APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 8, 1979.
Plaintiff, Illinois Bell Telephone Company (hereinafter "Bell"), provides for its employees a "Wage Continuation Plan" as a fringe benefit for periods of nonoccupational, temporary, medically approved sickness or off-the-job injuries, paying said disabled employees a percentage of their regular wages for a limited number of weeks commencing with the second week of disability. The sole exceptions from this plan are employees temporarily disabled because of normal pregnancies, who are placed on uncompensated maternity leaves of absence and sustain a reduction in fringe benefits as well as a loss of seniority after the first 30 days of absence. Pregnancy cases in which complications arise (e.g., "morning sickness") during active service are eligible for sickness disability benefits.
Individual defendants Rone, Roe, Lyles and Pratt are employees who were placed on uncompensated maternity leaves of absence, and, in two separate cases, subsequently filed charges against Bell with defendant Illinois Fair Employment Practices Commission (hereinafter "FEPC"), alleging that plaintiff had impermissibly discriminated against them because of their sex under section 3(a) of the Illinois Fair Employment Practices Act (hereinafter "FEPA") (Ill. Rev. Stat. 1975, ch. 48, par. 853(a)) by virtue of the denial of wage continuation payments and other benefits during the periods of their pregnancy-related disabilities.
Following an evidentiary hearing before an FEPC hearing examiner, who recommended that the FEPC find the issues in favor of defendants, the FEPC on March 20, 1975, found that Bell's exclusion of pregnancy from its "Wage Continuation Plan" discriminated against defendants because of their sex and that said discrimination was not excused by FEPC in its "Guidelines On Discrimination Because of Sex" (hereinafter "Guidelines"). Administrative review proceedings were initiated in the circuit court of Cook County by plaintiff.
These consolidated appeals are from an order of the circuit court entered on July 19, 1977, which reversed the FEPC's decision essentially on two grounds: first, that the decision of the United States Supreme Court in General Electric Co. v. Gilbert (1976), 429 U.S. 125, 50 L.Ed.2d 343, 97 S.Ct. 401, was dispositive of the legal issues presented and should be followed by Illinois courts>; and, second, that the FEPC's Guidelines in effect at the time of defendants' maternity leaves of absence approved plaintiff's practice of denying maternity wage continuation benefits.
For the reasons set forth below, we reverse.
Section 3(a) of the FEPA (Ill. Rev. Stat. 1975, ch. 48, par. 853(a)) provides in pertinent part as follows:
"It is an unfair employment practice:
(a) For any employer, because of the * * * sex * * * of an individual, * * * to refuse to hire, to segregate, or otherwise to discriminate against such individual with respect to hire, selection and training for apprenticeship in any trade or craft, tenure, terms or conditions of employment; * * *."
There is no statutory definition with respect to those kinds of activities which would constitute sex discrimination.
The trial court held that, by virtue of the similarities to be found in title VII of the United States Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and section 3(a) of the Illinois statute, together with construction of the Federal statute by the United States Supreme Court in General Electric Co. v. Gilbert (1976), 429 U.S. 125, 50 L.Ed.2d 343, 97 S.Ct. 401, finding that "* * * an exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all" (429 U.S. 125, 136, 50 L.Ed.2d 343, 354, 97 S.Ct. 401, 408), Illinois and the FEPC "* * * should follow, if not from conviction, then in the name of consistency." The able and learned trial judge did not have the benefit of a significant addition to the Federal statute demonstrating a contrary congressional intent, which was enacted after his decision, nor cases decided after Gilbert, demonstrating rather a consistent refusal on the part of the majority of courts> to follow Gilbert.
On October 31, 1978, section 701(k) of the Civil Rights Act of 1964 was signed into law adding a definition to the Act which demands a view of the statute from a different perspective, providing, in pertinent part:
"The terms `because of sex' or `on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability ...