Sen. Javier L. Cervantes

Filed: 5/14/2024

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 3773

2    AMENDMENT NO. ______. Amend House Bill 3773 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Illinois Human Rights Act is amended by
5changing Sections 2-101 and 2-102 as follows:
 
6    (775 ILCS 5/2-101)
7    Sec. 2-101. Definitions. The following definitions are
8applicable strictly in the context of this Article.
9    (A) Employee.
10        (1) "Employee" includes:
11            (a) Any individual performing services for
12        remuneration within this State for an employer;
13            (b) An apprentice;
14            (c) An applicant for any apprenticeship.
15        For purposes of subsection (D) of Section 2-102 of
16    this Act, "employee" also includes an unpaid intern. An

 

 

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1    unpaid intern is a person who performs work for an
2    employer under the following circumstances:
3            (i) the employer is not committed to hiring the
4        person performing the work at the conclusion of the
5        intern's tenure;
6            (ii) the employer and the person performing the
7        work agree that the person is not entitled to wages for
8        the work performed; and
9            (iii) the work performed:
10                (I) supplements training given in an
11            educational environment that may enhance the
12            employability of the intern;
13                (II) provides experience for the benefit of
14            the person performing the work;
15                (III) does not displace regular employees;
16                (IV) is performed under the close supervision
17            of existing staff; and
18                (V) provides no immediate advantage to the
19            employer providing the training and may
20            occasionally impede the operations of the
21            employer.
22        (2) "Employee" does not include:
23            (a) (Blank);
24            (b) Individuals employed by persons who are not
25        "employers" as defined by this Act;
26            (c) Elected public officials or the members of

 

 

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1        their immediate personal staffs;
2            (d) Principal administrative officers of the State
3        or of any political subdivision, municipal corporation
4        or other governmental unit or agency;
5            (e) A person in a vocational rehabilitation
6        facility certified under federal law who has been
7        designated an evaluee, trainee, or work activity
8        client.
9    (B) Employer.
10        (1) "Employer" includes:
11            (a) Any person employing one or more employees
12        within Illinois during 20 or more calendar weeks
13        within the calendar year of or preceding the alleged
14        violation;
15            (b) Any person employing one or more employees
16        when a complainant alleges civil rights violation due
17        to unlawful discrimination based upon his or her
18        physical or mental disability unrelated to ability,
19        pregnancy, or sexual harassment;
20            (c) The State and any political subdivision,
21        municipal corporation or other governmental unit or
22        agency, without regard to the number of employees;
23            (d) Any party to a public contract without regard
24        to the number of employees;
25            (e) A joint apprenticeship or training committee
26        without regard to the number of employees.

 

 

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1        (2) "Employer" does not include any place of worship,
2    religious corporation, association, educational
3    institution, society, or non-profit nursing institution
4    conducted by and for those who rely upon treatment by
5    prayer through spiritual means in accordance with the
6    tenets of a recognized church or religious denomination
7    with respect to the employment of individuals of a
8    particular religion to perform work connected with the
9    carrying on by such place of worship, corporation,
10    association, educational institution, society or
11    non-profit nursing institution of its activities.
12    (C) Employment Agency. "Employment Agency" includes both
13public and private employment agencies and any person, labor
14organization, or labor union having a hiring hall or hiring
15office regularly undertaking, with or without compensation, to
16procure opportunities to work, or to procure, recruit, refer
17or place employees.
18    (D) Labor Organization. "Labor Organization" includes any
19organization, labor union, craft union, or any voluntary
20unincorporated association designed to further the cause of
21the rights of union labor which is constituted for the
22purpose, in whole or in part, of collective bargaining or of
23dealing with employers concerning grievances, terms or
24conditions of employment, or apprenticeships or applications
25for apprenticeships, or of other mutual aid or protection in
26connection with employment, including apprenticeships or

 

 

