment, there must be proof that the alleged illegal conduct interfered with a reasonable individual’s work performance and affected a reasonable person’s psychological well-being. See Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989); Rabidue v. Osceola Refining Company, Division of Texas-American Petrochemicals, Inc., 805 F.2d 611, 620 (6th Cir. 1986), cert. denied, 107 S.Ct. 1983 (1987); Vance v. Southern Bell Telephone & Telegraph Co., 863 F.2d 1503, 1510 (11th Cir. 1989). However, the Supreme Court in Harris, supra, overruled these cases with respect to this issue. The Supreme Court held that objective psychological harm, although a factor of a hostile work environment, is not a prerequisite to recovery. A nervous breakdown is not required to state a sexual harassment claim.

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§6.39

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

In keeping with the Supreme Court’s holding that an assessment of the gravity and frequency of the harassing conduct must be undertaken to determine whether actionable sexual harassment exists, the Seventh Circuit has consistently held that isolated incidents of sexual conduct will not support a hostile environment claim. See Clark County School District v. Breeden, 532 U.S. 268, 149 L.Ed.2d 509, 121 S.Ct. 1508 (2001); Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir. 1998); Haugerud v. Amery School District, 259 F.3d 678 (7th Cir. 2001). The Supreme Court in Faragher, supra, clearly stated that “simple teasing,” “offhand comments,” “sporadic use of abusive language,” and “gender-related jokes” do not constitute unlawful harassment. 118 S.Ct. at 2283 – 2284, quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 140 L.Ed.2d 201, 118 S.Ct. 998, 1003 (1998), and Barbara Lindemann and David D. Kadue, SEXUAL HARASSMENT IN EMPLOYMENT LAW, p. 175 (1992). Although the Supreme Court has never directly addressed the issue of a “reasonable woman” standard, certain circuits have imposed this standard, reasoning that the same series of events may affect a woman differently than it affects a man. Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991); Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (M.D.Fla. 1991) (nude posters, sexually demeaning remarks and jokes, and “Men Only” sign on work trailer constituted hostile environment). Additionally, in Oncale, supra, the Supreme Court unanimously held that same-sex sexual harassment is actionable under Title VII. Oncale clarifies the confusion in the federal judicial system in which some courts held that same-sex harassment was not actionable. In Oncale, the Supreme Court stated that there was no justification under statute or prior law for excluding same-sex sexual harassment from Title VII coverage. Finally, employees of governmental agencies, including public school districts, may raise claims of sexual harassment pursuant to 42 U.S.C. §1983 on the basis that their Fourteenth Amendment constitutional right to equal protection has been violated. The elements necessary to state such a sexual harassment claim are similar to those required under Title VII except that to succeed on a §1983 claim, a plaintiff must establish intentional discrimination and action taken under color of law. 2. [6.39] Pregnancy On October 31, 1978, the Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to require the equal treatment of pregnancy and related medical conditions. The Pregnancy Discrimination Act redefined employment discrimination based on sex in a manner that requires government bodies to pay sick leave and to provide comparable health insurance coverage for disabilities due to pregnancy: The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected

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but similar in their ability or inability to work, and nothing in [42 U.S.C. §2000e-2(h)] shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion. [Emphasis in original.] 42 U.S.C. §2000e(k). Under this expanded definition of sex discrimination, an employer is required to treat illness and disability resulting from pregnancy identically to its treatment of sickness or disability from any other cause. The Pregnancy Discrimination Act thus effectively reversed several decisions by the Supreme Court that held that discrimination on the basis of pregnancy is not sex discrimination. See, e.g., Nashville Gas Co. v. Satty, 434 U.S. 136, 54 L.Ed.2d 356, 98 S.Ct. 347 (1977); General Electric Co. v. Gilbert, 429 U.S. 125, 50 L.Ed.2d 343, 97 S.Ct. 401 (1976). The Pregnancy Discrimination Act obligates a governmental body to pay sick leave to employees who are disabled due to pregnancy. The Act, however, does not require the payment of sick leave benefits merely because the employee is pregnant. The employee must actually be unable to work before the employer must pay sick leave benefits. Employers may control potential abuses of sick leave plans, provided these controls are not discriminatory. For example, pursuant to §24-6 of the School Code, 105 ILCS 5/24-6, a school district may continue to require a doctor’s certification of a pregnant employee’s inability to work and may also order an examination by a physician of the school district’s choice to confirm the medical disability, including its length. An employer must be careful, however, not to use these controls with respect to pregnant employees in any more burdensome fashion than it does with respect to other employees. This action should be taken only after reviewing possible implications under the Family and Medical Leave Act and possibly the Americans with Disabilities Act. Employers’ health plans that exclude coverage for infertility treatment have been attacked as violative of the Pregnancy Discrimination Act with varying success. In Pacourek v. Inland Steel Co., 858 F.Supp. 1393 (N.D.Ill. 1994), the district court held that discrimination against an employee because she intends to, is trying to, or simply has the potential to become pregnant is illegal discrimination. The court further held that “a woman’s medical condition rendering her unable to become pregnant naturally is a medical condition related to pregnancy and childbirth for purposes of the Pregnancy Discrimination Act.” 858 F.Supp. at 1403. Contrast this with Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996), in which the Eighth Circuit held that a company’s refusal to cover the cost of infertility treatment was not sex discrimination because there was no statistical evidence that women were more adversely affected by the exclusion than men. Additionally, the court held that infertility treatments do not constitute “pregnancy, childbirth, or related medical condition” as defined by 42 U.S.C. §2000e(k). Finally, in Illinois Consolidated Telephone Co. v. Illinois Fair Employment Practices Commission, 104 Ill.App.3d 162, 432 N.E.2d 1218, 1221, 60 Ill.Dec. 319 (5th Dist. 1982), the

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§6.40

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

court held that an employer’s sickness and accident plan that provided noncontributory income continuation benefits when the employee was unable to work due to a “non-occupational accident or sickness” was not discriminatory, in that it was a noncomprehensive plan designed to cover “sickness,” which could result in the condition of pregnancy being excluded from coverage. Although the definition of “sex” in §1-103(O) of the Illinois Human Rights Act, 775 ILCS 5/1-103(O), does not mirror the language of the Pregnancy Discrimination Act, the Illinois Human Rights Commission considers pregnancy and pregnancy-related conditions to fall within the scope of this definition. The IHRC has drafted rules and regulations similar to those promulgated by the Equal Employment Opportunity Commission. 56 Ill.Admin. Code §5210.110. Finally, in terms of pregnancy and hiring practices, the Supreme Court in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 113 L.Ed.2d 158, 111 S.Ct. 1196 (1991), held that under the Civil Rights Act of 1964 and the Pregnancy Discrimination Act, an employer may not exclude women, because of their gender, pregnancy, or possible pregnancy, from any jobs they are able to do. The employer in Johnson was concerned about fetal lead exposure and banned females from positions in which exposure was possible. The Supreme Court held that decisions concerning the welfare of children must be left to the parents, consistent with Title VII. 3. [6.40] Marital Status and Work Assignments The Illinois Human Rights Act prohibits employment discrimination on the basis of marital status (i.e., the legal status of being married, single, divorced, or widowed). 775 ILCS 5/1-102(A), 5/1-103(J). Title VII of the Civil Rights Act of 1964 does not contain a similar prohibition against marital status discrimination. This prohibition may have far-reaching effects on local governmental bodies. Courts have held that nepotism policies that prevent husbands and wives from working together do not violate Title VII as long as members of one sex are not always required to leave or transfer. Sanbonmatsu v. Boyer, 45 A.D.2d 249, 357 N.Y.S.2d 245 (1974); Tuck v. McGraw-Hill, Inc., 421 F.Supp. 39 (S.D.N.Y. 1976). However, these policies may be per se discriminatory with respect to marital status. Kraft, Inc. v. State of Minnesota, 284 N.W.2d 386 (Minn. 1979). The Illinois Human Rights Commission has held that requiring a woman who married her supervisor to transfer out of his department was marital status discrimination. The IHRC reasoned that in the absence of concrete proof that the marital relationship would harm the employer’s interest, stereotypical perceptions of how the marital relationship would impact work were an insufficient business justification. In re Burton & Allied Chemical Corp., 13 Ill.H.R.C.Rep. 246 (1984). In River Bend Community Unit School District No. 2 v. Human Rights Commission, 232 Ill.App.3d 838, 597 N.E.2d 842, 173 Ill.Dec. 868 (3d Dist.), appeal denied, 147 Ill.2d 637 (1992), the court held that a school district policy forbidding intradistrict faculty transfers that would result in one spouse directly supervising another was discrimination based on marital status. Claims of marital status discrimination have been rejected when it is not the marital status but the conduct or behavior of the employee’s spouse that caused the adverse employment action. See Panis v. Mission Hills Bank, N.A., 60 F.3d 1486 (10th Cir. 1995), in which plaintiff’s claim that

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she was terminated from her assistant cashier position because her husband, a manager of a different bank, was indicted for embezzling money was rejected. The court determined that she was not fired because of her marital status but because of to whom in particular she was married and the potential loss of customer confidence and business. See also Boaden v. Department of Law Enforcement, 267 Ill.App.3d 645, 642 N.E.2d 1330, 205 Ill.Dec. 213 (4th Dist. 1994). 4. [6.41] Sexual Orientation The Illinois Human Rights Act prohibits discrimination against an applicant or an employee on the basis of his or her sexual orientation. 775 ILCS 5/1-103(Q). The prohibition against “sexual orientation” discrimination includes “actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.” 775 ILCS 5/1-103(O-1). Although the Illinois Human Rights Act prohibits employers from discriminating on the basis of an individual’s sexual preference, it does not require that employers give preferential or special treatment to an individual based on his or her sexual orientation. 775 ILCS 5/1-101.1. Employers also are not required to implement affirmative action policies or programs based on sexual orientation. Id. However, all employers operating in Illinois must ensure that their antidiscrimination policies and procedures include a prohibition on discrimination based on sexual orientation. Following Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 140 L.Ed.2d 201, 118 S.Ct. 998, 1003 (1998), discussed in §6.38 above, a number of federal courts have held that Title VII prohibits discrimination against “a person’s gender non-conforming behavior,” including transsexual employees. Smith v. City of Salem, Ohio, 378 F.3d 566, 575 (6th Cir. 2004). See also Schroer v. Billington, 424 F.Supp.2d 203 (D.D.C. 2006) (Title VII prohibits discrimination on basis of gender identity and transsexualism). But see Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007) (holding that Title VII’s prohibition against gender discrimination does not cover transsexual employee). The Seventh Circuit has not ruled on the applicability of Title VII to transsexual and other gender identified persons since Oncale, supra. See Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) (holding that Title VII does not protect transsexuals). D. [6.42] Title IX Title IX of the Education Amendments of 1972 bars discrimination (with certain exceptions) on the basis of sex in any educational program or activity receiving federal financial assistance. 20 U.S.C. §1681. The U.S. Supreme Court in North Haven Board of Education v. Bell, 456 U.S. 512, 72 L.Ed.2d 299, 102 S.Ct. 1912 (1982), held that the former Department of Health, Education, and Welfare could promulgate regulations and terminate funds for specific programs to enforce Title IX prohibitions against sex discrimination. The holding in North Haven, taken in conjunction with the Court’s decision in Cannon v. University of Chicago, 441 U.S. 677, 60 L.Ed.2d 560, 99 S.Ct. 1946 (1979), that established a private cause of action for an individual under Title IX, established a firm precedent of public and private enforcement of Title IX prohibitions against sex discrimination in schools and colleges.

