APPEAL from the Circuit Court of De Kalb County; the Hon. CARL
A. SWANSON, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Petitioner, the chairperson of the Illinois Fair Employment Practices Commission (hereinafter FEPC), appeals from the order of the trial court which denied its motion to strike affirmative defenses of the respondent, Turner Company (hereinafter Turner), and from the order which thereafter denied petitioner's motion to reconsider and vacate that order. We granted leave to appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1973, ch. 110A, par. 308).
The trial court found that (1) Turner, although it was the losing party in a proceeding before the Fair Employment Practices Commission and had not pursued judicial review pursuant to section 10 of the Fair Employment Practices Act (Ill. Rev. Stat. 1973, ch. 48, par. 860) and sections 2, 11, and 12 of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, pars. 265, 274, 275), could plead affirmative defenses in reply to an enforcement proceeding brought under section 11 (par. 861) of the Fair Employment Practices Act; *fn1 and (2) the affirmative defenses disclosed by the pleadings were proper.
The FEPC contends that judicial review of the Commission's decisions is provided for under par. 860 and constitutes the sole method of challenging the substance of any final order and decision of the FEPC. Therefore, the petitioner argues that the trial court erred in refusing to strike respondent's defenses which allegedly involve only challenges to the merits of the agency's decision. Turner claims that par. 861 of the Act delineates an alternative method of obtaining judicial review.
In October, 1972, Betty Elliott and Kathy Bennett, employees of Turner, filed charges with the FEPC against the employer, alleging that its medical benefits program was sexually discriminatory. The FEPC on December 12, 1973, issued a final order and decision which found discrimination and ordered respondent to take certain steps regarding its medical benefits program to avoid sexual discrimination. Turner intentionally did not comply and so informed the FEPC. Thereafter, on February 8, 1974, the FEPC filed a petition for judicial enforcement pursuant to par. 861 of the FEPA. Turner Company filed an answer which set forth four affirmative defenses which may be summarized as follows: (1) that in the enforcement proceedings it is entitled to contest the validity of the FEPC's order even though it knowingly allowed the time period for filing a complaint under the ARA to lapse; (2) that the Commission's conclusion that pregnancy is a temporary physical disability which must be treated like any other such disability is without evidentiary support and without foundation in law; (3) that the Commission's conclusion that respondent's failure to treat pregnancy as any other temporary physical disability under its accident and sickness insurance policy constitutes unlawful discrimination is erroneous as a matter of law; and (4) that the Commission's guidelines which require employers to treat pregnancy like any other temporary disability for the purpose of paying insurance benefits, by creating an unwarranted irrebuttable presumption that pregnancy of itself is a temporary disability, deprives respondent of due process of law, constitutes an unwarranted intrusion upon the employer-employee relationship and is beyond the Commission's legal authority.
The court refused to strike these defenses on petitioner's motion and certified the questions of law to this court.
We must first resolve the question of whether the proceedings under the Administrative Review Act constitute the sole method of challenging the substance of a final order and decision of the FEPC, as the petitioner contends; or whether the legislature has provided an alternative means of obtaining judicial review of the legal findings and conclusions of the Commission by providing for enforcement proceedings to be brought in the circuit court under par. 861, as Turner contends. Resolution of this issue, which is acknowledged to be one of first impression in Illinois, involves essentially the reconciliation of two sections of the FEPA, pars. 860 and 861.
"Review under Administrative Review Act. Any complainant or respondent may apply for and obtain judicial review of an order of the Commission entered under this Act in accordance with the provisions of the `Administrative Review Act,' approved May 8, 1945, as heretofore or hereafter amended; and the Commission in proceedings under this Section may obtain an order of Court for the enforcement of its order."
