Disabilities Guidebook: Employment Discrimination on the Basis of Disability (state law)

Disabilities Guidebook: Employment Discrimination on the Basis of Disability (state law)

Last updated: January 2013

(Chapter 6 Section 2 from Guidebook of Laws and Programs for People with Disabilities)
 

 

The Illinois Human Rights Act: Article 2

What Is It? Article 2 of the Illinois Human Rights Act is a state law prohibiting employment discrimination on the basis of disability.

What Is Its Purpose? To make it illegal to exclude persons with disabilities from job opportunities unless they are actually unable to do the job, despite reasonable accommodations by the employer.

Who Can Be Helped By This Law? Persons with a disability who can perform the essential functions of the job (either with or without a reasonable accommodation), and who work in or apply for a job with a state or local government agency, a private employer, or an employment agency or labor organization.

I. Your Rights as an Employee

What Employers and Employees Are Covered by the Illinois Human Rights Act?

Article 2 of the Human Rights Act (HRA) prohibits job discrimination on the basis of disability. The HRA is very similar to Title I of the Americans With Disability Act (ADA) [42 U.S.C. § § 12111-12117]. Like the ADA, it seeks to provide persons with disabilities with equal access to job opportunities.

In many cases, employer actions which violate the ADA also are a violation of the HRA. See the preceding section in this Chapter titled "Reasonable Accommodations and Freedom from Discrimination."

Note: The HRA also protects against discrimination in employment based on a person's race, color, religion, sex, national origin, ancestry, age, marital status, and military status.

Employers Covered by the HRA
The HRA prohibits employment discrimination on the basis of disability by all employers that have 1 or more employees. For this reason, the HRA covers many more employers than are covered by the ADA, which applies only to employers with 15 or more employees.

The HRA also applies to employment agencies and labor organizations, such as unions. The HRA applies to employment with the State government and any county, city or other local government unit, regardless of the number of employees.

Employees Covered by the HRA
This law protects you whether you are an employee or a job applicant, an apprentice or applying for an apprenticeship. This law does not protect domestic servants working in private homes, elected public officials, and heads of state or local government agencies. This law does not protect you if you are working in a job where you will not be paid.

Who Has a Disability Under the HRA?
The protection against employment discrimination in the HRA is available if you meet the following criteria:

  • You have a physical or mental condition, which must be the result of disease, an injury, a congenital condition of birth, or a functional disorder; or
  • You have a history of having a physical or mental condition; or
  • The employer perceives you as having a physical or mental condition, even if you do not have the condition; and
  • You must be capable of performing the basic functions of the job, with or without a "reasonable accommodation."

The Types of Physical and Mental Conditions That Qualify
You are protected against employment discrimination even if your impairment is not grave or extreme in nature. But, you are not protected under the HRA if your condition is only temporary, or does not have any significant impact on your activities or your appearance.
Examples: Short-term, or temporary impairments, such as appendicitis, hernias, broken bones and sprains usually are not protected under the HRA.

In order to be covered, your impairment must be "medically determinable." In other words, the condition must be a disease or injury which is generally recognized in the medical community, and must have been diagnosed by a qualified doctor or other professional using normal methods.

Disability Based on a "History" of a Physical or Mental Condition
You are considered to have a "history" of a mental or physical condition if you are now restored or recovered from an impairment, or if your symptoms are in remission. The HRA protects you from discrimination which is based upon your medical history.
Examples: People who have recovered from heart attacks or cancer, or mental illness have a "history" of a physical or mental condition.

Disability Based on a Perception by an Employer
You can be protected under the HRA even if you do not actually have or never had a physical or mental impairment. This can happen if the employer perceives or believes that you do have an impairment and discriminates against you on this basis.
Example: You are protected under the HRA if you have a current non-disabling condition, such as controlled high blood pressure, but your employer discriminates against you because of a concern that the condition could cause you to become disabled in the future.

Ability to Perform Job Functions
To be entitled to protection by the HRA, you also have to show that you can perform the basic job requirements.

First, you must have the necessary skill, education, and other job related requirements. In other words, you must possess all of the legitimate qualifications that would be required of any person in order to hold the job.
Example: You must have a valid driver's license to qualify for a job as a bus driver, regardless of whether you have a disability.