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§6.42

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The procedural requirements under Title IX (34 C.F.R. pt. 106) are as follows: 1. Every applicant for federal financial assistance must give assurances of compliance with Title IX. 34 C.F.R. §106.4. 2. A recipient must designate a responsible employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX and to investigate complaints of noncompliance. 34 C.F.R. §106.8(a). A recipient of federal funds must also adopt and publish a grievance procedure providing for prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by Title IX. 34 C.F.R. §106.8(b). 3. A recipient must disseminate a policy against sex discrimination. 34 C.F.R. §106.9. 4. There are exceptions for religious, military, and Merchant Marine educational institutions; social fraternities and sororities; and YMCA, YWCA, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth service organizations. 34 C.F.R. §§106.12 – 106.14. 5. Employment requirements in general must be nondiscriminatory. 34 C.F.R. §106.51. 6. Employment criteria, such as tests, must be nondiscriminatory and not have a disproportional adverse impact on persons on the basis of sex unless (a) such a test is valid as a predictor of job success, and (b) alternative tests or criteria are shown to be unavailable. 34 C.F.R. §106.52. 7. Nondiscriminatory recruitment and hiring methods must be used. If discrimination has been found in the past, then a recruitment method must be used to overcome the past or present discrimination. 34 C.F.R. §106.53. 8. Recipients may not enforce or make any policy or practice on the basis of sex that makes distinctions in the rate of pay or pays less to employees of one sex than the other sex for work requiring equal skill, effort, and responsibility, under similar working conditions. 34 C.F.R. §106.54. 9. Recipients may not classify jobs as being for males or for females. 34 C.F.R. §106.55(a). 10. A recipient may not discriminate on the basis of sex regarding fringe benefits. 34 C.F.R. §106.56(b). 11. A recipient may not take any adverse employment action regarding marital, parental, or family status. This prohibition extends to pregnancy. 34 C.F.R. §106.57. 12. In any advertising related to employment, a recipient may not indicate preference, limitations, or specification or discriminate on the basis of sex, unless sex is a bona fide occupational qualification for the particular job. 34 C.F.R. §106.59.

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13. A recipient may take action otherwise prohibited if it is shown that sex is a bona fide occupational qualification for this action, such that the consideration of sex with regard to such action is essential to the successful operation of the employment function concerned. 34 C.F.R. §106.61. 14. Title IX has adopted the procedural provisions applicable to Title VI of the Civil Rights Act of 1964. 34 C.F.R. §106.71. See 34 C.F.R. §§100.6 – 100.11; pt. 101. The issue of whether a private right of action for sexual harassment exists under Title IX has been addressed by the courts, and significant rulings have been handed down in this area. It is now well settled that both students and teachers have a private right of action for sexual harassment under Title IX. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 117 L.Ed.2d 208, 112 S.Ct. 1028 (1992); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988); Patricia H. v. Berkeley Unified School District, 830 F.Supp. 1288 (N.D.Cal. 1993); Doe v. Petaluma City School District, 830 F.Supp. 1560 (N.D.Cal. 1993). Although a private right of action for sexual harassment exists under Title IX, some courts have focused on the scope of this right of action and the requirements necessary to state a cause of action for sexual harassment under Title IX. In Gebser v. Lago Vista Independent School District, 524 U.S. 274, 141 L.Ed.2d 277, 118 S.Ct. 1989 (1998), the Supreme Court ruled that a school district cannot be liable for sexual harassment of a student by a teacher in the absence of actual notice of the harassment and deliberate indifference to the teacher’s misconduct. In Gebser, the Fifth Circuit Court of Appeals had held that the school district could not be liable under Title IX for a teacher’s sexual harassment of a student unless a district employee with supervisory authority over the teacher had actual knowledge of the abuse and failed to end it. Doe v. Lago Vista Independent School District, 106 F.3d 1223 (5th Cir. 1997). Consistent with Gebser, the Seventh Circuit Court of Appeals has held that a school district may be liable under Title IX for teacher-student sexual harassment only if a school district employee with supervisory power over the offending teacher actually knew of the abuse, had the power to end it, and failed to do so. Mary M. v. North Lawrence Community School Corp., 131 F.3d 1220 (7th Cir. 1997); Smith v. Metropolitan School District Perry Township, 128 F.3d 1014 (7th Cir. 1997). In cases of intentional discrimination, the availability of an action under Title IX will preclude an action brought under 42 U.S.C. §1983. Waid v. Merrill Area Public Schools, 91 F.3d 857 (7th Cir. 1996). The Waid court also held that because Title VII provides a comprehensive scheme for employees to enforce the prohibition of sex discrimination in employment, when an employee brings both a Title VII and a Title IX action in the same suit, alleging the same set of facts for both causes of action, Title VII will preempt the Title IX claim. See also Howard v. Board of Education of Sycamore Community Unit School District No. 427, 893 F.Supp. 808 (N.D.Ill. 1995). When an employee brings only a Title IX case alleging sexual harassment, Title VII also provides the framework for determining whether the action is “severe and pervasive” so as to constitute discrimination on the basis of sex. Smith, supra, 128 F.3d at 1023. In Jackson v. Birmingham Board of Education, 544 U.S. 167, 161 L.Ed.2d 361, 125 S.Ct. 1497 (2005), the Supreme Court held that retaliation against a person who complained of sex

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discrimination in a public school is itself a violation of Title IX and that the employee need not be a victim of the original complained of discrimination in order to state a private cause of action of retaliation under Title IX. The United States Department of Education Office for Civil Rights issued its Sexual Harassment Guidance 1997, which addresses sexual harassment of students by school employees, other students, or third parties. See www.ed.gov/about/offices/list/ocr/docs/ sexhar01.html. E. [6.43] The Equal Pay Act and Title VII The Equal Pay Act of 1963 is directed specifically at sex discrimination in wages. 29 U.S.C. §206(d). In contrast, Title VII of the Civil Rights Act of 1964 is directed at all forms of sex discrimination in employment. The Equal Pay Act is an amendment to the Fair Labor Standards Act. A violation of the Equal Pay Act may also be a violation of Title VII. The Equal Pay Act prohibits an employer from discriminating between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. 29 U.S.C. §206(d)(1). The Equal Pay Act is subject to exemption under the FLSA (29 U.S.C. §§213(a), 213(d), 213(f)); however, the Equal Pay Act is applicable to some employees who would ordinarily be exempt under the FLSA (29 U.S.C. §213). Under the Equal Pay Act, in order for a comparison to be made, the jobs need not be identical. Rather, jobs of the same or a closely related character can be compared. Equal Employment Opportunity Commission v. Mercy Hospital & Medical Center, 709 F.2d 1195 (7th Cir. 1983); Hodgson v. Miller Brewing Co., 457 F.2d 221 (7th Cir. 1972); Equal Employment Opportunity Commission v. Madison Community Unit School District No. 12, 818 F.2d 577 (7th Cir. 1987). This issue is a question of fact determined on a case-by-case basis. The court must make the comparison on the basis of equality of skill, effort, and responsibility. Working conditions must be similar, but not identical. The complainant must also prove that members of the opposite sex are being paid higher wages for equal work. If the complainant satisfies this burden, then the employer must show that the difference is based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a differential based on a factor other than sex. See Corning Glass Works v. Brennan, 417 U.S. 188, 41 L.Ed.2d 1, 94 S.Ct. 2223 (1974); Howard v. Lear Corporation EEDS & Interiors, 234 F.3d 1002 (7th Cir. 2000).

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For equality of skills, jobs require an equal degree of skill rather than the same kind of skills. Equal effort includes both mental and physical effort. Effort is not equal if substantial regular and extra duties are required within one job. Equality in responsibility is concerned with the accountability required in the performance of the job obligation. Markel v. Board of Regents of University of Wisconsin System, 276 F.3d 906 (7th Cir. 2002); Equal Employment Opportunity Commission v. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir. 1988). Similar working conditions involve a review of the physical surroundings and hazards of a job. A female plaintiff working as an animal services veterinarian was not substantially equal to that of the city’s male zoo veterinarians to support an Equal Pay Act claim. Equal efforts were not shown when the plaintiff was responsible for the short-term health of small domestic animals while zoo vets maintained the long-term health of a variety of larger, more dangerous animals. Thompson v. City of Albuquerque, 950 F.Supp. 1098 (D.N.M. 1996). See also Sprague v. Thorn Americas, Inc., 129 F.3d 1355 (10th Cir. 1997), in which the court rejected a female market analyst’s claim under the Equal Pay Act for failure to show that she occupied substantially the same position or performed substantially the same tasks as male assistant product managers. On October 29, 1997, the Equal Employment Opportunity Commission issued guidelines by which it would analyze claims of unequal pay filed by athletic coaches of educational institutions. See www.eeoc.gov/policy/docs/coaches.html. These guidelines provide that pay discrepancies in men and women coaches’ salaries are properly analyzed under the Equal Pay Act by identifying male and female comparators of substantially similar jobs and determining whether the jobs are equal in terms of skills, effort, responsibility, and working conditions. If a complaining party is able to demonstrate a discrepancy in pay, the school has the burden of showing that one of the four following exceptions apply: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) a differential based on any other factor than sex. An employee or the EEOC may enforce the Equal Pay Act in federal district court. 29 U.S.C. §216(b). Unlike Title VII, there are no administrative proceedings or requirements that the complainant must meet before filing suit. Any action by the EEOC precludes an employee from filing an individual suit. Relief for disparity in pay for the same duration of employment is possible under the Equal Pay Act and Title VII, as long as the claimant does not receive duplicate relief redressing the same wrong. Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124 (7th Cir. 1989). Because actions under the Equal Pay Act may and often do overlap with Title VII actions, there is a question of whether disparate impact analysis applies to either Title VII or the Equal Pay Act when unequal wages are at issue. See §6.25 above. In a private suit, an employee is entitled to recover back wages plus liquidated damages in a sum equal to the back wages. The liquidated damages award is discretionary and may be denied if the employer was acting in good faith. A plaintiff may also recover attorneys’ fees, but not interest, if liquidated damages are awarded. Most courts find punitive damages unavailable under the Equal Pay Act.

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§6.44

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

The EEOC may obtain injunctive relief that includes the recovery of backpay and interest. The recovery of backpay may encompass a period of two years prior to filing suit. If the violation is willful, a backpay award will include a period of up to three years prior to filing suit. A court may also find the employer criminally liable. Penalties include a fine of up to $10,000. Second and subsequent offenses are punishable by imprisonment for up to six months. 29 U.S.C. §216(a). Finally, the Equal Pay Act applies to all local government employees who are not specifically exempt under the FLSA. 29 U.S.C. §203(e)(2)(C). The exemptions are applicable to elected and appointed government officials and members of their personal staff. School districts have been found not to be exempt from the Equal Pay Act in the past. Marshall v. Dallas Independent School District, 605 F.2d 191 (5th Cir. 1979). F. [6.44] Minimum Wage Law Similar to the Equal Pay Act, the Minimum Wage Law, 820 ILCS 105/1, et seq., prohibits discrimination on the basis of sex, as well as mental or physical handicap, with regard to payment of wages: No employer shall discriminate between employees on the basis of sex or mental or physical handicap, except as otherwise provided in this Act by paying wages to employees at a rate less than the rate at which he pays wages to employees for the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex or mental or physical handicap, except as otherwise provided in this Act. 820 ILCS 105/4(b). Section 8 of the Minimum Wage Law requires that employers subject to any provision of the Law, or any order issued thereunder, shall keep for a period of not less than three years true and accurate records of the name, address, occupation, rate of pay, and hours worked of each employee. 820 ILCS 105/8. Section 12 of the Law allows an employee who is paid in violation of the Law to bring a civil action together with reasonable attorneys’ fees. 820 ILCS 105/12. The Illinois Department of Labor may also institute a civil action on behalf of the employee, but the Law does not allow for an employee and a Department of Labor action against an employer. Ecker v. Big Wheels, Inc., 136 Ill.App.3d 651, 483 N.E.2d 639, 91 Ill.Dec. 293 (4th Dist. 1985). An employee’s civil action must be brought within three years from the date of the underpayment. The Department of Labor, however, is immune from the statute of limitations. People ex. rel. Martin v. Smith, 205 Ill.App.3d 553, 563 N.E.2d 1170, 151 Ill.Dec. 64 (4th Dist. 1990); People ex. rel. Martin v. Lipkowitz, 225 Ill.App.3d 980, 589 N.E.2d 182, 168 Ill.Dec. 68 (3d Dist. 1992).

