Savvy Illinois Employers Will Plan Ahead for Landmark Rulings

Today, the Supreme Court kicks off its new term with several employment cases, including cases on appeal from the Seventh Circuit Court of Appeals right here in Chicago. Illinois employers should keep tabs on these cases and anticipate how the Court’s rulings will add to a bevy of new compliance obligations going into effect in 2019-20, all discussed below.

LGBT Rights Under Federal Law – Will They Catch Up To Illinois Law?

The Justices will consider a trio of cases that ask whether Title VII of the Civil Rights Act’s prohibition “on the basis of sex” discrimination protects gay and transgender people from workplace bias. Circuit Courts are split on the issue. The cases under SCOTUS review are R.G. & G.R. Harris Funeral Homes v. EEOC, Bostock v. Clayton County and Altitude Express Inc. v. Zarda.

Regardless of the Court’s handling of these cases, Illinois employers of all sizes should put in place policies and practices targeted at protecting LGBTQ workers. The Illinois Human Rights Act (IHRA) already prohibits discrimination on the basis of “sexual orientation.” The IHRA defines “sexual orientation” broadly to include actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.”

Come January 1, 2020, the IHRA will apply to all employers with as few as one employee.

Age Discrimination – Can An Employer Refuse To Hire An “Overqualified” Applicant?

The Justices will also consider a petition for certiorari challenging the Seventh Circuit’s ruling in Kleber v. CareFusion Corp that older job applicants cannot raise “disparate impact” claims challenging seemingly age-neutral hiring criteria, that disproportionately screen out older workers under the Federal Age Discrimination in Employment Act (ADEA).

In the Kleber case, the plaintiff, a 59-year old attorney, claimed the company engaged in unlawful age discrimination by disqualifying applicants for an in-house legal role who had more than seven years of experience. Mr. Kleber’s claimed that CareFusion’s experience cap was unlawful because it disproportionately disqualified older applicants, even though the experience qualifications appeared age-neutral on their face. The Seventh Circuit bounced Mr. Kleber’s claim on the grounds that the wording of the ADEA empowers only employees, and not applicants, to bring the type of “disparate impact” claim Mr. Kleber had raised.

If the Court decides to hear the case, employers in Illinois and other states under the Seventh Circuit’s jurisdiction may have to reconsider whether they can exclude applicants based on having “too much” experience or give preference to applicants with skills that younger people may be more likely to have (e.g. technology skills) but aren’t absolutely necessary to perform the job.

What Should Illinois Employers Do Now?

Whatever SCOTUS decides on the above cases, Illinois employers already face a lengthy list of compliance actions to ready their organizations for new laws taking effect in 2019-20. Employers shouldn’t wait on SCOTUS to start addressing these new laws, including:

1. Amendments to the Illinois Equal Pay Act (effective September 2019), which ban pay history inquiries and prohibits employers from requiring workers to sign contracts that prevent them discussing their pay with coworkers and others, with some exceptions. Details can be found here.

2. Amendments to the Illinois Right to Privacy in the Workplace Act (effective January 1, 2020), which change discrimination and drug testing laws to account for the decriminalization of recreational marijuana use. Details can be found here.

3. Amendments to the Illinois Human Rights Act (effective January 1, 2020) that expand anti-discrimination protections to virtually every employer with as few as one worker, requires employers to provide annual sexual harassment prevention training, and requires employers to disclose annually to the State adverse rulings and certain settlements from the prior year. Details can be found here.

4. Chicago’s “Fair Workweek Ordinance” (effective July 1, 2020), a predictive scheduling ordinance which requires employers to give employees their schedules in advance and sets employee pay at a higher rate when changes are made to work schedules. More details are available here.

5. The Workplace Transparency Act (effective January 1, 2020), which places restrictions on employee confidentiality agreements, and prohibits employers from requiring employees to waive, arbitrate or diminish an existing or future claim related to unlawful employment. Details can be found here.

6. New Federal Overtime Rules (effective January 1, 2020) which increase the salary level for white collar exemptions, among other changes. Details can be found here.

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Gary Savine is an Illinois employment lawyer and founder of Savine Employment Law, Ltd. in Chicago. Gary regularly advises human resources professionals on recently enacted employment laws.

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