City of Chicago v. Illinois Fair Employment Practices Commission

• Court: Appellate Court of Illinois
• Writing for the Court: GOLDBERG
• Citation: City of Chicago v. Illinois Fair Employment Practices Commission, 410 N.E.2d 136, 87 Ill.App.3d 597, 43 Ill.Dec. 136 (Ill. App. 1980)
• Decision Date: 11 August 1980
• Docket Number: No. 79-1378,79-1378
• Parties: , 43 Ill.Dec. 136, 24 Empl. Prac. Dec. P 31,276 CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellant, v. ILLINOIS FAIR EMPLOYMENT PRACTICES COMMISSION and Susie A. Bates, Defendants- Appellees.

Page 136

410 N.E.2d 136

87 Ill.App.3d 597, 43 Ill.Dec. 136,

24 Empl. Prac. Dec. P 31,276

CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellant, v. ILLINOIS FAIR EMPLOYMENT PRACTICES COMMISSION and Susie A Bates, Defendants- Appellees.

No. 79-1378.

Appellate Court of Illinois, First District, First Division.

Aug. 11, 1980.

William R. Quinlan, Corp. Counsel of the City of Chicago, Chicago (Robert R. Retke and Cheryl L. Smalling, Asst. Corp. Counsel, Chicago, of counsel), for plaintiff-appellant.

Ross, Hardies, O'Keefe, Babcock & Parsons, Chicago (Barbara Baran, Chicago, of counsel), for defendant-appellee Susie A. Bates.

GOLDBERG, Presiding Justice.

The City of Chicago (plaintiff) appeals from a judgment affirming a decision of the Illinois Fair Employment Practices Commission (FEPC) ( Ill.Rev.Stat.1979, ch. 110, pars. 264 et seq.). The FEPC ruled plaintiff had discriminated against its female custodial employees including Susie Bates (complainant) on the basis of sex (Ill.Rev.Stat.1979, ch. 48, pars. 851 et seq.) and ordered plaintiff to award complainant back pay and other relief.

The hearing before the FEPC examiner brought out these facts. Complainant had been employed by plaintiff's Department of Public Works since 1951. Her job was to clean a certain area of the City Hall at night. Prior to 1973, complainant's civil service job title was "janitress". All women employed in the Department of Public Works for cleaning tasks were classified as "janitresses". All men performing cleaning tasks were classified as janitors. Janitors were paid more than "janitresses". On January 1, 1973, these job titles were changed. Janitors were reclassified as custodial workers and "janitresses" as custodial assistants. However, the male custodial workers were still being paid more than the female custodial assistants.

William White, Superintendent of Custodial Workers, testified that in 1970, the Department of Public Works used 25 "janitresses" and 55 janitors in City Hall. Of these, 22 "janitresses" and 47 janitors were on the evening shift. All of the "janitresses" and 33 of the janitors cleaned offices. Some of the remaining 14 janitors on the night shift were assigned special jobs such as mopping halls, sweeping corridors and stairways, hauling trash, vacuuming elevators and cleaning public toilets. The rest of the janitors (approximately 6) were called "floaters". Floaters were not assigned any particular job. They either filled in for absent workers or did other jobs as assigned. Because of a general absentee rate of 15 percent, floaters usually replaced absent male and female office cleaners. When floaters were not needed to replace absentees, they were organized into a crew to perform cleaning tasks not frequently done, such as stripping and waxing floors. All janitors were paid the same, regardless of their responsibility.

White became supervisor in 1970. Prior to 1970, men and women who cleaned offices also stripped and waxed office floors. When White became supervisor, he ordered the women to stop stripping and waxing the floors. He did not feel women "were suitable for that type of work". Also women were paid less than men. White instituted a separate stripping crew of floaters. They did stripping and waxing in the areas cleaned by both janitors and "janitresses".

White further stated he tried to assign teams of office cleaning janitors and "janitresses" to as many areas as possible so the men could do the heavy work while the women did the lighter work. Again, his reason for this was the janitors were paid more. Office cleaning janitors were supposed to empty wastebaskets and spot mop for "janitresses". These janitors were occasionally required to sweep stairs and shovel snow. These tasks were never assigned to a "janitress". However, White also stated some women worked alone, emptied wastebaskets in their own section and did their own spot mopping.

