City of Cairo v. Fair Employment Practices Commission

• Decision Date: 13 May 1974
• Docket Number: No. 72--262,72--262
• Citation: 21 Ill.App.3d 358,315 N.E.2d 344
• Parties: , 12 Fair Empl.Prac.Cas. (BNA) 187, 8 Empl. Prac. Dec. P 9682 The CITY OF CAIRO, etc., Plaintiff-Appellee, Cross-Appellant, v. FAIR EMPLOYMENT PRACTICES COMMISSION, etc., et al., Defendants-Appellants, Cross-Appellees, and Julius V. Oats, Sr., Defendant-Appellant, Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 344

315 N.E.2d 344

21 Ill.App.3d 358, 12 Fair Empl.Prac.Cas. (BNA) 187,

8 Empl. Prac. Dec. P 9682

The CITY OF CAIRO, etc., Plaintiff-Appellee, Cross-Appellant, v. FAIR EMPLOYMENT PRACTICES COMMISSION, etc., et al., Defendants-Appellants, Cross-Appellees, and Julius V. Oats, Sr., Defendant-Appellant, Cross-Appellee.

No. 72--262.

Appellate Court of Illinois, Fifth District.

May 13, 1974.

R. R. McMahan, Lord, Bissell & Brook, Chicago, for Julius V. Oats, Sr.; Michael P. Seng, Margaret Stapleton, Land of Lincoln Legal Assistance Foundation, Inc., Cairo, of counsel.

William J. Scott, Atty. Gen., of the State of Illinois, for Fair Employment Practices Com., etc.; Paul J. Bargiel, Asst. Atty. Gen., Chicago, of counsel.

John G. Holland and George J. Kiriakos, Cairo, for City of Cairo, etc.

GEORGE J. MORAN, Presiding Justice:

The Fair Employment Practices Commission, hereinafter referred to as FEPC, on the petition of Julius Oats, Sr., found the City of Cairo's policy of excluding persons with arrest records from employment on the City's police force to be a racially discriminatory hiring practice forbidden by Section 3(a) of the Illinois Fair Employment Practices Act (Ill.Rev.Stat.1967, ch. 48, par. 853(a).) The circuit court of Alexander County reversed the FEPC. Oats and the FEPC appeal from the judgment of the circuit court. On cross-appeal the City of Cairo argues that the FEPC lacked jurisdiction to entertain Oats's petition.

In May of 1969, the appellant, Julius Oats, Sr., filed an application to the Board of Police and Fire Commissioners of the City of Cairo for employment on its police force. After written and oral examinations his name was placed on the list of persons eligible to be employed as a policeman. On August 13, 1969, the Board sent him a letter indicating that it had withdrawn his name from the eligibility list as a result of his arrest record which had been obtained from his state and federal 'rap sheets'. The F.B.I. document contained an entry which indicated that Oats had been arrested for army desertion in 1964 by the police of St. Joseph, Michigan and that he had been charged with disorderly conduct in Chicago in 1968. The Illinois 'rap sheet' showed only the Chicago charge. Neither sheet indicated the disposition of these charges. ¹

Subsequently, Oats met with the Board on a number of occasions in an attempt to persuade them to change their minds. Having failed to effect a reversal of their previous decisions, Oats filed a charge of unfair employment practice with the FEPC, claiming that he had been dropped from the eligibility list because of his race. A hearing before an FEPC Hearing Examiner was held on July 2, 1970.

The hearing examiner concluded that Oats was removed, in good faith, because of his arrest record, as indicated by the desertion and disorderly conduct charges. He recommended that the FEPC dismiss the complaint as there was no evidence of discriminatory intent.

Over one year later, on October 29, 1971, the Commission itself handed down its ruling and, in reversing its own hearing examiner, stated:

'The Commission therefore concludes that the denial by the Board of Fire and Police Commissioners of the City of Cairo of employment to Mr. Julius Oats, Sr., after he had successfully passed both the written and oral examinations, based solely upon his arrest record was discriminatory to Mr. Oats because of his race. Consistent with the Supreme Court's decision in the Griggs v. Duke Power Co. case, the Commission further finds that the good intent or absence of discriminatory intent upon the part of the Board of Fire and Police Commissioners does not overcome the discriminatory employment procedure.'

On December 3, 1971, the above ruling was appealed to the Circuit Court of Alexander County pursuant to the provisions of the Administrative Review Act (Ill.Rev.Stat., ch. 110, par. 264 et seq.). The court reversed the Commission's order and found inter alia:

1. That the Fair Employment Practices Commission did have jurisdiction in the case.

2. That the findings of fact of the Hearing Examiner were supported by a preponderance of the evidence.

3. That as a matter of law of the State of Illinois, the Cairo Board of Fire and Police Commissioners had the authority to determine in 1969 whether to hire a policeman based on his arrest records, and the conclusion by the Fair Employment Practices Commissioner that it was against the law of the State of Illinois and the Constitution to drop police candidate, Julius Oats, from the police eligibility list on the basis of arrest records was in error.

