Sen. Dale A. Righter

Filed: 4/15/2016

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 2506

2    AMENDMENT NO. ______. Amend Senate Bill 2506, AS AMENDED,
3by replacing everything after the enacting clause with the
4following:
 
5    "Section 5. The Illinois Human Rights Act is amended by
6changing Sections 7-109.1, 7A-102, and 8-103 as follows:
 
7    (775 ILCS 5/7-109.1)  (from Ch. 68, par. 7-109.1)
8    Sec. 7-109.1. Administrative closure of charges Federal or
9State Court Proceedings.
10    (a) For charges filed under Article 7A, if the charging
11party has initiated litigation for the purpose of seeking final
12relief in a State or federal court or before an administrative
13law judge or hearing officer in an administrative proceeding
14before a local government administrative agency, and if a final
15decision on the merits in that litigation or administrative
16hearing would preclude the charging party from bringing another

 

 

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1action based on the pending charge, the Department shall cease
2its investigation and dismiss the pending charge by order of
3the Director, who shall provide the complainant notice of his
4or her right to commence a civil action in the appropriate
5circuit court or other appropriate court of competent
6jurisdiction. The Director shall also provide the complainant
7notice of his or her right to seek review of the dismissal
8order before the Commission. Any review by the Commission of
9the dismissal shall be limited to the question of whether the
10charge was properly dismissed pursuant to this Section. Nothing
11in this Section shall preclude the Department from continuing
12to investigate an allegation in a charge that is unique to this
13Act or otherwise could not have been included in the litigation
14or administrative proceeding.
15    (b) For charges filed under Article 7B, the The Department
16may administratively close a charge pending before the
17Department if the issues that which are the basis of the charge
18are being litigated in a State or federal court proceeding.
19(Source: P.A. 86-1343.)
 
20    (775 ILCS 5/7A-102)  (from Ch. 68, par. 7A-102)
21    Sec. 7A-102. Procedures.
22    (A) Charge.
23        (1) Within 180 days after the date that a civil rights
24    violation allegedly has been committed, a charge in writing
25    under oath or affirmation may be filed with the Department

 

 

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1    by an aggrieved party or issued by the Department itself
2    under the signature of the Director.
3        (2) The charge shall be in such detail as to
4    substantially apprise any party properly concerned as to
5    the time, place, and facts surrounding the alleged civil
6    rights violation.
7        (3) Charges deemed filed with the Department pursuant
8    to subsection (A-1) of this Section shall be deemed to be
9    in compliance with this subsection.
10    (A-1) Equal Employment Opportunity Commission Charges.
11        (1) If a charge is filed with the Equal Employment
12    Opportunity Commission (EEOC) within 180 days after the
13    date of the alleged civil rights violation, the charge
14    shall be deemed filed with the Department on the date filed
15    with the EEOC. If the EEOC is the governmental agency
16    designated to investigate the charge first, the Department
17    shall take no action until the EEOC makes a determination
18    on the charge and after the complainant notifies the
19    Department of the EEOC's determination. In such cases,
20    after receiving notice from the EEOC that a charge was
21    filed, the Department shall notify the parties that (i) a
22    charge has been received by the EEOC and has been sent to
23    the Department for dual filing purposes; (ii) the EEOC is
24    the governmental agency responsible for investigating the
25    charge and that the investigation shall be conducted
26    pursuant to the rules and procedures adopted by the EEOC;

 

 

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1    (iii) it will take no action on the charge until the EEOC
2    issues its determination; (iv) the complainant must submit
3    a copy of the EEOC's determination within 30 days after
4    service of the determination by the EEOC on complainant;
5    and (v) that the time period to investigate the charge
6    contained in subsection (G) of this Section is tolled from
7    the date on which the charge is filed with the EEOC until
8    the EEOC issues its determination.
9        (2) If the EEOC finds reasonable cause to believe that
10    there has been a violation of federal law and if the
11    Department is timely notified of the EEOC's findings by
12    complainant, the Department shall notify complainant that
13    the Department has adopted the EEOC's determination of
14    reasonable cause and that complainant has the right, within
15    90 days after receipt of the Department's notice, to either
16    file his or her own complaint with the Illinois Human
17    Rights Commission or commence a civil action in the
18    appropriate circuit court or other appropriate court of
19    competent jurisdiction. The Department's notice to
20    complainant that the Department has adopted the EEOC's
21    determination of reasonable cause shall constitute the
22    Department's Report for purposes of subparagraph (D) of
23    this Section.
24        (3) For those charges alleging violations within the
25    jurisdiction of both the EEOC and the Department and for
26    which the EEOC either (i) does not issue a determination,

