APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
The Illinois Fair Employment Practices Commission found that the plaintiff, Motorola, Inc., falsely recorded the examination grade of a Negro applicant for employment in order to avoid hiring him. The circuit court of Cook County affirmed the Commission's ruling that the plaintiff had committed an unfair employment practice, and this administrative review action comes here on direct appeal because the plaintiff challenges not only the sufficiency of the evidence, but also the constitutionality of certain provisions of the Fair Employment Practices Act. Ill. Rev. Stat. 1963, chap. 48, pars. 851-66.
On July 15, 1963, Leon Myart, a negro, came to Motorola's Franklin Park plant in response to a newspaper advertisement. He applied for employment there as an "analyzer and phaser," a production-line position which involves the testing and adjusting of television sets. After he completed an application form, the receptionist at the employment office gave him a written, five-minute test, referred to in the record as "General Ability Test No. 10." After he took the test, Myart was interviewed briefly by a company representative. At the conclusion of the interview, the representative told him that the company would "get in touch" with him.
Myart did not receive any communication from the company, and on July 29, 1963, he filed a complaint with the Fair Employment Practices Commission. The complaint alleged that he was qualified for the position of analyzer and phaser, that he had taken and passed the test given to him, and that he believed he was not hired because of the plaintiff's "widely-known" practice of racial discrimination in hiring. A member of the staff of the Commission investigated the charges, and the Commission determined that there existed substantial evidence that Motorola had committed an unfair employment practice. It requested that the parties attend a conciliation conference. Motorola refused to attend unless a court reporter could be present, but the Commission's rules prohibit stenographic reports of conciliation conferences. No conciliation conference was held. On November 22, 1963, the Commission issued a "complaint of unfair employment practice" against Motorola.
The hearing examiner heard conflicting evidence concerning both Myart's qualifications for the position of analyzer and phaser and whether Myart informed Motorola of all of his experience and education. The examiner resolved these issues in favor of Myart. Motorola required a score of six on Test No. 10 as a prerequisite to further consideration of an applicant, and a witness for Motorola testified that he recorded Myart's score of four on his application form. Myart's actual test paper was never produced, however, and the examiner found that if it had been produced, it would have been adverse to Motorola's contention that Myart scored four. Although the issue had neither been raised by the pleadings nor discussed by the parties, the examiner also found that the general ability test did not "lend itself to equal opportunity to qualify for the hitherto culturally deprived and the disadvantaged groups." He cited in support of this conclusion certain books and articles which had not been offered in evidence. The examiner ordered Motorola to cease and desist from denying equal employment opportunity to qualified applicants, to cease using the general ability test, to revise its employment application form, and to offer Myart employment as an analyzer and phaser. Motorola sought review of the examiner's decision before the Commission.
The Commission permitted both sides to present new evidence, much of which was directed to the question whether the general ability test was inherently discriminatory against negroes and other minority groups. Eventually, however, the Commission ruled that this question was not involved in the proceedings before it because Myart had passed the test and because the issue had not been raised by Myart's complaint. The Commission's final decision made the following findings of fact, which are the only findings before us for review:
"1. That the Complainant passed General Ability Test No. 10 on July 15, 1963 when given to him by Respondent.
2. That the Respondent marked the Complainant's application form with a failing score for General Ability Test No. 10.
3. That the intent of the Respondent in incorrectly marking the Complainant's application was to discriminate against Complainant on account of his race.
4. That by reason of this discrimination based on race, the Respondent refused to process further the Complainant's application for employment in the Respondent's hiring procedure."
The Commission ordered Motorola to cease and desist from denying equal employment opportunity to any qualified applicant because of his race and to pay Myart $1,000 "as compensatory damages in elimination of the effect upon the complainant of the practice originally complained of."
The circuit court ruled that the Commission lacked the power to make an award of monetary damages, and the Commission has not appealed from that ruling. Although the court noted that it would not have made the findings that the Commission did had it been the trier of fact, it held that those findings were supported by competent evidence from which reasonable men could draw an inference of discrimination. It therefore affirmed the Commission's findings and its cease-and-desist order.
At the outset we encounter Motorola's contentions that certain provisions of the Fair Employment Practices Act are unconstitutional. The first of these contentions centers upon section 8(h), which provides: "The Commission may, at any time prior to final order of the Court [in a proceeding for judicial review or judicial enforcement of a commission order] upon reasonable notice, modify or set aside in whole or in part, any finding or order made by it except an order or finding that a respondent has not engaged in the unfair employment practice charged in the complaint." (Ill. Rev. Stat. 1963, chap. 48, par. 858(h).) The decisions of the Commission are reviewable under the Administrative Review Act which defines an "administrative decision" as a ruling "which terminates the proceedings before the administrative agency." (Ill. Rev. Stat. 1963, chap. 110, par. 264.) Reading these two statutory provisions together, Motorola contends that "the existence of section 8(h) of the Act prevents a final appealable order and hence invalidates the proceeding before the Commission." The argument is that an impasse has been created: "the legislature grants the right to appeal and at the same time prevents a final and appealable decision."
Although Motorola contends that this impasse deprives it of due process of law, the problem raised is primarily one of statutory construction, and the statutory definition of an "administrative decision," upon which Motorola's argument rests, is not complete. Section I of the Administrative Review Act, in addition to the definition that Motorola relies upon, provides: "[I]f the particular statute permits an application for rehearing or other method of administrative review to be filed with the administrative agency for an indefinite period of time after the administrative decision has been rendered (such as permitting such application to be filed at any time before judgment by the administrative agency against the applicant or within a specified time after the entry of such judgment), then the authorization for the filing of such application for rehearing or review shall not postpone the time when the administrative decision as to which such application shall be filed would otherwise become final, but the filing of the application for rehearing or review with the administrative agency in this type ...