Rep. Esther Golar

Filed: 5/12/2015

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 567

2    AMENDMENT NO. ______. Amend Senate Bill 567 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Illinois Human Rights Act is amended by
5changing Sections 2-103, 7-109.1, and 7A-102 as follows:
 
6    (775 ILCS 5/2-103)  (from Ch. 68, par. 2-103)
7    Sec. 2-103. Arrest Record.
8    (A) Unless otherwise authorized by law, it is a civil
9rights violation for any employer, employment agency or labor
10organization to inquire into or to use the fact of an arrest or
11criminal history record information ordered expunged, sealed
12or impounded under Section 5.2 of the Criminal Identification
13Act as a basis to refuse to hire, to segregate, or to act with
14respect to recruitment, hiring, promotion, renewal of
15employment, selection for training or apprenticeship,
16discharge, discipline, tenure or terms, privileges or

 

 

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1conditions of employment. This Section does not prohibit a
2State agency, unit of local government or school district, or
3private organization from requesting or utilizing sealed
4felony conviction information obtained from the Department of
5State Police under the provisions of Section 3 of the Criminal
6Identification Act or under other State or federal laws or
7regulations that require criminal background checks in
8evaluating the qualifications and character of an employee or a
9prospective employee.
10    (B) The prohibition against the use of the fact of an
11arrest contained in this Section shall not be construed to
12prohibit an employer, employment agency, or labor organization
13from obtaining or using other information which indicates that
14a person actually engaged in the conduct for which he or she
15was arrested.
16    (C) It is a civil rights violation for any employer,
17employment agency, or labor organization to take criminal
18background information into account in making adverse
19employment decisions if doing so has a disparate impact with
20respect to any of the characteristics listed in item (Q) of
21Section 1-103 of this Act. It shall, however, be a defense to a
22claim of a violation of this subsection that the employment
23decision is job-related and consistent with business
24necessity. This subsection (C) does not apply to employment
25positions for which employers are required to exclude
26applicants with certain criminal convictions from employment

 

 

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1due to federal or State law.
2(Source: P.A. 96-409, eff. 1-1-10.)
 
3    (775 ILCS 5/7-109.1)  (from Ch. 68, par. 7-109.1)
4    Sec. 7-109.1. Federal or State Court Proceedings. The
5Department may administratively close a charge pending before
6the Department if the issues which are the basis of the charge
7are being litigated in a State or federal court proceeding. For
8charges under Article 7A, the Department shall
9administratively close a charge pending before the Department
10if the issues that are the basis of the charge are being
11litigated in another venue.
12(Source: P.A. 86-1343.)
 
13    (775 ILCS 5/7A-102)  (from Ch. 68, par. 7A-102)
14    Sec. 7A-102. Procedures.
15    (A) Charge.
16        (1) Within 180 days after the date that a civil rights
17    violation allegedly has been committed, a charge in writing
18    under oath or affirmation may be filed with the Department
19    by an aggrieved party or issued by the Department itself
20    under the signature of the Director.
21        (2) The charge shall be in such detail as to
22    substantially apprise any party properly concerned as to
23    the time, place, and facts surrounding the alleged civil
24    rights violation.

 

 

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1        (3) Charges deemed filed with the Department pursuant
2    to subsection (A-1) of this Section shall be deemed to be
3    in compliance with this subsection.
4    (A-1) Equal Employment Opportunity Commission Charges.
5        (1) If a charge is filed with the Equal Employment
6    Opportunity Commission (EEOC) within 180 days after the
7    date of the alleged civil rights violation, the charge
8    shall be deemed filed with the Department on the date filed
9    with the EEOC. If the EEOC is the governmental agency
10    designated to investigate the charge first, the Department
11    shall take no action until the EEOC makes a determination
12    on the charge and after the complainant notifies the
13    Department of the EEOC's determination. In such cases,
14    after receiving notice from the EEOC that a charge was
15    filed, the Department shall notify the parties that (i) a
16    charge has been received by the EEOC and has been sent to
17    the Department for dual filing purposes; (ii) the EEOC is
18    the governmental agency responsible for investigating the
19    charge and that the investigation shall be conducted
20    pursuant to the rules and procedures adopted by the EEOC;
21    (iii) it will take no action on the charge until the EEOC
22    issues its determination; (iv) the complainant must submit
23    a copy of the EEOC's determination within 30 days after
24    service of the determination by the EEOC on complainant;
25    and (v) that the time period to investigate the charge
26    contained in subsection (G) of this Section is tolled from

