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05/26/94 CATHY BAKER v. GRACE MILLER

May 26, 1994

CATHY BAKER, APPELLANT,
v.
GRACE MILLER, D/B/A MILLER'S METROPOLE, ET AL., APPELLEES.



Freeman, Harrison

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

The issue presented in this appeal is whether a claim for employment discrimination may be brought directly under article I, section 17, of the Illinois Constitution (Ill. Const. 1970, art. I, § 17).

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Cathy Baker, is a former employee of a tavern business owned by defendant Grace Miller, doing business as Miller's Metropole, and managed by Richard Yeast (hereinafter referred to collectively as defendants). The tavern employs fewer than 15 employees. On June 24, 1991, defendant Yeast discharged plaintiff from her duties as bartender at the tavern.

Subsequently, plaintiff filed a two-count complaint in the circuit court of McLean County against defendants seeking to recover damages for employment discrimination. In count I of her complaint, plaintiff alleged that she was terminated from her employment, in violation of article I, section 17, of the Illinois Constitution (Ill. Const. 1970, art. 1, § 17), because she is female. Count II realleges the allegations in count I and additionally alleges that plaintiff was discharged from her employment by defendant Yeast. Each count sought compensatory damages in "an amount greater than $15,000" and punitive damages in the amount of $20,000.

Defendants filed a motion to dismiss the complaint. (Ill. Rev. Stat. 1991, ch. 110, par. 2-615.) In their motion, defendants asserted that the plaintiff could not maintain a direct action under article I, section 17, of the constitution. Further, defendants asserted that the "hiring and promotion practices" language contained in article I, section 17, of the constitution does not extend to an employer's termination and discharge practices.

Following a hearing on the motion, the trial court granted defendants' motion and dismissed the complaint with prejudice. The appellate court affirmed (242 Ill. App. 3d 44), and we granted plaintiff's petition for leave to appeal (134 Ill. 2d R. 315). The Chicago Lawyers' Committee for Civil Rights Under Law, Inc., and Willie Pridgett, an interested private citizen, were granted leave to file an amicus brief in support of plaintiff. For the reasons which follow, we now affirm.

Discussion

Article I, section 17, of the Illinois Constitution 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.) Ill. Const. 1970, art. I, § 17.

The first clause of section 17 broadly grants to Illinois citizens the right to be free from discrimination in housing and employment. The second clause makes clear that the provision is self-executing; no implementing legislation is necessary to sustain a cause of action for section 17 discrimination. Also included in that clause, however, is an express grant of authority empowering the legislature to "establish reasonable exemptions" relating to the rights guaranteed. Discrimination of the type prohibited by section 17, if committed by government, is prohibited by the due process and equal protection clauses of the fourteenth amendment and the comparable provisions in the 1970 Constitution. (Ill. Ann. Stat., 1970 Const., art. I, § 17, Constitutional Commentary (Smith-Hurd 1971).) Section 17 supplements the equal protection clause in that it provides a constitutional right for persons to be free from discrimination committed by private persons. Ill. Ann. Stat., 1970 Const., art. I, § 17, Constitutional Commentary (Smith-Hurd 1971).

The guarantees provided by article I, section 17, are implemented by the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1991, ch. 68, par. 1-102(F)). The Act provides a comprehensive scheme to "secure for all individuals within Illinois the freedom from discrimination because of race, color, religion, sex, national origin, ancestry, age, marital status, physical or mental handicap, or unfavorable discharge from military service in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations." (Ill. Rev. Stat. 1991, ch. 68, par. 1-102(A).) Further, the Act created a uniform procedure for the enforcement of its substantive provisions, replacing the Fair Employment Commission, the Department of Equal Employment Opportunity, and the Human Relations Commission with one agency responsible for the investigation of all alleged civil rights violations, the Department of Human Rights. Davis & Murphey, The Illinois Human Rights Act: Revision of Illinois Law Concerning Discrimination in Employment, 69 Ill. B.J. 218 (1980).

Article 2 of the Act, which governs employment discrimination claims, is relevant to our Discussion here. Under the Act, it is a civil rights violation "for any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination." (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 68, par. 2-102(A).) "Employer" under the Act includes: "any person employing 15 or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged [civil rights] violation." (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 68, par. 2-101(B)(1)(a).) As a corollary, "employee" under the Act does not include "individuals employed by persons who are not 'employers' as defined by [the] Act." (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 68, par. 2-101(A)(2)(b).) Finally, ...


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