"Judicial enforcement. Whenever the Commission concludes that any person has violated a valid order of the Commission issued pursuant to Sections 8, 8.01 and 8.02 of this Act, and the violation and its effects are not promptly corrected, the Commission shall commence an action in the name of the People of the State of Illinois by petition, alleging the violation, attaching a copy of the order of the Commission and praying for the issuance of an order directing such person, his or her or its officers, agents, servants, successors and assigns to comply with the order of the Commission. Upon the commencement of such action the Court shall have jurisdiction of the proceedings and power to grant or refuse, in whole or in part, the relief sought or such other remedy as the Court may deem proper, provided that the Court may stay an order of the Commission in accordance with paragraph (1)(a), Section 12 of the `Administrative Review Act,' pending disposition of the proceedings. The Court may punish for any violation of its order as in case of civil contempt. * * *"
The FEPC asserts that the provisions of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, pars. 264-279) are adopted by express reference in par. 860 of the Fair Employment Practices Act. Therefore, the agency contends, the use of other methods of obtaining judicial review of the agency's decisions is precluded by par. 265 of the Administrative Review Act, which provides that when the Administrative Review Act is applicable, "any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not be employed * * *." In support of its contention that par. 861 of the Fair Employment Practices Act was not intended to provide an alternate method of review, the agency notes that the stated purpose of the FEPA (Ill. Rev. Stat. 1973, ch. 48, par. 851) is to protect equal employment opportunity and that the adoption of the ARA as the method of judicial review evidences a legislative intent to encourage prompt resolution of employment practice disputes since the ARA requires action to be filed within 35 days of the disputed order. (See Ill. Rev. Stat. 1973, ch. 110, par. 267.) The agency also argues that its construction of pars. 860 and 861 supports the stated legislative policy of protecting the interests of both employers and employees when an unfair employment practice is charged (see Ill. Rev. Stat. 1973, ch. 48, par. 851) because the ARA places the burden of review on the losing party before the administrative agency. If par. 861 of the FEPA is interpreted to provide an alternative method of review when the agency moves in the circuit court to enforce its order, the FEPC contends that this legislative scheme would thereby be thwarted. It argues that upholding the alternate method of challenging the agency orders would result in encouraging a losing respondent not to file for administrative review since no rights would be lost through inaction. The respondent could therefore refuse to comply and then wait to defend when the agency reached the enforcement stage. It concludes that the powers given to the circuit court in an enforcement proceeding brought under par. 861 were intended to permit the court to respond to proper jurisdictional challenges, to prevent proceedings under par. 860 and par. 861 from going forward simultaneously before different judges in the same court, and to make minor non-substantive changes in the agency's orders when necessary.
Turner argues that the legislature may provide alternate methods of review of administrative agencies' decisions. It notes that the legislature in par. 860 provided only that the complainant or respondent "may" apply for judicial review under the Administrative Review Act. It contrasts this language with "shall apply" language used in other acts and argues that this distinguishes the case before us from People ex rel. Chicago & North Western Ry. Co. v. Hulman, 31 Ill.2d 166 (1964), and Goldfarb v. White, 54 Ill. App.2d 483 (1964). It also points out the absence of language similar to that used in the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1041), which also contains both judicial review and general court enforcement provisions but specifically states that no challenge to the validity of a board order can be made in any enforcement proceedings as to any issue that could have been raised in a timely review under the Administrative Review Act.
Turner also contends that the language of par. 861 clearly indicates the right to raise substantive defenses to the enforcement proceedings. It argues that the legislature would not have given the circuit court in enforcement proceedings "* * * power to grant or refuse, in whole or in part, the relief sought or such other remedy as the Court may deem proper * * *" if it did not intend to grant the respondent the right to raise substantive matters relative to a Commission order, which the court could then consider in determining whether enforcement of such orders should be granted, denied or modified. If the defendant in an enforcement proceeding may not, at the very least, challenge the propriety of the Commission's legal conclusions, the Company asserts, the court would have no basis upon which to exercise the powers granted. It notes that the reference to a "valid order" of the Commission in par. 861 is further evidence of a right to test the validity of the order and concludes that if par. 861 is not construed to permit defenses to the merits of an order, much of the language in that paragraph is meaningless.
In addition, the company points out that actions may be even more prompt under par. 861 than under the Administrative Review Act since the Commission is not precluded from immediate action to enforce its orders. Therefore, it asserts that winning complainants are fully protected by the trial court's interpretation since the interest of the Commission and the interest of parties complaining of discrimination are virtually identical and may be promptly addressed in the ...