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In an expansive reading of the Illinois Human Rights Act (IHRA), an Illinois Appellate Court ruled that individuals can use the IHRA to file disability harassment and failure to accommodate claims. At the same time, the court provided municipalities with the relief allowed under the Tort Immunity Act.  All of this based upon the court’s view that the IHRA is ambiguous in a number of respects.

This ruling may impact pending and future employment litigation. Illinois municipalities and companies will want to monitor this development for similar decisions from other appellate court districts as well as any Illinois Supreme Court review of this ruling.

The 2nd District Appellate Court Ruling

In Rozsavolgyi v. City of Aurora, the 2nd District Appellate Court held that: (1) section 2-102(A) of the Illinois Human Rights Act (IHRA) prohibits hostile-work-environment disability harassment, and a reasonable-accommodation claim may be brought as a separate claim under that provision; (2) section 2-102(D) of the IHRA applies to hostile-work-environment disability-harassment claims brought under section 2-102(A), and the employee always bears the ultimate burden of persuasion in such a case; and (3) the Tort Immunity Act applies to actions under the IHRA.  The City was allowed to assert immunity with respect to plaintiff’s request for damages but not to her request for equitable relief. The 2nd District acknowledged that the Illinois Supreme Court impliedly rejected their holdings that the Tort Immunity Act applies only to tort actions and does not apply to constitutional claims. The 2nd District therefore chose not to follow that precedent.

The court’s treatment of each of the certified questions centered on what it believed to be ambiguities in the IHRA. One of the ambiguities stemmed from the statute’s prohibition in section 2- 102(A) of unlawful discrimination with respect to the terms, privileges, or conditions of employment, which the court stated can reasonably be read to include harassment on the basis of an enumerated characteristic. It was the court’s view that statutory construction aids supported their expansive reading of section 2-102(A) and led to the conclusion that disability harassment is a cognizable civil rights violation under section 2-102(A).

The court noted that federal law had been interpreted in a similar fashion. The Supreme Court has held that the creation of a hostile work environment through harassment is a form of proscribed discrimination under Title VII. The Court determined that the phrase “terms, conditions, or privileges of employment,” which appears in both Title VII and the 2016 IHRA reflects a legislative intent to encompass the full spectrum of discriminatory treatment in employment. Therefore, the court concluded that a reasonable-accommodation claim is cognizable as a separate claim under section 2-102(A).

The next issue the court addressed was whether a reasonable accommodation claim could be brought separately under section 2-102(A). The court noted the duty to reasonably accommodate disabled employees is explicitly imposed only by administrative regulation. By joint rule, the Commission and the Department require that employers provide reasonable accommodations for “known physical or mental limitations of otherwise qualified disabled applicants or employees,” unless the accommodations are prohibitively expensive or would unduly disrupt ordinary business conduct. The employee seeking an accommodation has the burden to apprise the employer of his or her condition and submit any necessary medical documentation. Once an employee requests an accommodation, it becomes the burden of the employer to show that there is no possible reasonable accommodation or that the employee would be unable to perform the job even with the accommodation.  An accommodation may include: alteration of the facility or work site; modification of work schedules or leave policy; acquisition of equipment; job restructuring; provision of readers or interpreters; and other similar actions. The duty to accommodate does not require an employer to reassign or transfer an employee whose disability precludes him or her from performing the employee’s present position.

The court further noted the IHRA itself expressly imposes a duty to reasonably accommodate only with respect to: (1) “an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business”; (2) employees or applicants who are affected by a condition related to pregnancy or childbirth and (3) in the context of real estate transactions, buyers’ or renters’ disabilities.   The court stated that no case has squarely addressed this issue, but case law has assumed that employers have a duty to reasonably accommodate a disability.  In addition, there is case law specifically citing or applying the regulations, which were initially promulgated in 1982.

Again, the court found the IHRA ambiguous, deferred to the Human Rights Commission, and held that the regulations were a valid exercise of its power to interpret the IHRA and, further, that a reasonable accommodation claim may be brought as a separate claim under section 2-102(A). The court found the ADA cases persuasive and held that a reasonable-accommodation claim constitutes a separate type of disability discrimination claim that is distinct from disparate-treatment and disparate-impact claims.

Having held that section 2-102(A) proscribes disability harassment, the court concluded that the IHRA was ambiguous as to whether section 2-102(D)’s parameters for employer liability - sexual harassment also apply to disability harassment. The court addressed whether the parameters in section 2-102(D) apply to disability harassment claims brought under section 2-102(A).  The court held that those parameters apply to such claims.

Having assessed the Commission’s interpretation and mindful of the policy underlying the statute, the court held that section 2-102(D)’s parameters apply to claims brought under section 2-102(A) for disability harassment. This reading is consistent with the Commission’s interpretation of the statute, under which the Commission promulgated nearly identical parameters for employer liability for national origin harassment. Applying section 2-102(D)’s parameters to disability harassment claims will result in consistent treatment of all types of harassment claims under the Human Rights Act, and consistency promotes the policy to secure for all persons freedom from discrimination.  The court concluded that the plaintiff bears the burden of proving awareness and failure to take corrective measures.

Tort Immunity Act Applies to Actions under the IHRA

Finally, the court addressed and concluded that the Tort Immunity Act applies to actions under the IHRA. The City can assert immunity with respect to plaintiff’s request for damages but not to her request for equitable relief. The central issue was whether the Tort Immunity Act applied to plaintiff’s claims for damages (i.e., her prayers for “actual damages” and “emotional and other compensatory damages”), not her ability to obtain equitable relief. Therefore, the City could not assert immunity with respect to plaintiff’s request for back pay, front pay, lost benefits, or reinstatement.

The court relied upon section 1-204 of the Tort Immunity Act, which defines the term “injury,” in part to include any injury alleged in a civil action, whether based upon the Constitution of the United States or the Constitution of the State of Illinois, and the statutes or common law of Illinois or of the United States. The court agreed with the City that the Tort Immunity Act clearly encompasses constitutional claims, including those brought under the IHRA.

In summary, the court held that the Tort Immunity Act applies to actions under the IHRA. The City can assert immunity with respect to plaintiff’s requests for damages but not to her requests for equitable relief.

This decision is an expansive reading of the IHRA, allowing disability harassment and failure to accommodate claims. At the same time, the court provides municipalities with the relief allowed under the Tort Immunity Act.  All of this based upon the court’s view that the IHRA is ambiguous in a number of respects.

Johnson & Bell will monitor this development for similar decisions from other districts, as well as any Illinois Supreme Court review of this decision. Please feel free to telephone Joseph F. Spitzzeri (312-984-6683) should you have any questions about how this decision impacts pending or future litigation.