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Thakkar v. Wilson Enterprises

OPINION FILED DECEMBER 23, 1983.

MANGAL THAKKAR, PLAINTIFF-APPELLANT,

v.

WILSON ENTERPRISES, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Myron Gomberg, Judge, presiding.

PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This is an appeal from the dismissal of an action brought by plaintiff in the circuit court of Cook County against defendant alleging employment discrimination on the basis of plaintiff's national origin in violation of the Illinois Bill of Rights, article I, section 17 of the Illinois State Constitution. Ill. Const. 1970, art. I, sec. 17.

Plaintiff Mangal Thakkar is an East Indian who has resided in the United States since 1972. In 1977 he was hired by defendant Wilson Enterprises, Inc., as a general carpenter. *fn1 Following a job-related injury in February 1978, which resulted in an 11-week absence from work and a change in job assignment when he returned, plaintiff's salary was decreased from $7.93 to $6.55 per hour. This amount was increased to $7.93 in October 1978 but a year later, in November 1979, his employment was terminated. Plaintiff filed a complaint of discrimination in the circuit court on November 3, 1980, which was dismissed pursuant to defendant's motion.

The court thereafter entered an order which stated that plaintiff had failed to comply with the statutory provisions of the Fair Employment Practices Act, that the Human Rights Act and the Fair Employment Practices Act constitute reasonable exemptions to section 17 of article 1 of the State Constitution and that the language of section 17 which refers to the "hiring and promotion practices of any employer" includes discharges and terminations of employment. This appeal followed the court's denial of plaintiff's petition to reconsider its order of dismissal.

OPINION

The controlling issue for our consideration is whether an aggrieved party may directly sue for discrimination in employment under article I, section 17 of the 1970 Illinois State Constitution without first exhausting the administrative remedies set forth in the Illinois Human Rights Act (HRA) *fn2 (Ill. Rev. Stat. 1981, ch. 68, par. 1-101 et seq.). Section 17 states that:

"All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property.

These rights are enforceable without action by the General Assembly, but the General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation." Ill. Const. 1970, art. I, sec. 17.

Plaintiff first contends that neither the Fair Employment Practices Act nor its successor, the Human Rights Act, comprise the "reasonable exemptions" referred to in section 17 since that section was enacted in 1970, nine years after the FEPA (1961). Thus, according to plaintiff, section 17 constitutes a second or alternative avenue to redress an employment discrimination dispute. *fn3 We disagree.

The question of whether an aggrieved party may bring a direct action for violation of a right protected by the FEPA was decided in Illinois on two occasions in 1980, the same year that plaintiff initiated the proceedings before use. In Manuel v. International Harvester Co. (N.D. Ill. 1980), 502 F. Supp. 45, the district court set forth the enforcement scheme of the FEPA and explained that any claim within the coverage of that act must be filed with the Fair Employment Practices Commission. (502 F. Supp. 45, 49.) The court further stated that following a hearing and recommended order filed by a hearing examiner, the Commission on review adopts all orders not contrary to the manifest weight of the evidence. Thereafter, either an employer or employee may obtain judicial review of the Commission's findings. The Commission may also sue in State court to enforce its order. 502 F. Supp. 45, 49.

The court concluded that the employee could not maintain a direct action against his former employer as it was the prerogative of the Fair Employment Practices Commission to determine whether a violation exists and to issue a complaint. 502 F. Supp. 45, 49.

The second case addressing this question was decided in November 1980, approximately four months following the Manuel decision. In Beane v. Millers Mutual Insurance Association (1980), 90 Ill. App.3d 258, 412 N.E.2d 1124, the court ruled that because the appellant never presented his claim to the Fair Employment Practices Commission he had failed to exhaust his administrative remedies and could not bypass the statutory procedures of the Fair Employment Practices Act. 90 Ill. App.3d 258, 261.

Although the plaintiffs in the foregoing cases did not contend, as plaintiff does here, that the FEPA provided an alternative vehicle to pursue a civil rights action, nonetheless the charge was made that a direct cause of action could be filed by an aggrieved employee and that the act's statutory procedures could be bypassed. The courts> in both cases ruled to the contrary. We are in full accord with these decisions and believe that a similar result is warranted in the case at bar.

A review of the detailed legislative scheme of the Human Rights Act persuasively suggests that the General Assembly intended for it to be the preemptive vehicle for the resolution of employment discrimination cases in Illinois. Indeed, the act itself states that "[e]xcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act." (Ill. Rev. Stat. 1981, ch. 68, par. 8-111(D).) Moreover, the comprehensive remedial procedures of the act indicate the legislature's intent that the constitutional rights set forth in section 17 be harmonized with the act, which clearly states in its initial declaration of policy that "It is the public policy ...


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