terms, in March 1983 the statute prohibited employers from adopting mandatory retirement ages of less than 70. See Ill.Rev.Stat. ch. 68, paras. 1-103, 2-102 (1980). The legislature had defined those employers subject to the Act specially to include "the State and any political subdivision, municipal corporation or other governmental unit or agency". Ill.Rev.Stat. ch. 68, para. 2-101(B)(1)(c) (1987). Finally, the Act itself expresses a desire to be comprehensive: "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. ch. 68, para. 8-111(D) (1981). And while various exemptions were included (e.g., mandatory pre-70 retirement permitted in cases where no specific factual basis justified a Bona Fide Occupational Qualification, see Ill.Rev.Stat. ch. 68, para. 2-104(1) (1987)), no comparable exemption for firefighters was inserted.
Furthermore, "the cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature." People ex rel. Hanrahan v. White, 285 N.E.2d 129, 52 Ill. 2d 70, cert. denied sub nom., Splinter v. Hanrahan, 409 U.S. 1059, 34 L. Ed. 2d 511, 93 S. Ct. 562 (1972). As did the court in White, we look to the relevant legislative history. That history, for whatever reason, only partially elucidates the legislative intent. Our decision is, however, informed by the evaluations of Illinois courts. For example, in Thakkar v. Wilson Enterprises, Inc., 120 Ill. App. 3d 878, 881, 76 Ill. Dec. 331, 333, 458 N.E.2d 985, 987 (1st Dist. 1983), the court found that "[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."
Thus, preemption -- that "where the [state] legislature has adopted a scheme for regulation of a given subject, local legislative control over such phases of the subject as are covered by State regulation ceases" -- dictates that the local Berwyn ordinance give way. Hutchcraft Van Serv. v. City of Urbana, et al., 104 Ill. App. 3d 817, 823, 60 Ill. Dec. 532, 536-37, 433 N.E.2d 329, 333-34 (4th Dist. 1982). We therefore hold that the law in effect on March 3, 1983 was the IHRA and that plaintiff is entitled to the protections thereunder.
The then existing IHRA rendered mandatory retirement below the age of 70 impermissible. Because it did not extend protection to those over the age of 70, the Act did not guarantee a job "in perpetuity," and neither does its application today. Rather, it would be illegal for the City to terminate the plaintiff on the basis of his age for another seven years -- until he reaches the age of 70.
Because this decision does not rest on section 7(b) of the 1986 amendments -- the preservation of existing causes of action -- we do not put the City in the "incongruous position of legally enforcing its mandatory retirement age in its police and fire departments against all individuals, except the plaintiff" (def. mem. in supp. of City's mo. in limine at 5). Because any suit brought anew under the 1986 ADEA amendments would necessarily look to state law as of March 3, 1983, the case of each new plaintiff would be similarly decided.
Because the law in effect renders illegal the discharge of plaintiff based on age, we need not review whether the City's retirement plan is bona fide within the meaning of the 1986 amendments.
IV. Liquidated Damages
We decide here the very narrow issue of whether the pension amount paid to Juris should be subtracted from the backpay amount for liquidated damages purposes. As a general matter, the backpay award is doubled to derive the appropriate liquidated damages. 29 U.S.C. § 626(b) (Supp. IV 1986). We hold herein that the pension benefits should not be deducted prior to doubling the backpay.
Judge Getzendanner addressed a similar issue in EEOC v. Cook County Department of Corrections, No. 84 C 10886, slip op. at 3-4 (N.D. Ill. January 29, 1987). We recognize, as did Judge Getzendanner, that liquidated damages are punitive in nature. See, e.g., Trans World Airlines v. Thurston, 469 U.S. 111, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985). With that purpose in mind, she held that the 1986 ADEA amendments reduced the need to deter future violations. She therefore deducted the pension benefits prior to doubling. Cook County Department of Corrections, slip op. at 3-4. We respectfully disagree.
We do not read the awarding of liquidated damages as deterring only employer-specific conduct. Assessment of liquidated damages instead denotes that willful violations of the ADEA will not be tolerated. That particular conduct may subsequently be legalized does not make the decision to willfully violate the law any less worthy of deterrence. To hold otherwise would permit potential defendants to violate the law today in the hope and/or belief that the law will change to their benefit. We prefer instead to deter discrimination based on age in toto.
More specifically, we determine supra that the 1986 amendments freeze the March 3, 1983 status quo -- a scenario which maintains Illinois' prohibition of discrimination based on age pursuant to the IHRA then in effect. Thus, for the period prior to 1993, when the amendments repeal themselves, the need for effective deterrence has not been significantly changed. Full liquidated damages are therefore appropriate.
Judge Eschbach's thoughtful and extended opinion in Coston v. Plitt Theatres, Inc., 831 F.2d 1321 (7th Cir. 1987), cert. denied, 485 U.S. 1007, 108 S. Ct. 1471, 99 L. Ed. 2d 700 (1988), is not to the contrary. In Coston, the plaintiff's liquidated damage award was calculated by first deducting outside wages from the backpay figures. "Any amounts earned in mitigation of the backpay compensatory award must be deducted prior to doubling." Id. at 1330. Here, however, we have pension benefits -- a far cry from the sort of mitigation or search for alternative employment which the ADEA requires. And as explained supra, the plaintiff is here required to return the benefits received during the involuntary retirement period to the pension fund. The wages earned in mitigation in Coston are hardly analogous.
For the foregoing reasons, defendant's motion is denied and intervenor's motion is granted. Plaintiff is directed to return to the pension fund the benefits received by him during the period of his involuntary retirement. We also find that the mandatory retirement of plaintiff, at the present time, would violate the ADEA, as amended.