Section 5210.10  Purpose and Coverage

 

In this part, the Department of Human Rights and the Human Rights Commission set forth their interpretations of the provisions of Section 2-102 of the Illinois Human Rights Act ("Act"), (Ill. Rev. Stat. 1983, ch. 68, par. 2-102), prohibiting discrimination in employment because of a person's sex.  The prohibitions against sex discrimination in Section 2-102 apply to all units of State and local government in Illinois, to all private employers having contracts with the State or local governments, to all other private employers with fifteen or more employees, and to all employment agencies and labor organizations (see Sections 2-101(B), (C), and (D) of the Act, Ill. Rev. Stat. 1983, ch. 68, par. 2-101(B), (C) and (D)).  Section 2-102 forbids covered employers to discriminate based on sex "with respect to Recruitment, Hiring, Promotion, Renewal of Employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment".  In addition to their obligations as employers, Section 2-102 enjoins employment agencies and labor organizations from discriminating in classifying, referring, representing or otherwise servicing job applicants, bargaining unit members, and others.  The following sections are the Department's and the Commission's Rules on the application of these prohibitions to various fact settings.

 

Section 5210.20  Recruiting

 

a)         It is a violation of the Act for an employer or employment agency to post or publish or to place with any employment agency or publication a listing, advertisement or request for referrals which directly or indirectly expresses a preference, limitation or specification for persons of one sex, unless sex is a bona fide occupational qualification for the job involved.  The placement of an advertisement for publication in a section or under a heading such as "Help Wanted – Men" or "Help Wanted – Women" constitutes an expression of such a preference, limitation or specification, and is therefore unlawful except when sex is a bona fide occupational qualification.  Advertisements using terms such as "bus boy" or "girl friday" or other gender-specific titles to designate jobs are also deemed to indicate sex preference.  An employer or employment agency which advertises under a name which indicates that it seeks applicants of one sex only violates the Act unless it is clear from the advertisement as a whole that applicants of both sexes are in fact solicited.

 

b)         A newspaper, magazine or similar publication aids and abets the commission of unlawful employment discrimination, in violation of Section 6-101(B) of the Act, (Ill. Rev. Stat. 1983, ch. 68, par. 6-101(B)), when it publishes help-wanted advertisements in sex-segregated columns or sections, or when it publishes such advertisements using terminology suggesting that the positions for which applicants are sought are restricted to or appropriate for persons of one sex only.  This occurs when such an advertisement is expressly addressed to persons of one sex (e.g., "mature man" or "attractive woman"), or where the ad utilizes a sex-specific job title (e.g., "repairMAN" or "salesMAN").  There is no violation of the Act if sex is a bona fide occupational qualification for the job in question.

 

Section 5210.30  Employment Agencies and Referral Services

 

a)         Any employment agency which restricts the availability of its services or which maintains separate files, listings or referral systems based on sex, is in violation of the Act except to the extent that sex is a bona fide occupational qualification for the job involved.

 

b)         An employment agency which accepts an order or request for referrals expressing a specification or preference for persons of a particular sex, commits an unfair employment practice unless sex is a bona fide occupational qualification for the job involved.

 

Section 5210.40  Pre-Employment Inquiries

 

An application form or other inquiry made of an applicant for employment or for membership in a labor organization or for an apprenticeship program which expresses directly or indirectly any preference, limitation or specification as to sex is unlawful unless sex is a bona fide occupational qualification for the position involved.

 

Section 5210.50  Discrimination in Compensation

 

It is a violation of the Act for an employer and/or labor organization to discriminate based upon the sex of an employee, or the predominant sex of a group of employees, in negotiating or establishing the wages, benefits or other compensation to be made to such employee(s).  An employer may not differentiate based on sex among employees performing the same or substantially the same work under like working conditions in fixing the employees' wages and benefits.  The preceeding language shall not be construed to be an expression of the position of the Department or the Commission on whether it is a violation of the Act for an employer and/or labor organization to fail to accord comparable wages to positions which are comparable in worth or contribution to the enterprise, where the positions do not entail the same or substantially similar work, and where there is no evidence that considerations of sex influenced establishment of the wage levels.

 

Section 5210.60  Seniority Rosters and Lines of Progression

 

It is a violation of the Act for an employer or labor organization to classify jobs by sex.  It is also a violation of the Act to establish a system of classification, seniority or progression, even if sex is not mentioned, if the system operates as a form of classification by sex or impedes the advancement by persons of one sex into certain jobs unless the criteria involved in the classification scheme are bona fide occupational qualifications for jobs in question.  It is not a violation for an employer and/or labor organization to maintain separate selection or eligibility lists for apprenticeship or other training programs, based upon sex, where necessary to observe the terms of a quota selection system duly imposed by a judicial or quasi-judicial ruling or a bona fide voluntary affirmative action program.  In determining whether such voluntary affirmation action program is bona fide the facts to be considered shall include, but are not limited to:

 

a)         Is the program designed to break down old patterns of discrimination;

 

b)         Does the plan unnecessarily trammel the rights of other employees; and

 

c)         Is the plan a temporary measure and designed to remedy a minifest imbalance.

