Chicago – The American Civil Liberties Union of Illinois, joined by the Chicago Lawyers’ Committee for Civil Rights Under Law, is asking a state appellate court to reject a claim advanced by the Illinois Attorney General that the State of Illinois cannot be sued in circuit court for employment discrimination. The ACLU position is contained in an amicus curiae brief filed in two cases pending before the Illinois Appellate Court, Fourth Judicial District, located in Central Illinois. The cases before the court are Robert D. Lynch v. Illinois Department of Transportation and Timothy L. Storm v. Illinois State Police. The organizations were assisted in preparing the brief by Louis A. Klapp of the Chicago office of Kirkland & Ellis LLP.

The Attorney General’s office asserts that the State of Illinois cannot be sued in these two cases under the Illinois Human Rights Act (IHRA) because the General Assembly did not state explicitly enough its intent to waive the state’s “sovereign immunity” in cases brought under the IHRA.

“The state’s argument relies on the necessity of a few ‘magic words’ to waive sovereign immunity, even when the legislature’s intent to do so is clear,” said John A. Knight, director of the LBGT Project of the ACLU of Illinois. “If this argument is permitted to become legal precedent, state employees will become second class citizens in Illinois, without the meaningful protections afforded by hard-won civil rights legislation.”

“In a state that prides itself on having far-reaching protections against discrimination, it cannot be that the General Assembly intended to leave behind an entire group of workers.”

The IHRA was amended in 2008 to permit employees who bring claims of discrimination to seek redress in state court. The Act specifically includes “the State” in its definition of employers who would be subject to court action under the IHRA. In the two cases being considered by the appellate court, the Attorney General argues that the General Assembly did not explicitly waive sovereign immunity – by actually saying that sovereign immunity was being waived – and that, therefore, the State should not be held accountable for discriminatory employment practices in the courts.

The doctrine of sovereign immunity dates back to British common law, deriving from a concept that a monarch could “do no wrong” and therefore was not able to be sued. The 1970 Illinois Constitution abolished sovereign immunity as it then existed but permitted the General Assembly to restore sovereign immunity as it saw necessary as it did so in 1972 with the State Lawsuit Immunity Act. However, the General Assembly can waive the state’s immunity, as it did so when it passed the Illinois Human Rights Act.

In its brief, the ACLU of Illinois notes that the General Assembly created a right of action in the state courts for employment discrimination cases because the procedures of the Human Rights Commission and the Department of Human Rights were not effective for certain parties. The brief notes that “(b)ecause discrimination is often subtle and requires significant evidence, some victims may only successfully litigate their claims in a forum with procedures more robust” than the procedures in these administrative forums. This is critical for individuals who are victims of discrimination that has not been explicitly prohibited by the United States Congress (including those protected on the basis of sexual orientation, gender identity, marital status, military status, order of protection status, citizenship status or ancestry). Because there is no explicit federal protection, workers often cannot resort to federal analogs to the IHRA to vindicate their rights.

“This is not an arcane, legal issue; it significant affects a number of groups including LGBT persons and others not explicitly protected against discrimination in employment by federal law when discriminated against by the State of Illinois,” added Knight. “We hope the court will reject the State’s arguments and assure that the anti-discrimination laws are applied fairly and equitably in Illinois.”

A copy of the ACLU of Illinois and Chicago Lawyer Committee for Civil Rights Under Law brief is available here.