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The right to sue an employer for discrimination in state courts is gaining momentum, rattling the nerves of employers who fear more lawsuits and costly jury trials. From Oct. 1, Maryland employees for the first time are allowed to sue employers for discrimination in state court and seek a jury trial due to an amendment to the state’s anti-discrimination law. In the past, employees were limited to suing in federal court or filing administrative claims with a state agency or the U.S. Equal Employment Opportunity Commission. Illinois employees also have gained similar rights. Starting on Jan. 1, 2008, plaintiffs there will be allowed to pursue workplace claims in state court, rather than be limited to federal court and administrative claims. Illinois and Maryland join 38 other states that allow for workplace disputes to be pursued in state courts. In a related development, a Minnesota judge ruled earlier this year that plaintiffs alleging workplace discrimination in state court are entitled to a jury trial. The state’s Human Rights Act did not allow for jury trials, but the judge said that was unconstitutional. Less experience Management-side lawyers say that all of this activity means bad news for employers. “[W]e’re going to be before judges with less experience in discrimination and harassment matters,” said Robert Arroyo of the Chicago office of Jackson Lewis, a labor and employment firm. “And jury trials are less predictable than decisions by administrative law judges who specialize in this area.” Arroyo’s comments come as Illinois employers brace for the new amendment to the state’s Human Rights Act that allows for workplace claims to be pursued in state court. He expects the change to trigger more lawsuits by employees who will want to seize the chance to have their case heard by a local jury, rather than wait for an administrative board or a federal judge to decide their fate. “They now have the ability to do that,” Arroyo said, adding that’s cause for “significant concern” for Illinois employers. Todd Alan Ewan, an attorney at Philadelphia’s Mitts Milavec who represents management in labor and employment matters, advised Illinois employers to act quickly to have cases moved from state court to federal court. That has been a successful tactic for him in Pennsylvania, where plaintiffs also have the right to sue in state court. Ewan noted that employers have it rougher in some states than in others. For example, Pennsylvania mandates that plaintiffs first file their claims with the state Human Rights Commission, which has a year to consider the merits of the claim. After a year passes, the plaintiff can go to state court. In contrast, New Jersey allows plaintiffs to go directly to state court without having to file a claim with an administrative body. “In New Jersey, if you’re sitting at your desk one day and you feel harassed based on race or gender or whatever it may be, you can go right to court,” Ewan said. Hearings v. juries Ewan, meanwhile, prefers the administrative process. “When you go through the agency process, it helps weed out some of the bad cases,” Ewan said. “You will get someone telling the plaintiff that they don’t think their case has weight. And it’s tough when you’re a plaintiff and you hear that.” It’s precisely for that reason that plaintiffs should be allowed to go to court with their claims, counter plaintiffs’ lawyers. “The greatest benefit is that you know you’re going to get an opportunity for an adversarial hearing,” said employee rights attorney Aaron Maduff of Chicago’s Maduff & Maduff. “In the past, we’ve been afraid of getting a no-cause finding and then basically being dead.” Under the new Illinois amendment, employees will still have to first file their claims with the state’s Department of Human Rights. But if they don’t get an answer within a year, or don’t like the answer they get, then they can go to court. “This gives every case the opportunity for an adversarial hearing, which is critical,” Maduff said.

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