 

 

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1    the date on which the charge is filed with the EEOC until
2    the EEOC issues its determination.
3        (2) If the EEOC finds reasonable cause to believe that
4    there has been a violation of federal law and if the
5    Department is timely notified of the EEOC's findings by
6    complainant, the Department shall notify complainant that
7    the Department has adopted the EEOC's determination of
8    reasonable cause and that complainant has the right, within
9    90 days after receipt of the Department's notice, to either
10    file his or her own complaint with the Illinois Human
11    Rights Commission or commence a civil action in the
12    appropriate circuit court or other appropriate court of
13    competent jurisdiction. The Department's notice to
14    complainant that the Department has adopted the EEOC's
15    determination of reasonable cause shall constitute the
16    Department's Report for purposes of subparagraph (D) of
17    this Section.
18        (3) For those charges alleging violations within the
19    jurisdiction of both the EEOC and the Department and for
20    which the EEOC either (i) does not issue a determination,
21    but does issue the complainant a notice of a right to sue,
22    including when the right to sue is issued at the request of
23    the complainant, or (ii) determines that it is unable to
24    establish that illegal discrimination has occurred and
25    issues the complainant a right to sue notice, and if the
26    Department is timely notified of the EEOC's determination

 

 

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1    by complainant, the Department shall notify the parties
2    that the Department will adopt the EEOC's determination as
3    a dismissal for lack of substantial evidence unless the
4    complainant requests in writing within 35 days after
5    receipt of the Department's notice that the Department
6    review the EEOC's determination.
7            (a) If the complainant does not file a written
8        request with the Department to review the EEOC's
9        determination within 35 days after receipt of the
10        Department's notice, the Department shall notify
11        complainant that the decision of the EEOC has been
12        adopted by the Department as a dismissal for lack of
13        substantial evidence and that the complainant has the
14        right, within 90 days after receipt of the Department's
15        notice, to commence a civil action in the appropriate
16        circuit court or other appropriate court of competent
17        jurisdiction. The Department's notice to complainant
18        that the Department has adopted the EEOC's
19        determination shall constitute the Department's report
20        for purposes of subparagraph (D) of this Section.
21            (b) If the complainant does file a written request
22        with the Department to review the EEOC's
23        determination, the Department shall review the EEOC's
24        determination and any evidence obtained by the EEOC
25        during its investigation. If, after reviewing the
26        EEOC's determination and any evidence obtained by the

 

 

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1        EEOC, the Department determines there is no need for
2        further investigation of the charge, the Department
3        shall issue a report and the Director shall determine
4        whether there is substantial evidence that the alleged
5        civil rights violation has been committed pursuant to
6        subsection (D) of Section 7A-102. If, after reviewing
7        the EEOC's determination and any evidence obtained by
8        the EEOC, the Department determines there is a need for
9        further investigation of the charge, the Department
10        may conduct any further investigation it deems
11        necessary. After reviewing the EEOC's determination,
12        the evidence obtained by the EEOC, and any additional
13        investigation conducted by the Department, the
14        Department shall issue a report and the Director shall
15        determine whether there is substantial evidence that
16        the alleged civil rights violation has been committed
17        pursuant to subsection (D) of Section 7A-102 of this
18        Act.
19        (4) Pursuant to this Section, if the EEOC dismisses the
20    charge or a portion of the charge of discrimination
21    because, under federal law, the EEOC lacks jurisdiction
22    over the charge, and if, under this Act, the Department has
23    jurisdiction over the charge of discrimination, the
24    Department shall investigate the charge or portion of the
25    charge dismissed by the EEOC for lack of jurisdiction
26    pursuant to subsections (A), (A-1), (B), (B-1), (C), (D),