 

 

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1    but does issue the complainant a notice of a right to sue,
2    including when the right to sue is issued at the request of
3    the complainant, or (ii) determines that it is unable to
4    establish that illegal discrimination has occurred and
5    issues the complainant a right to sue notice, and if the
6    Department is timely notified of the EEOC's determination
7    by complainant, the Department shall notify the parties
8    that the Department will adopt the EEOC's determination as
9    a dismissal for lack of substantial evidence unless the
10    complainant requests in writing within 35 days after
11    receipt of the Department's notice that the Department
12    review the EEOC's determination.
13            (a) If the complainant does not file a written
14        request with the Department to review the EEOC's
15        determination within 35 days after receipt of the
16        Department's notice, the Department shall notify
17        complainant that the decision of the EEOC has been
18        adopted by the Department as a dismissal for lack of
19        substantial evidence and that the complainant has the
20        right, within 90 days after receipt of the Department's
21        notice, to commence a civil action in the appropriate
22        circuit court or other appropriate court of competent
23        jurisdiction. The Department's notice to complainant
24        that the Department has adopted the EEOC's
25        determination shall constitute the Department's report
26        for purposes of subparagraph (D) of this Section.

 

 

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

 

 

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1    because, under federal law, the EEOC lacks jurisdiction
2    over the charge, and if, under this Act, the Department has
3    jurisdiction over the charge of discrimination, the
4    Department shall investigate the charge or portion of the
5    charge dismissed by the EEOC for lack of jurisdiction
6    pursuant to subsections (A), (A-1), (B), (B-1), (C), (D),
7    (E), (F), (G), (H), (I), (J), and (K) of Section 7A-102 of
8    this Act.
9        (5) The time limit set out in subsection (G) of this
10    Section is tolled from the date on which the charge is
11    filed with the EEOC to the date on which the EEOC issues
12    its determination.
13    (B) Notice and Response to Charge. The Department shall,
14within 10 days of the date on which the charge was filed, serve
15a copy of the charge on the respondent. This period shall not
16be construed to be jurisdictional. The charging party and the
17respondent may each file a position statement and other
18materials with the Department regarding the charge of alleged
19discrimination within 60 days of receipt of the notice of the
20charge. The position statements and other materials filed shall
21remain confidential unless otherwise agreed to by the party
22providing the information and shall not be served on or made
23available to the other party during pendency of a charge with
24the Department. The Department shall require the respondent to
25file a verified response to the allegations contained in the
26charge within 60 days of receipt of the notice of the charge.

 

 

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1The respondent shall serve a copy of its response on the
2complainant or his representative. All allegations contained
3in the charge not timely denied by the respondent shall be
4deemed admitted, unless the respondent states that it is
5without sufficient information to form a belief with respect to
6such allegation. The Department may issue a notice of default
7directed to any respondent who fails to file a verified
8response to a charge within 60 days of receipt of the notice of
9the charge, unless the respondent can demonstrate good cause as
10to why such notice should not issue. The term "good cause"
11shall be defined by rule promulgated by the Department. Within
1230 days of receipt of the respondent's response, the
13complainant may file a reply to said response and shall serve a
14copy of said reply on the respondent or his representative. A
15party shall have the right to supplement his response or reply
16at any time that the investigation of the charge is pending.
17The Department shall, within 10 days of the date on which the
18charge was filed, and again no later than 335 days thereafter,
19send by certified or registered mail written notice to the
20complainant and to the respondent informing the complainant of
21the complainant's right to either file a complaint with the
22Human Rights Commission or commence a civil action in the
23appropriate circuit court under subparagraph (2) of paragraph
24(G), including in such notice the dates within which the
25complainant may exercise this right. In the notice the
26Department shall notify the complainant that the charge of

