HB0823 94TH GENERAL ASSEMBLY

LRB094 07350 WGH 37508 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB0823

Introduced 2/2/2005, by Rep. Eddie Washington

SYNOPSIS AS INTRODUCED:

775 ILCS 5/7A-102	from Ch. 68, par. 7A-102
775 ILCS 5/7B-102	from Ch. 68, par. 7B-102

Amends the Illinois Human Rights Act. Provides that the Department of Human Rights may (rather than shall) issue a notice of default directed to a respondent who fails to file a verified response to a charge within 60 days of receipt of the notice of the charge, unless the respondent demonstrates good cause as to why the notice should not issue. Provides that the Department shall define "good cause" by rule. Effective immediately.

A BILL FOR

AN ACT concerning human rights.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Human Rights Act is amended by changing Sections 7A-102 and 7B-102 as follows:

(775 ILCS 5/7A-102) (from Ch. 68, par. 7A-102)

Sec. 7A-102. Procedures.

(A) Charge.

(1) Within 180 days after the date that a civil rights violation allegedly has been committed, a charge in writing under oath or affirmation may be filed with the Department by an aggrieved party or issued by the Department itself under the signature of the Director.

(2) The charge shall 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.

(B) Notice, and Response, and Review of Charge. The Department shall, within 10 days of the date on which the charge was filed, serve a copy of the charge on the respondent. This period shall not be construed to be jurisdictional. The charging party and the respondent may each file a position statement and other materials with the Department regarding the charge of alleged discrimination within 60 days of receipt of the notice of the charge. The position statements and other materials filed shall remain confidential unless otherwise agreed to by the party providing the information and shall not be served on or made available to the other party during pendency of a charge with the Department. The Department shall require the respondent to file a verified response to the allegations contained in the charge within 60 days of receipt of the notice of the charge. The respondent shall serve a copy of its response on the complainant or his representative. All allegations contained in the charge not timely denied by the respondent shall be deemed admitted, unless the respondent states that it is without sufficient information to form a belief with respect to such allegation. The Department may shall issue a notice of default directed to any respondent who fails to file a verified response to a charge within 60 days of receipt of the notice of the charge, unless the respondent can demonstrate good cause as to why such notice should not issue. The term "good cause" shall be defined by rule promulgated by the Department. Within 30 days of receipt of the respondent's response, the complainant may file a reply to said response and shall serve a copy of said reply on the respondent or his representative. A party shall have the right to supplement his response or reply at any time that the investigation of the charge is pending. The Department shall, within 10 days of the date on which the charge was filed, and again no later than 335 days thereafter, send by certified or registered mail written notice to the complainant and to the respondent informing the complainant of the right to file a complaint with the Human Rights Commission under subparagraph (2) of paragraph (G), including in such notice the dates within which the complainant may exercise this right. In the notice the Department shall notify the complainant that the charge of civil rights violation will be dismissed with prejudice and with no right to further proceed if a written complaint is not timely filed with the Commission by the complainant pursuant to subparagraph (2) of paragraph (G) or by the Department pursuant to subparagraph (1) of paragraph (G).

(B-1) Mediation. The complainant and respondent may agree to voluntarily submit the charge to mediation without waiving any rights that are otherwise available to either party pursuant to this Act and without incurring any obligation to accept the result of the mediation process. Nothing occurring in mediation shall be disclosed by the Department or admissible in evidence in any subsequent proceeding unless the complainant and the respondent agree in writing that such disclosure be made.

(C) Investigation.

(1) After the respondent has been notified, the Department shall conduct a full investigation of the allegations set forth in the charge.

(2) The Director or his or her designated representatives shall have authority to request any member of the Commission to issue subpoenas to compel the attendance of a witness or the production for examination of any books, records or documents whatsoever.