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1applications for apprenticeships.
2    (E) Sexual Harassment. "Sexual harassment" means any
3unwelcome sexual advances or requests for sexual favors or any
4conduct of a sexual nature when (1) submission to such conduct
5is made either explicitly or implicitly a term or condition of
6an individual's employment, (2) submission to or rejection of
7such conduct by an individual is used as the basis for
8employment decisions affecting such individual, or (3) such
9conduct has the purpose or effect of substantially interfering
10with an individual's work performance or creating an
11intimidating, hostile or offensive working environment.
12    For purposes of this definition, the phrase "working
13environment" is not limited to a physical location an employee
14is assigned to perform his or her duties.
15    (E-1) Harassment. "Harassment" means any unwelcome conduct
16on the basis of an individual's actual or perceived race,
17color, religion, national origin, ancestry, age, sex, marital
18status, order of protection status, disability, military
19status, sexual orientation, pregnancy, unfavorable discharge
20from military service, citizenship status, or work
21authorization status that has the purpose or effect of
22substantially interfering with the individual's work
23performance or creating an intimidating, hostile, or offensive
24working environment. For purposes of this definition, the
25phrase "working environment" is not limited to a physical
26location an employee is assigned to perform his or her duties.

 

 

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1    (F) Religion. "Religion" with respect to employers
2includes all aspects of religious observance and practice, as
3well as belief, unless an employer demonstrates that he is
4unable to reasonably accommodate an employee's or prospective
5employee's religious observance or practice without undue
6hardship on the conduct of the employer's business.
7    (G) Public Employer. "Public employer" means the State, an
8agency or department thereof, unit of local government, school
9district, instrumentality or political subdivision.
10    (H) Public Employee. "Public employee" means an employee
11of the State, agency or department thereof, unit of local
12government, school district, instrumentality or political
13subdivision. "Public employee" does not include public
14officers or employees of the General Assembly or agencies
15thereof.
16    (I) Public Officer. "Public officer" means a person who is
17elected to office pursuant to the Constitution or a statute or
18ordinance, or who is appointed to an office which is
19established, and the qualifications and duties of which are
20prescribed, by the Constitution or a statute or ordinance, to
21discharge a public duty for the State, agency or department
22thereof, unit of local government, school district,
23instrumentality or political subdivision.
24    (J) Eligible Bidder. "Eligible bidder" means a person who,
25prior to contract award or prior to bid opening for State
26contracts for construction or construction-related services,

 

 

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1has filed with the Department a properly completed, sworn and
2currently valid employer report form, pursuant to the
3Department's regulations. The provisions of this Article
4relating to eligible bidders apply only to bids on contracts
5with the State and its departments, agencies, boards, and
6commissions, and the provisions do not apply to bids on
7contracts with units of local government or school districts.
8    (K) Citizenship Status. "Citizenship status" means the
9status of being:
10        (1) a born U.S. citizen;
11        (2) a naturalized U.S. citizen;
12        (3) a U.S. national; or
13        (4) a person born outside the United States and not a
14    U.S. citizen who is lawfully present and who is protected
15    from discrimination under the provisions of Section 1324b
16    of Title 8 of the United States Code, as now or hereafter
17    amended.
18    (L) Work Authorization Status. "Work authorization status"
19means the status of being a person born outside of the United
20States, and not a U.S. citizen, who is authorized by the
21federal government to work in the United States.
22    (M) Artificial Intelligence. "Artificial intelligence"
23means a machine-based system that, for explicit or implicit
24objectives, infers, from the input it receives, how to
25generate outputs such as predictions, content,
26recommendations, or decisions that can influence physical or

 

 

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1virtual environments. "Artificial intelligence" includes
2generative artificial intelligence.
3    (N) Generative Artificial Intelligence. "Generative
4artificial intelligence" means an automated computing system
5that, when prompted with human prompts, descriptions, or
6queries, can produce outputs that simulate human-produced
7content, including, but not limited to, the following: (1)
8textual outputs, such as short answers, essays, poetry, or
9longer compositions or answers; (2) image outputs, such as
10fine art, photographs, conceptual art, diagrams, and other
11images; (3) multimedia outputs, such as audio or video in the
12form of compositions, songs, or short-form or long-form audio
13or video; and (4) other content that would be otherwise
14produced by human means.
15(Source: P.A. 101-221, eff. 1-1-20; 101-430, eff. 7-1-20;
16102-233, eff. 8-2-21; 102-558, eff. 8-20-21; 102-1030, eff.
175-27-22.)
 
