Sometimes an employee goes outside his or her employer’s internal complaint process and brings a formal charge of discrimination before an investigative body such as the Illinois Department of Human Rights (IDHR) or the Equal Employment Opportunity Commission (EEOC). Before an employee files a lawsuit against his/her employer under federal or state statutes, they must first file a claim with the EEOC or the IDHR. A claim filed with the EEOC is usually cross-filed with the IDHR. The IDHR always cross-files its claims with the EEOC.
The EEOC is not a court and a finding against an employer does not necessarily mean that the employer has to pay damages. However, when the agency finds against an employer, a lawsuit is almost inevitable. Further, this may embolden other employees to file lawsuits as well, turning your case into a costly class or collective action. The EEOC also has the option to initiate its own lawsuit if it finds evidence of a statutory violation.
The IDHR is a state agency and hears complaints based upon violations of the Illinois Human Rights Act, which prohibits discrimination against employees based upon race, color, religion, sex, disability, national origin, marital status, sexual orientation, and military status. If the IDHR determines that there is “substantial evidence” of a violation, then the employee may choose to proceed by requesting that the IDHR file a complaint with the Illinois Human Rights Commission. Further, no matter what the IDHR determines, an employee can also file a claim in state court after it goes through the IDHR’s process
When an employer receives a charge of discrimination from IDHR or the EEOC, typically a choice is given as to whether the employer will immediately seek to defend against the charge or if the employer is willing to enter mediation and seek a resolution with the employee.
Mediation is an alternative to an investigation and when administered by the IDHR or EEOC is an informal process with no administrative costs and the advantage of potentially resolving a discrimination claim quickly. Employers may have an attorney present to advise them during the mediation process. Resolving a claim through mediation does not constitute an admission of discrimination.
Not all claims can be resolved. Sometimes an employee is unwilling to compromise. Other times an employer believes it is necessary to defend a claim for other reasons. If a claim goes to investigation and fact-finding in front of the IDHR or EEOC, there are a series of responsive documents to be prepared, potential witness interviews, and, at times, a fact-finding conference where witnesses answer questions in an informal meeting with an investigator. Employers may utilize attorneys at all stages in the investigation and fact-finding.