American workers are remaining in the workforce beyond normal retirement age. Unfortunately, employers will continue to discriminate against employees 40 years of age and older. Federal law under the Age Discrimination in Employment Act (ADEA) and Illinois law under the Illinois Human Rights Act, prohibit age discrimination in employment. Both statues protect employees who are at least 40 years of age from discrimination, harassment, and retaliation based on their age. However the remedies available under the Illinois Human RIghts Act are far more superior than the remedies available under the ADEA.
An employee who proves his/her employer is liable for age discrimination is limited under ADEA, 29 U.S.C. 626(b), to recovery of back pay and liquidated damages for willful conduct, and may also obtain equitable relief, such as reinstatement or front pay. See Franzoni v. Hartmarx Corp., 300 F.3d 767, 773 (7th Cir. 2002). A successful employee on an ADEA claim may recover attorney’s fees and litigation costs. However, a successful plaintiff on an ADEA claim may not recover compensatory damages for pain and suffering or emotional distress damages. See Barton v. Zimmer, Inc., 662 F.3d 448 (7th Cir. 2011). Nor may a successful plaintiff on an ADEA claim obtain punitive damages against the employer. See Franzoni v. Hartmarx Corp., 300 F.3d 767, 773 (7th Cir. 2002). The remedies available under ADEA do not come close to making an employee who was subjected to illegal age discrimination whole.
An employee who proves his/her employer is liable for age discrimination under the Illinois Human Rights Act is entitled to a jury trial on all issues of damages. See 775 ILCS 5/8-111(3). Under 775 ILCS 5/8-111(4) a court or jury is allowed to award all remedies set forth in 775 ILCS 5/8A-104(4). 775 ILCS 5/8A-104 allows a successful employee on an age discrimination claim to obtain actual damages, hiring, reinstatement, promotion, back pay, fringe benefits, interest, attorney’s fees, expert witness fees, and litigation costs. Actual damages includes compensation for emotional harm and mental suffering. See ISS Int’l Serv. Sys. v. Illinois Human Rights Comm’n, 272 Ill.App.3d 969, 979 (1st Dist. 1995). Front pay is available in the event the court cannot reinstate a successful employee. See Charles A Stevens & Co. v. Human Rights Comm’n, 196 Ill.App.3d 748, 756 (1st Dist. 1990).
Generally, under 775 ILCS 5/7A-102(1), an employee wishing to assert his/her rights under the Illinois Human Rights Act to be free from age discrimination, harassment, and retaliation must file a charge of discrimination with the Illinois Department of Human Rights within 180 days after the date that a civil rights violation has been committed. The failure to timely file a charge of discrimination with the Illinois Department of Human Rights could result in dismissal of your claims. You can maximize your remedies by timely dual filing a charge of discrimination with the EEOC/IDHR within 180 days.
If you believe your employer has unlawfully discriminated against your because of your age and you would like to learn more about your rights under the ADEA and the Illinois Human Rights Act, contact Brian J. Graber, Ltd., at (312) 291-4648 for a free consultation.