Military Discrimination and Retaliation

BRIAN J GRABER LLC is an Illinois military discrimination and retaliation lawyer representing Illinois employees who are discriminated against or retaliated against because of their military service in violation of Illinois and federal law. Illinois law provides broad remedies for employment discrimination and retaliation against employees because of their military status or military service. In fact, Illinois law provides broader remedies than those available under federal law, USERRA, 38 U.S.C. 4301, et seq. Click here to learn more about your rights under the federal USERRA law.

ISERRA

On January 1, 2019, the Illinois Service Member Employment and Reemployment Act, 330 ILCS 61/1-1, et seq., become effective in protecting the rights of Illinois servicemembers employed in the State of Illinois. The public policy of the State of Illinois is declared as follows:

(A) minimizing disadvantages to military service in civilian careers;

(B) providing for prompt reemployment and protections of service members in a manner that minimizes disruption to the lives of such employees, their employers, and co-workers;

(C) prohibiting discrimination against and interference with military service; and

(D) ensuring that public entities are the model employers of reserve components by providing additional benefits.

ISERRA, 330 ILCS 61/1-5(1)(A)-(D).

ISERRA, 330 ILCS 61/1-5(2) does not supersede, nullify, or diminish any federal or State law, including any local law or ordinance, contract agreement, policy, plan, practice, or other matter that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided under this Act. Additionally, under 330 ILCS 61/1-5(2), the benefits and protections under ISERRA cannot be diminished.

Under ISERRA, 330 ILCS 61/1-5(3), the Illinois legislature requires the Act to be liberally construed so as to effectuate the purpose and provisions of the Act for the benefit of the service member who has set aside civilian pursuits to service his or her country or this State in a time of need.

ISERRA Protected Employees

Three categories of employees are protected under ISERRA as follows:

(1) Service in the Armed Forces of the United Staters, the National Guard of any state or territory regardless of status, the State Guard as defined by the State Guard Act. “Military service”, whether active or recieve, includes service under the authority of the U.S.C. Tiltes 10, 14, or 32, or State Active dutiy.

(2) Service in a federally recognized auxiliary of the Untied States Armed Forces when perfroming official duties in support of military or civilian authorities as a result of an emergency.

(3) A period for which an employee is absent from a position of employment for the purpose of medical or dental treatment for a condition, illness, or injury sustained or aggrivated during a period of active service in which treatment is paid by the Untied States Department of Defense Military Health System.

ISERRA, 330 ILCS 61/1-10.

ISERRA Applies to All Employers

ISERRA defines the term “employer” broadly to include the following:

“. . . any person, institution, organization, or other entity that pays salary or wages for work perfromed or that has control over employment opportunities, including:

(1) a person, instituton, organization, or other entity to whim the employer has delegated the perfromance of employment- related responsibilities;

(2) An employer of a public employee;

(3) any successor in interest to a person, institution, organization, or other entity referred to under this definition; and

(4) a person, institution, organization, or other entity that has been denied initial employment in violation of Section 5-15.”

ISERRA, 330 ILCS 61/1-10.

ISERRA broadly defines the term, “public employer” to include the following:

“. . . any person classified as a full-time employee of the State of Illinois, a unit of local government, a public institution of higher education as defined in Section 1 of the Board of Higher Educations Act, or a school district, other than an indepdendent contractor.”

ISERRA, 330 ILCS 61/1-10.

Under ISERRA, 330 ILCS 61/1-10, “unit of local government” means any city, village, town, county, or special district.

ISERRA Protections

ISERRA provide Illinois service members with the following rights:

• Reemployment rights under 330 ILCS 61/5-5;
• Additional benefits under 330 ILCS 61/5-10 for differential compensation and health paln benefits;
• Protections from discrimination and retaliation expanded beyond the protections under federal law, USERRA, to include poor perfromance reviews during periods of military leave.

ISERRA Employment Discrimination Protections

ISERRA, 330 ILCS 61/5-15 protects Illinois service members from employment discrimination by adopting 38 U.S.C. 4311(a) of the federal Uniformed Services Employment and Reemployment Rights Act, (USERRA), and those regulations promulgated under the federal USERRA are incorporated. Under ISERRA, 330 ILCS 61/5-15 protects Illinois service members from employment discrimination as follows:

A person who is a member of, applies to be a member of, perfroms, has perfromaed, applies to perfrom, of has an obligation to perfrom service in a uniformed service shall not be denied intial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, perfromance of service, application for service, or obligation.