 

 

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1civil rights violation will be dismissed with prejudice and
2with no right to further proceed if a written complaint is not
3timely filed with the Commission or with the appropriate
4circuit court by the complainant pursuant to subparagraph (2)
5of paragraph (G) or by the Department pursuant to subparagraph
6(1) of paragraph (G).
7    (B-1) Mediation. The complainant and respondent may agree
8to voluntarily submit the charge to mediation without waiving
9any rights that are otherwise available to either party
10pursuant to this Act and without incurring any obligation to
11accept the result of the mediation process. Nothing occurring
12in mediation shall be disclosed by the Department or admissible
13in evidence in any subsequent proceeding unless the complainant
14and the respondent agree in writing that such disclosure be
15made.
16    (C) Investigation.
17        (1) After the respondent has been notified, the
18    Department shall conduct a full investigation of the
19    allegations set forth in the charge.
20        (2) The Director or his or her designated
21    representatives shall have authority to request any member
22    of the Commission to issue subpoenas to compel the
23    attendance of a witness or the production for examination
24    of any books, records or documents whatsoever.
25        (3) If any witness whose testimony is required for any
26    investigation resides outside the State, or through

 

 

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1    illness or any other good cause as determined by the
2    Director is unable to be interviewed by the investigator or
3    appear at a fact finding conference, his or her testimony
4    or deposition may be taken, within or without the State, in
5    the same manner as is provided for in the taking of
6    depositions in civil cases in circuit courts.
7        (4) Upon reasonable notice to the complainant and the
8    respondent, the Department shall conduct a fact finding
9    conference, unless prior to 365 days after the date on
10    which the charge was filed the Director has determined
11    whether there is substantial evidence that the alleged
12    civil rights violation has been committed, the charge has
13    been dismissed for lack of jurisdiction, or the parties
14    voluntarily and in writing agree to waive the fact finding
15    conference. Any party's failure to attend the conference
16    without good cause shall result in dismissal or default.
17    The term "good cause" shall be defined by rule promulgated
18    by the Department. A notice of dismissal or default shall
19    be issued by the Director. The notice of default issued by
20    the Director shall notify the respondent that a request for
21    review may be filed in writing with the Commission within
22    30 days of receipt of notice of default. The notice of
23    dismissal issued by the Director shall give the complainant
24    notice of his or her right to seek review of the dismissal
25    before the Human Rights Commission or commence a civil
26    action in the appropriate circuit court. If the complainant

 

 

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1    chooses to have the Human Rights Commission review the
2    dismissal order, he or she shall file a request for review
3    with the Commission within 90 days after receipt of the
4    Director's notice. If the complainant chooses to file a
5    request for review with the Commission, he or she may not
6    later commence a civil action in a circuit court. If the
7    complainant chooses to commence a civil action in a circuit
8    court, he or she must do so within 90 days after receipt of
9    the Director's notice.
10    (D) Report.
11        (1) Each charge shall be the subject of a report to the
12    Director. The report shall be a confidential document
13    subject to review by the Director, authorized Department
14    employees, the parties, and, where indicated by this Act,
15    members of the Commission or their designated hearing
16    officers.
17        (2) Upon review of the report, the Director shall
18    determine whether there is substantial evidence that the
19    alleged civil rights violation has been committed. The
20    determination of substantial evidence is limited to
21    determining the need for further consideration of the
22    charge pursuant to this Act and includes, but is not
23    limited to, findings of fact and conclusions, as well as
24    the reasons for the determinations on all material issues.
25    Substantial evidence is evidence which a reasonable mind
26    accepts as sufficient to support a particular conclusion

 

 

