APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
The plaintiffs, Dennis Klapacz, on his own behalf and on behalf of all other individuals similarly situated, and Advocates for the Handicapped, brought suit against Sears, Roebuck and Co., for injuries allegedly caused by Sears' discriminatory hiring practices. The plaintiffs sought declaratory and injunctive relief as well as damages. Following the granting of Sears' motion to dismiss by the Circuit Court of Cook County, the plaintiffs have prosecuted this appeal.
The plaintiffs filed a three-count complaint. They alleged that Klapacz was 22 years of age at the time of filing the complaint and was expecting to graduate from DePaul University with a bachelor of science in business degree by December 1975. For approximately 10 years prior to the initiation of the suit, Klapacz suffered from nephritis. Due to this ailment, he was forced to receive dialysis treatments for a period of two years prior to September 10, 1974. On September 11, 1974, Klapacz received a kidney transplant at Billings Hospital in Chicago. With respect to this operation, the plaintiffs alleged as follows:
"* * * On December 27, 1974, his condition was, according to the medical authorities at Billings Hospital, stable. The prognosis for return to work was `good,' except that Dennis Klapacz was restricted from heavy lifting."
In January 1975 Klapacz applied for employment with Sears at which time he successfully passed all preemployment tests and was advised that, pending clearance from the medical department, there were positions available for him. However, he failed to receive the required medical certification, allegedly on the grounds that he was an uninsurable risk under Sears' self-insurance program. Consequently, he was not offered a position with the company.
Advocates is a not-for-profit corporation, established for the purpose of promoting "the common needs of the handicapped through advocacy, public education and coordination of effort." The organization is composed of handicapped individuals, parents of handicapped individuals and professionals involved in the rehabilitation of handicapped people. Klapacz is a member of the Advocates organization.
The plaintiffs contend that the actions of Sears violate both article I, section 19 of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 19) and the Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1975, ch. 38, par. 65-21 et seq.). In count I, as amended, all plaintiffs seek an order "declaring that `insurability' or `costs of insurance' are considerations not related to whether a particular handicap prevents the performance of the employment involved, within the meaning of the Constitutional and statutory provisions" applicable in Illinois. Likewise, in amended count I, the plaintiffs seek an order enjoining Sears from "discriminating against physically handicapped applicants for employment where the particular handicap does not prevent performance of the employment involved." In count II the plaintiffs request an injunctive order restraining Sears from requiring applicants to submit to a physical examination designed to determine their insurability and from asking any questions concerning the applicants' medical history, where these medical histories are unrelated to the ability of the applicant to perform the work for which he applies. Finally, in count III, Klapacz, solely in his individual capacity, seeks damages pursuant to section 9 of the Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1975, ch. 38, par. 65-29).
The trial court dismissed the case on two grounds: that Klapacz is not a handicapped person within the meaning of the Equal Opportunities for the Handicapped Act and thus was neither entitled to the protection of the Act, nor a member of the purported class, and that Advocates lacked standing. On appeal the plaintiffs assert that these conclusions are improper. Sears, on the other hand, supports the trial court's decision and raises the additional question of whether the Act is unconstitutionally vague in that it fails to define the phrase "physical and mental handicap"; this latter question was raised in Sears' motion to dismiss, but the trial court did not reach this issue.
This first issue we address is whether Klapacz is handicapped within the meaning of article I, section 19 of the 1970 Illinois Constitution and the Equal Opportunities for the Handicapped Act. The constitutional provision establishes the right of all individuals suffering from a physical or mental handicap to be free from certain forms of discrimination:
"All persons with a physical or mental handicap shall be free from discrimination in the sale or rental of property and shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer." (Ill. Const. 1970 art. I, § 19.)
The Equal Opportunities for the Handicapped Act seeks to implement the policy declared by the Constitution in the areas of housing and employment. (Ill. Rev. Stat. 1975, ch. 38, par. 65-21.) Neither the Constitution nor the Act provides an effective definition of the term "physical or mental handicap."
At the Constitutional Convention, during the discussion of the provision, a few comments were made as to the scope of the term "physical or mental handicap." In response to a question as to what he considered the definition of physical handicap to be, Delegate Daley, one of the sponsors of the provision, stated:
"Well, I would say polio victim, loss of one arm, a leg, finger, one eye, things like this physically handicapped." (5 Record of Proceedings, Sixth Illinois Constitutional ...