18    (775 ILCS 5/2-102)  (from Ch. 68, par. 2-102)
19    Sec. 2-102. Civil rights violations - employment. It is a
20civil rights violation:
21        (A) Employers. For any employer to refuse to hire, to
22    segregate, to engage in harassment as defined in
23    subsection (E-1) of Section 2-101, or to act with respect
24    to recruitment, hiring, promotion, renewal of employment,
25    selection for training or apprenticeship, discharge,

 

 

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1    discipline, tenure or terms, privileges or conditions of
2    employment on the basis of unlawful discrimination,
3    citizenship status, or work authorization status. An
4    employer is responsible for harassment by the employer's
5    nonmanagerial and nonsupervisory employees only if the
6    employer becomes aware of the conduct and fails to take
7    reasonable corrective measures.
8        (A-5) Language. For an employer to impose a
9    restriction that has the effect of prohibiting a language
10    from being spoken by an employee in communications that
11    are unrelated to the employee's duties.
12        For the purposes of this subdivision (A-5), "language"
13    means a person's native tongue, such as Polish, Spanish,
14    or Chinese. "Language" does not include such things as
15    slang, jargon, profanity, or vulgarity.
16        (A-10) Harassment of nonemployees. For any employer,
17    employment agency, or labor organization to engage in
18    harassment of nonemployees in the workplace. An employer
19    is responsible for harassment of nonemployees by the
20    employer's nonmanagerial and nonsupervisory employees only
21    if the employer becomes aware of the conduct and fails to
22    take reasonable corrective measures. For the purposes of
23    this subdivision (A-10), "nonemployee" means a person who
24    is not otherwise an employee of the employer and is
25    directly performing services for the employer pursuant to
26    a contract with that employer. "Nonemployee" includes

 

 

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1    contractors and consultants. This subdivision applies to
2    harassment occurring on or after the effective date of
3    this amendatory Act of the 101st General Assembly.
4        (B) Employment agency. For any employment agency to
5    fail or refuse to classify properly, accept applications
6    and register for employment referral or apprenticeship
7    referral, refer for employment, or refer for
8    apprenticeship on the basis of unlawful discrimination,
9    citizenship status, or work authorization status or to
10    accept from any person any job order, requisition or
11    request for referral of applicants for employment or
12    apprenticeship which makes or has the effect of making
13    unlawful discrimination or discrimination on the basis of
14    citizenship status or work authorization status a
15    condition of referral.
16        (C) Labor organization. For any labor organization to
17    limit, segregate or classify its membership, or to limit
18    employment opportunities, selection and training for
19    apprenticeship in any trade or craft, or otherwise to
20    take, or fail to take, any action which affects adversely
21    any person's status as an employee or as an applicant for
22    employment or as an apprentice, or as an applicant for
23    apprenticeships, or wages, tenure, hours of employment or
24    apprenticeship conditions on the basis of unlawful
25    discrimination, citizenship status, or work authorization
26    status.

