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Illinois Supreme Court Issues Pattern Jury Instruction Series for Discrimination Claims Based on the Illinois Human Rights Act

May 18, 2023

In December of 2022, the Illinois Supreme Court approved new jury instructions and introductory remarks for discrimination claims brought in state courts pursuant to the Illinois Human Rights Act, 775 ILCS 5/1 et seq. (“IHRA”). These instructions will appear as series 255 in the Illinois Civil Pattern Jury Instructions. 

The IHRA prohibits discrimination in employment and other settings action based on 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. These new instructions outline and codify case law in areas of harassment, sexual harassment, hostile work environment, quid pro quo sexual harassment and retaliation. The jury instructions define terms including “material adverse action,” “pretext,” “sexual harassment,” “hostile work environment,” “quid pro quo” and outline the issues associated with, and the burden of proof for, each of these claims.

In its introductory remarks, the Court offers an explanation of the McDonnell Douglas burden shifting approach in which the plaintiff has the initial burden of proof on the prima facie elements of a claim for employment discrimination.  A plaintiff 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 termination of employment; and (4) similarly situated employees outside of the employee’s protected class were treated more favorably by the employer.  Under the McDonnel Douglas approach, the burden then shifts to the employer to offer a “legitimate nondiscriminatory reason” for its action. Then, the burden shifts back to the plaintiff to establish that defendant’s reason is merely “pretext” which can give support to an inference of discrimination. 

The introductory remarks also caution against a rigid distinction between direct and indirect form of evidence of discrimination, advising instead a reasonable juror standard -- e.g., whether a reasonable juror could find that the plaintiff would have remained employed had everything else been the same, and whether the evidence, when considered as a whole suggests that defendant’s preferred reason for the adverse employment was pretextual and unworthy of credence.  The Court also addresses the burden of proof in mixed motive cases. The instructions define the scope and types of damages available in employment discrimination actions brought pursuant to the IHRA, which include back pay, emotional distress and reasonable medical care and services.

If you have any questions or concerns regarding potential or pending discrimination claims, or any other employment-related matters, including Illinois’ new Equal Pay Act provisions, WARN Act, or federal discrimination claims, please contact our Johnson & Bell Employment Department Co-Chairs, Christopher J. Carlos and Caroline K. Vickrey.


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