Ill. Pattern Jury Instr. (Civil) 255.00

INTRODUCTION

The purpose of the Illinois Human Rights Act (“the Act”), 775 ILCS 5/1 et seq., is “to

secure for all individuals within Illinois the freedom from discrimination because of race, color,

religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or

mental disability, military status, sexual orientation, pregnancy, or unfavorable discharge from

military service” in connection with several spheres of activity, including but not limited, to

employment. 775 ILCS 5/l-l02(A).

The Act prohibits “any employer” from engaging in unlawful discrimination. 775 ILCS

5/2­102(A). An employer’s status as “employer,” as defined in the Act, is an essential element of

the cause of action and must be pleaded and proved by the plaintiff. Aero Servs. Int’l v. Hum. Rts.

Comm’n, 291 Ill. App. 3d 740, 752 (1997).

The Act defines unlawful discrimination as “discrimination against a person because of his

or her actual or perceived: race, color, religion, national origin, ancestry, age, sex, marital status,

order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable

discharge from military service” as those terms are defined in Section 1-103 of the Act. 775 ILCS

5/l-l03(Q).

The Act also prohibits retaliation by a person or persons, including but not limited to, an

employer, against a person because she or he has 1) opposed that which she or he reasonably and

in good faith believes to be unlawful discrimination, sexual harassment in employment,

discrimination based on citizenship status in employment; 2) has filed a charge or a complaint, or

has testified, assisted, or participated in an investigation, proceeding, or hearing under the Act; or

3) has requested, attempted to request, used, or attempted to use a reasonable accommodation

allowed under the Act. 775 ILCS 5/6-l0l(A).

Article 2 and Section 6-l0l(A) of the Act address the subject of these instructions - unlawful

discrimination and retaliation in employment. 775 ILCS 5/2-101-2-110; 775 ILCS 5/6­101(A).

Article 2 of the Act applies to any person who employs one or more employees (as that

term is defined under Section 2-l0l(A)(1) of the Act) within Illinois for at least 20 weeks within

the calendar year of or preceding the alleged violation, and to any person employing one or more

employees when the complainant alleges a civil rights violation based upon his or her physical or

mental disability unrelated to ability, pregnancy, or sexual harassment without regard to the

number of employees. 775 ILCS 5/2-101(B)(1)(a) and (b). The Act also applies to state

government and any of its subdivisions and to municipal or local governmental entities without

regard to the number of persons they employ. 775 ILCS 5/2-l0l(B)(1)(c).

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The Act ’s definition of “employer” excludes any religious corporation, association,

educational institution, society, or non- profit nursing institution conducted by and for those who

rely upon treatment by prayer through spiritual means in accordance with the tenets of a recognized

church or religious denomination, with respect to the employment of individuals of a particular

religion to perform work connected with the carrying on by any such entity of its activities. 775

ILCS 5/2-101 (B)(2). This statutory provision is in addition to case law addressing the scope of

the constitutional “ ministerial exception ” to certain instances of alleged employer liability of

churches and other religious institutions. See Reh field v. Diocese of Joliet, 2021 IL 125656; Our

Lady of Guadalupe School v. Morrisey-Berru, l40 S.Ct. 2049 (2020).

Illinois courts have explicitly rejected arguments to extend the scope of the Act and have

stressed that Article 2 is intended to apply to employers and employees as those terms are defined

by the Act. Watkins v. Office of the State App. Def., 2012 IL App (1st) 111756, ¶ 37; Anderson v.

Mod. Metal Prods., 305 Ill. App. 3d 91, 101-02 (2d Dist. 1999).

Where a person as serts a claim for employment discrimination under the Act against an

individual other than her or his employer, the Illinois Department of Human Rights and the courts

lack subject-matter jurisdiction over that claim, as it must be brought against the employer, and

only the employer, and not against an individual representative of that employer. Watkins , 2012

IL App (1st) 111756, ¶ 37 ( affirming dismissal of claims under the Act against an individual

representative of plaintiff’s employer). Section 2-l0l(E) of the Act, however, permits a claim for

sexual harassment to be brought against both the employer, under a theory of respondeat superior,

and any individual employee in a managerial or supervisory position who engaged in the

complained of acts of sexual harassment toward the plaintiff. Sangamon Cnty . Sheriff’s Dep’t v.

