16/10/2021

Recent And Proposed Changes To Illinois Human Rights Act: Disability, Work Authorization Discrimination, And What May Be On The Horizon – Employment and HR


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Recent And Proposed Changes To Illinois Human Rights Act: Disability, Work Authorization Discrimination, And What May Be On The Horizon


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Work Authorization Status

On August 2, 2021, Governor J.B. Pritzker signed into law Public
Act 102-0233, which adds work authorization status
to the list of protected classifications in Illinois. Effective
immediately, the Illinois Human Rights Act (IHRA) now makes it a
civil rights violation for an employer to discriminate in any
employment action (i.e. hiring, discipline, promotion, termination,
etc.) based on an employee’s Work Authorization Status.
“Work Authorization Status” means the status of being a
person born outside of the United States, and not a U.S. citizen,
who is authorized by the federal government to work in the United
States.

“Association” Disability Discrimination

The Illinois Legislature has passed an amendment to the Illinois
Human Rights Act (HB 1838), and on June 25, 2021, presented it
to Governor Pritzker for his signature. The new law adds to the
definition of disability discrimination, now including
“unlawful discrimination against an individual because of the
individual’s association with a person with a disability.”
This definition brings Illinois’ law in line with the federal
Americans with Disabilities Act (ADA). The difference, however, is
that the ADA applies to employers with 15 or more employees and the
IHRA defines employers as having one or more employees. Governor
Pritzker has not yet signed the law but is not expected to veto it.
Assuming no veto, the law will go into effect no later than August
24, 2021.

Protective Hairstyles/CROWN Act

In 2020, Illinois legislators introduced a version of a CROWN
Act (Create a Respectful and Open Workplace for Natural Hair Act)
to prevent discrimination based on hairstyle or texture (SB 3477).
The bill died in the Rules Committee. In February 2021, HB 3499 was introduced and is now working its
way through the Illinois Legislature, albeit slowly. The bill would
amend the definition of “Race” in the Illinois Human
Rights Act to include “traits associated with race, including
hair texture and protective hairstyles such as braids, locks, and
twists.” If passed, Illinois would join 13 other states that
have already enacted similar laws. We will continue to follow this
as it proceeds through the Legislature.

Pregnancy and Other Medical Leaves

On March 17, 2021, the Illinois House introduced HB 4053, which would amend the IHRA to require
Illinois employers to provide four months of leave to an employee
“disabled by pregnancy, childbirth, or a related medical
condition.” Employers would also need to “maintain and
pay for” insurance coverage during the leave “at the
level and under the conditions” that coverage would have been
provided if the employee had continued in employment for the
duration of the leave. Employers would then need to return
employees to work in the same manner as they would under the
federal Family and Medical Leave Act (FMLA). The proposed
legislation does not define “disabled by” pregnancy,
childbirth, or a related medical condition. In 2015, the IHRA began
requiring employers to provide reasonable accommodations to women
for medical and common conditions related to pregnancy or
childbirth. One of the reasonable accommodations included leave
necessitated by the pregnancy, and there was no limit to the length
of the leave (unlike under the FMLA, which is limited to 12 weeks).
The current version of the proposed bill does not clarify whether
there is intended to be any difference between “disabled
by” pregnancy, childbirth, or a related medical condition and
“medical and common conditions related to pregnancy or
childbirth.”

HB 4053 would also require employers to grant a request by any
employee with more than 12 months of service with the employer and
who worked at least 1250 hours during the previous 12-month period
to take up to 12 weeks in any 12-month period for “family care
and medical leave,” and guarantee employment in the same or
comparable position upon termination of the leave. “Family
care and medical leave” is defined as 1) leave for reason of
the birth of a child or adoption/foster care; 2) leave to care for
a child, parent, grandparent, grandchild, sibling, spouse, or
domestic partner who has a serious health condition; 3) leave
because of the employee’s own serious health condition; 4)
leave because of a qualifying exigency related to the covered
active duty or call to covered active duty of an employee’s
spouse, domestic partner, child, or parent in the military. Thus,
the definition of “family care and medical leave” is
broader than under the FMLA in terms of who qualifies as
“family,” which is only “spouse, child, or
parent” with a serious health condition under FMLA.

This proposed law could also pose a significant burden on
employers, particularly smaller employers. While the FMLA applies
to employers with 50 or more employees, the IHRA applies to
employers with one or more employees. Thus, very small employers
would potentially have to go three to four months without key
employees, and then still return employees to their prior jobs
under this proposed legislation.

Employment Notices in Primary Language

On February 19, 2021, Illinois legislators began consideration
of an amendment to the Illinois Human Rights Act in HB 3284, which would require employers to take
all “reasonable efforts” to ensure that the notices to
employees summarizing the requirements of the IHRA (such as the
right to be free from unlawful discrimination and sexual harassment
and the right to certain reasonable accommodations), and
information pertaining to the filing of a Charge of Discrimination,
be made available to employees in their primary language if English
is not the primary language. The proposed law would also allow the
Illinois Department of Human Rights to make the notices available
in different languages and charge a “reasonable” fee for
the notices. This bill is currently pending.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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