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Article 8A - Illinois Human Rights Commission; Procedures Under Articles 2, 4, 5, 5a And 6

      (775 ILCS 5/Art. 8A heading)ARTICLE 8A. ILLINOIS HUMAN RIGHTS COMMISSION; PROCEDURES UNDER ARTICLES 2, 4, 5, 5A and 6

(775 ILCS 5/8A‑101) (from Ch. 68, par. 8A‑101)     Sec. 8A‑101. This Article shall apply solely to Articles 2, 4, 5, 5A and 6. (Source: P.A. 86‑910.)

(775 ILCS 5/8A‑102) (from Ch. 68, par. 8A‑102)     Sec. 8A‑102. Hearing on Complaint.     (A) Services. Within five days after a complaint is filed by the Department, or the aggrieved party, as the case may be, the Commission shall cause it to be served on the respondent together with a notice of hearing before a hearing officer of the Commission at a place therein fixed.     (B) Time and Location of Hearing. An initial hearing date shall be scheduled for not less than thirty nor more than ninety days after service of the complaint at a place that is within one hundred miles of the place at which the civil rights violation is alleged to have occurred. The hearing officer may, for good cause shown, extend the date of the hearing.     (C) Amendment.         (1) A complaint may be amended under oath by leave

of the presiding hearing officer, for good cause shown, upon timely written motion and reasonable notice to all interested parties at any time prior to the issuance of a recommended order pursuant to Section 8A‑102(I) or 8B‑102(J). The amended complaint shall be served upon all parties of record and the Department of Human Rights by the complainant, or by the Department if it prepared and filed the amended complaint, within 7 days of the date of the order permitting its filing or such additional time as the hearing officer may order. Amendments to the complaint may encompass any unlawful discrimination which is like or reasonably related to the charge and growing out of the allegations in such charge, including, but not limited to, allegations of retaliation.

(2) A motion that the complaint be amended to

conform to the evidence, made prior to the close of the public hearing, may be addressed orally on the record to the hearing officer, and shall be granted for good and sufficient cause.

(D) Answer.         (1) The respondent shall file an answer under oath

or affirmation to the original or amended complaint within 30 days of the date of service thereof, but the hearing officer may, for good cause shown, grant further time for the filing of an answer.

(2) When the respondent files a motion to dismiss

the complaint within 30 days and the motion is denied by the hearing officer, the time for filing the answer shall be within 15 days of the date of denial of the motion.

(3) Any allegation in the complaint which is not

denied or admitted in the answer is deemed admitted unless the respondent states in the answer that he is without sufficient knowledge or information to form a belief with respect to such allegation.

(4) The failure to file an answer is deemed to

constitute an admission of the allegations contained in the complaint.

(5) The respondent has the right to amend his

answer, upon leave of the hearing officer, for good cause shown.

(E) Proceedings In Forma Pauperis.         (1) If the hearing officer is satisfied that the

complainant or respondent is a poor person, and unable to prosecute or defend the complaint and pay the costs and expenses thereof, the hearing officer may permit the party to commence and prosecute or defend the action as a poor person. Such party shall have all the necessary subpoenas, appearances, and proceedings without prepayment of witness fees or charges. Witnesses shall attend as in other cases under this Act and the same remedies shall be available for failure or refusal to obey the subpoena as are provided for in Section 8‑104 of this Act.

(2) A person desiring to proceed without payment of

fees or charges shall file with the hearing officer an affidavit stating that he is a poor person and unable to pay costs, and that the action is meritorious.

(F) Discovery. The procedure for obtaining discovery of information from parties and witnesses shall be specified by the Commission in rules. If no rule has been promulgated by the Commission on a particular type of discovery, the Code of Civil Procedure may be considered persuasive authority. The types of discovery shall be the same as in civil cases in the circuit courts of this State, provided, however, that a party may take discovery depositions only upon leave of the hearing officer and for good cause shown.     (G) Hearing.         (1) Both the complainant and the respondent may

appear at the hearing and examine and cross‑examine witnesses.

(2) The testimony taken at the hearing shall be

under oath or affirmation and a transcript shall be made and filed in the office of the Commission.

(3) The testimony taken at the hearing is subject to

the same rules of evidence that apply in courts of this State in civil cases.

(H) Compelling Appearance of Parties at Hearing. The appearance at the hearing of a party or a person who at the time of the hearing is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear. The notice also may require the production at the hearing of documents or tangible things. If the party or person is a nonresident of the county, the hearing officer may order any terms and conditions in connection with his appearance at the hearing that are just, including payment of his reasonable expenses. Upon a failure to comply with the notice, the hearing officer may enter any order that is just.     (I) Decision.         (1) When all the testimony has been taken, the

hearing officer shall determine whether the respondent has engaged in or is engaging in the civil rights violation with respect to the person aggrieved as charged in the complaint. A determination sustaining a complaint shall be based upon a preponderance of the evidence.