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1    and which consists of more than a mere scintilla but may be
2    somewhat less than a preponderance.
3        (3) If the Director determines that there is no
4    substantial evidence, the charge shall be dismissed by
5    order of the Director and the Director shall give the
6    complainant notice of his or her right to seek review of
7    the dismissal order before the Commission or commence a
8    civil action in the appropriate circuit court. If the
9    complainant chooses to have the Human Rights Commission
10    review the dismissal order, he or she shall file a request
11    for review with the Commission within 90 days after receipt
12    of the Director's notice. If the complainant chooses to
13    file a request for review with the Commission, he or she
14    may not later commence a civil action in a circuit court.
15    If the complainant chooses to commence a civil action in a
16    circuit court, he or she must do so within 90 days after
17    receipt of the Director's notice.
18        (4) If the Director determines that there is
19    substantial evidence, he or she shall notify the
20    complainant and respondent of that determination. The
21    Director shall also notify the parties that the complainant
22    has the right to either commence a civil action in the
23    appropriate circuit court or request that the Department of
24    Human Rights file a complaint with the Human Rights
25    Commission on his or her behalf. Any such complaint shall
26    be filed within 90 days after receipt of the Director's

 

 

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1    notice. If the complainant chooses to have the Department
2    file a complaint with the Human Rights Commission on his or
3    her behalf, the complainant must, within 30 days after
4    receipt of the Director's notice, request in writing that
5    the Department file the complaint. If the complainant
6    timely requests that the Department file the complaint, the
7    Department shall file the complaint on his or her behalf.
8    If the complainant fails to timely request that the
9    Department file the complaint, the complainant may file his
10    or her complaint with the Commission or commence a civil
11    action in the appropriate circuit court. If the complainant
12    files a complaint with the Human Rights Commission, the
13    complainant shall give notice to the Department of the
14    filing of the complaint with the Human Rights Commission.
15    (E) Conciliation.
16         (1) When there is a finding of substantial evidence,
17    the Department may designate a Department employee who is
18    an attorney licensed to practice in Illinois to endeavor to
19    eliminate the effect of the alleged civil rights violation
20    and to prevent its repetition by means of conference and
21    conciliation.
22        (2) When the Department determines that a formal
23    conciliation conference is necessary, the complainant and
24    respondent shall be notified of the time and place of the
25    conference by registered or certified mail at least 10 days
26    prior thereto and either or both parties shall appear at

 

 

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1    the conference in person or by attorney.
2        (3) The place fixed for the conference shall be within
3    35 miles of the place where the civil rights violation is
4    alleged to have been committed.
5        (4) Nothing occurring at the conference shall be
6    disclosed by the Department unless the complainant and
7    respondent agree in writing that such disclosure be made.
8        (5) The Department's efforts to conciliate the matter
9    shall not stay or extend the time for filing the complaint
10    with the Commission or the circuit court.
11    (F) Complaint.
12        (1) When the complainant requests that the Department
13    file a complaint with the Commission on his or her behalf,
14    the Department shall prepare a written complaint, under
15    oath or affirmation, stating the nature of the civil rights
16    violation substantially as alleged in the charge
17    previously filed and the relief sought on behalf of the
18    aggrieved party. The Department shall file the complaint
19    with the Commission.
20        (2) If the complainant chooses to commence a civil
21    action in a circuit court, he or she must do so in the
22    circuit court in the county wherein the civil rights
23    violation was allegedly committed. The form of the
24    complaint in any such civil action shall be in accordance
25    with the Illinois Code of Civil Procedure.
26    (G) Time Limit.

 

 

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1        (1) When a charge of a civil rights violation has been
2    properly filed, the Department, within 365 days thereof or
3    within any extension of that period agreed to in writing by
4    all parties, shall issue its report as required by
5    subparagraph (D). Any such report shall be duly served upon
6    both the complainant and the respondent.
7        (2) If the Department has not issued its report within
8    365 days after the charge is filed, or any such longer
9    period agreed to in writing by all the parties, the
10    complainant shall have 90 days to either file his or her
11    own complaint with the Human Rights Commission or commence
12    a civil action in the appropriate circuit court. If the
13    complainant files a complaint with the Commission, the form
14    of the complaint shall be in accordance with the provisions
15    of paragraph (F)(1). If the complainant commences a civil
16    action in a circuit court, the form of the complaint shall
17    be in accordance with the Illinois Code of Civil Procedure.
18    The aggrieved party shall notify the Department that a
19    complaint has been filed and shall serve a copy of the
20    complaint on the Department on the same date that the
21    complaint is filed with the Commission or in circuit court.
22    If the complainant files a complaint with the Commission,
23    he or she may not later commence a civil action in circuit
24    court.
25        (3) If an aggrieved party files a complaint with the
26    Human Rights Commission or commences a civil action in

