Illinois passes Right to Sue Law, Equal Pay Act and Sexual Orientation Discrimination

Legislative Work

Maduff & Maduff, and Aaron Maduff in particular have been involved in a great deal of legislative work, both in Illinois and on a National Level. Aaron Maduff first became the legislative liaison for the Illinois Chapter of the National Employment Lawyers Association (NELA/Illinois) in 2002. At that time he became very active in working with then Senators Carol Ronen and Barack Obama, and Representative Barbara Flynn Currie in work on the Illinois Equal Pay Act of 2003. Two other major legislative projects were also in the works at much earlier stages: the effort to add sexual orientation as a protected classification under the Illinois Human Rights Act; and the ground breaking effort to provide a right to sue in state court on claims under the Illinois Human Rights Act, a right enjoyed by citizens of 38 other states at that time. (Maryland passed a similar law in 2007.)

In addition to the Illinois state projects, Aaron has also been active working with the Legislative and Public Policy Committee of the National Employment Lawyers’ Association as well as its Americans with Disabilities Task Force. He participated heavily in work that resulted in passage of one third of the Civil Rights Tax Relief Act (CRTRA) and continues to work on other projects.

While the substantive laws are discussed on other pages, what follows is the a bit of the story behind the various pieces of legislation that were passed. Note that the passage of any law requires the collective work of numerous organizations and people and the roles played by Aaron Maduff, other NELA/Illinois attorneys and the organization itself, while important were only a small part of a larger coordinated effort.

THE ILLINOIS EQUAL PAY ACT

The Federal Equal Pay Act went into effect in *** barring employers from paying employees of one gender a different wage than employees of the other for the same kind of work. Illinois had been working on passage of similar legislation for some time. In late 2002, Aaron was reviewing drafts of the proposed Equal Pay Act and was concerned that the anti-retaliation provisions lacked teeth. In the early drafts, a company who terminated an employee for complaining of unequal pay in violation of the Act would be subject to a criminal misdemeanor charge. But one could hardly expect that the State’s Attorney’s Office would be spending resources seeking misdemeanor charges against corporations, and the damages that could result from such retaliatory acts to individuals would be significant.

Aaron was permitted at that time to redraft this section to provide a civil right of action by the injured employee, similar to the rights of action provided in similar circumstances under other anti-discrimination laws. An individual terminated in retaliation for complaining of a violation of the Illinois Equal Pay Act after those revisions could recover back pay, front pay, and the differences in benefits. This last was something Aaron himself suggested which was not specifically provided for in other anti-retaliation law, but with the rising costs of health insurance and the fact that pre-existing conditions could make it cost prohibitive or altogether unavailable, seemed like a critical issue.

Aaron testified before Illinois Senate responding to concerns about how the law would be applied in the court system. As is always the case in the legislative process, compromises were made. The most significant compromise was to address the concern that different costs of living in different parts of the state could result in appropriately different costs of labor. Thus, if a company had an office Downtown Chicago, it might have to pay higher wages to certain staff than in its Rockford or Kankakee offices for example. As a result a caveat was added to the law which permits a difference in wage across county lines.

Aaron was among a group of approximately 40 people who had the honor of witnessing the Governor sign the bill into law. A televised ceremony that included speeches by Senators Ronen and Obama as well as the Governor himself followed the signing.

SEXUAL ORIENTATION

While Illinois has been behind the Federal Government in many ways in the area of anti-discrimination law, sexual orientation is an exception. The Employment Non-Discrimination Act (ENDA) which would prohibit discrimination on the basis of sexual orientation was first introduced by Congressman Barney Frank of Massachusetts in April 2007. Aaron was in Washington at the time, present for a press conference held in the Capitol Building.