 

 

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1    (E), (F), (G), (H), (I), (J), and (K) of Section 7A-102 of
2    this Act.
3        (5) The time limit set out in subsection (G) of this
4    Section is tolled from the date on which the charge is
5    filed with the EEOC to the date on which the EEOC issues
6    its determination.
7    (B) Notice and Response to Charge. The Department shall,
8within 10 days of the date on which the charge was filed, serve
9a copy of the charge on the respondent. This period shall not
10be construed to be jurisdictional. The charging party and the
11respondent may each file a position statement and other
12materials with the Department regarding the charge of alleged
13discrimination within 60 days of receipt of the notice of the
14charge. The position statements and other materials filed shall
15remain confidential unless otherwise agreed to by the party
16providing the information and shall not be served on or made
17available to the other party during pendency of a charge with
18the Department. The Department shall require the respondent to
19file a verified response to the allegations contained in the
20charge within 60 days of receipt of the notice of the charge.
21The respondent shall serve a copy of its response on the
22complainant or his representative. All allegations contained
23in the charge not timely denied by the respondent shall be
24deemed admitted, unless the respondent states that it is
25without sufficient information to form a belief with respect to
26such allegation. The Department may issue a notice of default

 

 

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1directed to any respondent who fails to file a verified
2response to a charge within 60 days of receipt of the notice of
3the charge, unless the respondent can demonstrate good cause as
4to why such notice should not issue. The term "good cause"
5shall be defined by rule promulgated by the Department. Within
630 days of receipt of the respondent's response, the
7complainant may file a reply to said response and shall serve a
8copy of said reply on the respondent or his representative. A
9party shall have the right to supplement his response or reply
10at any time that the investigation of the charge is pending.
11The Department shall, within 10 days of the date on which the
12charge was filed, and again no later than 335 days thereafter,
13send by certified or registered mail written notice to the
14complainant and to the respondent informing the complainant of
15the complainant's right to either file a complaint with the
16Human Rights Commission or commence a civil action in the
17appropriate circuit court under subparagraph (2) of paragraph
18(G), including in such notice the dates within which the
19complainant may exercise this right. In the notice the
20Department shall notify the complainant that the charge of
21civil rights violation will be dismissed with prejudice and
22with no right to further proceed if a written complaint is not
23timely filed with the Commission or with the appropriate
24circuit court by the complainant pursuant to subparagraph (2)
25of paragraph (G) or by the Department pursuant to subparagraph
26(1) of paragraph (G).

 

 

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1    (B-1) Mediation. The complainant and respondent may agree
2to voluntarily submit the charge to mediation without waiving
3any rights that are otherwise available to either party
4pursuant to this Act and without incurring any obligation to
5accept the result of the mediation process. Nothing occurring
6in mediation shall be disclosed by the Department or admissible
7in evidence in any subsequent proceeding unless the complainant
8and the respondent agree in writing that such disclosure be
9made.
10    (C) Investigation.
11        (1) After the respondent has been notified, the
12    Department shall conduct a full investigation of the
13    allegations set forth in the charge.
14        (2) The Director or his or her designated
15    representatives shall have authority to request any member
16    of the Commission to issue subpoenas to compel the
17    attendance of a witness or the production for examination
18    of any books, records or documents whatsoever.
19        (3) If any witness whose testimony is required for any
20    investigation resides outside the State, or through
21    illness or any other good cause as determined by the
22    Director is unable to be interviewed by the investigator or
23    appear at a fact finding conference, his or her testimony
24    or deposition may be taken, within or without the State, in
25    the same manner as is provided for in the taking of
26    depositions in civil cases in circuit courts.

