concurring in part and dissenting in part:
I write no brief for an employer who tells an industrially injured employee that the employee will be discharged if a claim for compensation is filed. Such statements, even when accompanied by assurances that all expenses connected with the injury will be paid, really do not appeal to one’s sense of fairness. Plaintiff’s arguments in favor of a cause of action for retaliatory discharges, if limited to compensatory damages, have considerable appeal, and such an action may well be a desirable remedy for such discharges. My disagreement with the majority stems from my belief that the merits of those arguments were clearly for the legislature to assess, the legislature did not adopt them, and the majority opinion in this case is, it seems to me, simply a substitution of the preferences of a majority of the members of this court for the considered judgment of the General Assembly.
It is only stating the obvious to say that it is fundamental in our system of government that the law-making function is vested in the legislative branch. The majority’s intrusion into the legislative field in this case typifies the lack of judicial self-restraint which has been a source of concern and comment throughout our history. Mr. Chief Justice Marshall spoke to it as follows: “[The judicial] department has no will in any case. *** Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.” (Osborn v. Bank of the United States (1824), 22 U.S. (9 Wheat.) 738, 866, 6 L. Ed. 204, 234.) It is essential to a preservation of the separation of powers that those of us who serve in the judicial branch subordinate our desires and preferences to the actions of the legislative and executive branches as long as those are expressed in constitutional terms.
Mr. Justice Harlan, dissenting in Wesberry v. Sanders (1964), 376 U.S. 1, 48, 11 L. Ed. 481, 509, 84 S. Ct. 526, 551, phrased it thus: “The Constitution does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short. The stability of this institution ultimately depends not only upon its being alert to keep the other branches of government within constitutional bounds but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.”
Precisely in point here is the admonition: “But it is not our function to engraft on a statute additions which we think the legislature logically might or should have made.” United States v. Cooper Corp. (1941), 312 U.S. 600, 605, 85 L. Ed. 1071, 1075, 61 S. Ct. 742, 744 (Roberts, J.).
My colleagues’ assertion that their creation of a civil remedy is required in order to adequately implement the beneficent purpose of the Workmen’s Compensation Act makes one wonder why, if the need was so great, the question had not been presented earlier in the more than 65 years of the Act’s existence. Nor do I understand how it is that on the basis of a record devoid of proof of the frequency of retaliatory discharges the majority is able to discern so much more clearly than the legislature that the Act “would be seriously undermined” without this new remedy which the court now manufactures.
The employment contract in this case was terminable at the will of either party as the majority concedes. But by the action it takes today, the majority transforms that contract, as the Court of Appeals for the Seventh Circuit suggested, into tenured employment for every employee who files a compensation claim against an employer. “Certainly it could be argued that acceptance of *** [plaintiff’s] claim here would be tantamount to writing into the Illinois statute a provision for tenure in the event of an industrial injury.” (Loucks v. Star City Glass Co. (7th Cir. 1977), 551 F.2d 745, 746-47.) Henceforth, no matter how indolent, insubordinate or obnoxious an employee may be, if he has filed a compensation claim against an employer, that employer may thereafter discharge him only at the risk of being compelled to defend a suit for retaliatory discharge and unlimited punitive damages, which could well severely impair or destroy the solvency of small businesses.