But the Illinois version of the law went into effect on January 1, 2006, more than a year earlier. (Remember that a bill is generally introduced numerous times before it is ever passed.) Senate Bill 101 (S101) in 2005 ran into a good deal of controversy before it was passed. At that time, Aaron not only lobbied on behalf of NELA/Illinois for the bill as well as testifying before the Illinois Senate, but also had to address concerns that the U.S. Supreme Court had recently ruled in the Boy Scouts of America case that it would be a violation of free exercise of religion to require employers like the Boy Scouts to employ homosexuals in positions where they might be role models (such as a scout master) when the concept of homosexuality was contrary to the teachings of the organization. Aaron continued to note that under the Supremacy Clause of the United States Constitution, the State of Illinois could not pass a law that would violate a ruling of the U.S. Supreme Court and that the law was not intended to shape religious views and no court would permit the abrogation of the free exercise clause of the U.S. Constitution.

The other point of significant importance was that the law would protect heterosexuals from discrimination as well. And in fact, as Aaron predicted, there have since been claims under that law by heterosexual individuals who have been harassed or subjected to other discrimination where the boss or the company was gay or insisted on hiring gay employees.

THE RIGHT TO SUE

By far, the most aggressive and important piece of legislation in Illinois Anti-discrimination law since the passage of the Human Rights Act itself was the right to sue in court. How could it be that states like Missouri and Texas permitted discrimination cases to go to court while Illinois, the Land of Lincoln did not?

Prior to January 1, 2008, a charge had to be filed with the Illinois Department of Human Rights, subjected to an investigation entirely controlled by that agency, and then was either dismissed for lack of substantial evidence or, in the rare case that a substantial evidence finding was made, sent to the Human Rights Commission for an adversarial process. This system was similar to the Federal system under Title VII wherein a charge must first be filed with the Equal Employment Opportunity Commission, but in the Federal system, the Complainant always has an opportunity to take his or her case to court. In Illinois, substantial evidence findings were extremely rare and pursuing a case at the Human Rights Commission meant less opportunity for discovery, no right to a jury trial, the inability of the Commission to directly enforce its judgments (one still had to go to court for that after obtaining a judgment if the defendant failed to pay it), and a fairly lengthy process that in some cases exceeded 10 years.

While changes in the administration of the Department of Human Rights and the Human Rights Commission resulted in significant improvements in efficiency, the lack of procedural rights remained. Bills had been introduced into the Illinois General Assembly to address this issue for many years without success. In 2003, S 1492 began to gain momentum. It was introduced and passed the Senate by a vote of 55 to 1. Unfortunately, it never made it to the floor of the House. At that time, Aaron was working with NELA/Illinois and the University of Chicago as well as with the Senators and Representatives themselves to gain broader support.

In 2005, HB 4051 met with much greater success. Again Aaron testified on the bill, this time before the House. Major concerns were how the bill would impact the Department of Human Rights and the Commission itself: Would the Commission become a “poor man’s forum”? Would there be two sets of legal precedent? And what would happen to the Department’s role of weeding out frivolous claims? Nonetheless, HB 4051 passed the House by a vote of 114-3, at that time gaining the support of a majority of Illinois legislators.

Unfortunately, concerns of the Commission and Department were not satisfied and numerous meetings called by Congresspeople, Senators, and even the Governor’s office, did not lead to resolution. In one such meeting, Aaron commented that in spite of all other concerns, the current situation was putting the Department in an untenable position with regard to questions of Constitutional Due Process in any event such that some form of change was inevitable. (In fact, the United States District Court entered an injunction against the Department from making credibility determinations in its investigations, but doing so was so central to the Department’s procedures that complying was difficult.) Still, HB 4051 never made it to the Senate floor.

In 2007, HB 1509 again required meetings with the Department and Commission. This time, however, former White House Counsel and D.C. Circuit Appeals Judge Abner Mikva who had taken on the job of chairing the Human Rights Commission, made resolving these issues a top priority. Further compromises were made and an agreement was reached. Having passed the House, new opposition to the bill was presented by the State courts concerned that they would be overloaded with cases. The bill appeared to be headed for another failure in a 5-4 Democratic held Committee with two Democratic Senators prepared to vote it down and again prevent it from getting to the Senate floor. Three days before the vote, Aaron sought the assistance of Rev. Jesse Jackson and Operation PUSH who endorsed the bill, making the difference for at least one Senator. (Click here to see Jesse Jackson’s Press Release).