Second, you must be able to perform the basic elements of the job. If you can perform the basic functions, but cannot perform some activities that are not an essential part of the job, you can still qualify under the HRA.

In deciding whether you can perform the basic job functions, the employer cannot consider irrelevant matters such as the preferences of co-workers, clients and customers. Likewise, the employer cannot consider the expense of group insurance or your potential for filing workers compensation claims.

If your disability limits your ability to perform the basic job duties, you should determine whether any "reasonable accommodation" would enable you to perform those functions. If you are unable to perform the job even with a reasonable accommodation, then you are not protected by the HRA.

The Employer's Duty to Provide a Reasonable Accommodation

An employer must make a "reasonable accommodation" to your known physical or mental limitations, if this will enable you to perform the basic job functions.

Whether a particular accommodation is reasonable will depend on the facts of each case. In your case, consider the nature of the job, and your disability. An employer is not required to make an accommodation if doing so would be prohibitively expensive or would unduly disrupt the ordinary conduct of business.

The HRA follows the ADA principles concerning the types of accommodations an employer must make. See the section in this Chapter titled "Reasonable Accommodations and Freedom from Discrimination."

The Process for Getting an Accommodation
The HRA places the duty on the employee to notify the employer of a physical or mental impairment and of the need for some sort of adjustment. In other words, the employer has no obligation under the HRA until you notify the employer of the disability and of your need for an accommodation.

The notice of a disabling condition and request for an adjustment can be in writing, but does not need to be in writing. You should give your employer notice of your disability and request an accommodation at the time the disability presents a problem on the job. If you do not timely notify the employer, it may be very difficult later to prove discrimination.

After the request is made, both parties are responsible for identifying an appropriate accommodation. If a reasonable form of accommodation is not readily apparent, you are required to cooperate with the employer in the process of determining possible accommodations.

When you request an accommodation, the HRA requires you to give your employer medical documentation. This is so your employer can reasonably evaluate your condition and your needs.

Particular Practices that Discriminate Against Persons with a Disability

The Prohibition Against Discrimination: In General
In general, if some action by an employer violates the ADA, it also violates the HRA. See the preceding section in this Chapter titled "Reasonable Accommodations and Freedom from Discrimination."

The HRA prohibits an employer, employment agency, or labor organization from discriminating against you in any way connected with a job, so long as you are able to perform the basic functions of the job, with or without reasonable accommodation. An employer cannot refuse to hire you solely on the basis of your disability. An employer cannot fire you on the basis of your disability, if you are able to perform the job.

The protection against discrimination goes beyond just hiring and firing. You cannot be discriminated against based on your disability in any of the "terms, conditions, or privileges of employment." This means that, as much as is reasonably possible, an employer must treat you in the same manner as all other employees are treated.

Alcohol and Drugs
You are not protected by the HRA if you are frequently absent or tardy due to alcoholism or drug use, or you are intoxicated at work. Under those circumstances, it is presumed that you are unable to perform the basic job functions.

If you engage in illegal drug use or if you are an alcoholic, your employer is entitled to hold you to the same standards required of all other employees. This includes rules relating to attendance, behavior, rate of work and other job performance standards. If you violate these rules, you can be fired or the employer can take some other action against you. This is true even if you claim that you are disabled due to alcoholism or another substance abuse disorder.

You are not protected under the HRA if the employer takes an action against you because you are currently and illegally using drugs. If you are, the employer can lawfully refuse to hire or may fire you.

If you have stopped illegally using drugs, you can be protected under the HRA. You must have completed or you must be participating in a drug rehabilitation program. The HRA allows employers to establish drug testing policies or other methods to make sure that you continue to abstain from the illegal use of drugs.

The HRA allows employers to have rules prohibiting the use of drugs or alcohol in the workplace, or being under the influence while at the workplace.

Pre-Employment Tests
When you apply for a job, the HRA prohibits an employer from asking you to submit to a medical exam, unless a conditional job offer already has been made.

Once a job offer is made, an employer can require you to submit to pre-employment physical or psychological examinations. This is so the employer can determine whether you are capable of performing the activities necessary for the job. Also, an employer can use these examinations to determine any accommodation which you may need.

It is legal to make you go through pre-employment testing only if the employer requires all prospective employees to submit to the testing. The HRA allows employers to administer tests to detect the use of illegal drugs, regardless of whether a conditional job offer has been made.

