Appeal from the Circuit Court of Franklin County; the Hon.
Loren P. Lewis, Judge, presiding.
PRESIDING JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
The defendants, LaDonna Young, Linda Simpkins, and the Illinois Fair Employment Practices Commission (hereinafter referred to as the Commission) appeal from a final judgment of the circuit court of Franklin County affirming in part and reversing in part the Commission's order awarding backpay to the individual defendants. The plaintiff, Freeman United Coal Mining Company (hereinafter referred to as Freeman) has filed a cross-appeal asserting that the circuit court erred in affirming any portion of the Commission's order. We affirm in part and reverse in part.
On January 29, 1975, LaDonna Young and Linda Simpkins, both females, applied to Freeman for positions as miner trainees. At the time of their application it was Freeman's policy to exclude females from underground work, and consequently their applications were not considered at the time they were submitted. In January 1975 Freeman had no openings for miner trainees. In March and April of that year Freeman hired 12 male trainees, four of whom had applied before Young and Simpkins had. The remaining eight male applicants applied after the complainants had applied. Four of these possessed certain trade or craft skills which had proved to be of use in underground mining, and these applicants were therefore entitled to preferential consideration pursuant to Freeman's hiring policies. The remaining four males hired did not possess such trade or craft skills. When Young and Simpkins applied for mining positions, section 9.01 of the Coal Mining Act (Ill. Rev. Stat. 1973, ch. 93, par. 9.01) provided that "No boy under the age of 18 years, and no woman or girl of any age, shall be permitted to do any manual labor in or about any mine." (Current version at Ill. Rev. Stat. 1981, ch. 96 1/2, par. 901.) In 1974, the Attorney General for the State of Illinois issued an opinion stating that coal companies could no longer rely on section 9.01 to exclude women from employment in or around the coal mines. In May of 1974 Freeman received written notice of the Attorney General's opinion from the director of the Department of Illinois Mines and Minerals. Freeman, however, adhered to its policy of excluding women from underground mine work. In August of 1975 Young and Simpkins were hired for underground word. In September 1975, section 9.01 was amended to delete the reference to disparate treatment according to sex. In October of 1975 Young and Simpkins began work as miner trainees.
Pursuant to charges filed by Young and Simpkins the Commission issued a complaint of unfair employment practices under section 3(a) of the Fair Employment Practices Act (Ill. Rev. Stat. 1973, ch. 48, par. 853(a), repealed 1980; current version at Ill. Rev. Stat. 1981, ch. 68, par. 2-102(A)) (hereinafter referred to as the FEPA). In 1975, at the time of the occurrences in question, the FEPA provided that:
"It is an unfair labor practice:
(a) For any employer, because of the race, color, religion, sex, national origin or ancestry 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." (Ill. Rev. Stat. 1973, ch. 48, par. 853(a).)
The individual defendants alleged that Freeman had violated the FEPA. The hearing examiner agreed, made specific factual findings, and recommended an award of backpay. The Commission adopted the hearing examiner's findings and recommendation. On administrative review the circuit court affirmed the Commission's finding of discrimination but reversed the backpay award on the grounds that Freeman had demonstrated good faith reliance on the protective statute and that there was no evidence that that reliance was a pretext. Young, Simpkins, and the Commission appeal from the reversal of the backpay award, and Freeman appeals from the affirmance of the Commission's findings that Freeman had violated the FEPA.
The analysis of a discrimination claim under the FEPA is similar to the analysis employed under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000a et seq. (1976)). (Board of Education v. Fair Employment Practices Com. (1979), 79 Ill. App.3d 446, 452, 398 N.E.2d 619; see City of Cairo v. Fair Employment Practices Com. (1974), 21 Ill. App.3d 358, 363, 315 N.E.2d 344.) Under title VII, a three-step analysis of the allocation of the burden of proof was formulated by the United States Supreme Court in Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L.Ed.2d 207, 101 S.Ct. 1089. "That analysis may be summarized as follows: (1) the plaintiff must make out a prima facie case of discrimination; (2) at this point, the defendant assumes the burden of producing (as distinct from proving) a reason for its actions which is, on its face, legitimate and non-discriminatory; (3) it is then incumbent on the plaintiff to carry her continuing burden of proof that she was, in fact, a victim of sex discrimination." (Emphasis in original.) Miller v. WFLI Radio Inc. (6th Cir. 1982), 687 F.2d 136, 138.