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EMPLOYMENT DISCRIMINATION

§6.47

V. RELIGIOUS DISCRIMINATION A. Prohibitions Against Discrimination Based on Religion 1. [6.45] Title VII Title VII of the Civil Rights Act of 1964 is the primary vehicle by which claims of religious discrimination are brought. Title VII prohibits religious discrimination in employment except when the employer is a religious organization or when religion is a bona fide occupational qualification. Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. §2000e(j). The term “religion” is broadly interpreted and includes religious beliefs, practices, and observances that are theistic as well as nontheistic moral or ethical beliefs regarding right and wrong that are sincerely held with the strength of traditional religious views. Such views need not be held by a large group of people but can be held by as few as one person. See Welsh v. United States, 398 U.S. 333, 26 L.Ed.2d 308, 90 S.Ct. 1792 (1970). However, personal preferences are not accepted as religious beliefs. Title VII also requires an employer to accommodate the sincerely held religious beliefs of individuals unless such accommodation would create an undue hardship. An undue hardship is more than a de minimis cost or burden but is a significantly lower standard than the accommodation obligations imposed by the Americans with Disabilities Act. For a more detailed discussion of Religious Discrimination under Title VII, see the EEOC COMPLIANCE MANUAL (2008), www.eeoc.gov/policy/docs/religion.html. 2. [6.46] Illinois Human Rights Act The Illinois Human Rights Act prohibits discrimination because of a person’s religion. 775 ILCS 5/1-102(A). The IHRA’s definition of “religion” is the same as that found in Title VII of the Civil Rights Act of 1964. 775 ILCS 5/2-101(F). See §6.45 above. Jurisdiction for any religious discrimination claims lies exclusively with the Illinois Department of Human Rights and not in the courts. See Blount v. Stroud, 376 Ill.App.3d 935, 877 N.E.2d 49, 315 Ill.Dec. 562 (1st Dist. 2007). 3. [6.47] Religious Freedom Restoration Act The Religious Freedom Restoration Act, 775 ILCS 35/1, et seq., provides that the state or a local government may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that the burden is (a) in furtherance of a compelling governmental interest, and (b) the least restrictive means of furthering that compelling governmental interest. 775 ILCS 35/15. To date, no reported employment cases have been decided under this Act.

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§6.48

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

4. [6.48] Constitutional Claims Religious discrimination claims can also be brought against governmental employers pursuant to the First Amendment and the Equal Protection Clause of the U.S. Constitution. Most of these claims are brought in conjunction with claims under Title VII of the Civil Rights Act of 1964. B. [6.49] Prohibited Practices Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in all aspects of the employment relationship including, but not limited to, recruitment, hiring, promotion, discipline, compensation, and discharge. Similar to other discriminatory claims, the McDonnell Douglas prima facie standard is the starting point. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). In addition, claims of a hostile environment based on religious harassment have been addressed by the courts, as illustrated by the following: 1. In Tiano v. Dillard Department Stores, Inc., 139 F.3d 679 (9th Cir. 1998), the plaintiff, fired for leaving her retail job without permission because she felt compelled to travel to Yugoslavia on a spiritual quest, had no religious discrimination claim because she did not prove that her religious convictions required that she embark on her pilgrimage immediately. Because no religious discrimination was shown, the court did not address whether the employer should have accommodated the plaintiff’s request for leave during the busy season. 2. In Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1998), the plaintiff’s claim that he was discharged after enduring a lengthy campaign of religious harassment by his devoutly Muslim supervisor was dismissed for failure to show that the supervisor played a direct role in the decision-making process that led to his termination. The court noted that although the plaintiff’s supervisor subjected him to conduct that would constitute harassment (e.g., badgering him about his abandonment of Islam, advising him to follow the teaching of the Koran and join him in weekly prayer sessions, and sending him hundreds of e-mail messages about the punishment awaiting those who reject Islam), the plaintiff did not make a claim of religious harassment. 3. In Equal Employment Opportunity Commission v. Allendale Nursing Centre, 996 F.Supp. 712 (W.D.Mich. 1998), the firing of a nursing home employee who said her sincerely held religious beliefs prevented her from obtaining a social security number did not violate Title VII. The court said that the plaintiff’s contention that the law permits her to choose whether to have a social security number is a legal conclusion, not a religious belief. 4. In Bodett v. CoxCom, Inc., 366 F.3d 736 (9th Cir. 2004), the court upheld the discharge of an Evangelical Christian employee who was fired for coercing and harassing an openly gay subordinate in violation of the company’s harassment policy. 5. In Goldmeier v. Allstate Insurance Co., 337 F.3d 629 (6th Cir. 2003), cert. denied, 124 S.Ct. 1052 (2004), the court found that an employer’s new office hours conflicted with the employees’ religious Sabbath requirements but that the employees were not constructively

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EMPLOYMENT DISCRIMINATION

§6.49

discharged when they resigned 53 days before the new hours went into effect because they had found new jobs and never claimed that the environment was intolerable. The court held that discharge or discipline is an element of a prima facie case of religious discrimination in employment. 6. In Lizalek v. Invivo Corp., 314 Fed.Appx. 881 (7th Cir. 2009), an employee’s discharge was sustained a day after he filed an internal discrimination complaint concerning the company’s failure to accommodate his religious practices as the company had decided to fire the employee prior to the time the internal complaint was filed. Accordingly, the employer’s action was not deemed to be retaliatory. Claims of religious discrimination can also be brought by employees subjected to discrimination for not having a religious belief or because they disagree with their supervisor’s religious belief, as illustrated by the following: 1. In Venters v. City of Delphi, 123 F.3d 956, 963 (7th Cir. 1997), the plaintiff, who resigned from a police department because of the police chief’s constant condemnation of her for leading a “sinful” life and failing to conform to “God’s way,” as well as his suggesting that suicide would be preferable to her continuing to lead a life of sin and his telling her that he would not allow the “evil spirit” that had taken her soul to live in the department, stated a claim of religious harassment under Title VII. 2. In Shapolia v. Los Alamos National Laboratory, 992 F.2d 1033 (10th Cir. 1993), the plaintiff’s claim that he was discriminated against because, unlike his supervisor, he was not a Mormon was dismissed for inability to show that his discharge was a pretext for unlawful discrimination. 3. In Peck v. Sony Music Corp., No. 91 Civ. 8465 (LLS), 1995 WL 505653 (S.D.N.Y. Aug. 25, 1995), the plaintiff’s religious harassment claim was sufficient to defeat the employer’s summary judgment motion when the plaintiff alleged that a coworker repeatedly shouted at her that she was a sinner and must repent, sang religious songs in her presence, and held a prayer meeting with another coworker at her workstation. 4. In Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998), cert. denied, 119 S.Ct. 1038 (1999), summary judgment was affirmed for the defendant when the court held that the plaintiff police officer’s Catholic religious beliefs did not entitle him to a reasonable accommodation in the form of not being assigned to engage in the routine guarding of abortion clinics. 5. In Endres v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003), cert. denied, 124 S.Ct. 2032 (2004), the court held that the Indiana State Police did not violate the law by terminating an officer who refused to work his assignment at a casino based on religious beliefs. 6. In Reed. v. Great Lakes Cos., 330 F.3d 931 (7th Cir. 2003), the court upheld a grant of summary judgment for the defendant and held that the discharge of a hotel employee who walked out of a meeting with a religious group that distributed free Bibles did not constitute refusal to

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§6.50

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

accommodate and did not constitute a discharge for religious beliefs. Hostility to religion counts as a form of religion, and an employee might be entitled to an accommodation but is not permitted to redefine purely personal preference or aversion as a religious belief. The court found a distinction between an employee who seeks accommodation and an employee who asserts an unqualified right to disobey orders. C. [6.50] Employer’s Duty To Accommodate Religious Beliefs An issue that is a frequent source of litigation under Title VII of the Civil Rights Act of 1964 is what duty an employer has to accommodate an employee’s religious beliefs. In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 53 L.Ed.2d 113, 97 S.Ct. 2264 (1977), the Supreme Court, faced with determining whether an employer was required to accommodate the work schedule preference of an employee whose religion prohibited him from working at specific times during the week, held that it would have been an undue hardship on the employer to require such an accommodation. In Ansonia Board of Education v. Philbrook, 479 U.S. 60, 93 L.Ed.2d 305, 107 S.Ct. 367 (1986), the Supreme Court held that nothing in Title VII requires an employer to accept an employee’s requested accommodation, but rather an employer’s obligation is to provide a reasonable accommodation. The Ansonia court found that offering the employee an unpaid leave day rather than a paid personal leave day reasonably accommodated the employee’s needs. However, it would not have been viewed to be a reasonable accommodation “when paid leave is provided for all purposes except religious ones.” [Emphasis in original.] 107 S.Ct. at 373. The following cases illustrate how the courts address reasonable accommodation: 1. In Beadle v. City of Tampa, 42 F.3d 633, 638 (11th Cir.), cert. denied, 115 S.Ct. 2600 (1995), the plaintiff’s claim that the city and police department failed to accommodate his religious beliefs by allowing him to trade shifts to avoid working on his Sabbath was denied because this accommodation would be a “greater than de minimis cost” in light of the public health, safety, and welfare considerations associated with police work. 2. In Pedersen v. Casey’s General Stores, Inc., 978 F.Supp. 926 (D.Neb. 1997), the employer was found to have violated Title VII by failing to accommodate an employee’s belief and refusal to work on Easter Sunday. The court found that, considering the plaintiff’s belief, it was not a reasonable accommodation to require her to work Easter afternoon and that it was not an undue hardship given the available workforce. 3. In Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000), cert. denied, 121 S.Ct. 226 (2000), the court held that a prospective employer was not required to accommodate a job candidate who refused to give a social security number based on religious grounds that a social security number was the “mark of the beast.” 4. In Helland v. South Bend Community School Corp., 93 F.3d 327 (7th Cir. 1996), the court found that a public school did not violate either Title VII or the First Amendment when it removed an individual from the substitute teacher list for proselytizing in class.

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§6.51

5. In Cosme v. Henderson, 287 F.3d 152 (2d Cir. 2002), the court found that the employer offered reasonable accommodation for a postal worker’s Saturday Sabbath observances including offers to transfer or take an unassigned regular position. The court also discussed the fact that employers are not obligated to violate a collective bargaining agreement or agreed-on seniority system for an accommodation but that an employer can opt to do so in appropriate circumstances. 6. In Endres v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003), the assignment of a state police officer to work at a casino, an assignment that contravened his religious beliefs, was not unreasonable and did not constitute a claim for which relief could be granted. 7. In Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004), the court upheld the discharge of an employee, holding that an employer was not obligated to accommodate the employee’s religious beliefs that included either allowing the employee to post anti-gay scripture passages in response to diversity campaign posters or removing the posters. 8. In Cutter v. Wilkinson, 544 U.S. 209, 161 L.Ed.2d 1020, 125 S.Ct. 2113 (2005), the Supreme Court held that prisons are required to make exceptions to rules that conflict with the religious practices of inmates. While Cutter affects only land use regulation and prisons, it could become a basis for expanded religious accommodation. The Religious Freedom Restoration Act also increases the obligation for Illinois public employers to accommodate their employees’ religious beliefs. See §6.47 above.

