Hutchcraft Van Service, Inc. v. City of Urbana Human Relations Commission
| Decision Date | 11 March 1982 |
| Docket Number | No. 17418,17418 |
| Citation | 433 N.E.2d 329,60 Ill.Dec. 532,104 Ill.App.3d 817 |
| Court | United States Appellate Court of Illinois |
| Parties | , 60 Ill.Dec. 532, 35 Fair Empl.Prac.Cas. (BNA) 305 HUTCHCRAFT VAN SERVICE, INC., Petitioner-Appellee, v. CITY OF URBANA HUMAN RELATIONS COMMISSION, Kirk Horlbeck and City of Urbana, Illinois, a municipal corporation, Respondents-Appellants. |
Glenn A. Stanko, Reno, O'Byrne & Kepley, Champaign, for petitioner-appellee.
This appeal raises a question which has not as yet been entirely resolved under the law of this state: To what extent, if any, may a home rule unit legislate beyond that which has theretofore also been the object of statutory enactment by the legislature?
The factual matters are not in serious dispute. The City of Urbana (Urbana) purporting to act under its home rule power, enacted an amended ordinance entitled "An Ordinance on Human Rights" (ordinance), the relevant portions of which are read as follows:
"ARTICLE 1. PURPOSE
Sec. 1. Intent
It is the intent of the City of Urbana, in adopting this ordinance, to secure an end, in the City of Urbana, to discrimination, including, but not limited to, discrimination by reason of race, color, creed, class, national origin, religion, sex, age, marital status, physical and mental handicap, personal appearance, sexual preference, family responsibilities, matriculation, political affiliation, prior arrest or conviction record or source of income. * * *
ARTICLE 2. DEFINITIONS
Sec. 3. Definitions
Discrimination. Any practice or act which is unlawfully based wholly or partially on the race, color, creed, class, national origin, religion, sex, age, marital status, physical or mental handicap, personal appearance, sexual preference, family responsibilities, matriculation, political affiliation, prior arrest or conviction record or source of income of any individual.
Personal appearance. The outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristic such as weight, height, facial features, or other aspects of appearance. It shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed attire, if and when such requirement is uniformly applied for admittance to a public accommodation or to employees in a business establishment for a reasonable business purpose.
ARTICLE 4. DISCRIMINATION IN EMPLOYMENT
Sec. 5. Discrimination by an employer
It shall be an unlawful practice for an employer to do any of the following acts for a reason based wholly or partially on discrimination: to fail or refuse to hire * * * any person with respect to his/her application, hiring * * *.
ARTICLE 9. GENERAL PROVISIONS
Sec. 26. Exceptions
(a) Any practice or act of discrimination which would otherwise be prohibited by this Ordinance shall not be deemed unlawful if it can be established that such practice or act can be justified on the basis of being reasonably necessary to the normal operation of the business or enterprise. However, a 'business necessity' exception shall not be justified by the factors of increased cost to business, business efficiency, the comparative or stereotypical characteristics of one group as opposed to another or the preference of co-workers, employers' customers or any other person."
Horlbeck, one of the respondents, inquired about employment with the petitioner and was denied a job application. The evidence was that the refusal was based upon the length of Horlbeck's hair. However, the evidence was in conflict as to the reason for petitioner's objection. Horlbeck claimed discrimination because of personal appearance; petitioner's witness claimed it was because of business image, safety, and customer preference. Petitioner runs a moving business and has been in business in Urbana for 34 years. It is affiliated with a national moving company and obtains about one-half of its business from Chanute Air Force Base.
Horlbeck filed a complaint for discrimination under the ordinance and after administrative proceedings and hearings before the City of Urbana Human Relations Commission, that body issued a cease-and-desist order requiring petitioner to cease from denying job applications based on length of hair and to furnish evidence of compliance within 30 days. Petitioner caused the administrative order to be reviewed by the circuit court of Champaign County by writ of certiorari. That court vacated and set aside the order on the basis that the employment discrimination provisions of the ordinance did not pertain to the government and affairs of the City of Urbana and were unconstitutional under Ill.Const.1970, art. VII, sec. 6(a). Urbana appeals that order.