Ill. Hum. Rts. Comm’n, 233 Ill.2d 125, 144 (2009).

Additionally, the Act subjects an employer to liability for sexual harassment and retaliation

committed by a non-managerial or non-supervisory employee or by a non-employee who directly

performs services for the employer pursuant to a contract (such as a vendor) if the employer

becomes aware of the conduct and fails to take reasonable corrective measures. 775 ILCS 5/2-

102(A-l 0), 2-l02(D), 2-l02(D-5), 6-101.

A plaintiff may present either direct or indirect evidence of discrimination in violation of

the Human Rights Act. Schnitker v. Springfield Urb. League, Inc., 2016 IL App (4th) 150991 ¶

46; Lalvani v. Hum. Rts. Comm 'n, 324 Ill. App. 3d 774, 790 (2001). Direct evidence is that which

“proves the particular fact in question, without reliance on inference or presumption.” Lalvani, 324

Ill. App. 3d 774, 790. Direct evidence of discrimination is evidence the employer “ placed

substantial reliance ” on a prohibited factor --such as the plaintiff ’s race, age, or disability --in

making its employment decision. Id. Under the direct method, once a plaintiff establishes by direct

evidence that the employer placed substantial reliance o n a prohibited factor in taking the

challenged material adverse action toward the plaintiff, the burden shifts to the defendant employer

to prove by a preponderance of the evidence that it would have made the same decision even if the

prohibited factor had not been considered. Id.

When analyzing claims of employment discrimination under the Act in the absence of

direct evidence of discrimination, Illinois courts adopt the analytical framework set forth in United

States Supreme Court decisions such as McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

addressing claims arising under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e -

2000e-17). Zaderaka v. Ill. Hum. Rts. Comm’n, 131 Ill.2d 172, 178 (1989); Zoepfel-Thuline v.

Black Hawk Coll., 2019 IL App (3d) 180524, ¶ 26. The elements of a prima facie claim for

employment discrimination are varied and nuanced depending on the circumstances. Generally,

the employee must establish that: (1) she is a member of a protected class; (2) she was performing

her job to the employer’s legitimate expectations; (3) adverse employment action was taken against

the employee, such as a termination of employment; and (4) similarly situated employees outside

of the employee’s protected class were treated more favorably by the employer. After the prima

case is established, the burden shifts “to the employer to articulate some legitimate,

nondiscriminatory reason” for its action. McDonnell Douglas, 411 U.S. at 802; Then, the burden

shifts back to the plaintiff to present evidence to show that the employer’s stated reason is a

“pretext,” which, if proven, gives rise to an inference of unlawful discrimination. Zaderaka, 131

Ill. 2d at 179.

In Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016), the Seventh Circuit, while

affirming the burden-shifting approach, cast doubt on the rigid distinction between a “direct” and

an “indirect” method for proving discrimination. In reversing summary judgment entered by the

trial court, the Seventh Circuit panel stated that “[t]he district court’s effort to shoehorn all

evidence into two methods,” and its insistence that either method be implemented by looking for

a “convincing mosaic,” detracted attention from the sole question that matters: whether a

reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity,

and everything else had remained the same. Ortiz, 834 F.3d at 763­ 64.