VI. [6.51] AGE DISCRIMINATION The Age Discrimination in Employment Act prohibits employers with 20 or more employees from discriminating against an employee who is age 40 or older. To meet the 20 or more employee jurisdictional threshold, an employer must employ 20 or more employees for each working day in each of 20 or more weeks in the current or preceding calendar year. 29 U.S.C. §630(b). The Supreme Court adopted the “payroll method” for purposes of determining whether an employer meets this threshold. An employer “has” an employee on a particular working day if an employer-employee relationship exists at the time. Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 136 L.Ed.2d 644, 117 S.Ct. 660 (1997). The employee need not actually be at work on, or be receiving compensation for, that particular day. Id. The ADEA also prohibits certain preemployment activities, such as advertisements indicating an age preference, unless age constitutes a bona fide occupational qualification. 29 U.S.C. §§623(e), 623(f)(1). An application form that requests an applicant’s date of birth or age is not, by itself, a violation of the ADEA. However, such forms will be closely scrutinized because questions of this sort may deter older applicants. 29 C.F.R. §1625.5. The ADEA applies to most personnel decisions, including hiring, discharge, fringe benefits, promotions, and compensation. The Illinois Human Rights Act also prohibits discrimination on the basis of age. Pursuant to the IHRA, an employer may not unlawfully discriminate, based on age, when the individual is 40 years of age or older. 775 ILCS 5/2-102(A). The IHRA age discrimination provisions apply to an employer who employs 15 or more employees. 775 ILCS 5/1-101(B).

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§6.52

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

The Supreme Court in Kimel v. Florida Board of Regents, 528 U.S. 62, 145 L.Ed.2d 522, 120 S.Ct. 631 (2000), held that the Eleventh Amendment to the U.S. Constitution bars suits against states under the ADEA. The Court found that Congress lacks the power under Article I of the Constitution to subject unconsenting states to a suit in federal court. A. [6.52] Hiring A plaintiff may prove a claim under the Age Discrimination in Employment Act by either the direct or indirect method. The direct method generally requires a showing by direct or circumstantial evidence that age was the determining factor in the plaintiff’s discharge. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994). While the Supreme Court has not decided whether the pattern of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973), is applicable in ADEA cases, most federal courts have recognized McDonnell Douglas as an appropriate pattern of proof. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 134 L.Ed.2d 433, 116 S.Ct. 1307 (1996). The Seventh Circuit recognized the McDonnell Douglas method of proof in Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir. 1980), cert. denied, 101 S.Ct. 1418 (1981). The McDonnell Douglas method of proof provides for the shifting burdens of prima facie case, rebuttal, and pretext. To establish a prima facie case of age discrimination in hiring under the ADEA, a plaintiff must show that 1. the plaintiff is a member of the protected group; 2. the plaintiff applied for and was qualified for the position sought; 3. the plaintiff was not hired; and 4. the employer continued to seek applicants and hired a person substantially younger than the plaintiff. The Supreme Court and the Seventh Circuit have held that the person hired need not be under 40 years of age to meet the fourth prong in establishing a prima facie case. See O’Connor, supra; Kralman v. Illinois Department of Veterans’ Affairs, 23 F.3d 150 (7th Cir. 1994), cert. denied, 115 S.Ct. 359 (1994). Rather, when an employee was “substantially younger” than the older employee, the Seventh Circuit Court of Appeals has held that an age difference of ten or more years will suffice in determining a possible violation of the ADEA. Balderston v. Fairbanks Morse Engine Division of Coltec Industries, 328 F.3d 309 (7th Cir. 2003). The court did not suggest that an age difference of less than ten years would not suffice, and an older employee could still succeed in an age discrimination case if the older employee can establish that the employer considered his or her age to be significant.

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§6.54

B. [6.53] Termination and Reduction in Force The Seventh Circuit recognizes that variations in the McDonnell Douglas factors are necessary depending on the different types of age discrimination cases that arise. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). Thus, the McDonnell Douglas prima facie case varies slightly in age discrimination cases when an employee was terminated. In this regard, a plaintiff alleging unlawful termination due to age must show that 1. the plaintiff is a member of the protected group; 2. the plaintiff was meeting the employer’s legitimate expectations; 3. the plaintiff was discharged; and 4. the employer replaced the plaintiff or sought a replacement. Gadsby v. Norwalk Furniture Corp., 71 F.3d 1324 (7th Cir. 1995). The Seventh Circuit has held that the fourth element of a prima facie case can be established by showing that younger employees were treated more favorably with regard to discharge. Denisi v. Dominick’s Finer Foods, Inc., 99 F.3d 860 (7th Cir. 1996). A reduction in force (RIF) varies the prima facie case as well. In the instance of a RIF, a plaintiff must show that 1. the plaintiff is a member of the protected group; 2. the plaintiff was meeting the employer’s legitimate expectations; 3. the plaintiff was discharged; and 4. younger employees were treated more favorably. Collier v. Budd Co., 66 F.3d 886 (7th Cir. 1995). The differences in the fourth factor are based on the distinct nature of these cases. In Gadsby, supra, the court noted that RIF cases generally involve jobs being consolidated and/or shifted to other existing employees. Generally, the discharged employee is not replaced. Evaluating whether a prima facie case has been met when the fourth factor asks if a substantially younger person was hired would be nonsensical in a RIF case. C. [6.54] Disparate Impact In disparate impact cases, the employer’s practice appears neutral in its treatment of different groups but in reality falls more harshly on one group than another. The focus is on the effect of the employer’s action, rather than on the employer’s motivation. It does not require proof of discriminatory intent.

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§6.55

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

Federal courts conflict on whether disparate impact is a legitimate theory under the Age Discrimination in Employment Act. The Supreme Court recognized it as a valid theory under the ADEA in Smith v. City of Jackson, Mississippi, 544 U.S. 228, 161 L.Ed.2d 410, 125 S.Ct. 1536 (2005). The Seventh Circuit had previously rejected the disparate impact theory in Equal Employment Opportunity Commission v. Francis W. Parker School, 41 F.3d 1073 (7th Cir. 1994), and Finnegan v. Trans World Airlines, Inc., 967 F.2d 1161 (7th Cir. 1992). In holding that the ADEA does permit a disparate impact theory of liability in Smith, the Court relied on Griggs v. Duke Power Co., 401 U.S. 424, 28 L.Ed.2d 158, 91 S.Ct. 849 (1971). The Court determined that Congress intended that Title VII of the Civil Rights Act of 1964 applies to “the consequences of employment practices, not simply the motivation.” 91 S.Ct. at 854. The similar statutory text in Title VII and the ADEA, similar purposes, and the minimal time between enacting both pieces of legislation led the Supreme Court to believe that Griggs strongly suggested a disparate impact theory should be recognized under the ADEA. While the Supreme Court recognized disparate impact based, in part, on the similarities between Title VII of the Civil Rights Act of 1964 and the ADEA, the ADEA significantly narrows the scope of the disparate impact theory. It is not unlawful for an employer to take any action otherwise prohibited when the differentiation is based on “reasonable factors other than age.” 29 U.S.C. §623(f)(1). An employer can justify a policy that has a disproportionate adverse effect on older workers by showing that the policy is based on “reasonable” non-age factors. Title VII requires an employer to show that the policy is based on “business necessity,” which is a higher standard and requires an employer to show it had no other means to achieve its business goals. See discussion in Smith, supra, and EEOC Notice of Proposed Rulemaking, 75 Fed.Reg. 7212 – 7218 (Feb. 18, 2010), codified at 29 C.F.R. pt. 1625. Thus, while the Court agreed with the older officers in Smith, supra, that disparate impact should be a theory under the ADEA, the older officers were unsuccessful because the disparity in the pay scale was based on a reasonable factor other than age (i.e., raising the pay scale for junior officers to become competitive in the regional marketplace). D. [6.55] Retaliation The Age Discrimination in Employment Act also prohibits an employer from retaliating against an individual “because such individual . . . has opposed any practice made unlawful by this section, or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.” 29 U.S.C. §623(d). The Seventh Circuit has recognized that a prima facie case for retaliation may be established directly or indirectly. To establish retaliation directly, a plaintiff must show three elements: (1) the employee engaged in statutorily protected activity; (2) the employee suffered an adverse employment action taken by the employer; and (3) a causal connection between the two exists. Kodl v. Board of Education School District 45, Villa Park, 490 F.3d 558 (7th Cir. 2007). The indirect method requires a plaintiff to show (1) the employee engaged in statutorily protected expressions; (2) the employee met the employer’s legitimate expectations; (3) the employee suffered an adverse employment action; and (4) the employee was treated less favorably than similarly situated employees who did not engage in statutorily protected expression. 490 F.3d at 562, citing Tamanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006).

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§6.57

In Kodl, supra, the transfer of a physical education teacher to another school due to unprofessional conduct and inability to get along with coworkers did not establish a prima facie case of retaliation under either the direct or indirect method. The transfer of a teacher from a junior high school where he taught special education classes to a mainstream high school where he taught the same classes was not an actionable adverse employment action. Galabya v. New York City Board of Education, 202 F.3d 636 (2d Cir. 2000). Additional work can be a material difference in employment that meets the element of an adverse employment action. Minor v. Centocor, Inc., 457 F.3d 632 (7th Cir. 2006). E. [6.56] Reverse Age Discrimination An employer can favor older workers over younger ones when both fall within the protected age group of at least 40 years of age. In General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 157 L.Ed.2d 1094, 124 S.Ct 1236 (2004), a collective bargaining agreement provided that health benefits would not be paid to current employees who subsequently retired unless the current employees were at least 50 years of age on the date of the agreement. A group of employees between the ages of 40 and 49 years, and thus protected under the ADEA but without benefits under the agreement because they were under age 50, filed suit claiming the agreement violated the ADEA prohibitions against age discrimination. The Supreme Court rejected the concept of a cause of action for reverse age discrimination and held that the ADEA’s legislative history and purpose was to protect the relatively old, not the relatively young. The Court also struck down an Equal Employment Opportunity Commission regulation (29 C.F.R. §1625.2(a)) prohibiting an employer from using age as a basis to discriminate against the young in favor of the old. F. Terms and Conditions of Employment 1. [6.57] Pension Plans In 1989, the Supreme Court held that retirement, pension, and benefit plans were not covered by the Age Discrimination in Employment Act in Public Retirement System of Ohio v. Betts, 492 U.S. 158, 106 L.Ed.2d 134, 109 S.Ct. 2854 (1989). In Betts, the employee requested a leave of absence for health reasons and was offered the choice of unpaid leave of absence or a length-ofservice retirement. The State of Ohio’s governing law granted employees who attained age 60 no disability payments. Because the employee was 61 years of age, early retirement was the logical choice. The employee produced evidence that she received $200 per month less by taking early retirement than she would have received if there were no age limitation for disability benefits. The Supreme Court held that an employee benefit plan does not violate the ADEA unless the plan is used as a subterfuge for age discrimination in some other non-fringe benefit aspect of the employment relationship. The Court also apparently reversed other courts that had held that pension and benefit plans that feature declining benefits based on advancing age ordinarily violate the ADEA. See Karlen v. City Colleges of Chicago, 837 F.2d 314 (7th Cir. 1988). In response to Betts, supra, Congress enacted the Older Workers Benefit Protection Act (OWBPA), Pub.L. No. 101-433, 104 Stat. 978 (1990), which amended the ADEA to provide that a benefit plan cannot reduce the rate of benefit accrual or stop benefit accrual on the basis of age.

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§6.58

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

The Supreme Court then held that an employer does not violate the ADEA just by interfering with an older employee’s pension benefits that would have vested by virtue of the employee’s years of service. Hazen Paper Co. v. Biggins, 507 U.S. 604, 123 L.Ed.2d 338, 113 S.Ct. 1701 (1993). In Biggins, a 62-year-old technical advisor was terminated just prior to his ten-year anniversary with the company. The company’s pension liability vested after an employee completed ten years of service. As an alternative to his release, the company offered to retain the employee as a consultant, but he would be ineligible for pension benefits in that capacity. The Supreme Court held that there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee’s age. The Court held further that “[b]ecause age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily ‘age based.’ ” 113 S.Ct. at 1707. The Supreme Court confirmed its holding in Biggins in Kentucky Retirement Systems v. Equal Employment Opportunity Commission, 554 U.S. 135, 171 L.Ed.2d 322, 128 S.Ct. 2361 (2008), when it held that the State of Kentucky’s retirement plan did not violate the ADEA. There, the state’s retirement plan included rules permitting imputed years to be tacked on to those earned for hazardous position workers in the event said worker became disabled prior to being “pension eligible.” The additional imputed-years provision was not available to other state employees. Pension eligibility was determined by age. The Court held the plan was not in violation of the ADEA or the OWBPA because the discrimination at issue was not actually motivated by age. 2. [6.58] Harassment The Age Discrimination in Employment Act prohibits knowing and informed harassment of older employees on the basis of age. Blake v. J.C. Penney Co., 894 F.2d 274 (8th Cir. 1990). An employer does not violate the ADEA when reprimanding an older employee for legitimate business reasons. In Young v. Will County Department of Public Aid, 882 F.2d 290 (7th Cir. 1989), an older employee who received a delayed salary increase, unfavorable evaluations, and derogatory memos and experienced a hostile work environment failed to prove age discrimination when the employee admitted difficulty in job performance. The employer, therefore, had legitimate business reasons for its actions. G. Procedures Under the ADEA and the IHRA 1. [6.59] Charge Filing The Age Discrimination in Employment Act requires that a written charge be filed at an office of the Equal Employment Opportunity Commission before any complaint can be filed in federal district court. 29 U.S.C. §626(d). The charge must sufficiently identify the complaining party, all prospective defendants, and the conduct that is the subject of the complaint. Persons or entities not named in the charge may not be sued. Rio v. Presbyterian Hospital in City of New York, 561 F.Supp. 325 (S.D.N.Y. 1983).

