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Board of Trustees v. Human Rights Com.

OPINION FILED NOVEMBER 13, 1981.

THE BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508, APPELLANT,

v.

THE HUMAN RIGHTS COMMISSION ET AL., APPELLEES.



Appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

The Federal Age Discrimination in Employment Act of 1967 prohibits compulsory retirement before the age of 70. (29 U.S.C. § 623, 631(a) (1979 Supp.).) There is, however, a temporary exception for tenured teachers in higher education; until July 1, 1982, they can be forced to retire at age 65. (29 U.S.C. § 631(d) (1979 Supp.).) The complainants in this case are three tenured professors from the Chicago City Colleges. They come to this court for a determination of whether the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1-101 et seq.) counteracts the temporary exception in the Federal act and protects them by banning their compulsory retirement before the age of 70.

The complainants are now each over 65 and have been employed by the City Colleges as teachers for many years. They were scheduled for retirement, pursuant to Rule 2-19(b) of the City Colleges, at the end of the term in which each reached the age of 65. The individual complainants each filed charges with the Department of Human Rights, alleging that their involuntary retirement violated the Illinois Human Rights Act. The Department investigated and filed complaints with the Human Rights Commission pursuant to section 7-102 of the Act. Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7-102(F).

The complaints were first heard by an administrative hearing officer under the procedures set forth in the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8-106). The hearing officer concluded that the City Colleges were in violation of the Act for the following reasons: It prohibits retirement on the basis of age before an employee reaches the age of 70; the City Colleges' rule on retirement is not in keeping with any established retirement system; and a statutory exemption that the Illinois Human Rights Act provides from certain of its prohibitions is not applicable to the three complainants. The Human Rights Commission heard the City Colleges' appeal and affirmed the order of the hearing officer, finding that it was not against the manifest weight of the evidence.

The case then moved to the circuit court of Cook County with the Commission joining the three professors as defendants. The circuit court confirmed that the Illinois Human Rights Act forbids compulsory retirement before 70, but found that the professors were being retired pursuant to an established retirement system. Turning to the question of the exemption provided by section 2-104(E)(1) of the Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 2-104(E)(1)), the circuit court judge said that he could not make sense of that provision and held it unconstitutionally vague. In the alternative, the circuit court judge declared that if the statute was constitutional, the City Colleges' retirement system was valid and eligible for the exemption. Both sides appealed directly to this court under Rule 302(a)(1) (73 Ill.2d R. 302(a)(1)).

There are two questions to be resolved in this appeal: (1) Is involuntary retirement on the basis of age prior to age 70 a civil rights violation prohibited by the Illinois Human Rights Act? (2) If so, does section 2-104(E)(1) exempt compulsory retirement at 65 and is it constitutional?

The Act defines unlawful discrimination as: "discrimination against a person because of his or her race, color, religion, national origin, ancestry, age, sex, marital status, handicap or unfavorable discharge from military service * * *." (Emphasis added.) Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1-103(Q).

"`Age' means the chronological age of a person who is 40 but not yet 70 years old." Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1-103(A).

It is a civil rights violation "[f]or any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination." (Emphasis added.) Ill. Rev. Stat., 1980 Supp., ch. 68, par. 2-102(A).

Does the Illinois Human Rights Act cover involuntary retirement? Retirement is not expressly included within the practices set forth in the definition of civil rights violations. But, an analysis of the broad intent of the legislature and similar employment-discrimination statutes leads to the conclusion that the Act encompasses retirement. As remedial legislation the Act should be construed liberally to effect its purpose. (S.N. Nielsen Co. v. Public Building Com. (1980), 81 Ill.2d 290, 298.) In an introductory section the Act declares our State's public policy to be to "secure for all individuals within Illinois the freedom from discrimination because of * * * age * * * in connection with employment * * *." (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1-102(A).) Retirement is sufficiently connected to employment to justify including it within the broad range of discriminatory practices banned by the Act. It is inconsistent with the sweep of this public policy to so narrowly construe the section of the Act defining civil rights violations as to limit the circumstances of employment to which the Act applies.

The words "discharge," "renewal of employment," or "tenure" can be construed to embrace retirement. Involuntary retirement closely parallels the effect of a discharge or a failure to renew employment; it also deprives an employee of continued employment, and this affects tenure. Even though the word "retirement" does not appear in section 2-102(A), the omission does not mean it was intended to be excluded where its effects are so similar to the practices expressly forbidden.

This construction is supported by the interpretation given to other employment discrimination statutes which do not use the word "retirement." The Federal Age Discrimination in Employment Act, for example, makes it unlawful "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age * * *." (29 U.S.C. § 623(a)(1) (1976).) In United Air Lines, Inc. v. McMann (1977), 434 U.S. 192, 54 L.Ed.2d 402, 98 S.Ct. 444, the court held that some forced retirements are prohibited even though the Federal Act does not mention retirement. The court said, "The Act covers individuals between ages 40 and 65, 29 U.S.C. § 631, but does not prohibit all forced retirements prior to age 65; some are permitted under § 4(f)(2), 81 Stat. 603," a provision of the Act exempting certain retirement and seniority systems. (434 U.S. 192, 195, 54 L.Ed.2d 402, 408, 98 S.Ct. 444, 446; see also Gonsalves v. Caterpillar Tractor Co. (7th Cir. 1980), 634 F.2d 1065; Brennan v. Taft Broadcasting Co. (5th Cir. 1974), 500 F.2d 212.) It was not necessary in these cases to turn to the statutory exemption permitting retirement in certain instances under the Federal act if the general prohibitory sections of that act did not already include retirement within their coverage.

It has also been held that title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000(e) et seq. (1976) covers retirement, even though that term is not explicitly mentioned in that statute. (Bartmess v. Drewrys U.S.A., Inc. (7th Cir. 1971), 444 F.2d 1186; Rosen v. Public Services Electric & Gas Co. (3d Cir. 1973), 477 F.2d 90.) These cases cited Inland Steel Co. v. National Labor Relations Board (7th Cir. 1948), 170 F.2d 247, which similarly concluded that retirement was encompassed by the National Labor Relations Act (29 U.S.C. § 159(a) (1952)).

Finally we note that the Human Rights Act contains, like the Federal act, a provision exempting the compulsory retirement of high-ranking, policymaking executives at age 65. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. ...


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