• 1 In its cross-appeal Freeman contends that the circuit court erred in affirming the Commission's finding of discrimination on Freeman's part in that the Commission applied an incorrect evidentiary standard and in that the finding of discrimination is not supported by the evidence. In a previous order the circuit court had reversed the Commission's findings of fact in this case because the Commission had applied a "clear and convincing" evidentiary standard. The Commission's order after remand applied the same "clear and convincing" evidentiary standard to the facts of the case. In an extended discussion in its written order, the Commission relied on many Federal cases as support for its position, despite the circuit court's reversal of its original order on this precise ground. We note initially that "`[a]fter a judgment is reversed and the cause is remanded the inferior tribunal can take only such further proceedings as conform to the judgment of the appellate tribunal.'" (People v. Webb (1982), 109 Ill. App.3d 328, 331, 440 N.E.2d 406, quoting Roggenbuck v. Breuhaus (1928), 330 Ill. 294, 297-98, 161 N.E. 780.) We see no valid reason not to apply this principle to an administrative proceeding. Hence, the Commission's discussion of what it perceived as valid reasons for application of the "clear and convincing" standard was inappropriate. Moreover, the Commission erroneously placed on Freeman the burden of proving lack of discrimination. See Board of Education v. Fair Employment Practices Com. (1979), 79 Ill. App.3d 446, 452-53.
A claim of employment discrimination can be brought under either the "disparate treatment" theory enunciated in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817, or under the "disparate impact" theory of Griggs v. Duke Power Co. (1971), 401 U.S. 424, 28 L.Ed.2d 158, 91 S.Ct. 849. (See International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 335 n. 15, 52 L.Ed.2d 396, 415 n. 15, 97 S.Ct. 1843, 1854 n. 15.) Because Freeman's employment policy applied only to females, this case should be analyzed under the former rather than the latter theory. See Furnco Construction Corp. v. Waters (1978), 438 U.S. 567, 575 n. 7, 57 L.Ed.2d 957, 966 n. 7, 98 S.Ct. 2943, 2948 n. 7.
• 2 Two distinct lines of subanalysis have been formulated under the disparate treatment rubric. Discrimination may be proved by establishing that the employer engaged in a "pattern or practice" of disparate treatment which was premised on unlawful considerations (see International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 334-35, 52 L.Ed.2d 396, 415, 97 S.Ct. 1843, 1854) or by showing individual acts of discrimination (McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 36 L.Ed.2d 668, 677, 93 S.Ct. 1817, 1824). In the instant case Freeman's policy admittedly precluded women from obtaining mining jobs; we therefore need not engage in either of the subanalyses as the existence of the policy of discrimination was established. In Franks v. Bowman Transportation Co. (1976), 424 U.S. 747, 772, 47 L.Ed.2d 444, 466, 96 S.Ct. 1251, 1267-68, the court held that proof of a policy of discrimination against a class creates a rebuttable presumption that individual class members were discriminated against.
"The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The Government need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination. As in Franks, the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons." (International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 362, 52 S. Ed.2d 396, 431-32, 97 S.Ct. 1843, 1868.)
Young and Simpkins applied for jobs without success. Coupled with the discriminatory policy, this establishes a prima facie case of discrimination.
Proceeding to the second level of analysis under Burdine, Freeman contends that section 9.01 of the Coal Mining Act provides a legitimate and nondiscriminatory basis for failing to hire Young and Simpkins. In their appeal the defendants assert that the circuit court erred in that (1) the record supports the Commission's finding that Freeman did not rely in good faith on section 9.01; (2) section 9.01 was not a valid law; (3) there was no real threat of prosecution under the statute; (4) an award of backpay is warranted despite ...