(2) The hearing officer shall make findings of fact

in writing and, if the finding is against the respondent, shall issue and cause to be served on the parties and the Department a recommended order for appropriate relief as provided by this Act.

(3) If, upon all the evidence, the hearing officer

finds that a respondent has not engaged in the discriminatory practice charged in the complaint or that a preponderance of the evidence does not sustain the complaint, he shall state his findings of fact and shall issue and cause to be served on the parties and the Department a recommended order dismissing the complaint.

(4) The findings and recommended order of the

hearing officer shall be filed with the Commission. The findings and recommended order may be authored by a hearing officer other than the hearing officer who presides at the public hearing if:

(a) the hearing officer who presides at the

public hearing is unable to author the findings and recommended order by reason of death, disability, or separation from employment; and

(b) all parties to a complaint file a joint

motion agreeing to have the findings and recommended order written by a hearing officer who did not preside at the public hearing.

(5) A recommended order dismissing a complaint may

include an award of reasonable attorneys fees in favor of the respondent against the complainant or the complainant's attorney, or both, if the hearing officer concludes that the complaint was frivolous, unreasonable or groundless or that the complainant continued to litigate after it became clearly so.

(6) The hearing officer may issue a recommended

order of dismissal with prejudice or a recommended order of default as a sanction for the failure of a party to prosecute his or her case, file a required pleading, appear at a hearing, or otherwise comply with this Act, the rules of the Commission, or a previous order of the hearing officer.

(Source: P.A. 92‑472, eff. 1‑1‑02.)

(775 ILCS 5/8A‑102.5)     Sec. 8A‑102.5. Alternative hearing procedure.     (A) All parties shall be given the right to proceed under this Section.     (B) If all parties to a complaint stipulate to proceedings under this Section, the complaint shall be resolved in the following manner:         (1) The parties shall select a hearing officer by

mutual agreement from a pool of hearing officers determined by the Commission.

(2) The parties shall have a limited right to

discovery. The methods of discovery available to the parties shall be specified in rules promulgated by the Commission.

(3) If a dispositive motion is made with respect to

a case, the hearing officer mutually agreed upon shall have the authority to issue a final order disposing of the complaint based upon the motion.

(4) If the case proceeds to public hearing, the

hearing officer mutually agreed upon shall have the authority to issue a final order disposing of the complaint based upon the pleadings and the evidence presented. The final order shall be in sufficient detail to apprise the parties as to the basis for the decisions, but need not contain detailed findings of fact and conclusions of law.

(C) There is no right of appeal of orders issued under this Section. By stipulating to resolution of the complaint under this Section, the parties waive all right of appeal except for orders procured by fraud or duress.     (D) Final orders issued under this Section are enforceable in the same manner as orders issued by the Commission. (Source: P.A. 89‑370, eff. 8‑18‑95.)

(775 ILCS 5/8A‑103) (from Ch. 68, par. 8A‑103)     Sec. 8A‑103. Review by Commission.     (A) Exceptions. Within 30 days of the receipt of service of the hearing officer's recommended order, a party may file with the Commission any written exceptions to any part of the order. Exceptions shall be supported by argument and served on all parties at the time they are filed. If no exceptions are filed, the recommended order shall become the order of the Commission without further review.     (B) Response. Within 21 days of the receipt of service of exceptions, a party may file with the Commission any response to the exceptions. Responses shall be supported by argument and served on all parties at the time they are filed.     (C) Oral Argument. A party may request oral argument at the time of filing exceptions or a response to exceptions. When any party requests oral argument in this manner, the Commission may schedule oral argument to be heard by a panel of 3 Commission members. If the panel grants oral argument, it shall notify all parties of the time and place of argument. Any party so notified may present oral argument.     (D) Remand.         (1) The Commission, on its own motion or at the

written request of any party made at the time of filing exceptions or responses, may remand a case to a hearing officer for purposes of a rehearing to reconsider evidence or hear additional evidence in the matter. The Commission shall issue and serve on all parties a written order remanding the cause and specifying the additional evidence.

(2) The hearing officer presiding at a rehearing

shall set a hearing date, in accordance with subsection (B) of Section 8A‑102, upon due notice to all parties.

(3) After conclusion of the rehearing, the hearing

officer shall file written findings and recommendations with the Commission and serve copies at the same time on all parties in the same manner as provided in subsection (I) of Section 8A‑102. The findings and recommendations shall be subject to review by the Commission as provided in this Section.

(E) Review.         (1) Following the filing of the findings and

recommended order of the hearing officer and any written exceptions and responses, and any other proceedings provided for in this Section, the Commission, through a panel of 3 members, shall decide whether to accept the case for review. If the panel declines to review the recommended order, it shall become the order of the Commission. If the panel accepts the case, it shall review the record and may adopt, modify, or reverse in whole or in part the findings and recommendations of the hearing officer.