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In Federal Express Corp v. Holowecki, 552 U.S. 389, 170 L.Ed.2d 10, 128 S.Ct. 1147 (2008), the Supreme Court addressed the question of when a filing with the EEOC constituted a valid charge to meet procedural requirements. The Court held that, given the ambiguity in the EEOC regulations addressing the issue of what constituted a valid charge, the EEOC rule that a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf was entitled to deference. In Holowecki, the EEOC had not responded to the form the plaintiff had filed. The facts suggested that even the EEOC was unclear on whether the plaintiff had filed the proper charging form. The plaintiff, after the requisite 60 days, filed suit in federal court alleging violations of the ADEA. The defendants filed a motion to dismiss alleging that the plaintiff failed to file a valid claim with the EEOC. The court suggested that the regulations and filing forms be clarified to establish “a clearer, more consistent process.” 128 S.Ct. at 1161. The EEOC responded by proposing amendments to the regulations that clarify the duties of the agency in responding to complaints filed. The comments on the notice of proposed rulemaking were due on or before February 19, 2010, and at the time of this writing, the rules were not yet formally adopted. EEOC Notice of Proposed Rulemaking, 74 Fed.Reg. 67839 – 67844 (Dec. 21, 2009), codified at 29 C.F.R. pt. 1614. See also 29 C.F.R. §1614, et seq. The ADEA requires that a charge be filed “within 180 days after the alleged unlawful practice occurred.” 29 U.S.C. §626(d)(1)(A). If the complainant files a charge in a deferral state, the charge must be filed “within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.” 29 U.S.C. §626(d)(1)(B). See the discussion of Title VII of the Civil Rights Act of 1964 in §6.7 above. Illinois is a deferral state under the provisions of ADEA. Procedures under the Illinois Human Rights Act are identical for age discrimination and other types of discrimination cases. As in Title VII cases, failure to file a charge with the Illinois Department of Human Rights within 180 days does not preclude a complainant from filing a charge with the EEOC within 300 days in accordance with the deferral provisions of the ADEA. Anderson v. Illinois Tool Works, Inc., 753 F.2d 622 (7th Cir. 1985). The 180- and 300-day limitation periods are subject to equitable tolling. The Seventh Circuit Court of Appeals has held that the limitations period may be equitably tolled until the complainant has sufficient facts to justify a charge or the complainant should have been aware of such facts. Vaught v. R.R. Donnelley & Sons Co., 745 F.2d 407 (7th Cir. 1984). The limitations period may also be equitably tolled if the employer misled the complainant as to possible reinstatement. See Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981). 2. [6.60] Investigation The Equal Employment Opportunity Commission is authorized to conduct investigations of charges under the Age Discrimination in Employment Act. The EEOC may also contract with the Illinois Department of Human Rights to investigate charges. 29 C.F.R. §1626.10. Investigations are conducted as in cases under Title VII of the Civil Rights Act of 1965. See §6.16 above.

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§6.61

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

3. [6.61] Litigation A plaintiff in a case under the Age Discrimination in Employment Act initially may not seek redress in federal district court. The ADEA provides, “No civil action may be commenced . . . until 60 days after a charge . . . has been filed.” 29 U.S.C. §626(d). In deferral states also, 60 days must elapse, or the proceedings must terminate early before an action can be maintained in federal district court. 29 U.S.C. §633(b). In Illinois, a plaintiff must file a charge with the Illinois Department of Human Rights. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 60 L.Ed.2d 609, 99 S.Ct. 2066 (1979). Age-related work-sharing agreements between the Illinois Department of Human Rights and the Equal Employment Opportunity Commission provide that the agencies will automatically file dual age charges. The Civil Rights Act of 1991 amended the ADEA to eliminate the two- and three-year limitation periods for filing a complaint in federal or state court. 29 U.S.C. §626(e). In addition, the Civil Rights Act of 1991 added a right-to-sue letter requirement in ADEA actions. Thus, the prerequisites to filing a complaint in court are comparable in cases under Title VII of the Civil Rights Act of 1964 and the ADEA. 29 U.S.C. §626(e). A collective bargaining agreement can play a role in whether a plaintiff has exhausted all remedies prior to filing a cause of action. In 14 Penn Plaza LLC v. Pyett, ___ U.S. ___, ___ L.Ed.2d ___, 129 S.Ct. 1456 (2008), the plaintiff was a member of a union and subject to a collective bargaining agreement that required binding arbitration of all federal antidiscrimination statutory claims. The plaintiff did not take his age discrimination claim through arbitration (although, notably, he did take other claims through arbitration) but instead proceeded to file a complaint with the Equal Employment Opportunity Commission and eventually to file a suit in federal court. The Court held that a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. The right to a jury trial on questions of fact is also granted by the ADEA. 29 U.S.C. §626(c)(2). The EEOC also has the right to request a jury trial when it files a complaint. Equal Employment Opportunity Commission v. Corry Jamestown Corp., 719 F.2d 1219 (3d Cir. 1983). 4. [6.62] Remedies The Age Discrimination in Employment Act states: In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this Act. 29 U.S.C. §626(b). These remedies generally parallel remedies available under Title VII of the Civil Rights Act of 1965, with certain exceptions set forth in §§6.63 – 6.67 below. a. [6.63] Hiring, Reinstatement, and Promotions The Age Discrimination in Employment Act vests the court with authority to require reinstating, hiring, or placing an employee on an accelerated training program. 29 U.S.C. §626(b).

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The Fourth Circuit Court of Appeals has held that a court does not have the authority to award an employee the position the employee would have attained but for the alleged discriminatory act. Spagnuolo v. Whirlpool Corp., 717 F.2d 114 (4th Cir. 1983). Cf. Brown v. Trustees of Boston University, 891 F.2d 337 (1st Cir. 1989) (advancement granted with reinstatement under Title VII of the Civil Rights Act of 1964), cert. denied, 110 S.Ct. 3217 (1990). b. [6.64] Compensatory Damages Back wages can be awarded to the successful plaintiff in cases under the Age Discrimination in Employment Act. 29 U.S.C. §626(b). Wages include salary and all fringe benefits, such as vacation, sick-leave pay, and insurance. Some courts have held that pension benefits that would have accrued but for the discriminatory act are also recoverable by an ADEA plaintiff. See Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981); Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980), cert. denied, 101 S.Ct. 2028 (1981). An ADEA plaintiff may not recover damages for pain and suffering or punitive damages. Pfeiffer v. Essex Wire Corp., 682 F.2d 684 (7th Cir.), cert. denied, 103 S.Ct. 453 (1982). c. [6.65] Liquidated Damages For willful violations of the Age Discrimination in Employment Act, a successful plaintiff may be awarded liquidated damages (i.e., double back wages). 29 U.S.C. §626(b). The Supreme Court in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 83 L.Ed.2d 523, 105 S.Ct. 613 (1985), held that a willful violation is established when the employer knew the conduct was prohibited by the ADEA or acted in “reckless disregard” of the prohibition. It is not sufficient that the employer only be aware of the provisions of the ADEA or its potential applicability to support a liquidated damages award. d. [6.66] Attorneys’ Fees A successful plaintiff may recover reasonable attorneys’ fees and costs against an employer. Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980), cert. denied, 101 S.Ct. 2028 (1981). Unions are not liable for attorneys’ fees and costs when the union did not itself violate the Age Discrimination in Employment Act. Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (9th Cir. 1984). e. [6.67] Front Pay Courts have also awarded front pay, or a prospective award of future lost wages, as part of a “make whole” remedy. McNeil v. Economics Laboratory, Inc., 800 F.2d 111 (7th Cir. 1986), cert. denied, 107 S.Ct. 1983 (1987), overruled on other grounds, Coston v. Plitt Theatres, Inc., 860 F.2d 834 (7th Cir. 1988). Front pay is generally granted when the likelihood of future employment is doubtful or reinstatement is impossible due to the hostility between the employer and employee. Whittlesey v. Union Carbide Corp., 742 F.2d 724 (2d Cir. 1984); Berndt v. Kaiser Aluminum & Chemical Sales Inc., 789 F.2d 253 (3d Cir. 1986). Front pay is more commonly awarded in age cases than in other discrimination cases because of the difficulty experienced by older workers in obtaining comparable employment.

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§6.68

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

H. Defenses 1. [6.68] Bona Fide Occupational Qualification The Age Discrimination in Employment Act states that there is no violation of the ADEA “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age.” 29 U.S.C. §623(f)(1). The Illinois Human Rights Act also states that the “[h]iring or selecting between persons for bona fide occupational qualifications” is exempt from the provisions of the Act. 775 ILCS 5/2-104(A)(1). A two-part test has been developed to determine the applicability of a bona fide occupational qualification defense: a. The age limitation is reasonably necessary to the essential aspects of the business. b. A factual basis is shown for the presumption that all persons outside the age limitation cannot perform the job safely or efficiently or that it is not feasible for the employer to make such a determination on a case-by-case basis. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 86 L.Ed.2d 321, 105 S.Ct. 2743 (1985); 29 C.F.R. §1625.6(b). The bona fide occupational qualification exception is construed narrowly. The Eleventh Circuit Court of Appeals rejected a school district’s argument that all persons over 65 cannot be employed as bus drivers because persons 65 and older cannot perform their job duties as safely as those under 65. Tullis v. Lear School, Inc., 874 F.2d 1489 (11th Cir. 1989). Of note in Tullis is the failure of the defendant to assert in pleadings the bona fide occupational qualification as a defense, which the court held was required to be affirmatively asserted. If an employer is asserting safety as justification for its decision, “the employer must prove that the challenged practice does indeed effectuate that goal and that there is no acceptable alternative which would better advance it or equally advance it with less discriminatory impact.” 29 C.F.R. §1625.6(b). 2. [6.69] Bona Fide Seniority Systems Bona fide seniority systems do not violate the Age Discrimination in Employment Act as long as the systems are not a subterfuge to evade the purposes of the Act. 29 U.S.C. §623(f)(2). Any bona fide seniority system “must be based on the length of service as the primary criterion for the equitable allocation of available employment opportunities and prerogatives among younger and older workers.” 29 C.F.R. §1625.8(a). A seniority system may not require or permit involuntary retirement of persons within the protected age group. 3. [6.70] Bona Fide Benefit Plans An employer may establish a bona fide benefit plan that is not intended to evade the provisions of the Age Discrimination in Employment Act. The ADEA states that it is not a violation of the Act

