A floodgate has been opened?
or "expect a trickle"?
Now that losers at the Department of Human Rights can take their bounced charges to the Illinois county courthouse for a second shot, widespread anticipation and concern are expressed on employment law firm websites. According to a recent Chicago Law Bulletin article, practitioners on both sides of the table foresee a significant volume of cases filed in the Daley Center and elsewhere around the state.
But history tells us this may be all sound and fury, signifying nothing.
Since 1866 any person who is convinced that his race was a factor in his termination from employment has been able to go directly to federal (or state) court, get a jury trial, and seek unlimited punitive damages. Despite this statute's longstanding existence in the employee rights universe, Section 1981 of the Civil Rights Act of 1866 remains one of the least used discrimination laws. Even before jury trials became a fact of life in Title VII cases, race discrimination plaintiffs tended to opt for Title VII claims only.
For over twenty years both and the City of Chicago have carried on their ordinance books discrimination laws that permit claimants to proceed directly to the Cook County Circuit Court with their job bias claims. Under these ordinances plaintiffs seeking redress for discrimination are entitled to jury trials and compensatory and punitive damages, and this is an invitation to bypass the agency and its intrinsic slowness - yet few claimants ever take the laws up on it.
In other words, job bias claimants long have had direct access to court, federal or state, but have not availed themselves of this access - no great volume of filings has happened to date.
There is also the matter of cost and time. Since a highly urbanized county like would be the more desirable venue for a jury in an employment case - as opposed to a downstate county - we can assume the litmus test on the impact of this amendment will be taken in the Daley Center. There, the cost of a complaint is $294. The jury demand fee is $230 for a jury of twelve. Add to this the cost of service of summons, and beyond the cost of time. The case might go to trial in 2011.
Granted, a case at the Human Rights Commission might also take eighteen or more months to get to hearing, with no jury and small damages promised, but the issue is whether a multitude of those who lose at the DHR will pack the Daley Center given this set of facts.
No doubt there will be many, but a flood is unlikely.