(2) When reviewing a recommended order, the

Commission shall adopt the hearing officer's findings of fact if they are not contrary to the manifest weight of the evidence.

(3) If the Commission accepts a case for review, it

shall file its written order and decision in its office and serve copies on all parties together with a notification of the date when it was filed. If the Commission declines to review a recommended order or if no exceptions have been filed, it shall issue a short statement notifying the parties that the recommended order has become the order of the Commission. The statement shall be served on the parties by first class mail.

(4) A recommended order authored by a non‑presiding

hearing officer under subparagraph 8A‑102(I)(4) of this Act shall be reviewed in the same manner as a recommended order authored by a presiding hearing officer.

(F) Rehearing.         (1) Within 30 days after service of the Commission's

order or statement declining review, a party may file an application for rehearing before the full Commission. The application shall be served on all other parties. The Commission shall have discretion to order a response to the application. The filing of an application for rehearing is optional. The failure to file an application for rehearing shall not be considered a failure to exhaust administrative remedies. This amendatory Act of 1991 applies to pending proceedings as well as those filed on or after its effective date.

(2) Applications for rehearing shall be viewed with

disfavor and may be granted, by vote of 6 Commission members, only upon a clear demonstration that a matter raises legal issues of significant impact or that Commission decisions are in conflict.

(3) When an application for rehearing is granted,

the original order shall be nullified and oral argument before the full Commission shall be scheduled. The Commission may request the parties to file any additional written arguments it deems necessary.

(G) Modification of Order.         (1) At any time before a final order of the court in

a proceeding for judicial review under this Act, the Commission or the 3‑member panel that decided the matter, upon reasonable notice, may modify or set aside in whole or in part any finding or order made by it in accordance with this Section.

(2) Any modification shall be accomplished by the

filing and service of a supplemental order and decision by the Commission in the same manner as provided in this Section.

(H) Extensions of time. All motions for extensions of time with respect to matters being considered by the Commission shall be decided by the full Commission or a 3‑member panel. If a motion for extension of time cannot be ruled upon before the filing deadline sought to be extended, the Chairperson of the Commission shall be authorized to extend the filing deadline to the date of the next Commission meeting at which the motion can be considered. (Source: P.A. 89‑348, eff. 1‑1‑96; 89‑370, eff. 8‑18‑95; 89‑626, eff. 8‑9‑96.)

(775 ILCS 5/8A‑104) (from Ch. 68, par. 8A‑104)     Sec. 8A‑104. Relief; Penalties. Upon finding a civil rights violation, a hearing officer may recommend and the Commission or any three‑member panel thereof may provide for any relief or penalty identified in this Section, separately or in combination, by entering an order directing the respondent to:     (A) Cease and Desist Order. Cease and desist from any violation of this Act.     (B) Actual Damages. Pay actual damages, as reasonably determined by the Commission, for injury or loss suffered by the complainant.     (C) Hiring; Reinstatement; Promotion; Backpay; Fringe Benefits. Hire, reinstate or upgrade the complainant with or without back pay or provide such fringe benefits as the complainant may have been denied.     (D) Restoration of Membership; Admission To Programs. Admit or restore the complainant to labor organization membership, to a guidance program, apprenticeship training program, on the job training program, or other occupational training or retraining program.     (E) Public Accommodations. Admit the complainant to a public accommodation.     (F) Services. Extend to the complainant the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the respondent.     (G) Attorneys Fees; Costs. Pay to the complainant all or a portion of the costs of maintaining the action, including reasonable attorney fees and expert witness fees incurred in maintaining this action before the Department, the Commission and in any judicial review and judicial enforcement proceedings. Provided, however, that no award of attorney fees or costs shall be made pursuant to this amendatory Act of 1987 with respect to any charge for which the complaint before the Commission was filed prior to December 1, 1987. With respect to all charges for which complaints were filed with the Commission prior to December 1, 1987, attorney fees and costs shall be awarded pursuant to the terms of this subsection as it existed prior to revision by this amendatory Act of 1987.     (H) Compliance Report. Report as to the manner of compliance.     (I) Posting of Notices. Post notices in a conspicuous place which the Commission may publish or cause to be published setting forth requirements for compliance with this Act or other relevant information which the Commission determines necessary to explain this Act.     (J) Make Complainant Whole. Take such action as may be necessary to make the individual complainant whole, including, but not limited to, awards of interest on the complainant's actual damages and backpay from the date of the civil rights violation. Provided, however, that no award of prejudgment interest shall be made pursuant to this amendatory Act of 1987 with respect to any charge in which the complaint before the Commission was filed prior to December 1, 1987. With respect to all charges for which complaints were filed with the Commission prior to December 1, 1987, make whole relief shall be awarded pursuant to this subsection as it existed prior to revision by this amendatory Act of 1987.     There shall be no distinction made under this Section between complaints filed by the Department and those filed by the aggrieved party. (Source: P.A. 86‑910.)