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§6.72

to observe the terms of a bona fide employee benefit plan — (i) where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker . . . or (ii) that is a voluntary early retirement incentive plan consistent with the relevant purpose or purposes of this chapter. 29 U.S.C. §623(f)(2)(B). Pursuant to the amendments of the Older Workers Benefit Protection Act, an employer can make a distinction in benefit plans only if the employer can show that the cost of providing the benefits to older workers is no less than providing benefits to younger workers. In Babcock v. Wilcox Co. v. Department of Human Rights, 189 Ill.App.3d 827, 545 N.E.2d 799, 137 Ill.Dec. 146 (2d Dist. 1989), when a charge was made that a benefit plan was age discriminatory under the Illinois Human Rights Act, the appellate court held that Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 106 L.Ed.2d 134, 109 S.Ct. 2854 (1989), was the controlling authority. The issue has not been addressed in Illinois since adoption of the OWBPA. Therefore, at this time, a different standard will be applied depending on whether the complainant seeks redress under state or federal law. 4. [6.71] Number of Employees To be deemed an “employer” under the Age Discrimination in Employment Act, a unit of local government must have at least 20 employees. 29 U.S.C. §630(b); Kelly v. Wauconda Park District, 801 F.2d 269 (7th Cir. 1986) (20-employee minimum requirement is applicable to state and local governments), cert. denied, 107 S.Ct. 1592 (1987). See also Zimmerman v. North American Signal Co., 704 F.2d 347 (7th Cir. 1983), rev’d on other grounds by Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 136 L.Ed.2d 644, 117 S.Ct. 660 (1997), which recognized use of the “payroll method” (see §6.51 above). The Illinois Human Rights Act establishes no employee limitations on units of local government. 775 ILCS 5/2101(B)(1)(c). 5. [6.72] Executive Employee Exception An employer may require persons in a “bona fide executive or high policymaking position” to retire at age 65 or older. 29 U.S.C. §631(c)(1). To use this defense, an executive must have been in that position for at least two years and be entitled to an immediate annual pension of at least $44,000. Id. The Illinois Human Rights Act contains a similar provision. 775 ILCS 5/2-104(A)(5)(b). The Equal Employment Opportunity Commission has further defined the bona fide executive exception to apply only to top-level personnel with substantial executive authority over a significant number of employees. 29 C.F.R. §§1625.12(a), 1625.12(d)(2). The EEOC defines “high policymaking” employees as top-level employees who “play a significant role in the development of corporate policy and effectively recommend the implementation thereof.” 29

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§6.73

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

C.F.R. §1625.12(e). It should be noted that school superintendents and other top-level administrative personnel are frequently also tenured employees of the school district, and a mandatory retirement policy for tenured employees could violate a school superintendent’s tenure rights. See, e.g., 105 ILCS 5/24-11 through 5/24-12.1, 5/24-13.1, 5/24-14. 6. [6.73] Waivers An employee may agree to waive the right to pursue a claim under the Age Discrimination in Employment Act, usually as a means of resolving an administrative charge or lawsuit or pursuant to a buyout agreement. In 1990, Congress enacted the Older Workers Benefit Protection Act, which established standards for valid waivers of ADEA rights. The OWBPA amended the ADEA to provide that a waiver of rights and claims under the ADEA is not knowing and voluntary unless each of the following applies: a. It is written “in a manner calculated to be understood . . . by the average individual eligible to participate.” b. It specifically states that the employee is waiving any ADEA claim. c. It contains no waivers of claims arising after the agreement is executed. d. Nothing is to be given for value beyond that which the employee is already entitled to receive. e. It is signed after the employee is advised in writing to consult an attorney as to the ramifications of such a waiver. f.

It provides the individual with 21 days to decide whether to accept the offer.

g. It provides the employee with authority to rescind the agreement within 7 days following execution. 29 U.S.C. §626(f)(3). The party seeking to establish the validity of the waiver has the burden of proving that the waiver was made knowingly and voluntarily. Id. Effective July 6, 1998, the Equal Employment Opportunity Commission published a regulation setting forth the procedures and standards governing waivers of rights and claims under the ADEA. 63 Fed.Reg. 30,624 (June 5, 1998). See 29 C.F.R. §1625.22. Among other things, the regulation makes clear that a waiver agreement must be drafted in plain language and must refer to the ADEA by name. An employer may not include as consideration for the waiver the reinstatement of an employment benefit wrongfully eliminated, and the seven-day revocation period may not be shortened even by the parties’ agreement.

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In Oubre v. Entergy Operations, Inc., 522 U.S. 422, 139 L.Ed.2d 849, 118 S.Ct. 838 (1988), the U.S. Supreme Court ruled that an individual who signed an invalid waiver that does not comply with statutory requirements need not “tender back” the consideration received in exchange for the waiver before bringing an ADEA claim. The Court also held that retention of the severance benefits does not amount to satisfaction of the invalid waiver.

VII. [6.74] THE AMERICANS WITH DISABILITIES ACT Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms and conditions of employment. The ADA covers employers with 15 or more employees, including state and local governments. A. [6.75] Entities Covered by the ADA The Americans with Disabilities Act requires equal treatment of individuals with disabilities in the following manner: 1. Title I applies to public and private employment, including state and local governments. 2. Title II covers the activities of state and local governments. 3. Title III applies to places of public accommodations and commercial facilities. 4. Title IV imposes certain requirements on telephone and other voice transmission services to enable hearing and speech-impaired individuals to communicate. See 42 U.S.C. §§12101 – 12213; 47 U.S.C. §§152, 221, 225, 611. B. [6.76] Employment Coverage of the ADA The Americans with Disabilities Act prohibits discrimination by employers against qualified individuals with a disability because of the individual’s disabilities with regard to all aspects of the employment process. 1. [6.77] Defining an Individual with a Disability An individual has a “disability” within the meaning of the Americans with Disabilities Act when he or she a. has a physical or mental impairment that substantially limits one or more of the individual’s major life activities; b. has a record of such an impairment; or c. is regarded as having such an impairment. 42 U.S.C. §12102.

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§6.78

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

The Equal Employment Opportunity Commission makes clear that there is a distinction between covered impairments and mere physical characteristics and personality traits. A TECHNICAL ASSISTANCE MANUAL ON THE EMPLOYMENT PROVISIONS (TITLE I) OF THE AMERICANS WITH DISABILITIES ACT §2.2(a) (1992). For example, poor judgment or quick temper, unless related to a covered impairment, are personality traits that are not protected by the ADA. On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act of 2008, effective January 1, 2009. The amendments were made in response to what the legislature considered too narrow an interpretation by courts of what constitutes a disability under the ADA and findings that, due to courts’ strict application of the ADA, a large number of people with substantially limiting impairments are not considered people with disabilities. The ADAAA was thus a legislative step toward restoring Congress’ original intent of providing broad protections to individuals with disabilities as envisioned by the enactment of the ADA in 1990. While the ADAAA does not redefine “disability” as defined by the ADA, the amendments encourage a broad construction of the ADA to extend coverage to the maximum extent permitted by its terms while, at the same time, providing coverage to disabled individuals without extensive analysis by the EEOC and courts. Thus, the ADAAA will make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. 2. [6.78] Major Life Activities A physical or mental impairment will qualify as a covered disability under the Americans with Disabilities Act if it substantially limits or prohibits an individual from engaging in a major life activity. The Equal Employment Opportunity Commission defines “major life activities” as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. §1630.2(i). Additionally, the Supreme Court has held that reproduction is a major life activity. Bragdon v. Abbott, 524 U.S. 624, 141 L.Ed.2d 540, 118 S.Ct. 2196 (1998) (HIV-infected individual was substantially limited in major life activity of reproduction). The Americans with Disabilities Act Amendments Act expanded the definition of “major life activities” by including two non-exhaustive lists. The first list includes many activities that the EEOC has recognized (e.g., walking, caring for oneself) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, communicating, and working). 42 U.S.C. §12102(2)(A). The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”). 42 U.S.C. §12102(2)(B). Under the ADAAA, “major life activities” analysis requires only that an impairment substantially limit one major life activity to be considered a disability under the ADA. 42 U.S.C. §12102(1). This construction responds to and corrects court holdings that have required individuals to show that an impairment substantially limits more than one major life activity or that an individual is not

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excluded from coverage because of the ability to perform many activities despite the inability to perform some activities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 144 L.Ed.2d 450, 119 S.Ct. 2139 (1999). The ADAAA also clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. The ADAAA directs the EEOC to revise its regulations defining the term “substantially limits” for purposes of determining whether an individual is disabled under the ADA. 42 U.S.C. §12102(1). The determination of whether an impairment substantially limits a major life activity must be construed broadly and without reference to mitigating measures, such as medication or assistive technology. Prior to the ADAAA, the United States Supreme Court held that any acts an individual took to mitigate the impact of a disability had to be considered when judging whether that person was substantially limited in a major life activity. For example, under Sutton, supra, a person with attention deficit hyperactivity disorder who took medication to successfully control his or her inability to concentrate would not be substantially limited in the major life activity of concentration. The ADAAA rejects Sutton and mandates courts to analyze impairments without regard to mitigating measures, including, among other things, medication, assistive technology, or other reasonable accommodations an employer makes for an employee’s disability. Ordinary eyeglasses or contact lenses are the only mitigating factors that can be considered in assessing substantial limitation. A substantially limiting impairment may be caused by the medication an individual takes or the mitigating measure a person uses for an impairment. “Voluntariness” of an individual’s condition is not taken into consideration when assessing whether the condition substantially impairs a major life activity. Thus, an individual will qualify for ADA protection even if, for example, his or her condition could be controlled by medication but he or she chooses not to take such medication. As mentioned in §6.77 above, the new construction of the law without regard to mitigating measures makes it significantly easier for an individual to qualify as being disabled under the ADA. Prior to the amendment to the ADA, the United States Supreme Court interpreted “substantially limits” to mean a condition that limited an individual to a “considerable” or a “large degree.” See Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.184, 151 L.Ed.2d 615, 122 S.Ct. 681 (2002). In that case, the Court held that “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” 122 S.Ct. at 685. The ADAAA directs the EEOC to revise its regulation defining “substantially limits” so that it no longer means “significantly restricts.” The Committee recommending the ADA revisions has suggested that a substantial limitation is one that “materially restricts” the individual. A material restriction is one that is meant to be “less than a severe or significant limitation and more than a moderate limitation, as opposed to a minor limitation.” H.R.Conf.Rep. No. 730, 110th Cong., 1st Sess. 6 (2008).

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§6.79

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

Although the EEOC has not yet revised the regulation, it is apparent that the threshold for what qualifies as a substantial limitation will be significantly lowered. Consequently, limitations that would not have been severe enough to provide individuals protection under the ADA will now qualify for ADA protection even though the limitation may not have changed. 3. [6.79] Having a Record of an Impairment An employee who is not currently a qualified individual with a disability may still be covered by the Americans with Disabilities Act if the employee has a “record of an impairment.” 42 U.S.C. §12102(1)(B). To “have a record” of a substantially limiting impairment includes having a history of a disability and having been misclassified as “disabled.” 4. [6.80] Being Regarded as Having an Impairment “Regarded as having an impairment” is defined as (a) an employer’s mistaken belief that an individual has an impairment that substantially limits one or more life activities, or (b) an employer’s mistaken belief that an actual, non-limiting impairment substantially limits one or more major life activities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 144 L.Ed.2d 450, 119 S.Ct. 2139, 2149 – 2150 (1999). This provision of the Americans with Disabilities Act, 42 U.S.C. §12102(2)(C), is designed to protect individuals who are subjected to an employer’s misconceptions that “result from stereotypic assumptions not truly indicative of . . . individual ability.” 119 S.Ct. at 2150, quoting 42 U.S.C. §12101(7). The Americans with Disabilities Act Amendments Act clarifies that an individual meets the requirement of being “regarded as” having an impairment if he or she establishes that he or she has been subjected to an action prohibited by the Americans with Disabilities Act because of an actual or perceived impairment, regardless of whether that impairment limits a major life activity. The ADAAA further clarifies that coverage for individuals who are regarded as disabled is not available when the impairment the person is regarded as having is a transitory (i.e., having an “actual or expected duration of 6 months or less”) or minor impairment. 42 U.S.C. §12101(3)(B). Absent this exception, the “regarded as” protection would have extended to cover individuals who are regarded as having common ailments such as the cold or flu. The ADAAA relieves employers from the obligation or responsibility to provide a reasonable accommodation to an individual who qualifies for coverage under the ADA solely because he or she is regarded as being disabled. However, such individuals will enjoy greater rights if they are subjected to an adverse job action. 5. [6.81] Exclusions from ADA Protections The following actions or conditions are not protected by the Americans with Disabilities Act: a. engaging in the use of illegal drugs (42 U.S.C. §12114(a)); and b. homosexuality, bisexuality, transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, or pyromania (42 U.S.C. §12211).