Subsequently, in Lau v. Abbott Lab’ys, 2019 IL App (2d) 180456, the Illinois appellate

court reversed summary judgment in the employer’s favor because there was sufficient conflicting

evidence to raise a factual dispute over whether the plaintiff and a similarly situated employee

were treated differently. Citing Ortiz, the court stated “[t]he Seventh Circuit has cautioned that

courts considering whether a plaintiff has met her burden must not conduct overly narrow inquiries

that distinguish direct from indirect evidence of discriminatory intent: ‘[e]vidence must be

considered as a whole, rather than asking whether any particular [type or] piece of evidence proves

the case by itself.’' Id at ¶ 39; see also Thai v. Triumvera 600 Naples Ct. Condo. Ass'n, 2020 IL

App (1st) 192408, ¶ 45 (“To avoid the entry of summary judgment, the plaintiff must present

evidence raising an inference that the adverse action was motivated, at least in part, by an improper

retaliatory motive. The plaintiff can do so by, among other things, pointing to evidence suggesting

that the defendant’s proffered reason is pretextual and unworthy of credence. The Seventh Circuit

has cautioned that courts considering whether a plaintiff has met its burden must not conduct

overly narrow inquiries that distinguish direct from indirect evidence of discriminatory intent:

‘[e]vidence must be considered as a whole, rather than asking whether any particular [type or]

piece of evidence proves the case by itself.”’) (internal citations omitted).

Illinois courts recognize that one method of proving pretext is to show that other employees

outside the plaintiff’s protected class who were involved in similar misconduct were treated more

favorably than the plaintiff. Owens v. Dep’t of Hum. Rts., 403 Ill. App. 3d 899, 919 (2010). To

prove pretext, the plaintiff “must show that the employer’s reason was false and that discrimination

was the real reason for the action.” Sola v. Ill. Hum. Rts. Comm’n, 316 Ill. App. 3d 528, 537 (2000).

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To do so, the plaintiff “must show: (1) the articulated reason has no basis in fact; (2) the articulated

reason did not actually motivate the employer’s decision; or (3) the articulated reason was

insufficient to motivate the employer’s decision.” Id. The ultimate burden of persuasion remains

on the plaintiff throughout the case. Owens, 403 Ill. App. 3d at 919.

In some cases, there may be evidence that the employer had a “mixed motive” for taking

the material adverse action toward the plaintiff; i.e., the evidence shows that the employer

considered both permissible and impermissible factors in making its decision. In such a case

Illinois courts recognize the mixed motive method of proof to determine discrimination. Schnitker,

2016 IL App (4th) at ¶ 57.

The legal concepts of pretext and mixed motive, however, are not interchangeable. Under

the traditional McDonnell Douglas burden-shifting analysis the Illinois Supreme Court adopted in

Zaderaka v. Ill. Hum. Rts. Comm’n, 131 Ill.2d 172, 178 (1989), the plaintiff may rely on indirect

evidence of discrimination to prove pretext. On the other hand, to use the mixed motive method

of proof, the plaintiff must show by direct evidence that the defendant’s decision maker(s) placed

substantial negative reliance on an illegitimate criterion in reaching its decision. To utilize the

mixed motive method of proof, the plaintiff’s evidence must do more than create an inference of

discrimination; rather, it must establish a clear nexus between the employer’s reliance on an

impermissible factor and the employer’s subsequent decision to discharge (or take other material

adverse action toward) the plaintiff. Once the plaintiff has provided direct evidence that the

defendant-employer relied on illegitimate criteria, the defendant must demonstrate it would have

reached the same decision even if it had not relied on illegitimate criteria. Schnitker, 2016 IL App

(4th) at ¶ 58.

The Act provides that the following forms of relief may be granted to a plaintiff where the

court finds that a civil rights violation as defined by Article 2 or retaliation as defined by Section

6­101(A) of the Acts has occurred: actual damages for the injury or loss suffered by the plaintiff;

hire, reinstate, or upgrade the plaintiff with or without back pay or provide such fringe benefits

that the plaintiff may have been denied; admit or restore the plaintiff to labor organization

membership, to a guidance program, apprenticeship training program, on-the-job training

program, or other occupational training or retraining program; reasonable attorney’s fees and costs

incurred by the plaintiff. 775 ILCS 5/8A-104.

Introduction approved December 2022.

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