Exception: An employer can require you to submit to a pre-employment physical or psychological examination even before a conditional employment offer is made if:

  • The practice is followed consistently with all applicants; and
  • The employer requires all applicants who pass the physical or psychological exam to submit to further testing or evaluation that is more expensive or burdensome than the physical or psychological examination.

The employer must make the results of this kind of pre-employment examination available to you, upon your request.

Questions Not Permitted at a Job Interview
At the time you apply for a job, an employer, employment agency or labor organization may not ask you to list or reveal your medical or mental impairments. This is to make sure that the employer does not consider your hidden disability as a basis for hiring.

Before a job offer is made, an employer may ask you whether you have any physical or mental impairments which would affect your ability to perform the essential job functions. An employer may ask you this type of question only if all job applicants are questioned in the same manner.

II. How to Know If Your Rights Have Been Violated

Your rights under the HRA have been violated if you have a disability under the Act, you are qualified to hold the job and can perform the essential elements of the job (with a reasonable accommodation, if necessary), your employer is made aware of the presence of your physical or mental condition, AND the employer takes one of the following actions due to your impairment:

  • The employer treats you less favorably than those employees without disabilities with respect to any of the terms, privileges or conditions of employment.
  • The employer refuses to make a reasonable accommodation that would enable you to perform the basic functions of your job acceptably.
  • The employer passes you over for a promotion or job advancement opportunities.
  • The employer segregates you from other employees.
  • A prospective employer requires you to submit to a physical or psychological exam before a conditional offer of employment is made.
  • At an employment interview you are asked to reveal your physical or mental impairments.
  • An employer retaliates against a person for opposing a discriminatory practice, having filed a charge of discrimination, agreeing to be a witness or assisting in an investigation of discrimination.

III. How to Protect or Enforce Your Rights

In General
If any employer has violated your rights under the HRA, you must be careful to take the proper steps to preserve and enforce those rights. See the section of this Guidebook titled "How to Protect or Enforce Your Rights Under the Illinois Human Rights Act," in Chapter 1, General Considerations.

Note: In many cases, an act of employment discrimination may violate Title I of the Americans with Disabilities Act (ADA), as well as the HRA. In these cases, you may file a charge with the Equal Employment Opportunity Commission (EEOC), in addition to your charge with the IDHR. See the preceding section in this Chapter titled "Reasonable Accommodations and Freedom from Discrimination."

Your Legal Remedies for a Violation of the HRA
If the Human Rights Commission makes a finding that the employer has committed unlawful employment discrimination in violation of the HRA, they may grant you the following types of relief:

1. Cease and Desist Order. This is an order requiring the employer to stop engaging in prohibited discrimination;

2. Hiring, Reinstatement, Back-pay, Promotion, or Fringe Benefits. The Commission can require the employer to take whatever action is needed to put you in the position that you would have had with the employer if the discriminatory action had not occurred. This can include hiring, promotion, reinstatement, back pay, and fringe benefits;

3. Actual Damages. The Commission can require the employer to reimburse you for any injury or loss you have incurred as a result of the discrimination. The law authorizes the Commission to award you any other remedy or relief that is required to correct the results of the employer's discrimination;

4. Your Fees and Costs. If you win a case against an employer, the Commission can order your employer to pay your attorneys' fee and other costs of the case.

For More Information

To Contact the IDHR:
You can reach IDHR at the following offices:

Chicago:
James R. Thompson Center
100 West Randolph Street, 10th Floor
Intake Unit
Chicago, Illinois 60601
(312) 814-6200 (v)
(866) 740-3953 (TTY)

Springfield:
222 South College, Room 101
Intake Unit
Springfield, Illinois 62704
(217) 785-5100 (v)
(866) 740-3953 (TTY) 

Marion:
2309 West Main Street, Suite 112
Intake Unit
Marion, IL 62959
(618) 993-7463 (v)
(866) 740-3953 (TTY)

IDHR's website

Statutes and Regulations
The Illinois Human Rights Act is at 775 ILCS 5. The section of the Act dealing with employment discrimination is at 775 ILCS 5/2.

The rules of the IDHR which interpret the Illinois Human Rights Act as it applies to employment discrimination on the basis of disability are at 56 Ill.Admin.Code Part 2500.

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