(3) If any witness whose testimony is required for any investigation resides outside the State, or through illness or any other good cause as determined by the Director is unable to be interviewed by the investigator or appear at a fact finding conference, his or her testimony or deposition may be taken, within or without the State, in the same manner as is provided for in the taking of depositions in civil cases in circuit courts.

(4) Upon reasonable notice to the complainant and the respondent, the Department shall conduct a fact finding conference prior to 365 days after the date on which the charge was filed, unless the Director has determined whether there is substantial evidence that the alleged civil rights violation has been committed or the charge has been dismissed for lack of jurisdiction. If the parties agree in writing, the fact finding conference may be held at a time after the 365 day limit. Any party's failure to attend the conference without good cause shall result in dismissal or default. The term "good cause" shall be defined by rule promulgated by the Department. A notice of dismissal or default shall be issued by the Director and shall notify the relevant party that a request for review may be filed in writing with the Chief Legal Counsel of the Department within 30 days of receipt of notice of dismissal or default.

(D) Report.

(1) Each charge shall be the subject of a report to the Director. The report shall be a confidential document subject to review by the Director, authorized Department employees, the parties, and, where indicated by this Act, members of the Commission or their designated hearing officers.

(2) Upon review of the report, the Director shall determine whether there is substantial evidence that the alleged civil rights violation has been committed. The determination of substantial evidence is limited to determining the need for further consideration of the charge pursuant to this Act and includes, but is not limited to, findings of fact and conclusions, as well as the reasons for the determinations on all material issues and questions of credibility. Substantial evidence is 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.

(a) If the Director determines that there is no substantial evidence, the charge shall be dismissed by order of the Director and the complainant notified that he or she may seek review of the dismissal order before the Chief Legal Counsel of the Department. The complainant shall have 30 days from receipt of notice to file a request for review by the Chief Legal Counsel of the Department.

(b) If the Director determines that there is substantial evidence, he or she shall designate a Department employee who is an attorney licensed to practice in Illinois to endeavor to eliminate the effect of the alleged civil rights violation and to prevent its repetition by means of conference and conciliation.

(E) Conciliation.

(1) When the Department determines that a formal conciliation conference is necessary, the complainant and respondent shall be notified of the time and place of the conference by registered or certified mail at least 10 days prior thereto and either or both parties shall appear at the conference in person or by attorney.

(2) The place fixed for the conference shall be within 35 miles of the place where the civil rights violation is alleged to have been committed.

(3) Nothing occurring at the conference shall be disclosed by the Department unless the complainant and respondent agree in writing that such disclosure be made.

(F) Complaint.

(1) When there is a failure to settle or adjust any charge through conciliation, the Department shall prepare a written complaint, under oath or affirmation, stating the nature of the civil rights violation substantially as alleged in the charge previously filed and the relief sought on behalf of the aggrieved party.

(2) The complaint shall be filed with the Commission.

(G) Time Limit.

(1) When a charge of a civil rights violation has been properly filed, the Department, within 365 days thereof or within any extension of that period agreed to in writing by all parties, shall either issue and file a complaint in the manner and form set forth in this Section or shall order that no complaint be issued and dismiss the charge with prejudice without any further right to proceed except in cases in which the order was procured by fraud or duress. Any such order shall be duly served upon both the complainant and the respondent.

(2) Between 365 and 395 days after the charge is filed, or such longer period agreed to in writing by all parties, the aggrieved party may file a complaint with the Commission, if the Director has not sooner issued a report and determination pursuant to paragraphs (D)(1) and (D)(2) of this Section. The form of the complaint shall be in accordance with the provisions of paragraph (F). The aggrieved party shall notify the Department that a complaint has been filed and shall serve a copy of the complaint on the Department on the same date that the complaint is filed with the Commission.