As the majority notes, a 1975 amendment to the Workmen’s Compensation Act makes it a criminal offense for an employer to threaten or effect a discharge in retaliation for an employee’s exercise of his rights under the Act. (Ill. Rev. Stat. 1975, ch. 48, par. 138.4(h).) While that amendment post-dated the episode with which we deal in this case, it is certainly relevant and illuminating of the General Assembly’s understanding of the Workmen’s Compensation Act and the legislative intent in adopting the amendment. Obviously the Act had not been thought to preclude retaliatory discharges and to provide to one so discharged a cause of action for damages, for, if it did, the amendment was unnecessary. We presume the legislature did not intend to perform a useless act (People v. McCoy (1976), 63 Ill. 2d 40, 45), and the rule is that “where a statute is amended, it will be presumed that the legislature intended to effect some change in the law as it formerly existed. [Citation.] ” (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 373.) In adopting the 1975 amendment, it is clear to me that the members of the General Assembly thought they were creating, for the first time, a remedy for retaliatory discharges and established what they considered to be a sufficient deterrent. They did not include civil liability on the part of the employer to the discharged employee. It is unrealistic to suppose that those who drafted, those who sponsored and the members of the General Assembly which adopted the Illinois law on retaliatory discharges simply ignored the question of civil remedies if those remedies are in fact as vital to the effective administration of the Act as the majority now asserts. Had it been thought either necessary or desirable, a civil action for such damages as were considered appropriate would have been included in the comprehensive and integrated Workmen’s Compensation Act just as it has been in similar legislative enactments hereinafter referred to. Not to be deterred by these considerations, however, my colleagues state in exercising their superior wisdom that the policy against retaliatory discharge “can only be effectively implemented and enforced by allowing a civil remedy for damages” (74 Ill. 2d at 185).
I do not doubt that the majority is “convinced that to uphold and implement this public policy a cause of action should exist for retaliatory discharge,” as the opinion states (74 Ill. 2d at 181), but that fact should be irrelevant, for the legislature was not so convinced. Today’s decision, it seems to me, simply usurps the power and function of the legislative branch of government — and evidences an unwillingness by the majority to exercise the self-restraint so essential if the judiciary is to maintain its proper function. No matter how emotionally appealing the situation presented, our law-making power lies only within the limits of our common law heritage and the mandate of our constitutions; it does not include amending specific legislation which we feel, however rightly, is lacking in some respect. Particularly does it not include providing a cause of action including both compensatory and punitive damages which the General Assembly deliberately omitted.
In creating this cause of action, the majority has effectively overruled this court’s recent opinion in Teale v. Sears, Roebuck & Co. (1976), 66 Ill. 2d 1, while purporting to distinguish it. In Teale, an employee brought a civil action for discharge alleged to be wrongful under the Age Discrimination Act (Ill. Rev. Stat. 1975, ch. 48, pars. 881 through 887.) That Act made it unlawful to discharge a person because of his age and provided a criminal penalty for doing so. The Act contained a legislative declaration of policy far more certain and explicit than the general public policy formulations relied upon by the majority in the case now before the court. Section 1 stated:
“(a) The General Assembly declares that the practice of discriminating in employment against properly qualified persons because of their age is contrary to American principles of liberty and equality of opportunity ***.
***
(c) The right to employment otherwise lawful without discrimination because of age *** is hereby recognized as and declared to be a right of all the people of the State which shall be protected as provided herein.
(d) It is hereby declared to be the policy of the State to protect the right recognized and declared in paragraph (c) of this Section and to eliminate all such discrimination to the fullest extent permitted. This Act shall be construed to effectuate such policy.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 48, par. 881.)
Despite this strong statement of public policy this court unanimously declined to expand that statute and held that no civil remedy for the alleged wrongful discharge existed. Mr. Justice Schaefer, speaking for the court, first noted that “[t] he Act does not expressly authorize a civil action for damages.” (66 Ill. 2d 1, 4.) He then stated:
“And when we look beyond the terms of this statute and examine the civil remedies which the General Assembly has expressly provided for other types of discrimination, the restrictive inference that flows from the language of the statute itself becomes conclusive. Some of the variant forms of sanction are these:
Discrimination in employment under contracts for public buildings or public works on account of race, color, sex or national origin is prohibited, and a violation is a Class B misdemeanor. The statute also specifically provides for recovery (apparently in the same amount as the criminal fine) in a civil action brought by the aggrieved person. Ill. Rev. Stat. 1973, ch. 29, pars. 21, 22.
