Illinois Appellate Court Explains the Elements and Burden of Proof for Age and Disability Discrimination Claims under the Illinois Human Rights Act.

On March 27, 2020, the Illinois Appellate Court, First District, affirmed the findings and decision of the Illinois Human Rights Commission ("Commission") against a former employee on her claims of age and disability discrimination under the Illinois Human Rights Act ("IHRA").  Burns v. Bombela-Tobias, 2020 IL App (1st) 182309.  Although the appellate court concluded that the record as a whole supported the Commission's findings, it also criticized the Commission's legal analysis, and stated Illinois employment law with respect to age and disability discrimination claims under the IHRA.

The former employee contended on appeal that she presented sufficient evidence to establish all the elements of a prima facie case of both age and disability discrimination; and that the employer's proffered reason for terminating her employment was pretext for discrimination.  The appellate court agreed that the Commission failed to recognize that she did present a prima facie case of both claims, and then failed to analyze or consider her evidence that the employer's proffered reason was pretext for discrimination.  However, the appellate court nonetheless concluded that the finding that the former employee failed to carry her burden of proving discrimination was not against the manifest weight of the evidence.

The IHRA prohibits unlawful discrimination against an employee on the basis of either age or disability (as well as other prohibited classifications).  Discrimination can be proved through direct evidence or indirectly through the burden-shifting method followed by federal courts.  As direct evidence of age discrimination, the former employee pointed out that the decision-maker's testimony that he felt a person with 24 years of experience should be held to a higher standard than an employee with less experience.  However, an employer is entitled to rely on the fact that an employee has greater experience in setting higher expectations.  She also suggested that she presented direct evidence of disability discrimination because she was told that her evaluation had been downgraded to acceptable as a result of her absence from work.  However, her claim was not based on receiving a low performance evaluation; and the employer did not suggest that the evaluation was the reason that she was terminated.  She also argued that she should have been provided with reasonable accommodation when she returned to work, but her claim was not based on a failure to accommodate; it was based on her termination. 

In analyzing indirect evidence of employment discrimination under the IHRA, the Commission is required to apply the analytical framework used by federal courts in cases brought under Title VII of the Civil Rights Act of 1964.  Illinois courts look to the decisions of the United States Supreme Court and the United States Court of Appeals for the Seventh Circuit in interpreting the IHRA.  The indirect method of proof for Title VII cases was established by the United States Supreme Court in McDonnell Douglas Corp. v. Green.  The employee must first establish, by a preponderance of the evidence, a prima facie case of unlawful discrimination.  If a prima facie case is established, a rebuttable presumption arises that the employer unlawfully discriminated against the employee.  The employer may rebut the presumption by articulating a legitimate, nondiscriminatory reason for its employment decision.  If it does so, the employee must prove, by a preponderance of the evidence, that the employer's reason was untrue and a pretext for discrimination.  The ultimate burden of persuasion remains with the employee.

The elements of a prima facie claim for employment discrimination are varied and nuanced depending on the circumstances.  Generally, the employee 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 a termination of employment; and (4) similarly situated employees outside of her protected class were treated more favorable by the employer.  One method of proving pretext is to show that employees involved in similar misconduct were retained, while the complaining employee was discharged.  The appellate court concluded that the former employee did not meet her burden of demonstrating that the Commission's factual finding, that she failed to prove discrimination, was against the manifest weight of the evidence.  The comparator employees who were not terminated were in different situations and therefore not similarly situated.  The timing of the termination, just shortly before she was scheduled to have another surgery, which looked suspicious on its face, was not evidence of pretext because the termination also occurred only one week after the subject investigative report was provided to the decision-makers.  The appellate court noted that the fact that the employer did not provide her with a reason for the termination could be evidence of pretext, but was not, in itself, sufficient to establish age or disability discrimination.