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11/08/94 JIM BOADEN AND COLLEEN BOADEN v. STATE

November 8, 1994

JIM BOADEN AND COLLEEN BOADEN, PETITIONERS
v.
STATE OF ILLINOIS, DEPARTMENT OF LAW ENFORCEMENT, STATE POLICE AND HUMAN RIGHTS COMMISSION, RESPONDENTS



Administrative Review of the Human Rights Commission. Nos. 1985SN0056, 1985SN0057

Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, P.j., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

Petitioners, Jim Boaden and Colleen Boaden, appeal the decision of the Illinois Human Rights Commission (Commission) dismissing their complaints of marital status discrimination. (In re Boaden & State of Illinois, Department of Law Enforcement, State Police (June 11, 1993), Ill. Hum. Rights Comm'n Rep. (HRC Nos. 1985-SN-0056, 1985-SN-0057).) The Commission determined that unlawful discrimination based on "marital status" included discrimination based upon the identity of an employee's spouse, but that the actions taken by the State Police had not altered the terms or conditions of petitioners' employment in violation of the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 1992)).

Petitioners appeal, arguing that (1) shift and geographical work location are "terms" or "conditions of employment" within the meaning of section 2-102(A) of the Act (775 ILCS 5/2-102(A) (West 1992)), and (2) the duration of discrimination is not a threshold issue for a finding of discrimination. The Illinois Department of Law Enforcement, State Police, and the Commission respond that no violation of the Act occurred because petitioners' shift and work location were not altered and the choice of with whom one works is not a term or condition of employment. The State Police further contends that "marital status" discrimination within the meaning of the Act does not extend to employment decisions based upon the identity of one's spouse.

We affirm, although for reasons other than those cited by the Commission.

I. BACKGROUND

The State Police is organized into a number of districts composed of several counties. Each county is a designated patrol area and is patrolled by a three-person squad during each of three daily shifts. In Christian County, two of the squads rotate the morning and evening shifts at two-week intervals while the midnight shift remains constant. Each member of a squad patrols alone in his or her police car.

In early 1984, petitioners Jim Boaden and Colleen Boaden (then Gannon) were State troopers assigned to the same squad for the Christian County patrol area. In May 1984, they informed their supervisor of their plans to marry; he in turn informed Captain Ryan, the district commander. Ryan told petitioners that an unwritten policy existed which prohibited spouses from working in the same squad, patrolling the same area at the same time. His stated reason for the policy was a fear that married troopers might not react with objectivity if one were injured, might present supervisory problems, and might become dissatisfied with the arrangement because troopers on the same squad did not have the same vacation and days off. In addition, Ryan was concerned that their credibility could be questioned as witnesses in court or internal investigations. Ryan offered Jim three options for squad changes: (1) change to a shift opposite the one worked by Colleen but remain on patrol in Christian County; (2) patrol in Sangamon County on the same shift with the same days off; or (3) patrol in Sangamon County under a different supervisor on the same shift with the same vacation and days off. Jim elected to change to a different squad on an opposite shift from Colleen, but to remain on patrol in Christian County. The change went into effect about a week prior to petitioners marriage on July 3, 1984; thereafter, they were on their honeymoon for most of July.

In early August, petitioners met several times with their supervisors in unsuccessful attempts to be assigned to the same shift. On August 16, 1984, they filed separate charges with the Department of Human Rights (Department), alleging that they had been subject to unequal terms and conditions of employment based upon marital status. In September 1984, the State Police rescinded its policy prohibiting spouses from sharing the same shift and patrol location, and petitioners resumed working the same squad in Christian County by mid-October 1984.

Following a hearing as to liability only, the administrative law Judge (ALJ) found that under the binding precedent of Burton & Allied Chemical Corp. (1984), 13 Ill. Hum. Rights Comm'n Rep. 246, the State Police admission that Jim's squad transfer occurred because of marriage constituted an admission of marital status discrimination. He found that the justifications given for the policy were based upon stereotypical assumptions lacking supporting evidence. In February 1989, the ALJ recommended that petitioners' complaints be sustained on the basis that the terms and conditions of petitioners' employment were altered as a result of their marital status. He specifically found as follows:

"Many people do not particularly care with whom they work. Others care a great deal. But whether there is concern or not, with whom one works is as much a condition of employment as where and when one works."

A second ALJ conducted a hearing on damages and adopted the findings of the first ALJ. She recommended that the Commission award damages and attorney fees to both petitioners based upon a violation of the Act by the State Police. Colleen was awarded $1,620.12 for professional counseling, medication, and travel, and $8,100.60 for emotional injury caused by the shift separation. Jim was awarded $3,000 for emotional injury caused from witnessing Colleen's emotional difficulty that resulted from the shift separation. In addition, the petitioners were awarded attorney fees and costs in the sum of $12,351.90.

The State Police filed exceptions to the recommended order. In June 1993, a three-member panel of the Commission rejected the State Police argument that its antinepotism policy was not marital status discrimination because it applied to all related persons. Relying on River Bend Community Unit School District No. 2 v. Human Rights Comm'n (1992), 232 Ill. App. 3d 838, 597 N.E.2d 842, 173 Ill. Dec. 868, the Commission concluded that marital status does include the identity of an employee's spouse and noted that had petitioners not married, no action would have been taken against them. Citing Brewington v. Illinois Department of Corrections (1987), 161 Ill. App. 3d 54, 513 N.E.2d 1056, 112 Ill. Dec. 447, the Commission further noted that while a shift change was marital status discrimination within the meaning of the Act, the identity of coworkers was never considered a term or condition of employment. (See 775 ILCS 5/2-102(A) (West 1992).) The Commission also pointed out that petitioners had not been assigned to a different shift than the ones ...


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