Employment Discrimination Clinic Files Brief On Sovereign Immunity in the Illinois Appellate Court

July 18, 2012

The Employment Discrimination Clinic recently wrote and filed a Brief in consolidated appeal of two cases in the Illinois Appellate Court.  The Clinic’s clients each sued the State of Illinois, in its capacity as their employer, for employment discrimination.  The cases were both dismissed below on jurisdictional grounds; specifically, the State alleged and the lower courts agreed that the doctrine of sovereign immunity prevented the suits against the State from continuing. 

In the Brief, written by Cheryl Nolan (2012) under the supervision of Clinical Professor Randall Schmidt, the Clinic argues that the Illinois General Assembly effectively waived the State’s sovereign immunity in the Illinois Human Rights Act (“IHRA”) when the IHRA was originally enacted in 1980.  The IHRA protects most Illinois employees, including state employees, from discrimination in employment.  Before 2008, employees who were victims of unlawful employment discrimination could file an action against their employers, including the State, in two administrative agencies of the
State:  the Illinois Department of Human Rights, which would investigate the claim, and the Illinois Human Rights Commission (“HRC”), which would conduct a trial on the merits of the claim if the Department’s investigation disclosed substantial evidence of discrimination.  If the HRC ruled in favor of the employee, it would award the employee various forms of relief, including money damages.   Judgments of the HRC, including those against the State, could be enforced in the Illinois courts.

In 2008, the General Assembly amended the IHRA to allow employees a choice between filing their cases with the HRC and filing their cases in Illinois circuit courts.   The 2008 Amendments did not affect any substantive rights or remedies available under the IHRA. 

The issue on appeal is whether the Illinois General Assembly waived the States’ sovereign immunity when it passed the IHRA in 1980 and whether that immunity continued to be waived when the IHRA was amended in 2008.

Reflecting on her experience in writing the brief, Cheryl Nolan stated:

"I got a chance to work closely with my supervising attorney, while retaining significant autonomy over the development and articulation of our arguments. I am proud of the work we produced and grateful for Professor Schmidt’s patience and guidance.  Not only did I learn a lot about the substance of our issue, but it was a phenomenal opportunity to watch ideas grow into arguments, and arguments develop into a brief.  The Clinic has been a great way to sharpen my legal research and writing skills, but more importantly, has been confirmation that the practice of law is the right choice for me." 

The American Civil Liberties Union of Illinois and the Chicago Lawyers’ Committee for Civil Rights Under Law filed an amicus brief in support of the position taken by the Clinic.  Briefing and oral argument are expected to be completed in the next few months and a decision is expected later this year.