Any official or operator of any public place of accommodation or amusement who discriminates against any person by reason of race, religion, color, national ancestry or physical or mental handicap is guilty of a Class B misdemeanor and is specifically made liable to the person aggrieved for not less than $100 nor more than $1,000 to be recovered in a civil action. Additional remedies by way of injunction and abatement of nuisance are also provided. Ill. Rev. Stat. 1973, ch. 38, pars. 13—1 through 13—4.
Any hospital which has been adjudicated to have denied admission to any person because of race, color or creed, loses its exemption from taxation. Ill. Rev. Stat. 1973, ch. 120, par. 500.7.
Any member of a school board, superintendent, principal or other school officer who seeks information concerning the color, race, nationality, religion or religious affiliation of any person in connection with his employment or assignment, is liable to a penalty of not less than $100 nor more than $500 to be recovered by the person aggrieved in a civil action, and in addition is guilty of a Class B misdemeanor. Ill. Rev. Stat. 1973, ch. 122, par. 24—4.
The carefully limited civil remedies authorized by these statutes demonstrate, in our opinion, that it would be incongruous to derive by implication a right to recover unlimited damages for a violation of this statute.” 66 Ill. 2d 1, 5-6.
The court in Teale also relied on the legislatively declared restriction that the right thereby created “shall be protected as provided herein.” Similarly the Workmen’s Compensation Act in the case before us states that the provisions of the Act “shall be the measure of the responsibility of any employer ***.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.11.) Certainly this language is at least as restrictive as that which the Teale court held precluded the very civil remedy which a majority of this court now creates. Teale is not only persuasive in its reasoning, it is controlling precedent to which this court should adhere, or, at least, have the candor to overrule.
The majority seemingly believes the Frampton (Frampton v. Central Indiana Gas Co. (1973), 260 Ind. 249, 297 N.E.2d 425) and Sventko (Sventko v. Kroger Co. (1976), 69 Mich. App. 644, 245 N.W.2d 151) decisions support its emotional approach to this case. The Frampton court, however, upheld the cause of action for retaliatory discharge because it found such a discharge to be a “device” which the Indiana statute specifically prohibited. No similar language appears in our act. Also, neither the Indiana nor Michigan legislature had prescribed penalties for retaliatory discharges as ours has done. In fact, the majority of courts that have considered this question have denied recovery, refusing to recognize a private cause of action for retaliatory discharge. In the most recent case, Loucks v. Star City Glass Co. (7th Cir. 1977), 551 F.2d 745, the court, in interpreting Illinois law, determined that the absence of a provision in the Workmen’s Compensation Act creating a private cause of action was a deliberate policy decision of the Illinois legislature: “We think it rather unlikely that a retaliatory discharge prohibition would have been omitted from this comprehensive and integrated legislation if it had been intended.” 551 F.2d 745, 748. See also Christy v. Petrus (1956), 365 Mo. 1187, 295 S.W.2d 122; Narens v. Campbell Sixty-Six Express, Inc. (Mo. 1961), 347 S.W.2d 204; Raley v. Darling Shop of Greenville, Inc. (1950), 216 S.C. 536, 59 S.E.2d 148.
Since I do not agree that a cause of action exists for either compensatory or punitive damages, I concur with the court’s holding that punitive damages are not available to plaintiff in this case. I disagree with the obiter dicta statements regarding the availability of punitive damages in future cases. As was pointed out in the dissenting opinion in Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 150: “The doctrine of punitive damages is not favored by law [citations], and the power of giving punitive damages should be exercised with great caution and they should be properly confined within the narrowest of limitations [citation].” Surely where the legislature has forbidden certain actions and provided a specific penalty for a violation, this court has no authority, on generalized policy grounds, to hold the legislated penalty insufficient and provide a stiffer one. Obviously, the General Assembly felt that the penalty it decided upon was sufficient; otherwise, of course, it would have provided a more severe penalty, civil remedies or both.
As Mr. Justice White, dissenting, said in Roe v. Wade (1973), 410 U.S. at 222, 35 L. Ed. 2d at 196, 93 S. Ct. at 763: “As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”
I would affirm the judgment of the appellate court.