(3) If an aggrieved party files a complaint with the Human Rights Commission pursuant to paragraph (2) of this subsection, or if the time period for filing a complaint has expired, the Department shall immediately cease its investigation and dismiss the charge of civil rights violation. Any final order entered by the Chief Legal Counsel under this Section is appealable in accordance with paragraph (A)(1) of Section 8-111. Failure to immediately cease an investigation and dismiss the charge of civil rights violation as provided in this paragraph (3) constitutes grounds for entry of an order by the circuit court permanently enjoining the investigation. The Department may also be liable for any costs and other damages incurred by the respondent as a result of the action of the Department.

(4) The Department shall stay any administrative proceedings under this Section after the filing of a civil action by or on behalf of the aggrieved party under any federal or State law seeking relief with respect to the alleged civil rights violation.

(H) This amendatory Act of 1995 applies to causes of action filed on or after January 1, 1996.

(I) This amendatory Act of 1996 applies to causes of action filed on or after January 1, 1996.

(Source: P.A. 89-370, eff. 8-18-95; 89-520, eff. 7-18-96.)

(775 ILCS 5/7B-102) (from Ch. 68, par. 7B-102)

Sec. 7B-102. Procedures.

(A) Charge.

(1) Within one year after the date that a civil rights violation allegedly has been committed or terminated, a charge in writing under oath or affirmation may be filed with the Department by an aggrieved party or issued by the Department itself under the signature of the Director.

(2) The charge shall 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.

(B) Notice and Response to Charge.

(1) The Department shall serve notice upon the aggrieved party acknowledging such charge and advising the aggrieved party of the time limits and choice of forums provided under this Act. The Department shall, within 10 days of the date on which the charge was filed or the identification of an additional respondent under paragraph (2) of this subsection, serve on the respondent a copy of the charge along with a notice identifying the alleged civil rights violation and advising the respondent of the procedural rights and obligations of respondents under this Act and shall require the respondent to file a verified response to the allegations contained in the charge within 30 days. The respondent shall serve a copy of its response on the complainant or his representative. All allegations contained in the charge not timely denied by the respondent shall be deemed admitted, unless the respondent states that it is without sufficient information to form a belief with respect to such allegation. The Department may shall issue a notice of default directed to any respondent who fails to file a verified response to a charge within 30 days of the date on which the charge was filed, unless the respondent can demonstrate good cause as to why such notice should not issue. The term "good cause" shall be defined by rule promulgated by the Department. Within 10 days of the date he receives the respondent's response, the complainant may file his reply to said response. If he chooses to file a reply, the complainant shall serve a copy of said reply on the respondent or his representative. A party shall have the right to supplement his response or reply at any time that the investigation of the charge is pending.

(2) A person who is not named as a respondent in a charge, but who is identified as a respondent in the course of investigation, may be joined as an additional or substitute respondent upon written notice, under subsection (B), to such person, from the Department. Such notice, in addition to meeting the requirements of subsections (A) and (B), shall explain the basis for the Department's belief that a person to whom the notice is addressed is properly joined as a respondent.

(C) Investigation.

(1) The Department shall conduct a full investigation of the allegations set forth in the charge and complete such investigation within 100 days after the filing of the charge, unless it is impracticable to do so.

(2) If the Department is unable to complete the investigation within 100 days after the charge is filed, the Department shall notify the complainant and respondent in writing of the reasons for not doing so.

(3) The Director or his or her designated representative shall have authority to request any member of the Commission to issue subpoenas to compel the attendance of a witness or the production for examination of any books, records or documents whatsoever.

(4) If any witness whose testimony is required for any investigation resides outside the State, or through illness or any other good cause as determined by the Director is unable to be interviewed by the investigator or appear at a fact finding conference, his or her testimony or deposition may be taken, within or without the State, in the same manner as provided for in the taking of depositions in civil cases in circuit courts.

(5) Upon reasonable notice to the complainant and the respondent, the Department shall conduct a fact finding conference, unless prior to 100 days from the date on which the charge was filed, the Director has determined whether there is substantial evidence that the alleged civil rights violation has been committed. A party's failure to attend the conference without good cause may result in dismissal or default. A notice of dismissal or default shall be issued by the Director and shall notify the relevant party that a request for review may be filed in writing with the Chief Legal Counsel of the Department within 30 days of receipt of notice of dismissal or default.