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§6.83

C. [6.82] Qualified Individual with a Disability The Americans with Disabilities Act defines a “qualified individual with a disability” as one who, “with or without reasonable accommodation, can perform the essential functions” of the position held or desired. 42 U.S.C. §12111(8). The Equal Employment Opportunity Commission defines “essential functions” as the fundamental job duties of the position as opposed to the “marginal functions” of the position. 29 C.F.R. §1630.2(n). Consideration shall be given to the employer’s judgment, and any written job descriptions for a position constitute evidence of the essential functions. 42 U.S.C. §12111(8). The Supreme Court in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 143 L.Ed.2d 966, 119 S.Ct. 1597 (1999), held that an application for receipt of social security disability benefits does not create a presumption that the individual is not a qualified individual with a disability for ADA purposes. The Court did state, however, that statements made in the social security or benefits application may be used in the later ADA case in determining whether the individual can perform the essential functions of the job at issue. D. [6.83] Reasonable Accommodation Requirement The Americans with Disabilities Act requires employers to make reasonable accommodations for the known physical or mental limitations of a qualified applicant or employee unless it can demonstrate that the accommodation would impose an “undue hardship” on the operation of the business. 42 U.S.C. §12112(b)(5)(A). “Reasonable accommodations” are defined as (1) modifications or adjustments that enable qualified applicants to be considered for the position, and (2) modifications or adjustments to the work environment or to the manner in which the job is usually performed so that a qualified individual with a disability can perform the essential functions of the position. 29 C.F.R. §§1630.2(o)(1)(i), 1630.2(o)(1)(ii). Reasonable accommodations must be determined on a case-by-case basis but include modifications of the workplace, job restructuring, modification of work schedules, leaves of absences, reassignment to a vacant position, acquisition or modification of equipment or devices, providing qualified readers or interpreters, and temporary use of a job coach. 42 U.S.C. §12111(9). Although a job transfer may be a reasonable accommodation, the Supreme Court has ruled that the ADA does not require an employer to transfer or reassign an employee in violation of a uniformly applied established seniority system. US Airways, Inc. v. Barnett, 535 U.S. 391, 152 L.Ed.2d 589, 122 S.Ct. 1516 (2002). Similarly, an employer is generally not required to create a light-duty position as an accommodation. Buskirk v. Apollo Metals, 307 F.3d 160 (3d Cir. 2002). An employer need not provide the best available accommodation or the accommodation requested by the employee. An accommodation is sufficient if it meets the job-related needs of the individual being accommodated. See 29 C.F.R. §1630.9. See also Vande Zande v. State of Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 1995). While it is the employee’s obligation to make a request for accommodation, the Seventh Circuit cautions that employers should engage in a flexible and interactive process to determine the appropriate accommodation. Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130 (7th Cir. 1996).

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§6.84

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

E. [6.84] Medical Examination and Inquiries Under the ADA An employer may not ask applicants for a job about the existence, nature, or severity of a disability and may not conduct medical exams until the employer determines that the applicant is qualified for the job and extends a conditional offer of employment. 42 U.S.C. §12112(d)(2); 29 C.F.R. §1630.13. An employer may require medical examinations or inquiries of current employees when they are job-related and consistent with business necessity. 42 U.S.C. §12112(d)(4)(A). An employee’s increased absenteeism resulting in decreased productivity is grounds to request that the employee undergo a medical examination. Yin v. State of California, 95 F.3d 864 (9th Cir. 1996), cert. denied, 117 S.Ct. 955 (1997). The Equal Employment Opportunity Commission guidelines regarding disability-related inquiries and medical examination of employees are worthy of review and consideration on this subject. See www.eeoc.gov/policy/docs/guidance-inquiries.html. F. [6.85] Remedies The remedies available for violations of the Americans with Disabilities Act are similar to those available under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. §12117. They include compensatory and punitive damages as well as reinstatement, backpay, and injunctive relief.

VIII. FAMILY AND MEDICAL LEAVE ACT AND VICTIMS’ ECONOMIC SECURITY AND SAFETY ACT A. [6.86] Family and Medical Leave Act The Family and Medical Leave Act permits 12 weeks unpaid leave for employees of employers with more than 50 employees or of a local governmental entity to be used for care of family members, the employee’s own serious health condition, the birth of a child, or the placement of a child for adoption or foster care. 29 U.S.C. §2612. In addition, a covered military member on active duty or one who has been notified of an impending call or order to active duty in support of a contingency operation qualifies for leave. 29 U.S.C. §2612(a)(1)(E). Any violations of the FMLA may lead to liability for damages, interest, liquidated damages, equitable relief, attorneys’ fees, and the costs of action. 29 U.S.C. §2617(a). The United States Supreme Court made clear in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 155 L.Ed.2d 953, 123 S.Ct. 1972 (2003), that Congress intended to abrogate the Eleventh Amendment when adopting the FMLA, making it applicable to both states and political subdivisions thereof. 1. [6.87] Interference with Exercise of Leave Rights The Family and Medical Leave Act makes it illegal to interfere with, restrain, or deny the exercise of (or the attempt to exercise) any right provided for under the FMLA. 29 U.S.C.

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§6.89

§2615(a)(1). Employers are also prohibited from retaliating against employees or prospective employees who have exercised their FMLA rights. 29 U.S.C. §2615(b). To prevail on an FMLA claim, the employee need only show that his or her employer deprived him or her of an FMLA entitlement. No ill intent is required. If an employee notifies his or her employer of a probable need for medical leave, the FMLA requires the employer to conduct further investigation as to whether the proposed leave qualifies as FMLA leave. A mere assertion by an employee that he or she is sick is usually insufficient to satisfy this requirement. Burnett v. LFW Inc., 472 F.3d 471 (7th Cir. 2006). Causes of action for the enforcement of rights under the FMLA can be brought in any federal or state court. 29 U.S.C. §2617(a)(2). Furthermore, the U.S. Secretary of Labor may bring a cause of action in any court of competent jurisdiction on behalf of the affected employees. 29 U.S.C. §2617(b)(2). 2. [6.88] Retaliation Claims The courts, in assessing a retaliation claim under the Family and Medical Leave Act, will look to the McDonnell Douglas burden-shifting approach. King v. Preferred Technical Group, 166 F.3d 887 (7th Cir. 1999). See the discussion of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973), in §6.25 above. The failure to establish any one element of the prima facie case negates an employee’s retaliation claim. King, supra; Mitchell v. Dutchmen Manufacturing, Inc., 389 F.3d 746, 750 (7th Cir. 2004) (employee failed to establish that other similarly situated employees were not subject to adverse action); Hudson v. Chicago Transit Authority, 375 F.3d 552, 560 (7th Cir. 2004). See also Buie v. Quad/Graphics, Inc., 366 F.3d 496 (7th Cir. 2004) (employee must refute nondiscriminatory reasons for disciplinary action taken by employer); Aubuchon v. Knauf Fiberglass, GMBH, 359 F.3d 950 (7th Cir. 2004) (retaliation claim failed as employee’s falsified records, not underlying FMLA claim, were reasons for dismissal). A plaintiff may use two types of evidence to prove that an employer acted with discriminatory motivation — direct evidence or circumstantial evidence. If the plaintiff can show that retaliation was a substantial or motivating factor in the employer’s decision, it may be sufficient to establish a claim. Lewis v. School District #70, 523 F.3d 730 (7th Cir. 2008). 3. Remedies a. [6.89] Compensatory Damages The Family and Medical Leave Act allows for “compensatory damages,” defined as damages equal to the amount of 1. any wages, salary, employment benefits, or other compensation denied or lost to the employee by reason of the violation; or

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§6.90

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

2. in a case in which wages, salary, employment benefits, or other compensation been denied or lost to the employee, any actual monetary losses sustained employee as a direct result of the violation, such as the cost of providing care, sum equal to 12 weeks of wages and salary for the employee. 29 §2617(a)(1)(A)(i).

has not by the up to a U.S.C.

An employee may be entitled to both front pay and backpay as a remedy for losses flowing from an employer’s interference with the employee’s substantive rights, but the employee must prove he or she was prejudiced by the FMLA violation. Franzen v. Ellis Corp., 543 F.3d 420 (7th Cir. 2008). b. [6.90] Interest The Family and Medical Leave Act also allows for interest on the compensatory damage amount at the prevailing rate. 29 U.S.C. §2617(a)(1)(A)(ii). c. [6.91] Liquidated Damages Liquidated damages can be awarded under the Family and Medical Leave Act in an amount equal to the total compensatory damages and interest. 29 U.S.C. §2617(a)(1)(A)(iii). Liquidated damages are not available if an employer who has violated the FMLA shows to the satisfaction of the court that the violative acts were in good faith and that the employer had reasonable grounds for believing that its acts did not violate the FMLA. Id. See Byrne v. Avon Products, Inc., 125 Fed.Appx. 704 (2004). d. [6.92] Equitable Relief The Family and Medical Leave Act also authorizes appropriate equitable relief, such as employment, reinstatement, and promotion. 29 U.S.C. §2617(a)(1)(B). B. [6.93] Family Military Leave Act The Family Military Leave Act, 820 ILCS 151/5, et seq., grants unpaid leave during the time federal or state deployment orders are in effect to any employee who has been employed by the same employer for at least 12 months and who has been employed for at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave. Employers employing 15 to 50 employees must provide up to 15 days of leave while employers of more than 50 employees must provide 30 days of leave. An employee cannot take such leave unless he or she has exhausted all accrued vacation leave, personal leave, compensatory leave, and any other leave that may be granted to the employee. Sick leave and disability leave need not be used. In addition, the employee may continue their benefits at employer cost during such leave. Upon return from such leave, the employee must be restored to the position held by the employee when the leave commenced or to a position with equivalent seniority status, benefits, and pay.

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§6.96

C. [6.94] Victims’ Economic Security and Safety Act The Victims’ Economic Security and Safety Act provides certain protections and leave rights to victims of domestic violence and sexual assault. It also prohibits employers from discharging, harassing, or otherwise discriminating against any individual with respect to compensation or terms, conditions, or privileges of employment of the individual or retaliating against an individual in any form or manner because the individual is, or is perceived to be, a victim of domestic or sexual violence. 820 ILCS 180/30(a)(1). VESSA also prevents retaliation against employees who attended, participated in, prepared for, or requested leave to attend, participate in, or prepare for a criminal or civil court proceeding relating to an incident of domestic or sexual violence of which the individual or a family or household member was a victim or requested an adjustment to job structure. Finally, employers may not retaliate against an employee if the workplace is disrupted or threatened by the action of a person whom the individual states has committed or threatened to commit domestic violence against the individual or the individual’s family or household member. 820 ILCS 180/30(a)(2). 1. [6.95] Enforcement The Illinois Department of Labor holds enforcement power over violations of the Victims’ Economic Security and Safety Act. 820 ILCS 180/35(a). The Department of Labor has established a charge procedure similar to the Illinois Department of Human Rights. 56 Ill.Admin. Code pt. 280. A complaint must be filed by the employee or the employee’s representative. 56 Ill.Admin. Code §280.200. The employer then has 21 days from the date the Department of Labor forwarded the complaint to respond to the complaint. 56 Ill.Admin. Code §280.310(e). The administrative law judge assigned to the case may then schedule a conference to investigate the charge. 56 Ill.Admin. Code §280.400. At the conclusion of the investigation, the Department of Labor will issue a determination finding (a) there is reasonable cause, (b) there is no reasonable cause, or (c) any party failed to cooperate with the Department of Labor and what the appropriate remedy is. 56 Ill.Admin. Code §280.410(a). Upon issuance of a determination, any party may request, in writing, a formal administrative hearing. 56 Ill.Admin. Code §280.410(c). All requests for formal hearings are handled in accordance with Article 10 of the Illinois Administrative Procedure Act, 5 ILCS 100/10-5, et seq. 56 Ill.Admin. Code §280.500. 2. [6.96] Remedies The Victims’ Economic Security and Safety Act provides for remedies, including a. damages equal to wages, salary, employment benefits, public assistance, or other compensation denied or lost by reason of the violation; b. interest calculated at the prevailing rate; c. equitable relief as appropriate; and d. reasonable attorneys’ fees, expert witness fees, and other costs of the action to be paid by the respondent. 820 ILCS 180/35(a)(1).