 

 

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1    circuit court pursuant to paragraph (2) of this subsection,
2    or if the time period for filing a complaint has expired,
3    the Department shall immediately cease its investigation
4    and dismiss the charge of civil rights violation. Any final
5    order entered by the Commission under this Section is
6    appealable in accordance with paragraph (B)(1) of Section
7    8-111. Failure to immediately cease an investigation and
8    dismiss the charge of civil rights violation as provided in
9    this paragraph (3) constitutes grounds for entry of an
10    order by the circuit court permanently enjoining the
11    investigation. The Department may also be liable for any
12    costs and other damages incurred by the respondent as a
13    result of the action of the Department.
14        (4) (Blank) The Department shall stay any
15    administrative proceedings under this Section after the
16    filing of a civil action by or on behalf of the aggrieved
17    party under any federal or State law seeking relief with
18    respect to the alleged civil rights violation.
19    (H) This amendatory Act of 1995 applies to causes of action
20filed on or after January 1, 1996.
21    (I) This amendatory Act of 1996 applies to causes of action
22filed on or after January 1, 1996.
23    (J) The changes made to this Section by Public Act 95-243
24apply to charges filed on or after the effective date of those
25changes.
26    (K) The changes made to this Section by this amendatory Act

 

 

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1of the 96th General Assembly apply to charges filed on or after
2the effective date of those changes.
3(Source: P.A. 96-876, eff. 2-2-10; 97-22, eff. 1-1-12; 97-596,
4eff. 8-26-11; 97-813, eff. 7-13-12.)
 
5    (775 ILCS 5/8-103)  (from Ch. 68, par. 8-103)
6    Sec. 8-103. Request for Review.
7    (A) Jurisdiction. The Commission, through a panel of three
8members, shall have jurisdiction to hear and determine requests
9for review of (1) decisions of the Department to dismiss a
10charge; and (2) notices of default issued by the Department.
11    In each instance, the Department shall be the respondent.
12    (B) Review. When a request for review is properly filed,
13the Commission may consider the Department's report, any
14argument and supplemental evidence timely submitted, and the
15results of any additional investigation conducted by the
16Department in response to the request. However, if the
17Commission is reviewing a dismissal order entered pursuant to
18subsection (a) of Section 7-109.1 of this Act, the Commission's
19review shall be limited to the question whether the charge was
20properly dismissed pursuant to that Section. In its discretion,
21the Commission may designate a hearing officer to conduct a
22hearing into the factual basis of the matter at issue.
23    (C) Default Order. When a respondent fails to file a timely
24request for review of a notice of default, or the default is
25sustained on review, the Commission shall enter a default order

 

 

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1and notify the parties that the complainant has the right to
2either commence a civil action in the appropriate circuit court
3to determine the complainant's damages or request that the
4Commission set a hearing on damages before one of its hearing
5officers. The complainant shall have 90 days after receipt of
6the Commission's default order to either commence a civil
7action in the appropriate circuit court or request that the
8Commission set a hearing on damages.
9    (C-5) Priority. Requests for review of dismissals ordered
10pursuant to subsection (a) of Section 7-109.1 of this Act shall
11have priority over all other requests for review and shall be
12resolved as quickly as possible.
13    (D) Time Period Toll. Proceedings on requests for review
14shall toll the time limitation established in paragraph (G) of
15Section 7A-102 from the date on which the Department's notice
16of dismissal or default is issued to the date on which the
17Commission's order is entered.
18    (E) The changes made to this Section by Public Act 95-243
19apply to charges or complaints filed with the Department or
20Commission on or after the effective date of those changes.
21    (F) The changes made to this Section by this amendatory Act
22of the 96th General Assembly apply to charges or complaints
23filed with the Department or Commission on or after the
24effective date of those changes.
25(Source: P.A. 95-243, eff. 1-1-08; 96-876, eff. 2-2-10.)".