Class 7: Statutory Protections – Employment Discrimination (Part 1)
Summary of Core Topics: Class 7 introduces the framework of U.S. employment discrimination law. We focus on Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on race, color, religion, sex, or national origin, as well as the Age Discrimination in Employment Act (ADEA) for age (40+), and the Americans with Disabilities Act (ADA) for disability.
We examine key concepts like protected classes, Bona Fide Occupational Qualifications (BFOQ) (narrow exceptions allowing intentional discrimination in limited circumstances), and the roles of the Equal Employment Opportunity Commission (EEOC) and Illinois Department of Human Rights (IDHR) in enforcing these laws. Importantly, we outline that federal anti-discrimination statutes apply only to covered employers (generally those with 15+ employees under Title VII/ADA, 20+ for ADEA), whereas Illinois law provides broader coverage (the Illinois Human Rights Act covers almost all employers). Students also discuss how Title VII’s prohibition on sex discrimination now encompasses sexual orientation and gender identity after Bostock v. Clayton County (U.S. 2020), and how Illinois had already explicitly protected these categories under state law.
Drafting Assignment: Draft an anti-discrimination policy for your client, a fast food restaurant. Be sure to cover protected classes in Illinois.
Hypothetical 1: Jane, a qualified Black female employee, is passed over for promotion at an Illinois marketing firm (50 employees). The promotion goes to a less experienced white male colleague. Her manager once commented that clients “prefer a certain look” for sales reps. Jane files a complaint alleging race and sex discrimination.
Model Answer: Jane has a prima facie case under Title VII and the IHRA: she is in protected classes (race and sex), was qualified and applied for the promotion, was rejected in favor of someone outside her protected class, and circumstances suggest bias. Under the McDonnell Douglas framework, the employer must articulate a legitimate reason for selecting the other candidate (e.g. claiming he had better sales numbers). Jane can then argue this reason is pretextual by pointing to her superior qualifications and the manager’s remark suggesting a discriminatory motive. The manager’s statement about clients preferring a “certain look” could be direct evidence of bias (stereotyping) towards either her race or sex. Under federal law, if Jane proves intentional discrimination was a motivating factor, she can win injunctive relief, backpay, and possibly compensatory/punitive damages (capped by Title VII). Additionally, because Illinois’ law covers employers of this size, she could dual-file with the Illinois Department of Human Rights; the IHRA offers similar remedies (and no caps on damages).
Hypothetical 2: ACME Corp. (20 employees) does not hire Luke after he mentions in the interview that he is 62 years old and “winding down” his career. The interviewer later tells a colleague, “He’s overqualified and near retirement – not a fit for our young team.” Luke files an age discrimination charge.
Model Answer: Although the ADEA (federal) applies only to employers with 20+ employees (ACME has exactly 20, so it is covered federally), Luke’s claim could proceed under both ADEA and the IHRA. Under the ADEA, Luke (age 62) is in the protected age group (40 and over) and was not hired despite meeting the job requirements, with the job remaining open or filled by a younger individual. The interviewer’s statements indicate age was a factor (“overqualified” and focus on team youth). The comment about “not a fit for our young team” is direct evidence of age bias, which strongly supports his case. Under Illinois law, which also prohibits age discrimination, Luke could file with IDHR as well; notably the IHRA covers even small employers (and since ACME has 20, it’s covered by both). ACME’s best defense would be to show a legitimate, non-age reason (e.g. another candidate had a specific skill Luke lacked), but the explicit age-related remark undermines that.
Real-Life Example in Practice: One high-profile Illinois case involved a major pharmacy chain settling a claim that it denied a pharmacist’s promotion due to her pregnancy. The EEOC sued on her behalf, alleging sex/pregnancy discrimination. Confronted with emails referencing her pregnancy as a “concern” for scheduling, the employer agreed to a settlement including monetary relief and policy changes. This illustrates how pregnancy discrimination, now clearly unlawful under federal law (PDA) and Illinois law, arises in practice. Another example: the Illinois Human Rights Commission in 2022 ordered back pay and damages for a restaurant worker who was harassed with racial slurs by a manager and fired after complaining. These cases show that discrimination can be blatant or subtle – from explicit slurs to more hidden biases – and that both state and federal agencies actively pursue remedies.
Federal vs. Illinois Law: Federal law (Title VII, ADA, ADEA, etc.) sets a floor of protections, but Illinois often goes further. For instance, the Illinois Human Rights Act (IHRA) covers employers with ≥1 employee, meaning victims at small businesses can seek relief under state law even if federal law doesn’t apply. Illinois also recognizes more protected classes: in addition to all federally protected categories, Illinois law explicitly prohibits discrimination based on marital status, sexual orientation, gender identity, ancestry, military status, unfavorable military discharge, arrest record, conviction record, order-of-protection status, citizenship status, language and (effective 2025) reproductive health decision-making and family caregiver responsibilities. These go beyond federal law. Moreover, as of 2025 Illinois provides a 2-year filing period for state discrimination charges (vs. 300 days for EEOC charges in Illinois).
Employer Perspective: From the employer’s side, navigating discrimination laws requires robust preventive measures. Employers should implement equal opportunity policies, train managers on bias (both overt and implicit), and document legitimate reasons for employment decisions. Because retaliation is the number one charge filed with the EEOC, employers must be cautious not to punish employees who raise discrimination complaints – even internal complaints are protected. Illinois employers in particular face a complex landscape: a small business owner might be surprised to learn they’re subject to IHRA nondiscrimination duties even if federal law wouldn’t cover them.
From a risk management viewpoint, carrying Employment Practices Liability Insurance (EPLI) is common to mitigate potential discrimination lawsuit costs. Employers also emphasize internal grievance processes – giving employees channels to report issues and addressing them promptly can resolve problems early and reduce the chance of a legal claim or agency charge. Ultimately, employers who foster a culture of meritocracy and respect, and who stay updated on changing laws (like Illinois’ recent amendments), are in the best position to both comply with the law and defend against claims.
Employee Perspective: From the employee’s perspective, these statutory protections are vital to ensuring fair treatment. An employee who feels discriminated against should know they have multiple avenues for recourse – e.g. filing a charge with the EEOC or IDHR, often within 300 days or now up to 2 years under Illinois law. Employees may fear retaliation for speaking up; however, both federal and state laws explicitly prohibit retaliation against anyone who complains about discrimination or participates in an investigation.
Practical Tips and Takeaways:
- Know Your Deadlines: If you believe you’ve been discriminated against, act promptly. In Illinois you now have up to 2 years to file with IDHR, but it’s often best to file sooner (and you still must file with EEOC within 300 days for a federal Title VII claim). Don’t miss these windows.
- Exhaustion Requirement: Remember that under federal law you must file a charge with EEOC (or IDHR/FEPA which cross-files) and obtain a “Right-to-Sue” letter before heading to court under Title VII, ADA, ADEA. Illinois law also generally requires filing with IDHR first for employment cases. Plan for this administrative step.
- Documentation: Whether you are an employer or employee, keep clear documentation. Employers should document performance issues and legitimate reasons for decisions. Employees should keep records of any discriminatory comments, disparate treatment, or complaints made. These can become critical evidence.