 

 

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1        (D) Sexual harassment. For any employer, employee,
2    agent of any employer, employment agency or labor
3    organization to engage in sexual harassment; provided,
4    that an employer shall be responsible for sexual
5    harassment of the employer's employees by nonemployees or
6    nonmanagerial and nonsupervisory employees only if the
7    employer becomes aware of the conduct and fails to take
8    reasonable corrective measures.
9        (D-5) Sexual harassment of nonemployees. For any
10    employer, employee, agent of any employer, employment
11    agency, or labor organization to engage in sexual
12    harassment of nonemployees in the workplace. An employer
13    is responsible for sexual harassment of nonemployees by
14    the employer's nonmanagerial and nonsupervisory employees
15    only if the employer becomes aware of the conduct and
16    fails to take reasonable corrective measures. For the
17    purposes of this subdivision (D-5), "nonemployee" means a
18    person who is not otherwise an employee of the employer
19    and is directly performing services for the employer
20    pursuant to a contract with that employer. "Nonemployee"
21    includes contractors and consultants. This subdivision
22    applies to sexual harassment occurring on or after the
23    effective date of this amendatory Act of the 101st General
24    Assembly.
25        (E) Public employers. For any public employer to
26    refuse to permit a public employee under its jurisdiction

 

 

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1    who takes time off from work in order to practice his or
2    her religious beliefs to engage in work, during hours
3    other than such employee's regular working hours,
4    consistent with the operational needs of the employer and
5    in order to compensate for work time lost for such
6    religious reasons. Any employee who elects such deferred
7    work shall be compensated at the wage rate which he or she
8    would have earned during the originally scheduled work
9    period. The employer may require that an employee who
10    plans to take time off from work in order to practice his
11    or her religious beliefs provide the employer with a
12    notice of his or her intention to be absent from work not
13    exceeding 5 days prior to the date of absence.
14        (E-5) Religious discrimination. For any employer to
15    impose upon a person as a condition of obtaining or
16    retaining employment, including opportunities for
17    promotion, advancement, or transfer, any terms or
18    conditions that would require such person to violate or
19    forgo a sincerely held practice of his or her religion
20    including, but not limited to, the wearing of any attire,
21    clothing, or facial hair in accordance with the
22    requirements of his or her religion, unless, after
23    engaging in a bona fide effort, the employer demonstrates
24    that it is unable to reasonably accommodate the employee's
25    or prospective employee's sincerely held religious belief,
26    practice, or observance without undue hardship on the

 

 

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1    conduct of the employer's business.
2        Nothing in this Section prohibits an employer from
3    enacting a dress code or grooming policy that may include
4    restrictions on attire, clothing, or facial hair to
5    maintain workplace safety or food sanitation.
6        (F) Training and apprenticeship programs. For any
7    employer, employment agency or labor organization to
8    discriminate against a person on the basis of age in the
9    selection, referral for or conduct of apprenticeship or
10    training programs.
11        (G) Immigration-related practices.
12            (1) for an employer to request for purposes of
13        satisfying the requirements of Section 1324a(b) of
14        Title 8 of the United States Code, as now or hereafter
15        amended, more or different documents than are required
16        under such Section or to refuse to honor documents
17        tendered that on their face reasonably appear to be
18        genuine or to refuse to honor work authorization based
19        upon the specific status or term of status that
20        accompanies the authorization to work; or
21            (2) for an employer participating in the E-Verify
22        Program, as authorized by 8 U.S.C. 1324a, Notes, Pilot
23        Programs for Employment Eligibility Confirmation
24        (enacted by PL 104-208, div. C title IV, subtitle A) to
25        refuse to hire, to segregate, or to act with respect to
26        recruitment, hiring, promotion, renewal of employment,

 

 

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1        selection for training or apprenticeship, discharge,
2        discipline, tenure or terms, privileges or conditions
3        of employment without following the procedures under
4        the E-Verify Program.
5        (H) (Blank).
6        (I) Pregnancy. For an employer to refuse to hire, to
7    segregate, or to act with respect to recruitment, hiring,
8    promotion, renewal of employment, selection for training
9    or apprenticeship, discharge, discipline, tenure or terms,
10    privileges or conditions of employment on the basis of
11    pregnancy, childbirth, or medical or common conditions
12    related to pregnancy or childbirth. Women affected by
13    pregnancy, childbirth, or medical or common conditions
14    related to pregnancy or childbirth shall be treated the
15    same for all employment-related purposes, including
16    receipt of benefits under fringe benefit programs, as
17    other persons not so affected but similar in their ability
18    or inability to work, regardless of the source of the
19    inability to work or employment classification or status.
20        (J) Pregnancy; reasonable accommodations.
21            (1) If after a job applicant or employee,
22        including a part-time, full-time, or probationary
23        employee, requests a reasonable accommodation, for an
24        employer to not make reasonable accommodations for any
25        medical or common condition of a job applicant or
26        employee related to pregnancy or childbirth, unless