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§6.97

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

Should damages be awarded, the employer must comply with the damage award within 30 days after the entry of the order or risk imposition of a one percent per calendar day of delay penalty in the payment of damages. 820 ILCS 180/35(b).

IX. [6.97] GENETIC INFORMATION DISCRIMINATION The Genetic Information Nondiscrimination Act of 2008 prohibits employers with 15 or more employees from discrimination against employees because of genetic information with respect to the employee. 42 U.S.C. §2000ff(2)(B)(i). The term “employer” is expansive and includes employment offices, employment agencies, and labor organizations. 42 U.S.C. §2000ff(2)(B); EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. To meet the 15-employee threshold, an employer must employ 15 or more employees for each working day in each of 20 or more weeks in the current or preceding calendar year. 42 U.S.C. §2000ff(2)(B)(i), citing 42 U.S.C. §2000e(b); EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. “Employee” means a current employee, an applicant for employment, and a former employee. EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. Besides prohibiting certain employment decisions, GINA defines what access employers may have to genetic information and, if authorized, specific storage provisions. 42 U.S.C. §§2000ff-5(a), 2000f-5(b). GINA does not limit any rights or protections an individual may have under the Americans with Disabilities Act or the Rehabilitation Act of 1973. 42 U.S.C. §2000ff8(a)(1). GINA directed the Equal Employment Opportunity Commission to adopt rules and regulations pursuant to GINA. 42 U.S.C. §2000ff-10. The proposed rules were published in the Federal Register on March 2, 2009. EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. P.A. 95-927 (eff. Jan. 1, 2009) amended the Genetic Information Privacy Act, 410 ILCS 513/1, et seq., to include many of the protections available in GINA. It provides that an employer shall treat genetic information in a manner consistent with GINA. 410 ILCS 513/25(a). The Genetic Information Privacy Act further provides a right of action for violation by an employer in state court or as a supplemental claim in a federal district court. 410 ILCS 513/40(a). Interestingly, discrimination based on genetic information has not been added to the Illinois Human Rights Act. A. [6.98] Genetic Information Genetic information includes information about the individual’s genetic tests, the genetic tests of family members of the individual, the manifestation of a disease or disorder in the family members of the individual, genetic testing, or requests for genetic testing. 42 U.S.C. §2000ff(4)(A); EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. Genetic information does not include information about the sex or age of any individual. 42 U.S.C. §2000ff(4)(C). The proposed regulations clarify that alcohol and drug

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§6.99

testing are not genetic tests. EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. An employer is prohibited from requesting, requiring, or purchasing genetic information about an employee or the employee’s family members under most circumstances. 42 U.S.C. §2000ff-2(b). In the event genetic information relating to the employee or family member is acquired by the employer, said information cannot be the basis for employment decisions regarding said employee. 42 U.S.C. §2000ff-2(c). A current manifestation of a disease in the individual employee does not constitute genetic information. 42 U.S.C. §2000ff-9. “Family member” is defined broadly in the regulations to include relatives through the fourth degree, including dependents who are relatives by marriage, birth, adoption, or placement for adoption. EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. 1. [6.99] Obtaining Genetic Information While it does not appear that improperly obtaining genetic information by itself gives rise to a discrimination claim, using such information to make an adverse employment decision certainly would. 42 U.S.C. §2000ff-1(c). It is an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to the employee or the employee’s family members. 42 U.S.C. §2000ff-1(b). The following exceptions apply: a. The employer inadvertently requests or requires family medical history of the employee or employee’s family member. 42 U.S.C. §2000ff-1(b)(1). The Equal Employment Opportunity Commission has clarified this exception in the proposed regulations. This exception includes circumstances under which an employer overhears a conversation, receives the information in response to a general inquiry about an employee’s health, or receives the information from a third party without having solicited the information. EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. b. Health or genetic services, including wellness programs, are offered by the employer, and the employee provides prior, knowing, voluntary, and written authorization; only the employee (or the employee’s family member) and the licensed healthcare professional or board-certified genetic counselor providing such services receive individually identifiable information concerning results; and individually identifiable information is available only for purposes of services and shall not be disclosed to the employer except in aggregate terms that do not disclose the identity of specific employees. 42 U.S.C. §2000ff-1(b)(2). c. The employer requests or requires family medical history to comply with certification provisions of federal or state family and medical leave laws. 42 U.S.C. §2000ff-1(b)(3). When this occurs, the EEOC proposed regulations require the employer to maintain the employee’s genetic information separately from the personnel file. EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. Neither the Genetic Information Nondiscrimination Act nor the proposed regulations address storage of genetic information obtained regarding family members of the employee. The safest course of action would be to maintain that information separately as well.

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§6.100

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

d. The employer receives the information in documents that are commercially and publicly available that include family medical history. Pursuant to GINA, this exception includes magazines, medical journals, periodicals, and news articles. 42 U.S.C. §2000ff-1(b)(4). The EEOC proposed regulations expand permissible sources to include electronic media, such as television or the Internet. EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. However, both the Act and the proposed regulations clarify that the exception does not include searches in medical databases and court records, regardless of whether they are public records. 42 U.S.C. §2000ff-1(b)(4); EEOC Proposed Rule, 74 Fed.Reg. 9056 – 9071 (Mar. 2, 2009), codified at 29 C.F.R. pt. 1635. e. The information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only when certain criteria are satisfied. 42 U.S.C. §2000ff-1(b)(5). f. The employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification and requests or requires genetic information of employees only to the extent that the information is used for analysis of DNA identification marker for quality control to detect sample contamination. 42 U.S.C. §2000ff-1(b)(6). 2. [6.100] Maintaining Genetic Information When an employer does possess genetic information about an employee, the information must be maintained on separate forms, in separate medical files, and treated as a confidential medical record of the employee. 42 U.S.C. §2000ff-5(a). Disclosure of an employee’s genetic information is prohibited except under circumstances listed in 42 U.S.C. §2000ff-5(b). Specifically, an employer may disclose genetic information about an employee only a. to the employee, or a family member if the family member is receiving the genetic services, at the written request of the employee; b. to an occupational or other health researcher if the research is conducted in compliance with regulations; c. in response to a court order, except the employer may disclose only the genetic information expressly authorized by such order, and if the court order was secured without the knowledge of the employee to whom the information refers, the employer shall inform the employee of the court order and any genetic information disclosed pursuant to the order; d. to government officials who are investigating compliance with Genetic Information Nondiscrimination Act when the information is relevant to the investigation; e. to the extent that such disclosure is made in connection with employee’s compliance with certification provisions of federal or state family and medical leave laws; or

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f.

§6.103

to a federal, state, or local public health agency only with regard to information that (1) concerns a contagious disease that has manifested in a family member of the employee, (2) presents an imminent hazard of death or life-threatening illness, and (3) the employee whose family member is the subject of a disclosure is notified of such disclosure. Id.

B. [6.101] Hiring, Termination, and Reduction in Force An employer may not fail or refuse to hire, discharge, or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because of genetic information with respect to the employee. 42 U.S.C. §2000ff-1(a). Because the Genetic Information Nondiscrimination Act became effective at the end of 2009, the patterns of proof, prima facie case, and the like have not yet been subject to court review. GINA specifically excludes disparate impact as the basis for a cause of action. 42 U.S.C. §2000ff-7(a). Instead, Congress has provided that a commission shall be convened in 2014 to gather information and present recommendations as to whether a disparate impact cause of action should be permitted. 42 U.S.C. §2000ff-7(b). C. [6.102] Retaliation Retaliation against any individual who has opposed the acts or practices barred by the Genetic Information Nondiscrimination Act, made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing is also prohibited. 42 U.S.C. §2000ff-6(f). D. [6.103] Procedures Under GINA A charge of discrimination under the Genetic Information Nondiscrimination Act may be brought by the Equal Employment Opportunity Commission. GINA requires that a written charge be filed at an office of the EEOC before any complaint can be filed in federal district court. 42 U.S.C. §2000ff-6(a). A charge must be filed within 180 days after the alleged unlawful practice occurred. In the event the complainant files a charge in a deferral state, the charge must be filed within 300 days after the alleged unlawful practice occurred or within 30 days after receipt of notice of termination of proceedings, whichever is first. Illinois is a deferral state. A question arises as to whether claims under GINA would be subject to the deferral typically exercised in discrimination claims. While Illinois has adopted similar legislation related to nondiscrimination based on genetic information, it has not adopted it under the Illinois Human Rights Act. Because the amendments to the Genetic Information Privacy Act, 410 ILCS 513/1, et seq., do not so authorize and the IHRA does not include reference to genetic information, any claim with the EEOC arguably would not be subject to the longer 300-day period. Generally, the limitation periods have been subject to equitable tolling in cases under the Title VII of the Civil Rights Act of 1964. It then stands to reason that the proper set of facts will permit an argument for equitable tolling under GINA as well.

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§6.104

ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES

The Attorney General may also bring a claim against an employer when it has reasonable cause to believe that the employer has engaged in a pattern or practice of resistance to the full enjoyment of the rights secured and that the pattern or practice is of such a nature and intended to deny the full exercise of rights. 42 U.S.C. §2000ff-6(a). The Attorney General may ask for an injunction or other equitable relief against the employer responsible for the practice as deemed necessary to protect the enjoyment of the rights set forth. E. [6.104] Remedies As with the procedures, Congress provided that the remedies, and limitations, available for violation of Title II of Genetic Information Nondiscrimination Act are the same as many available under Title VII of the Civil Rights Act of 1964. 42 U.S.C. §2000ff-6(a). A court may order an employer to hire, reinstate, or promote an employee when it finds that the employer intentionally engaged in the unlawful employment practice. The court also has discretion to order backpay. However, these remedies are not available when the employment decision was for any other nondiscriminatory cause. 42 U.S.C. §2000ff-6(a)(3). Damages can include future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. Compensatory damages shall not include backpay or interest on backpay. Id. Costs and attorneys’ fees may be awarded when any person, the Equal Employment Opportunity Commission, or the Attorney General successfully prosecutes its claim for violation of the Genetic Information Nondiscrimination Act. 42 U.S.C. §2000ff-6(a)(2). Punitive damages are recoverable if the complainant demonstrates that the employer engaged in a discriminatory practice with malice or reckless indifference to the protected rights. 42 U.S.C. §2000ff-6(a)(3). When the complaining party seeks compensatory or punitive damages, any party may demand a trial by jury. 42 U.S.C. 2000ff-6(a)(1).

X. [6.105] CONCLUSION School districts, like all other employers, are governed by a variety of state and federal statutes, as well as state and federal constitutional provisions, prohibiting them from illegally discriminating on the basis of race, color, religion, sex, ancestry, national origin, age, marital status, physical and mental disability, or unfavorable discharge from the military service. The prohibition against discrimination extends to virtually every employment decision and policy of an employer, specifically including hiring, payment of salaries and fringe benefits, promotions, discipline, and dismissals. While enforcement procedures vary, all are complex, duplicative, interrelated, and lengthy. Statutory remedies intended to give an employee complete relief are heavily felt by the discriminating employer.

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§6.105

While a public body should always be aware of employment discrimination issues, it should make its employment decisions in good faith and with proper documentation. Then, when an employment decision is challenged, it will likely be defended successfully.

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