APPEAL from the Circuit Court of Sangamon County; the Hon.
RICHARD J. CADAGIN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
The narrow issue presented in this case is whether cancer of the uterus is a handicap within the meaning of article I, section 19, of the 1970 Illinois Constitution, and the Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1977, ch. 38, pars. 65-22, 65-23). The plaintiff, Elaine Lyons, brought suit against the defendants, Heritage House Enterprises, and Leonard W. Lambert, an officer of the corporation, for injuries allegedly caused by defendants' discriminatory termination of her employment. The trial court dismissed plaintiff's first amended complaint for failure to state a cause of action after the trial court determined, as a matter of law, that cancer did not fall within the meaning of the term "physical handicap" as set forth in either the Illinois Constitution or the Equal Opportunities for the Handicapped Act.
We disagree, and reverse.
A brief discussion of the relatively uncomplicated facts of this case is necessary at this point. On December 28, 1979, plaintiff filed her amended complaint in the Sangamon County Circuit Court. The complaint alleged that plaintiff was originally employed by the defendant, Heritage House Enterprises, in 1966 in a supervisory capacity. In 1972, plaintiff became a management employee of the defendant as its kitchen operations supervisor. Plaintiff was responsible for hiring and training kitchen personnel, menu preparation, and general supervision of kitchen activities for eight restaurants owned by the defendant corporation in various parts of the United States. Defendant, Leonard W. Lambert, was the vice-president and manager of operations for the defendant corporation.
During the summer of 1978, plaintiff was diagnosed as having cancer of the uterus. Plaintiff was advised by physicians that it would be necessary for her to undergo five weeks of radiation therapy, together with a surgical procedure to remove her uterus. The surgery was to be performed one month after the radiation therapy concluded. Radiation therapy was administered in July 1978, and was scheduled so that plaintiff would not be absent from work. Plaintiff alleged that she was able to continue her work without interruption during this period. Plaintiff further indicated that she and her physician notified the defendant of her medical condition.
On July 28, 1978, the defendant, Leonard W. Lambert, called plaintiff into his office and informed her that she was being removed from the corporate payroll for a six-month period. She was also informed that any company insurance benefits were being cancelled and that her company-owned automobile was being taken from her. Defendant Lambert further advised her that her position with the corporation would not be held open to her upon her return following the six-month period. Defendant also indicated that a lesser position could not be guaranteed to her. Plaintiff alleged that she then asked defendant Lambert if she was being fired or discharged, to which Lambert replied, "We prefer to play it at low key."
Plaintiff contends that her discharge was a discriminatory action based on her physical handicap. As damages, plaintiff alleged that she was deprived of her salary and other fringe benefits including health and medical policies of insurance, and a life insurance policy in an aggregate amount in excess of $40,000. Plaintiff also contends that she suffered severe emotional and mental distress all to her detriment.
In response, the defendants filed a motion to dismiss the amended complaint arguing that plaintiff's purported ailment was not a physical handicap. The trial court agreed and dismissed the case. The court held that plaintiff's physical condition did not constitute a handicap so as to entitle her to relief for employment discrimination on the basis of article I, section 19, of the 1970 Illinois Constitution or the Equal Opportunities for the Handicapped Act.
Article I, section 19, of the Illinois Constitution of 1970 states:
"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."
The Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1977, ch. 38, pars. 65-22, 65-23) states, in part:
"The term `physical or mental handicap' means a handicap unrelated to one's ability to perform jobs or positions available to him for hire or promotion or a handicap unrelated to one's ability to acquire, rent and maintain property. * * *." (Par. 65-22.)
"It is an unlawful employment practice for an employer:
(1) to refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to his terms, conditions or privileges of employment, otherwise lawful, because of such individual's physical or mental handicap, unless it can be shown that the particular ...