 

Section 5210.70  Bona Fide Occupational Qualifications

 

a)         Section 2-104(A) of the Act, (Ill. Rev. Stat. 1983, ch. 68, par. 2-104(A)), provides that it is not a violation for an employer, employment agency or labor organization to discriminate based on a criterion which constitutes a bonafide occupational qualification (BFOQ) for the particular job.  This exemption is narrowly construed, and the person claiming the exemption bears the burden of establishing that it is available in the particular instance.  A BFOQ is properly applied as an exclusion of an entire class of individuals on the basis of a standard that is necessary for safe and efficient job performance.

 

b)         The following are examples of instances in which sex cannot constitute a BFOQ:

 

1)         the refusal to select an individual for a position based on assumptions as to the comparative employment characteristics between sexes, e.g., the assumption that the turnover rate among women is higher than among men, or that women are less willing to work overtime.

 

2)         the refusal to select an individual for a position based on a characterization attributed generally to members of either sex.  Such characteristics may include, e.g., the belief that women are less capable of aggressive sales or less suited for physical labor, or that men are less adept at jobs requiring manual dexterity.

 

3)         the refusal to select an individual because the preferences of co-workers, clients or customers run toward persons of a particular sex, or the custom or tradition has been to employ persons of a particular sex.

 

4)         the refusal to select an individual because the employer may have to provide separate facilities for a person of the opposite sex, unless the expense would be clearly unreasonable, taking into consideration, among other factors, the cost involved, the nature of the employer's operation and the employer's ability to pay.

 

5)         the refusal to select a woman for a position based on the belief that women with children should not work or are less reliable employees.

 

6)         the refusal to select a woman for a position based on the fear that pregnancy may in the future render her unable to work.

 

c)         The following are examples of instances in which sex may constitute a BFOQ:

 

1)         where a person of a particular sex is necessary to provide authenticity or genuiness, e.g., an actor to play a male role or a woman to model feminine apparel.

 

2)         where community standards not otherwise inconsistent with the Act demand that a person of a particular sex be selected, e.g., a male to be a men's washroom attendant, a woman to work as a fitter in a girdle or brassiere establishment.

 

Section 5210.80  Marital, Parental Status

 

An employer's rule or policy which restricts the employment opportunities of married women but not of married men discriminates against women because of sex in violation of the Act.  Similarly, a rule or policy which restricts the employment opportunities of women (married or unmarried) with minor children, discriminates against women in violation of the Act.

 

Section 5210.90  Fringe Benefits

 

a)         Fringe benefits, as used herein, includes medical, hospital, accident, life insurance, disability, pension and retirement benefits; profit sharing and bonus plans; leaves of absence; and other terms, conditions and privileges of employment.

 

b)         It is a prima facie violation of the Act for an employer or labor organization to offer, contract for, or participate in a fringe benefit program which discriminates, or has the effect of discriminating, among employees or members on the basis of sex.

 

c)         A pension or retirement plan which establishes different entrance ages or different optional or compulsory retirement ages based on sex, or which differentiates in employee or member contributions or benefits on the basis of sex, violates the Act.

 

d)         It is not a defense under the Act to a charge of sex discrimination in fringe benefits that the cost of such benefits may be greater with respect to one sex than the other.

 

Section 5210.100  Memberships in Private Clubs

 

An employer which maintains a practice of purchasing, reimbursing or subsidizing memberships for any of its employees in private clubs must ensure that the practice is followed consistently among employees without regard to sex.  An employer may not purchase, reimburse or subsidize an employee's membership in a club which limits its memberships based upon sex if the practice results in any disparity in overall professional status, advancement opportunities, or total compensation based upon sex.

 

Section 5210.110  Pregnancy, Childbirth and Childrearing

 

a)         A written or unwritten policy or practice which excludes from employment applicants or employees because of pregnancy is a violation of the Act, unless the employee's pregnancy renders her physically unable to be trained for or to perform the duties of the position in question.  If is also a violation for an employer to discharge an employee because she becomes pregnant.

 

b)         Temporary disability resulting from pregnancy, miscarriage, abortion, childbirth and recovery therefrom must be considered by an employer offering leaves for other temporary disabilities to be a justification for a leave of absence for a female employee.  The term and conditions of pregnancy-related disability leaves of absence may not be more restrictive, and need not be more generous, than those applied to disability leaves for other purposes.

 

c)         Non-disability leaves of absence for the purpose of childrearing shall be granted on the same terms and conditions applied to other non-disability leaves of absence.  An employer's policy or practice regarding leaves for childrearing must be applied equally to male and female employees.

 

d)         Illness or disability caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom must be treated as any other temporary disability under a disability or medical benefit plan available in connection with employment.  Policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, and payment under any wage loss or insurance plan, must be applied to disability due to or related to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.