(D) Report.

(1) Each investigated charge shall be the subject of a report to the Director. The report shall be a confidential document subject to review by the Director, authorized Department employees, the parties, and, where indicated by this Act, members of the Commission or their designated hearing officers.

The report shall contain:

(a) the names and dates of contacts with witnesses;

(b) a summary and the date of correspondence and other contacts with the aggrieved party and the respondent;

(c) a summary description of other pertinent records;

(d) a summary of witness statements; and

(e) answers to questionnaires.

A final report under this paragraph may be amended if additional evidence is later discovered.

(2) Upon review of the report and within 100 days of the filing of the charge, unless it is impracticable to do so, the Director shall determine whether there is substantial evidence that the alleged civil rights violation has been committed or is about to be committed. If the Director is unable to make the determination within 100 days after the filing of the charge, the Director shall notify the complainant and respondent in writing of the reasons for not doing so.

(a) If the Director determines that there is no substantial evidence, the charge shall be dismissed and the aggrieved party notified that he or she may seek review of the dismissal order before the Commission. The aggrieved party shall have 30 days from receipt of notice to file a request for review by the Chief Legal Counsel of the Department. The Director shall make public disclosure of each such dismissal.

(b) If the Director determines that there is substantial evidence, he or she shall immediately issue a complaint on behalf of the aggrieved party pursuant to subsection (F).

(E) Conciliation.

(1) During the period beginning with the filing of charge and ending with the filing of a complaint or a dismissal by the Department, the Department shall, to the extent feasible, engage in conciliation with respect to such charge.

When the Department determines that a formal conciliation conference is feasible, the aggrieved party and respondent shall be notified of the time and place of the conference by registered or certified mail at least 7 days prior thereto and either or both parties shall appear at the conference in person or by attorney.

(2) The place fixed for the conference shall be within 35 miles of the place where the civil rights violation is alleged to have been committed.

(3) Nothing occurring at the conference shall be made public or used as evidence in a subsequent proceeding for the purpose of proving a violation under this Act unless the complainant and respondent agree in writing that such disclosure be made.

(4) A conciliation agreement arising out of such conciliation shall be an agreement between the respondent and the complainant, and shall be subject to approval by the Department and Commission.

(5) A conciliation agreement may provide for binding arbitration of the dispute arising from the charge. Any such arbitration that results from a conciliation agreement may award appropriate relief, including monetary relief.

(6) Each conciliation agreement shall be made public unless the complainant and respondent otherwise agree and the Department determines that disclosure is not required to further the purpose of this Act.

(F) Complaint.

(1) When there is a failure to settle or adjust any charge through a conciliation conference and the charge is not dismissed, the Department shall prepare a written complaint, under oath or affirmation, stating the nature of the civil rights violation and the relief sought on behalf of the aggrieved party. Such complaint shall be based on the final investigation report and need not be limited to the facts or grounds alleged in the charge filed under subsection (A).

(2) The complaint shall be filed with the Commission.

(3) The Department may not issue a complaint under this Section regarding an alleged civil rights violation after the beginning of the trial of a civil action commenced by the aggrieved party under any State or federal law, seeking relief with respect to that alleged civil rights violation.

(G) Time Limit.

(1) When a charge of a civil rights violation has been properly filed, the Department, within 100 days thereof, unless it is impracticable to do so, shall either issue and file a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served upon both the aggrieved party and the respondent.

(2) The Director shall make available to the aggrieved party and the respondent, at any time, upon request following completion of the Department's investigation, information derived from an investigation and any final investigative report relating to that investigation.

(H) This amendatory Act of 1995 applies to causes of action filed on or after January 1, 1996.

(Source: P.A. 89-370, eff. 8-18-95.)

Section 99. Effective date. This Act takes effect upon becoming law.