 

 

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1        (4) Upon reasonable notice to the complainant and the
2    respondent, the Department shall conduct a fact finding
3    conference, unless prior to 365 days after the date on
4    which the charge was filed the Director has determined
5    whether there is substantial evidence that the alleged
6    civil rights violation has been committed, the charge has
7    been dismissed for lack of jurisdiction, or the parties
8    voluntarily and in writing agree to waive the fact finding
9    conference. Any party's failure to attend the conference
10    without good cause shall result in dismissal or default.
11    The term "good cause" shall be defined by rule promulgated
12    by the Department. A notice of dismissal or default shall
13    be issued by the Director. The notice of default issued by
14    the Director shall notify the respondent that a request for
15    review may be filed in writing with the Commission within
16    30 days of receipt of notice of default. The notice of
17    dismissal issued by the Director shall give the complainant
18    notice of his or her right to seek review of the dismissal
19    before the Human Rights Commission or commence a civil
20    action in the appropriate circuit court. If the complainant
21    chooses to have the Human Rights Commission review the
22    dismissal order, he or she shall file a request for review
23    with the Commission within 90 days after receipt of the
24    Director's notice. If the complainant chooses to file a
25    request for review with the Commission, he or she may not
26    later commence a civil action in a circuit court. If the

 

 

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1    complainant chooses to commence a civil action in a circuit
2    court, he or she must do so within 90 days after receipt of
3    the Director's notice.
4    (D) Report.
5        (1) Each charge shall be the subject of a report to the
6    Director. The report shall be a confidential document
7    subject to review by the Director, authorized Department
8    employees, the parties, and, where indicated by this Act,
9    members of the Commission or their designated hearing
10    officers.
11        (2) Upon review of the report, the Director shall
12    determine whether there is substantial evidence that the
13    alleged civil rights violation has been committed. The
14    determination of substantial evidence is limited to
15    determining the need for further consideration of the
16    charge pursuant to this Act and includes, but is not
17    limited to, findings of fact and conclusions, as well as
18    the reasons for the determinations on all material issues.
19    Substantial evidence is evidence which a reasonable mind
20    accepts as sufficient to support a particular conclusion
21    and which consists of more than a mere scintilla but may be
22    somewhat less than a preponderance.
23        (3) If the Director determines that there is no
24    substantial evidence, the charge shall be dismissed by
25    order of the Director and the Director shall give the
26    complainant notice of his or her right to seek review of

 

 

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1    the dismissal order before the Commission or commence a
2    civil action in the appropriate circuit court. If the
3    complainant chooses to have the Human Rights Commission
4    review the dismissal order, he or she shall file a request
5    for review with the Commission within 90 days after receipt
6    of the Director's notice. If the complainant chooses to
7    file a request for review with the Commission, he or she
8    may not later commence a civil action in a circuit court.
9    If the complainant chooses to commence a civil action in a
10    circuit court, he or she must do so within 90 days after
11    receipt of the Director's notice.
12        (4) If the Director determines that there is
13    substantial evidence, he or she shall notify the
14    complainant and respondent of that determination. The
15    Director shall also notify the parties that the complainant
16    has the right to either commence a civil action in the
17    appropriate circuit court or request that the Department of
18    Human Rights file a complaint with the Human Rights
19    Commission on his or her behalf. Any such complaint shall
20    be filed within 90 days after receipt of the Director's
21    notice. If the complainant chooses to have the Department
22    file a complaint with the Human Rights Commission on his or
23    her behalf, the complainant must, within 30 days after
24    receipt of the Director's notice, request in writing that
25    the Department file the complaint. If the complainant
26    timely requests that the Department file the complaint, the

 

 

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1    Department shall file the complaint on his or her behalf.
2    If the complainant fails to timely request that the
3    Department file the complaint, the complainant may file his
4    or her complaint with the Commission or commence a civil
5    action in the appropriate circuit court. If the complainant
6    files a complaint with the Human Rights Commission, the
7    complainant shall give notice to the Department of the
8    filing of the complaint with the Human Rights Commission.
9    (E) Conciliation.
10         (1) When there is a finding of substantial evidence,
11    the Department may designate a Department employee who is
12    an attorney licensed to practice in Illinois to endeavor to
13    eliminate the effect of the alleged civil rights violation
14    and to prevent its repetition by means of conference and
15    conciliation.
16        (2) When the Department determines that a formal
17    conciliation conference is necessary, the complainant and
18    respondent shall be notified of the time and place of the
19    conference by registered or certified mail at least 10 days
20    prior thereto and either or both parties shall appear at
21    the conference in person or by attorney.
22        (3) The place fixed for the conference shall be within
23    35 miles of the place where the civil rights violation is
24    alleged to have been committed.
25        (4) Nothing occurring at the conference shall be
26    disclosed by the Department unless the complainant and

