In a previous post, we covered an extensive list of Illinois employment law updates. Due to recent action by the Illinois legislature, you can add one more item to that list. In the final days of the spring legislative session, Illinois lawmakers moved quickly to pass legislation aimed at prohibiting disparate-impact discrimination in employment. The bill, Senate Bill 3777 (“SB 3777”), currently is awaiting Governor J.B. Pritzker’s signature.
Known as the Civil Rights Safeguard Act, SB 3777 is an initiative of the Illinois Department of Human Rights (“IDHR”). The legislation amends Illinois human rights laws to expressly prohibit employers from using hiring criteria, employment policies, or workplace practices that appear neutral on their face but have an unjustified discriminatory effect (or disparate impact) on protected groups.
According to the IDHR, the bill is intended to ensure that disparate-impact protections – a longstanding legal theory recognized under Title VII Civil Rights Act of 1964 (“Title VII”) – remain firmly embedded in Illinois law. The agency has indicated that the legislation is, in part, a response to what it views as a nationwide deprioritization of disparate-impact enforcement at the federal level.
What does this mean for employers?
If signed by the Governor, which we anticipate will happen, employees and job applicants in Illinois would not be required to prove that an employer intentionally discriminated against them. Instead, a claim could be based on evidence that a facially neutral policy, practice, or selection criterion disproportionately affects members of a protected group. Statistical evidence of an adverse impact may be sufficient to establish a prima facie case of discrimination.
Similar to Title VII, employers may defend against a disparate-impact claim by showing that the challenged policy or practice is job-related and supported by a legitimate business necessity, and that no less discriminatory alternative would achieve the same business objective.
Employers should consider reviewing hiring practices, screening criteria, testing procedures, promotion standards, and other employment policies to evaluate whether they could create an unintended disparate impact.
If you have questions about SB 3777 or would like assistance assessing your organization’s policies and practices, please contact us.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over seventy years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