White's custodial staff was continuously cut after 1970. Accordingly, he was obliged to enlarge individual cleaning areas. In this respect, he also tried to give the men more work by assigning them to larger areas. However, he stated that at one time, complainant had been transferred to a section formerly cleaned by a man and she was replaced by a man in her old section. Men and women often replaced each other in certain office areas. White also related that in 1973, some women who had cleaned offices in City Hall were transferred to the Traffic Court building to clean offices formerly cleaned by men. The men in turn, were transferred to City Hall to clean the offices formerly cleaned by the women.

White stated that cleaning offices was the first responsibility of the custodial employees and only the more experienced and conscientious janitors were assigned to clean offices.

A number of "janitresses" testified their duties did not differ from those of the janitors who cleaned offices. Complainant and other "janitresses" testified some janitors failed to do tasks done by "janitresses" on a regular basis such as washing furniture, wastebaskets and ashtrays. The office cleaning janitors who testified stated women would do the same job as men cleaning offices. The only exception was the men would empty the wastebaskets for women and help move furniture when the stripping crew was in the area. Also, these janitors would sometimes be required to do other tasks when there was a shortage of manpower and not enough floaters. These tasks consisted of sweeping a flight of stairs, shoveling snow, sweeping a corridor or hauling trash. However, the number of times these janitors were required to do these tasks varied from sweeping a flight of stairs once every two weeks to shoveling snow once or twice in a winter season.

Joan Cole, Deputy Director of Personnel for plaintiff, testified that in 1972 a study was done of the custodial work force to determine whether any changes should be made. The study was undertaken partially because Title VII of the Civil Rights of Act of 1964 was to become applicable to cities. James Dolan, a personnel analyst for plaintiff's civil service department, did a job evaluation survey and reported on the duties of janitors and "janitresses" in the Department of Public Works. In his report, dated October 12, 1972, Dolan concluded as between janitors and "janitresses", a "considerable overlap of duties exists in the area of light (office) cleaning. Since both job classifications perform these same tasks with about the same frequency it would indicate that different rates of pay for performance of this work is unjustified." Dolan warned the classifications of "Janitor" and "Janitress" were inappropriate because they indicated these jobs were assigned on the basis of sex.

Dolan recommended the Department of Public Works change job titles and pay individuals doing light office cleaning at the "janitress" rate and those doing heavy cleaning at the janitor rate, regardless of sex.

Ms. Cole testified, based on this report, the job title of those who did light cleaning was changed to "custodial assistant" and the title of those who did heavy cleaning was changed to "custodial worker". New job descriptions were developed six months later which "more sharply" defined the light and heavy work classifications. The Department prepared tests for the two new positions intending that women could take the custodial worker's examination and men could take the custodial assistant's examination.

Janitors were automatically reclassified as custodial workers and "janitresses" were reclassified as assistants. Cole stated males doing light work could not be reclassified to custodial assistants because they had civil service status in the heavy work title and could not be moved to a title for which they had no standing and had not taken a civil service examination. Also, a "janitress" could not be reclassified as custodial worker since no "janitress" had taken an examination for the heavy cleaning job. Therefore, to take care of the overlap of duties in light cleaning, Cole recommended all custodial workers be given heavier work than the custodial assistants. However, the testimony of the custodial employees indicates none of their job duties changed after their job titles changed.

On these facts, the hearing examiner found a preponderance of the evidence showed plaintiff had violated the Illinois Fair Employment Practices Act (FEPA) by paying complainant a lesser wage than her male co-workers. On September 19, 1977, the FEPC sustained this finding of sex discrimination. It ordered female custodial employees' wages upgraded, awarded complainant the difference between what she made as a "janitress"/custodial assistant and the higher wage paid to janitors/custodial workers commencing as of August 27, 1971, (the date the FEPA was amended to prohibit sex discrimination), plus interest, and also retroactive contributions to complainant's pension and health funds.

During the pendency of administrative review proceedings, a decision was entered in a class action suit in the local United States District Court (National Organization of Women v. City of Chicago ), in which complainant was a named plaintiff and in which the same facts as were the basis for the FEPC action were alleged. The district court granted plaintiffs their relief under various federal equal rights statutes. On November 17, 1978, the district court awarded complainant $10,208.55 plus interest of $124.38. On December 7, 1978, the trial court herein affirmed the decision of the FEPC.

On January 5, 1979, plaintiff filed a motion to vacate the order of December 7, 1978. Plaintiff averred due to the award in the federal case, res judicata applied to bar an award in the instant case. On May 31, 1979, the trial court denied the motion to vacate. The order further stated:

"Susie Bates' (complainant's) counsel represented that any amounts which Susie Bates receives under the order of...