 

 

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1        the employer can demonstrate that the accommodation
2        would impose an undue hardship on the ordinary
3        operation of the business of the employer. The
4        employer may request documentation from the employee's
5        health care provider concerning the need for the
6        requested reasonable accommodation or accommodations
7        to the same extent documentation is requested for
8        conditions related to disability if the employer's
9        request for documentation is job-related and
10        consistent with business necessity. The employer may
11        require only the medical justification for the
12        requested accommodation or accommodations, a
13        description of the reasonable accommodation or
14        accommodations medically advisable, the date the
15        reasonable accommodation or accommodations became
16        medically advisable, and the probable duration of the
17        reasonable accommodation or accommodations. It is the
18        duty of the individual seeking a reasonable
19        accommodation or accommodations to submit to the
20        employer any documentation that is requested in
21        accordance with this paragraph. Notwithstanding the
22        provisions of this paragraph, the employer may require
23        documentation by the employee's health care provider
24        to determine compliance with other laws. The employee
25        and employer shall engage in a timely, good faith, and
26        meaningful exchange to determine effective reasonable

 

 

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1        accommodations.
2            (2) For an employer to deny employment
3        opportunities or benefits to or take adverse action
4        against an otherwise qualified job applicant or
5        employee, including a part-time, full-time, or
6        probationary employee, if the denial or adverse action
7        is based on the need of the employer to make reasonable
8        accommodations to the known medical or common
9        conditions related to the pregnancy or childbirth of
10        the applicant or employee.
11            (3) For an employer to require a job applicant or
12        employee, including a part-time, full-time, or
13        probationary employee, affected by pregnancy,
14        childbirth, or medical or common conditions related to
15        pregnancy or childbirth to accept an accommodation
16        when the applicant or employee did not request an
17        accommodation and the applicant or employee chooses
18        not to accept the employer's accommodation.
19            (4) For an employer to require an employee,
20        including a part-time, full-time, or probationary
21        employee, to take leave under any leave law or policy
22        of the employer if another reasonable accommodation
23        can be provided to the known medical or common
24        conditions related to the pregnancy or childbirth of
25        an employee. No employer shall fail or refuse to
26        reinstate the employee affected by pregnancy,

 

 

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1        childbirth, or medical or common conditions related to
2        pregnancy or childbirth to her original job or to an
3        equivalent position with equivalent pay and
4        accumulated seniority, retirement, fringe benefits,
5        and other applicable service credits upon her
6        signifying her intent to return or when her need for
7        reasonable accommodation ceases, unless the employer
8        can demonstrate that the accommodation would impose an
9        undue hardship on the ordinary operation of the
10        business of the employer.
11        For the purposes of this subdivision (J), "reasonable
12    accommodations" means reasonable modifications or
13    adjustments to the job application process or work
14    environment, or to the manner or circumstances under which
15    the position desired or held is customarily performed,
16    that enable an applicant or employee affected by
17    pregnancy, childbirth, or medical or common conditions
18    related to pregnancy or childbirth to be considered for
19    the position the applicant desires or to perform the
20    essential functions of that position, and may include, but
21    is not limited to: more frequent or longer bathroom
22    breaks, breaks for increased water intake, and breaks for
23    periodic rest; private non-bathroom space for expressing
24    breast milk and breastfeeding; seating; assistance with
25    manual labor; light duty; temporary transfer to a less
26    strenuous or hazardous position; the provision of an

