Appeal from the Circuit Court of Champaign County; the Hon.
George S. Miller, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Plaintiff David W. Dilley commenced this action in the circuit court against defendant Americana Healthcare Corporation for sex discrimination in the termination of his employment in violation of article I, section 17, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 17). The circuit court granted defendant's motion to dismiss, with prejudice, finding that the Illinois Human Rights Act (HRA) (Ill. Rev. Stat. 1983, ch. 68, par. 1-101 et seq.) provides the exclusive remedy for a case of this nature, with access to the courts limited to administrative review proceedings as provided therein. Plaintiff appeals from the judgment of the circuit court of Champaign County. We affirm.
The issue on appeal is whether an aggrieved party may directly sue for discrimination in employment under article I, section 17, of the 1970 Illinois Constitution without first exhausting the administrative remedies set forth in the HRA.
The facts may be briefly stated. On November 1, 1983, plaintiff filed this action under article I, section 17, stating that he (1) was hired by defendant as patient coordinator, (2) began work on May 20, 1983, (3) attended a sales seminar over the weekend, and (4) was terminated when he returned to the facility on Monday, May 23, 1983, allegedly because of his "masculinity." He sought compensatory damages of $100,000 and punitive damages in excess of $15,000.
On December 13, 1983, defendant filed a motion to dismiss on the basis that the General Assembly, by enactment of the HRA, had "exempted" plaintiff's right to bring the circuit court action by providing that such actions must be brought under the HRA. Defendant stated that such "exemption" was authorized by the second paragraph of article I, section 17, and therefore prayed the court dismiss the complaint with prejudice for lack of subject matter jurisdiction.
On January 5, 1984, a hearing was conducted on defendant's motion to dismiss. After arguments, the circuit court held that the General Assembly has a right to provide for the Human Rights Commission, as an agency (under HRA), to have exclusive jurisdiction of discrimination cases, to establish reasonable exemptions related to the rights protected by article I, section 17, and that, in doing so, the General Assembly provided an additional remedy for the violation of those rights, which preempted the right otherwise given by the Constitution for direct action by those allegedly discriminated against on the basis of sex. The court found that the HRA provided the exclusive remedy for defendant's claim, with access to the courts limited to administrative review proceedings. Consequently, the court granted the motion to dismiss with prejudice.
The language of article I, section 17, and that of the HRA are pertinent to our resolution of the issue presented. Article I, section 17, provides:
"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." (Emphasis added.)
Section 8-111 of the HRA provides for review under Administrative Review Law (see Ill. Rev. Stat. 1983, ch. 110, par. 3-101 et seq.), and includes the following limitation:
"(D) Limitation. Except 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. 1983, ch. 68, par. 8-111(D).
On appeal, plaintiff presents a rather novel theory to support his argument that article I, section 17, provides a permanent private cause of action: First, he quotes language of the bill of rights committee at the constitutional convention, following committee proposal of section 17 (in proposal form referred to as section 22):
"Since the right is explicitly made `enforceable without action by the General Assembly,' an aggrieved person could have recourse to existing judicial or legislative remedies for a violation of the right. The General Assembly is also authorized to prescribe additional remedies." (Emphasis added.) 6 Record of Proceedings, Sixth Illinois Constitutional Convention 69 (hereinafter cited as Proceedings).
Second, plaintiff looks to the language of the second paragraph of article I, section 17. He suggests that the constitutional drafters had in mind the availability of monetary damages as a remedy at law when granting authority to the General Assembly to prescribe "additional remedies." (See Walinski v. Morrison & Morrison (1978), 60 Ill. App.3d 616, 377 N.E.2d 242.) Based on this precept, he argues that the authority concomitantly given the General Assembly to establish "reasonable exemptions" should not be interpreted as such a grant of power as to divest the courts of jurisdiction over a private cause of action under section 17. He urges that the drafters used the term "exemptions," as well as the term "exceptions," narrowly, e.g., for a congregation to utilize a religious test in employing a minister, and not to grant the legislature power to abrogate section 17 rights which "are enforceable without action by the General Assembly." Likewise, he argues that the grant of authority to the General Assembly to provide "additional remedies" for article I, section 17, constitutional violations cannot be construed as authority to take away what the constitutional provision originally granted as an enforcement remedy a private cause of action.
