APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
513 N.E.2d 1177, 160 Ill. App. 3d 577, 112 Ill. Dec. 568 1987.IL.1407
Petition for review of order of Human Rights Commission.
PRESIDING JUSTICE BARRY delivered the opinion of the court. WOMBACHER and HEIPLE, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY
Joan Steele, a former employee of B.F. Goodrich Company, seeks administrative review of an order of the Illinois Human Rights Commission denying her request for pecuniary damages after the Commission had ruled that she had been discriminated against on the basis of sex by application of a policy which required her to change jobs within the Goodrich plant at Henry, Illinois. The Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 8-111) provides for judicial review of the decisions of the Human Rights Commission by the appellate court for the district wherein the civil rights violation was committed; hence, review here is brought in this court.
Joan Steele began her employment at the Goodrich chemical plant in 1977, where she first held an entry level position as "bagger." In that job she was required to fill bags with 50 pounds of product, take each filled bag to a press, and place each pressed bag on a skid in 5 rows stacked 10 bags high. On January 22, 1979, Steele was given a position as a "Chemical Operator II," which also required considerable physical work in that she was required to climb down into large blenders and clean out the chemicals which caked on them. She liked the working conditions at this position.
In September of 1979 Steele was informed that she could no longer work as a "Chemical Operator II" because of a new company policy prohibiting women of childbearing age, that is, between the ages of 16 and 50, from working in locations where they would be exposed to vinyl chloride at or above the level of 0.5 parts per million. The purpose of the policy is to protect unborn fetuses from developmental abnormalities, particularly in the earliest stages when the fetus is most vulnerable and when a woman is unlikely to know that she is pregnant. (There is medical evidence that vinyl chloride is a transplacental carcinogen which persists in the body long enough to pass through the placenta and attain a significant level in the fetus, thereby causing cancer subsequent to birth.) At the time, Steele was 48 years old. Although she was still physically capable of bearing children, she protested the job change because she had no intention of having any more children.
Steele was transferred to the position of "Compound Operator III" at the same rate of pay she had earned previously. This job was an entry level position and, like the job of "bagger," involved filling containers with chemical products and also involved putting together heavy cardboard boxes which held 1,400 pounds of product. She testified the job was physically more onerous than her previous one and required her to work alone, without the camaraderie and mental challenge of the chemical operator work. Steele worked as a "Compound Operator III" from September 22 until October 25, 1979. After that date, she did not return to work, and for that reason, was terminated by Goodrich a short time later.
In January of 1980 Steele filed a complaint charging that the Goodrich policy discriminated against her on the basis of her sex and that the job transfer amounted to a constructive discharge. The Human Rights Commission hearing officer began hearing the merits of Steele's claim on March 31, 1982. At the Conclusion of the hearing, he ruled in favor of Goodrich on both issues, i.e., (1) that the policy as applied to Steele did not discriminate on the basis of her sex; (2) that her work environment after transfer was not intolerable, that she voluntarily quit, and that she was not constructively discharged.
Upon a review of that decision by the Human Rights Commission, the ruling that she was not constructively discharged was affirmed, while the hearing officer's ruling as to the fetal protection policy's not being discriminatory was reversed. The Commission found that Steele established a prima facie case of sex discrimination in that the imposition of Goodrich's fetal vulnerability program adversely operates against females, that Goodrich established a prima facie business necessity defense by evidence of the risk of harm from exposure to vinyl chloride and the effectiveness of the policy to avoid such dangers, and that Steele rebutted the prima facie showing of business necessity by proof that acceptable and effective alternative policies and practices existed that would have protected women from the potential dangers of vinyl chloride with less differential impact on female employees. The Commission ordered Goodrich "to cease and desist from discriminating against individuals because of their sex in the implementation of [its] 'fetal vulnerability' program."
As to the issue of constructive discharge, the Commission found that Steele voluntarily terminated her employment relationship. As a result of this latter ruling, Steele was denied the remedies she requested (reinstatement to a "Chemical Operator II" or comparable position, a salary at the level she would have been receiving had she remained at that position, back pay from the time of her resignation and reinstatement of seniority rights and other benefits) except that Goodrich was ordered to pay Steele's reasonable attorney fees.
The only issue presented on review is whether the Commission erred in ruling that Steele resigned voluntarily and was not constructively discharged when she was transferred to the "Compound Helper III" position. The fact that the "fetal vulnerability" policy discriminated against Steele on the basis of her sex is not at issue since Goodrich did not seek review of that ruling.
According to section 2-102 of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 2-102), it is a civil rights violation for an employer "to act with respect to . . . terms, privileges, or conditions of employment on the basis of unlawful discrimination." The phrase "unlawful discrimination" is defined as discrimination ...