38 U.S.C. 4311(a) expressly adopted by ISERRA, 330 ILCS 61/5-15.

If you believe your employer discriminated against you in violation of your rights under ISERRA, contact BRIAN J GRABER LLC, an ISERRA lawyer, at (312) 291-4648 or by email to schedule a free confidential consultation.

ISERRA Retaliation Protections

ISERRA, 330 ILCS 61/5-15 protects Illinois service members from retaliation by adopting 38 U.S.C. 4311(b) of the federal Uniformed Services Employment and Reemployment Rights Act, (USERRA), and those regulations promulgated under the federal USERRA are incorporated. ISERRA, 330 ILCS 61/5-15 protects Illinois service members from retaliation as follows:

(b) An employer may not discriminate in employment against or take any adverse employment action against any person because such person –

(1) has taken an action to enforce a protection aforded any person under this chapter,

(2) has testified or otherwise made a statement in connection with a proceeding under this chapter,

(3) has assisted or otherwise participated in an investigation under this chapter, or

(4) has exercised a right provided for in this chapter.

The prohibition in this subsection shall apply with respect to a person regardless of whether that person has perfromed service in the uniformed services.

38 U.S.C. 4311(b) expressly adopted by ISERRA, 30 ILCS 61/5-15.

Under ISERRA, 330 ILCS 61/5-15 any employees who engage in protected activity under USERRA, 38 U.S.C. 4311(b)(1)-(4) are protected from retaliation. See 20 C.F.R. 1002.20. If you believe you were retaliated against by your employer for engaging in protected activity in violation of your ISERRA rights, contact BRIAN J GRABER LLC, an ISERRA lawyer, at (312) 291-4648 or by email for a free confidential consultation.

ISERRA Remedies

ISERRA, 330 ILCS 61/15-5 provides Illinois service members who suffer employment discrimination or retaliation with a private civil action against their employer for violation of their rights under ISERRA. Under ISERRA, 330 ILCS 61/15-20 a court may award the following remedies to Illinois service member’s whose rights are violated:

• actual damages;
• any other relief deemed proper;
• punitive damages for discrimination and retaliation not exceed $50,000.00 per violation;
• reasonable attorney’s fees to the prevailing party.

The remedies available under ISERRA, 330 ILCS 61/15-5 are much broader than the remedies available under the federal USERRA law. If you believe your employer discriminated or retaliated against you in violation of your rights under ISERRA, contact BRIAN J GRABER LLC, an ISERRA lawyer, at (312) 291-4648 or by email to schedule a free confidential consultation.

ISERRA Statute of Limitations

Under ISERRA, 330 ILCS 61/25-5 no statute of limitations applies to any private right to bring an action against an employer. If you believe your employer violated your rights under ISERRA, contact BRIAN J GRABER LLC, an ISERRA lawyer, at (312) 291-4648 or by email to schedule your free confidential consultation.

Illinois Human Rights Act

The Illinois Human Rights Act, (IHRA), 775 ILCS 5/1-101, et seq., provides Illinois service members with broad protections from employment discrimination and retaliation. BRIAN J GRABER LLC practices military discrimination and retaliation law representing Illinois service members who have suffered employment discrimination and retaliation in violation of their rights under the Illinois Human Rights Act.

Under the Illinois Human Rights Act, (IHRA), 775 ILCS 5/1-103(Q) “unlawful discrimination” means discrimination against a person because of his or her actual or perceived military status. Under the IHRA, “military status” is defined as follows:

“a person’s status on active duty in or status as a veteran of the armed forces of the United States, status as a current member or veteran of any reserve component of the armed forces of the United States, including the United States Army Reserve, United States Marine Corps Reserve, United States Navy Reserve, United States Air Force Reserve, United States Coast Guard Reserve, or status as a current member or vetern of the Illinois Army National Guard or Illinois Air National Guard.”

775 ILCS 5/1-103(J-1).

IHRA Covers all Illinois Employers

The IHRA, 775 ILCS 5/2-101(B)(1)(a) covers any person employing one or more employees within Illinois during 20 or more calendar weeks within the calendar year of or proceeding the alleged violation. The IHRA, 775 ILCS 5/2-101(B)(1)(c) defines the term “employer” to include the State and any political subdivision, municipal corporation, or other governmental unit or agency, without regard to the number of employees.

Military Status Discrimination

The Illinois Human Rights Act, 775 ILCS 5/2-102(A) makes it a civil rights violation for any employer to refuse to hire, to segregate, to engage in harassment, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of discrimination because of a person’s actual or perceived military status.

If you believe that your employer discriminated against you on the basis of your military status in violation of the IHRA, contact BRIAN J GRABER LLC, a military discrimination and retaliation lawyer at (312) 291-4648, or by email to schedule a free confidential consultation.