4. That there was no showing on this record that the Cairo Police and Fire Board applied any different standard for a black man than a white man in removing police candidates from the police eligibility list because of arrest records.

We deal with the following issues:

I. Whether the FEPC had jurisdiction in this matter.

II. Whether appellant Oats was removed from the eligibility list Solely on the basis of his arrest record.

III. Whether the City of Cairo's hiring policy in 1969 ² of excluding persons from employment because they had arrest records was inherently recially discriminatory regardless of lack of motive or intent to discriminate or evenness of application of the policy.

I.

We first consider the city's contention on cross-appeal that the FEPC lacked jurisdiction to entertain Oats's petition.

The city argues that the FEPC lacked jurisdiction to entertain Julius Oats's charge that the city had committed an unfair employment practice when its Board of Police and Fire Commissioners removed his name from the list of eligible candidates for employment as a police officer. The city contends that the above decision of the Board was a 'final administrative decision' and, as such, subject to the provisions of the Administrative Review Act (Ill.Rev.Stat., ch. 110, par. 265); that the Administrative Review Act was Mr. Oats's exclusive remedy from the adverse decision of the Board; that the appellant failed to file for review within 35 days thereafer, pursuant to Section 267 of the Administrative Review Act; and that as the result of the failure to appeal in accordance with the provisions of Section 267, Mr. Oats is jurisdictionally barred from having the matter considered by way of an alternate remedy.

We reject the city's contention in this regard for two reasons. First, the Administrative Review Act itself (Ill.Rev.Stat. 1967, ch. 110, par. 265) provides:

'This Act shall apply to and govern every action to Review judicially a final decision of any administrative agency * * *. In all such cases, any other statutory, equitable or common law mode of review of decisions of administrative agencies Heretofore available shall not be employed afte rthe effective date hereof.' (Emphasis added.)

Although the Administrative Review Act thus governs actions to Review judicially final decisions of administrative agencies subject to its provisions, this court is of the opinion that filing a petition with the FEPC simply cannot be construed as an action to review Judicially a decision of an administrative agency. Furthermore, the Administrative Review Act expressly prohibits modes of review of administrative agencies 'heretofore available' but makes no mention of Subsequent remedial alternatives. The Fair Employment Practices Act was enacted in 1961, 16 years Subsequent to the enactment of the Administrative Review Act. In enacting the Fair Employment Practices Act, the General Assembly created a New substantive cause of action. The statute was specifically made applicable to municipal corporations such as the City of Cairo (Ill.Rev.Stat.1971, ch. 48, par. 852(d)(ii).). To enforce Act, the General Assembly created the Act, the General Assembly created the FEPC and vested it with jurisdiction to adjudicate disputes arising under the Act. The interpretation of the law governing administrative review which is urged by the City of Cairo would frustrate the legislative intent by barring access to that remedy in any case where a governmental administrative body has committed an unfair employment practice. Jurisdictional issues have been resolved in analogous situations, in favor of effectuating the individual's civil rights (Evans v. Local Union 2127, D.C., 313 F.Supp. 1354; United States v. Georgia Power Co., D.C., 301 F.Supp. 538). We agree with and affirm the order of the Circuit Court wherein it found that the FEPC had jurisdiction in this matter.

II.

We next consider whether Julius Oats was dropped from the police eligibility list solely on the basis of his arrest record. The Hearing Examiner, the full FEPC and the circuit court all viewed the case in this context. The city has attempted to confuse the issue on appeal by interjecting a number of factors which were not considered by the Board of Police and Fire Commissioners at the time they made the decision to drop Oats from the eligibility list. A careful review of the record clearly shows that Julius Oats was removed from the police eligibility list solely on the basis of his arrest record.

III.

We now consider the central issue in this case of whether the City of Cairo's hiring policy in 1969 ³ of excluding persons from employment because they had arrest records was inherently racially discriminatory, regardless of lack of motive of intent to discriminate or evenness of application of this policy so as to constitute an unfair employment practice within the meaning of the Illinois Fair Employment Practices Act.

The racial discrimination provisions of federal and Illinois law are substantially identical (compare the Federal Civil Rights Act of 1964,42 U.S.C. § 2000a et seq., and the Illinois Fair Employment Practices Act, Ill.Rev.Stat., ch. 488 par. 853). Thus in the absence of Illinois c...