 

 

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1    accessible worksite; acquisition or modification of
2    equipment; job restructuring; a part-time or modified work
3    schedule; appropriate adjustment or modifications of
4    examinations, training materials, or policies;
5    reassignment to a vacant position; time off to recover
6    from conditions related to childbirth; and leave
7    necessitated by pregnancy, childbirth, or medical or
8    common conditions resulting from pregnancy or childbirth.
9        For the purposes of this subdivision (J), "undue
10    hardship" means an action that is prohibitively expensive
11    or disruptive when considered in light of the following
12    factors: (i) the nature and cost of the accommodation
13    needed; (ii) the overall financial resources of the
14    facility or facilities involved in the provision of the
15    reasonable accommodation, the number of persons employed
16    at the facility, the effect on expenses and resources, or
17    the impact otherwise of the accommodation upon the
18    operation of the facility; (iii) the overall financial
19    resources of the employer, the overall size of the
20    business of the employer with respect to the number of its
21    employees, and the number, type, and location of its
22    facilities; and (iv) the type of operation or operations
23    of the employer, including the composition, structure, and
24    functions of the workforce of the employer, the geographic
25    separateness, administrative, or fiscal relationship of
26    the facility or facilities in question to the employer.

 

 

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1    The employer has the burden of proving undue hardship. The
2    fact that the employer provides or would be required to
3    provide a similar accommodation to similarly situated
4    employees creates a rebuttable presumption that the
5    accommodation does not impose an undue hardship on the
6    employer.
7        No employer is required by this subdivision (J) to
8    create additional employment that the employer would not
9    otherwise have created, unless the employer does so or
10    would do so for other classes of employees who need
11    accommodation. The employer is not required to discharge
12    any employee, transfer any employee with more seniority,
13    or promote any employee who is not qualified to perform
14    the job, unless the employer does so or would do so to
15    accommodate other classes of employees who need it.
16        (K) Notice.
17            (1) For an employer to fail to post or keep posted
18        in a conspicuous location on the premises of the
19        employer where notices to employees are customarily
20        posted, or fail to include in any employee handbook
21        information concerning an employee's rights under this
22        Article, a notice, to be prepared or approved by the
23        Department, summarizing the requirements of this
24        Article and information pertaining to the filing of a
25        charge, including the right to be free from unlawful
26        discrimination, the right to be free from sexual

 

 

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1        harassment, and the right to certain reasonable
2        accommodations. The Department shall make the
3        documents required under this paragraph available for
4        retrieval from the Department's website.
5            (2) Upon notification of a violation of paragraph
6        (1) of this subdivision (K), the Department may launch
7        a preliminary investigation. If the Department finds a
8        violation, the Department may issue a notice to show
9        cause giving the employer 30 days to correct the
10        violation. If the violation is not corrected, the
11        Department may initiate a charge of a civil rights
12        violation.
13        (L) Use of artificial intelligence.
14            (1) With respect to recruitment, hiring,
15        promotion, renewal of employment, selection for
16        training or apprenticeship, discharge, discipline,
17        tenure, or the terms, privileges, or conditions of
18        employment, for an employer to use artificial
19        intelligence that has the effect of subjecting
20        employees to discrimination on the basis of protected
21        classes under this Article or to use zip codes as a
22        proxy for protected classes under this Article.
23            (2) For an employer to fail to provide notice to an
24        employee that the employer is using artificial
25        intelligence for the purposes described in paragraph
26        (1).

 

 

10300HB3773sam003- 21 -LRB103 27562 SPS 73419 a

1        The Department shall adopt any rules necessary for the
2    implementation and enforcement of this subdivision,
3    including, but not limited to, rules on the circumstances
4    and conditions that require notice, the time period for
5    providing notice, and the means for providing notice.
6(Source: P.A. 101-221, eff. 1-1-20; 102-233, eff. 8-2-21.)
 
7    Section 99. Effective date. This Act takes effect January
81, 2026.".