Military Status Harassment

The Illinois Human Rights Act, 775 ILCS 5/2-102(A) makes it a civil rights violation for an employer to engage in harassment of an employee because of his or her actual or perceived military status. The Illinois Human Rights Act defines “harassment” as follows:

Harassment means any unwelcome conduct on the basis of an individual’s actual or perceived . . . military status . . . that has the purpose or effect of substantially interferring with the individual’s work perfromance or creating an intimidating, hostile, or offensive working environment. For the pusposes of this definition, the phrase “working environment” is not limited to a physical location as employee is assigned to perfrom his or her duties.

775 ILCS 5/2-101(E-1).

Under the IHRA, 775 ILCS 5/2-102(A) an employer is responsible for harassment by the employer’s nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures. Under the IHRA, 775 ILCS 5/2-102(A) an employer likely has strict liability for the harassment on the basis of military status by a supervisor. See Sangamon Co.Sheriff’s Dept. v. IHRC, 233 Ill.2d 125,137 (2009).

Employers may have liability under the IHRA, 775 ILCS 5/2-102(A-10) for harassment of nonemployees on the basis of military status. The IHRA, 775 ILCS 5/2-102(A-10) appears to impose strict liability on employers for military status harassment of nonemployees by supervisors and imposes a negligence standard for military status harassment of nonemployees by nonmanagerial employees.

If you believe that your employer harassed you on the basis of your military status in violation of your rights under the Illinois Human Rights Act, contact BRIAN J GRABER LLC, a military discrimination and retaliation lawyer at (312) 291-4648, or by email for a free confidential consultation.

Military Status Retaliation

The Illinois Human Rights Act, (IHRA), 775 ILCS 5/6-101 makes it a civil rights violation for a person or two or more persons to conspire to:

• Retaliate against a person because he or she has opposed that which he or she reasonably and in good faith believesd to be unlawful discrimination or harassment on the basis of military status;
• Retaliate against a person because he or she has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this Act;
• Aid, abet, compel or coerce a person to commit any violation of this Act;
• Willfully interfere with the perfromance of a duty or the exercise of a power by the Commission or one of its members or representatives of the Department of one of its offers or employees.

If you believe that your employer retaliated against you for engaging in one or more of the above listed protected activities under the Illinois Human Rights Act, 775 ILCS 5/6-101, contact BRIAN J GRABER LLC, a military discrimination and retaliation lawyer at (312) 291-4648, or by email to schedule a free confidential consultation.

Statute of Limitations

Unlike the federal USERRA law and ISERRA, the Illinois Human Rights Act, 775 ILCS 5/7A-102(A)(1) contains a statute of limitations. The IHRA, 775 ILCS 5/7A-102(A)(1) requires that you file a charge in writing with the Illinois Department of Human Rights within 300 calendar days after the date that a civil rights violation allegedly has been committed. Failure to timely file a written charge of discrimination with the Illinois Department of Human Rights may prevent you from making a claim against your employer for military status discrimination, harassment, or retaliation under the Illinois Human Rights Act.

Click here to learn how to file a written charge with the Illinois Department of Human Rights. BRIAN J GRABER LLC, a military discrimination and retaliation lawyer prepares written charges for clients that retain our services. If you believe that your employer violated your rights under the Illinois Human Rights Act by subjecting you to discrimination on the basis of your military status, engaged in harassment because of your military status, or retaliated against you for engaging in protected activity, contact BRIAN J GRABER LLC, a military discrimination and retaliation lawyer, at (312) 291-4648 or by email for a free confidential consultation.

IHRA Remedies

The IHRA, 775 ILCS 5/8-111(A) allows you to file a civil lawsuit and seek a jury trial against your employer for violations of your rights under the Illinois Human Rights Act, assuming you timely filed a written charge of discrimination with the Illinois Department of Human Rights. Under the IHRA, 775 ILCS 5/8A-104 a judge or jury may award a successful employee any of the following forms of relief:

• Cease and Desist Order;
• Actual damages;
• Hiring;
• Reinstatement;
• Backpay and loast fringe benefits;
• Reasonable attorney’s fees;
• Expert witness fees;
• Costs of maintaining the action.

The remedies available under the Illinois Human Rights Act are substantially broader than those available under the federal USERRA statute. If you believe your employer violated your rights under the Illinois Human Rights Act, contact BRIAN J GRABER LLC, military discrimination and retaliation lawyer at (312) 291-4648, or by email to schedule a free confidential consultation.