Meanwhile, efforts by other several organizations resulted in a highly unusual split vote from the other Democratic Senator. He approved sending the bill the Senate floor, but voted to give it a negative recommendation. Because committees rarely bother to send bills to the floor if they vote a negative recommendation, HB 1509 became one of the few in history that did so. Nonetheless, the Senate passed the bill by a vote of 23-17. It was signed into law by Governor Blagojavich on August 23, 2007, and Illinois became the 40th state to permit discrimination cases to go to state court (Maryland beat Illinois to the punch passing its law several weeks earlier.)

THE CIVIL RIGHTS TAX RELIEF ACT

The National Employment Lawyers Association along with other organizations had been working diligently for a number of years to pass to the Civil Rights Tax Relief Act (CRTRA) in the United States Congress. This law had three goals: 1) eliminate the alternative minimum tax on attorney’s fees so that prevailing plaintiffs could always deduct the costs of winning their cases (i.e. their attorney’s fees) just like any business can deduct the costs of doing business; 2) permit income averaging so that employees who finally win their discrimination cases and get paid five years of income all in one year do not suddenly find themselves in a tax bracket that results in their paying much more in taxes than if they had not suffered the discrimination and simply been paid their regular wages each year; and 3) make emotional distress damages non-taxable the same as damages for physical injuries as neither one represents wages that would otherwise have been taxed. In the process, of fighting for the CRTRA, NELA opened its own legislative office in Washington, D.C., in addition to its primary office in San Francisco.

Aaron Maduff was one of numerous employment lawyers from across the country who made several trips to Washington, D.C. to meet with Congressmen and Senators alike and their staffs to review the impact of these changes to the tax law. In 2005, part one of the CRTRA was signed into law as part of a more comprehensive tax initiative. In so doing, two U.S. Supreme Court cases finding that attorney’s fees were taxable were nullified. Efforts continue on the other two pieces of the CRTRA as well as on other legislative initiatives and Aaron continues to make further trips to Washington to assist in the effort to pass them.

PENDING INITIATIVES

In addition to working on the remaining two parts of the Civil Rights Tax Relief Act, Aaron has been particularly active in other efforts. He is a member of NELA’s ADA Restoration Task Force and the ADA Restoration Act has continued to gain momentum in Congress. This Bill would address a series of Supreme Court and Appellate Court rulings in recent years which have narrowed the ADA to the point where the rhetorical tongue and cheek question has become “How many people think the ADA should cover people with disabilities.?”

Aaron has also been heavily active in legislative efforts to bar what has become known as Mandatory Arbitration of employment disputes. Many companies have required new and even current employees to sign Mandatory Arbitration Agreements as a condition of employment. Of course at that point in time, these employees have not been victims of discrimination, sexual harassment or other employment violations. But when such violations occur, employees find that they have waived their right to take their complaints to court. Instead, they are required to take them to arbitration companies (private courts) that generally prohibit such things as juries and class actions, that often have far more limited discovery rules than courts (an important point because it is generally the employer that has the majority of the information in such cases), and worst of all, can be extremely expensive requiring these employees to pay thousands of dollars to file their cases when it would cost only a few hundred to file in court. In addition, it is the employer who chooses the arbitration company in drafting the agreement. If private arbitration companies rule in favor of employees it is no problem for the employer to select a different arbitration company. As a result, arbitration companies can have a serious incentive to rule for the employer regardless of the facts of the case. Various other interest groups like automobile dealerships have already been successful in obtaining similar legislation (it is now illegal for automobile manufacturers to require dealerships to agree to mandatory arbitration of disputes as part of their sales contracts.)

Passing legislation is an arduous and tedious process requiring the combined efforts of numerous people and organizations. And while Aaron has been one of many spearheads on many projects, it is important to note that the credit for these legislative successes go to numerous organizations and others not the least of which includes the legislators themselves who have championed these causes.

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