Effective January 1, it becomes the official policy of the State of Illinois to secure for its citizens freedom from discrimination based on sexual orientation in the areas of employment, real estate transactions, access to financial credit, and the availability of public accommodations. Earlier this year, Gov. Blagojevich signed Public Act 93-1078, which amended the Illinois Human Rights Act (IHRA) to include sexual orientation as an unlawful basis of discrimination. Illinois now becomes the 15th state to address sexual orientation discrimination in a comprehensive fashion. The Illinois Department of Human Rights has the responsibility for enforcing these amendments.
When the Illinois General Assembly began consideration of these amendments, supporters and opponents of the legislation engaged in intense lobbying efforts, and most of the attention focused on the employment provisions. Therefore, the IHRA now begins with a statement that nothing in the act shall be construed to require any employer, employment agency, or labor organization to give preferential treatment or special rights based on sexual orientation or to implement affirmative action programs based on a person’s sexual orientation.
The State of Illinois, though, has defined “sexual orientation” in the broadest manner possible. In Illinois, “sexual orientation” means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth. The definition is intentionally comprehensive, protecting heterosexuals, gays, lesbians, transsexuals, bisexuals, and others who experience their human sexuality in ways different from the majority. To address concerns that this broad definition extends protection to pedophiles, the IHRA provides to the contrary: sexual orientation doesn’t include a physical or sexual attraction to a minor by an adult.
For many Illinois employers, particularly those located in larger population centers such as Peoria, Champaign, Bloomington, and Chicago, municipal ordinances have provided limited remedies for individuals who could prove they experienced sexual orientation discrimination in the workplace. Even though these ordinances will remain effective, the IHRA now brings uniformity to this area of employment law and provides an enforcement mechanism that can order reinstatement, back pay, and attorney fees for those who file and prevail on employment claims based on sexual orientation discrimination. Because there’s no comparable legislation at the federal level, the Equal Employment Opportunity Commission will have no jurisdiction over sexual orientation discrimination claims based on the IHRA.
Large employers and human resources professionals have been actively addressing sexual orientation issues for the past decade, starting first by amending their employee handbooks and EEO policy statements to preclude sexual orientation discrimination in the workplace. Although not specifically required by the amendments to the IHRA, Illinois employers who have anti-discrimination statements in handbooks and other documents should make revisions to accurately reflect the change in law. Most credible corporate diversity programs provide training for supervisors and employees regarding sexual orientation—not simply to limit legal liability in the employment arena, but because it’s good business. Again, while not required by the IHRA, employers who include sexual orientation training in their corporate diversity programs not only improve their chances to avoid employment litigation, but also create a work environment in which the talents and contributions of all employees are respected. The amendments to the IHRA don’t require any employer to offer domestic partnership benefits to its gay, lesbian, bisexual, and transgendered employees. Employers who do so voluntarily, however, are more likely to attract and retain employees in a competitive job market.
The amendments to the IHRA also will make it unlawful to deny credit or housing to any individual based on that person’s sexual orientation. With respect to residential rentals, the IHRA does contain a minor exemption for the small landlord: an owner of an owner-occupied residential building with five or fewer units is permitted to consider a person’s sexual orientation when deciding to lease an apartment, but otherwise sexual orientation may not be a lawful consideration when deciding to sell or lease real property, unless one of the other exemptions in Section 5/3-106 of the IHRA applies.
On the issue of credit, financial institutions generally are precluded from considering sexual orientation when determining whether to issue a credit card or provide a loan to an individual. All public accommodations, such as restaurants, bars, health clubs, hotels, transportation facilities, entertainment venues, and retail stores must be available for full and equal enjoyment to all individuals regardless of their sexual orientation.
The inclusion of sexual orientation discrimination in the IHRA didn’t eliminate the jurisdictional exemption for small employers. If an employer doesn’t regularly employ 15 or more people in Illinois during a 20-week period of time, the IHRA generally doesn’t apply. However, if the employer is a public contractor, the number of employees doesn’t matter. The small employer exception isn’t available if the nature of the charge is sexual harassment or handicap discrimination in the workplace. IBI
