State laws afford additional protection against employer discrimination.

Editor's Note: This is the second of a three-part series discussing the practical and legal considerations of hiring and firing for park district employers. The series will conclude in the September/October issue of IPR.

By Janet E. Goldberg
and Janet Hedrick

The Illinois Human Rights Act (HRA) is the Illinois counterpart to Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA). It applies to public employers, such as park districts, regardless of their size.

Its employment provisions parallel those of the federal statutes, with several additions. The same theories of disparate treatment and disparate impact have been held to apply by the Illinois Human Rights Commission, the State agency charged with the enforcement of the HRA.

Scope of the HRA

In addition to the prohibitions on race, color, national origin, religion, sex, and age discrimination like those found in federal statutes, the HRA prohibits discrimination based on ancestry, marital status, physical or mental handicap, or unfavorable discharge from military service. It also proscribes sexual harassment, and prohibits an employer from inquiring on a job application whether the applicant has ever been arrested. However, the latter prohibition does not make it unlawful to inquire whether an applicant has ever been convicted of a crime.

Two of these additional protected classes (marital status and physical or mental handicap) and the provision on sexual harassment require some elaboration. "Marital status" is defined in the Act as the legal status of being married, single, separated, divorced or widowed. A question which arises under this provision is whether a spouse can be lawfully refused employment pursuant to a "no-relatives" or "anti-nepotism" policy.

The Department of Human Rights has not yet adopted any rules addressing this issue, but a panel of the Human Rights Commission found a violation of this provision in an employer's anti-nepotism rule. The case involved a female employee who was fired pursuant to an anti-nepotism policy after she married her supervisor.

The commission rejected the company's argument that the woman was fired not because of her "status" as a married woman, but because of the particular person to whom she was married. It reasoned that the HRA was designated to eliminate stereotypes with respect to the way that married people act toward each other. Because the company's policy was based on just such a stereotype, the policy was a violation.

No court in Illinois has yet ruled on this issue, and decisions from other states offer mixed results. Thus, the ultimate validity of most anti-nepotism rules is still in question.

Handicap class

"Handicap" is defined by the HRA as a determinable physical or mental

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characteristic, including one which necessitates the use of a guide, hearing or support dog. It-may result from disease, injury, congenital condition of birth or functional disorder, when the characteristic is unrelated to the person's abilities to perform the duties of a particular job or position. It also includes the history of such a characteristic, as well as the employer's perception of the person as being or having been afflicted with such a characteristic.

The commission has issued interpretive rules which explain this definition. "Determinable" characteristic is interpreted as excluding conditions that are transitory or insubstantial, or that are not significantly debilitating or disfiguring.

A person has a "history" of a handicap if he is restored or recovered from a prior affliction or if his symptoms are in remission. Persons who are "mentally restored," or who have had heart attacks or cancer, are examples of persons who are protected from discrimination based on their medical history.

In Illinois, obesity and drug or alcohol abuse are not considered handicaps unless the person can demonstrate that the condition "arises from or constitutes the equivalent of a disease or functional disorder." Even if the person can establish that, his condition is not protected by the HRA unless it is "unrelated to the person's ability to perform" on the job. A person's alcoholism or drug dependence is presumed to be related to his ability to perform if it is manifested in excessive absence or tardiness, or intoxication at work.

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Employer responsibilities

The HRA requires an employer to make "reasonable accommodation" of the handicap of otherwise qualified applicants or employees, unless he can demonstrate that accommodation would be prohibitively expensive or would unduly disrupt his business. Accommodation may include alteration of the facility or work site, modification of the work schedule, acquisition of equipment, job restructuring, providing readers and other similar actions.

Increased insurance expenses do not excuse an employer from providing accommodation nor does the fear of those expenses provide a legitimate reason to deny employment. Thus, an employer is not allowed to deny employment to someone who has a bad back merely because he expects this condition may eventually result in costly insurance claims.

Employers need not hire or retain any handicapped individual if that person's performance of the job would create a hazard to his own health or safety, or that of other employees. For example, an individual who is severely allergic to grass may have a condition which would create a present danger to his health if he wanted a job as a park district groundskeeper. Of course, whether the condition would create such a danger would depend on the severity of the reaction.

Generally, fear that the person's condition will worsen and create a hazard in the future is not a legitimate reason for denying a job. Thus, the Illinois Human Rights Commission has ruled that an applicant for a position as State Trooper could not be disqualified because of fear that a childhood history of seizures will recur in the future. In that case, the applicant had not had a seizure in the 10 years preceeding his application.

Sexual harassment

The sexual harassment provision in the HRA prohibits, in part, unwelcome sexual advances or any conduct of a sexual nature when submission to such conduct is made explicitly or implicitly a condition of employment, or rejection of such conduct is used as the basis for employment decisions. An employer is liable for sexual harassment by managerial and supervisory personnel, and by any employee if the employer becomes aware of the harassment but fails to take reasonable corrective measures.

He is also forbidden to retaliate against a person who has opposed sexual harassment or any other discriminatory practice. Employers should make clear to supervisors that sexual harassment of other employees will not be tolerated. In addition, the employer should make sure that all employees understand the policy against sexual harassment. Employees should know they can take their complaints in confidence to a management official without fear of reprisal.

Public Labor Relations Act

The Illinois Public Labor Relations Act gives certain public employees, including park district employees, the right to organize unions, bargain collectively through their chosen representative concerning wages and benefits, and engage in other concerted activities for their mutual aid or protection. It provides a procedure for employee election of a bargaining representative, and imposes certain obligations on public employers.

These include the obligation to meet with the union representative at reasonable times, negotiate in good faith over terms and conditions of employment, and provide a grievance resolution procedure. It also provides for enforcement of its provisions by the Illinois Labor Relations Board, which has the power to reinstate employees, award back pay, and issue cease or desist orders.

The Act makes it an unfair labor practice for a public employer to discriminate in order to encourage or discourage membership on, or other support for, any labor organization. Moreover, a public employer cannot discriminate because of the exercise of any rights under the Act, or because an employee has testified or filed a charge or petition under the Act.

Thus, if an employee or applicant can prove that he was fired or rejected solely because of support for a union, or because of other activities protected by the Act, the employer will be liable for back pay and reinstatement.

Next: The Common Law

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