 

 

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1    respondent agree in writing that such disclosure be made.
2        (5) The Department's efforts to conciliate the matter
3    shall not stay or extend the time for filing the complaint
4    with the Commission or the circuit court.
5    (F) Complaint.
6        (1) When the complainant requests that the Department
7    file a complaint with the Commission on his or her behalf,
8    the Department shall prepare a written complaint, under
9    oath or affirmation, stating the nature of the civil rights
10    violation substantially as alleged in the charge
11    previously filed and the relief sought on behalf of the
12    aggrieved party. The Department shall file the complaint
13    with the Commission.
14        (2) If the complainant chooses to commence a civil
15    action in a circuit court, he or she must do so in the
16    circuit court in the county wherein the civil rights
17    violation was allegedly committed. The form of the
18    complaint in any such civil action shall be in accordance
19    with the Illinois Code of Civil Procedure.
20    (G) Time Limit.
21        (1) When a charge of a civil rights violation has been
22    properly filed, the Department, within 365 days thereof or
23    within any extension of that period agreed to in writing by
24    all parties, shall issue its report as required by
25    subparagraph (D). Any such report shall be duly served upon
26    both the complainant and the respondent.

 

 

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1        (2) If the Department has not issued its report within
2    365 days after the charge is filed, or any such longer
3    period agreed to in writing by all the parties, the
4    complainant shall have 90 days to either file his or her
5    own complaint with the Human Rights Commission or commence
6    a civil action in the appropriate circuit court. If the
7    complainant files a complaint with the Commission, the form
8    of the complaint shall be in accordance with the provisions
9    of paragraph (F)(1). If the complainant commences a civil
10    action in a circuit court, the form of the complaint shall
11    be in accordance with the Illinois Code of Civil Procedure.
12    The aggrieved party shall notify the Department that a
13    complaint has been filed and shall serve a copy of the
14    complaint on the Department on the same date that the
15    complaint is filed with the Commission or in circuit court.
16    If the complainant files a complaint with the Commission,
17    he or she may not later commence a civil action in circuit
18    court.
19        (3) If an aggrieved party files a complaint with the
20    Human Rights Commission or commences a civil action in
21    circuit court pursuant to paragraph (2) of this subsection,
22    or if the time period for filing a complaint has expired,
23    the Department shall immediately cease its investigation
24    and dismiss the charge of civil rights violation. Any final
25    order entered by the Commission under this Section is
26    appealable in accordance with paragraph (B)(1) of Section

 

 

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1    8-111. Failure to immediately cease an investigation and
2    dismiss the charge of civil rights violation as provided in
3    this paragraph (3) constitutes grounds for entry of an
4    order by the circuit court permanently enjoining the
5    investigation. The Department may also be liable for any
6    costs and other damages incurred by the respondent as a
7    result of the action of the Department.
8        (4) (Blank). The Department shall stay any
9    administrative proceedings under this Section after the
10    filing of a civil action by or on behalf of the aggrieved
11    party under any federal or State law seeking relief with
12    respect to the alleged civil rights violation.
13    (H) This amendatory Act of 1995 applies to causes of action
14filed on or after January 1, 1996.
15    (I) This amendatory Act of 1996 applies to causes of action
16filed on or after January 1, 1996.
17    (J) The changes made to this Section by Public Act 95-243
18apply to charges filed on or after the effective date of those
19changes.
20    (K) The changes made to this Section by this amendatory Act
21of the 96th General Assembly apply to charges filed on or after
22the effective date of those changes.
23(Source: P.A. 96-876, eff. 2-2-10; 97-22, eff. 1-1-12; 97-596,
24eff. 8-26-11; 97-813, eff. 7-13-12.)".