The basic grant of home rule power is found in that section which is read as follows:
"Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs, including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license, to tax; and to incur debt." Ill.Const.1970, art. VII, sec. 6(a).
Section 6(m) of article VII mandates that this home rule power is to be liberally construed, and the supreme court has held that the basic grant in section 6(a) was purposely left without definition so that home rule powers might be construed as being broad in nature. City of Urbana v. Houser (1977), 67 Ill.2d 268, 10 Ill.Dec. 239, 367 N.E.2d 692.
To define the problem presented, we must examine several legislative and constitutional enactments and contrast them with the Urbana ordinance. An examination of the ordinance reveals that it facially prohibits discrimination on account of "race, color, creed, class, national origin, religion, sex, age, marital status, physical or mental handicap, personal appearance, sexual preference, family responsibilities, matriculation, political affiliation, prior arrest or conviction record or source of income."
On the other hand the legislative and constitutional enactments prohibit discrimination on a lesser number of factors.
A brief examination of the pertinent language in the applicable statutes will be helpful. Prior to July 1, 1980, discrimination in employment was governed by the Fair Employment Practices Act (FEPA) (). On that date the Illinois Human Rights Act (IHRA) (Ill.Rev.Stat., 1980 Supp., ch. 68, par. 1-101 et seq.) became effective and repealed FEPA. The purpose of IHRA was to draw together and consolidate in a single act all Illinois law relating to discrimination in employment, real estate transactions, access to financial credit, and availability of public accommodations. (Davis and Murphey, The Illinois Human Rights Act: Revision of Illinois Law Concerning Discrimination in Employment, 69 Ill.B.J. 218 (1980).) Section 9-102 of IHRA (Ill.Rev.Stat.1980 Supp., ch. 68, par. 9-102) contains a saving clause as to pending matters. Therefore, even though the discrimination alleged in the instant case occurred prior to July 1, 1980, and the complaint was in process at that time, it will still be governed by the provisions of IHRA. A comparison of the language of FEPA and IHRA is instructive.
Section 1 of FEPA states in part:
"(I)t is declared to be the public policy of this State that without in any way precluding any employer from selecting between persons of equal merit, ability, and capabilities, equal employment opportunity or apprenticeship opportunity without discrimination because of race, color, religion, sex, national origin, ancestry, physical or mental handicap unrelated to ability, or unfavorable discharge from military service should be protected by State law." Ill.Rev.Stat.1979, ch. 48, par. 851.
Section 3(a) of FEPA defines an unfair employment practice to be:
"For any employer, because of the race, color, religion, sex, national origin, ancestry or physical or mental handicap unrelated to ability of an individual, or an unfavorable discharge from military service, to refuse to hire, to segregate, or otherwise to discriminate against such individual with respect to hire, selection and training for apprenticeship in any trade or craft, tenure, terms or conditions of employment; or * * *." Ill.Rev.Stat.1979, ch. 48, par. 853(a).
The IHRA largely mirrors the language of FEPA. Section 1-102(A) of IHRA states the public policy of the State to be:
"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., 1980 Supp., ch. 68, par. 1-102(A).
Unlawful discrimination under IHRA is defined in section 1-103(Q) as:
" 'Unlawful discrimination' means discrimination against a person because of his or her race, color, religion, national origin, ancestry, age, sex, marital status, handicap or unfavorable discharge from military service as those terms are defined in this Section." Ill.Rev.Stat., 1980 Supp., ch. 68, par. 1-103(Q).
Of equal, if not more significance, is section 17 of the Bill of Rights to the 1970 Illinois Constitution which states:
"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. " Ill.Const.1970, art. I, sec. 17.
To digest the foregoing, it will be observed that FEPA prohibited as factors in discrimination race, color,...
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