Third, plaintiff points out that article I, sections 18 ("[t]he equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts"), and 19 ("[a]ll 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") of the 1970 Illinois Constitution do not contain comparable provisions allowing enforceability without legislative action, or granting authority for legislative enactment of additional remedies. He therefore contends that claims under sections 18 and 19 can only be brought under the HRA because of the limitation on court jurisdiction under section 8-111(D), whereas the "self-executing language" and use of the term "additional remedies" in section 17 give him a choice of forum.
Fourth, plaintiff maintains that in drafting section 8-111(D) of the HRA, the limitations section, legislators inserted the opening language, "except as otherwise provided by law," specifically with the holding of Walinski in mind that those whose article I, section 17, constitutional rights are violated are entitled to seek compensatory and punitive damages in the circuit courts and that the opening clause reflects the legislature's intention to preserve a private cause of action for those claiming violation of rights protected under article I, section 17.
Further, plaintiff argues that policies favoring exhaustion of administrative procedures are irrelevant when they run counter to the constitutionally mandated policies of article I, section 17, and the right of direct access to the courts. He states that direct access to the court was established as an inviolable right by the drafters of section 17 for two reasons: (1) section 17 rights were deemed to be of the highest priority, and (2) legislatively established remedies may fall short of or impede full and immediate redress to these rights. Plaintiff fails, however, to offer any explanation of how the HRA would fall short of or impede him from immediate redress, and supports his theory only by reference to a law review article (see Gertz, The Unrealized Expectations of Article I, Section 17, 11 J. Mar. J. Prac. & Proc. 283 (1978)).
We reject plaintiff's argument.
At the outset, several points need be made with regard to the Walinski decision. In Walinski, the plaintiff filed a civil action for damages, claiming sex discrimination in hiring by the employer in violation of the rights in article I, section 17. She sought actual damages of $1,000, punitive damages of $4,000, plus costs of suit. The defendant filed a motion to dismiss the complaint as failing to state allegations sufficient to warrant the relief sought, since article I, section 17, does not specifically provide for the remedy of damages. The motion was granted by the circuit court, and the plaintiff appealed. After examining the debates of the Sixth Illinois Constitutional Convention, the reviewing court concluded the drafters intended that money damages be obtainable as a remedy for violation of article I, section 17, rights. The court therefore reversed the order, dismissing plaintiff's amended complaint, and remanded the cause for trial on the merits.
First, the alleged discrimination in Walinski occurred in 1975, when the Fair Employment Practices Act (FEPA) (see Ill. Rev. Stat. 1975, ch. 48, pars. 851 through 867), predecessor to the HRA, provided that sex discrimination in hiring was an unfair employment practice (Ill. Rev. Stat. 1975, ch. 48, par. 853(a)). By contrast, at the time article I, section 17, was enacted, the FEPA did not prohibit discrimination in employment on the basis of sex. (Ill. Rev. Stat. 1969, ch. 48, par. 851.) The FEPA was amended after passage of the 1970 Constitution to include in its protections discrimination on the basis of sex in employment. (Ill. Rev. Stat. 1971, ch. 48, par. 851; Pub. Act 77-1342, sec. 1, eff. August 27, 1971.) Similarly, there was no comprehensive program to prohibit discrimination in its various forms in housing. We note that delegates to the constitutional convention were made aware of these statutory deficiencies. See remarks between Mr. Connor and Mr. Wilson, 3 Proceedings 1596, col. 1, and remarks of President Witwer, addressed to discrimination in employment and housing, at 1611.
Second, after examination of the debates of the Sixth Illinois Constitutional Convention of 1969-1970, we agree with the Walinski court that the drafters intended money damages be obtainable as a remedy in the courts. This must be viewed, however, in the context of the absence of administrative recourse for violation of these rights, as has subsequently been provided by the General Assembly.
Third, it should be noted that at the time of the Walinski decision, the FEPA did not contain language purporting to limit circuit court jurisdiction, as does section 8-111(D) of the ...