also specially concurring:
Because I disagree with the majority’s analysis and holding with respect to the central legal issue in the case at bar, I cannot join in the majority’s opinion. The question presented to this court is whether unlawful discrimination based on "marital status” includes discrimination based on the identity of one’s spouse. This is an issue of first impression in this court and deserves a thorough analysis and evaluation. As discussed below, I believe that the majority’s narrow interpretation of marital status discrimination under Illinois’ Act is not in conformity with the liberal construction to be given remedial statutes. I further believe that the majority’s ruling on the scope of marital status discrimination is not necessary to achieve a fair resolution under the specific facts of the instant case. Therefore, I write separately.
The Illinois Human Rights Act prohibits employers from unlawfully discriminating against an employee based on his or her marital status. The Act defines "marital status” as the "legal status of being married, single, separated, divorced, or widowed.” The majority states that the definition of marital status does not expressly "encompass policies based on the identity of one’s spouse,” which the legislature "would have” specifically included "[had] the legislature intended to reach this kind of conduct.” 171 Ill. 2d at 238. The majority therefore concludes that spousal identity is not covered by the plain terms of the Act.
By holding that discrimination based on the identity of one’s spouse is not a subset of marital status discrimination under the Act, the majority adopts an overly restrictive construction of marital status. In so doing the majority overrules the interpretation of marital status adopted by the Human Rights Commission more than 10 years ago when the Commission resolved this specific issue. In re Burton, 13 Ill. Hum. Rts. Comm’n Rep. 246 (1984). In Burton the Commission relied on precedent of this court for construing the Act in accordance with its remedial purposes (Board of Trustees of Community College District No. 508 v. Human Rights Comm’n, 88 Ill. 2d 22 (1981)) and held that the inclusion of a spouse’s identity in the scope of marital status was consistent with the general remedial purpose of the Act. The Commission stated in its order in Burton:
"[T]he evil meant to be remedied by the Human Rights Act was discrimination against individuals based upon stereotypes generated by conditions which are irrelevant to the employment situation. We find that [subjecting an employee to adverse consequences] based upon his or her marriage to a particular individual constitutes the same sort of evil which the legislature intended to prohibit by use of the Human Rights Act. *** [C]oncerns about imposing discipline, morale problems and alleged conflicts of interest all appear to be based upon stereotypes with respect to spousal behavior. The Respondent has offered no reason why these particular problems cannot be dealt with on a case by case basis as they develop. The mere fact that one husband may not be able to supervise his wife effectively does not necessarily mean that no person can effectively supervise his or her spouse. The only justification for a blanket anti-nepotism rule is an assumption that all married people will act in a particular way when asked to supervise their spouses. The elimination of this sort of discrimination based upon stereotypes is well within the legislative purpose.” Burton, 13 Ill. Hum. Rts. Comm’n Rep. at 252-53.
The Commission concluded that the Act’s prohibition of marital status discrimination included the identity of a spouse because such interpretation "is consistent with the language approved by the legislature, is consistent with the overall purpose of human rights legislation and is consistent with the admonition from the Illinois Supreme Court that the Human Rights Act — as remedial legislation — should be liberally construed.” Burton, 13 Ill. Hum. Rts. Comm’n Rep. at 255.
While an agency’s construction of a statute is not binding on the court, a reasonable interpretation of a statute by the agency charged with its administration and enforcement is entitled to substantial respect. E.g., Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n, 95 Ill. 2d 142 (1983). In the instant case the majority rejects the Commission’s interpretation of marital status discrimination on the grounds that the language of the statute is unambiguous and that judicial deference to administrative expertise is not required when the governmental agency expands the operation of a statute. However, the Commission’s interpretation of marital status implements the purposes of the Act more closely than does the majority’s analysis. Further, it is significant that the Commission’s interpretation relied upon and followed Board of Trustees.
In Board of Trustees of Community College District No. 508 v. Human Rights Comm’n, 88 Ill. 2d 22 (1981), this court held that the Human Rights Act was remedial legislation that should be construed liberally to effect its purposes. The issue in Board of Trustees was whether the Act, which forbids discrimination based on age, prevented City Colleges from implementing its policy of mandatory retirement for employees at age 65. This court held that although the Act did not expressly include involuntary retirement in its definition of civil rights violations, an analysis of the broad intent of the legislature and similar employment-discrimination statutes led to the conclusion that the Act encompassed retirement.
In the years following its ruling in the case of Burton, the Commission has adhered to its view that " 'a policy which subjects an employee to adverse consequences because of his or her marriage to a particular individual is "marital status” discrimination within the meaning of the Act and is the type of discrimination the Illinois legislature intended the Act to prohibit.’ ” River Bend Community Unit School District No. 2 v. Human Rights Comm’n, 232 Ill. App. 3d 838, 844 (1992) (quoting order of Commission). In River Bend, the third district of the appellate court upheld the Commission’s interpretation of marital status discrimination. At issue in River Bend was the legality of a school district’s policy of denying transfer requests that would place one spouse under the direct supervision of her or his spouse. A female teacher who had taught for many years at a school was transferred when her husband was assigned to act as principal for the school at which his wife taught. A year later she sought to be transferred back to her former school but was not considered because of the policy prohibiting transfers that would place one spouse under the direct supervision of another. The administrative law judge ruled that the teacher had made out a prima facie case of marital status discriminatian, but further found that the school had established a bona fide occupation qualification. Therefore, the administrative law judge dismissed the suit. The Commission reversed, holding that the requisites of a bona fide occupational qualification had not been established and that the teacher had stated a claim for marital status discrimination. The school district appealed, arguing that the Act’s definition of marital status does not include the identity of a spouse.
The appellate court in River Bend stated its belief that both constructions of the Act, as either excluding or including spousal identity, were reasonable, as evidenced by legal authorities from other jurisdictions supporting both sides of the issue. In deciding which of the two constructions should be judicially adopted in Illinois, the appellate court indicated that the Commission’s interpretation of marital status was more consistent with the principle of liberal construction for remedial statutes. The appellate court also noted that the legislature had amended the Act many times since the Burton decision and had taken no action to overturn the agency’s interpretation of marital status. The court in River Bend concluded that the Commission’s interpretation of the law it was charged with enforcing should be upheld, observing, "[The school district’s policy] is clearly triggered by a party’s marital status and imposes a direct burden upon marriage. A person who remains single would not be affected by the rule.” River Bend, 232 Ill. App. 3d at 844.
In the case at bar, as in River Bend, the event that triggered the change in the affected employees’ statutory status was their marriage. To imply, as the majority does, that it was not the Boadens’ marriage in general that caused the change but simply their marriage to each other is a questionable distinction on which to find there was no discrimination based on marital status. A burden is placed on the status of being married when one partner must leave, transfer, or otherwise make a change in employment that would not be required if the couple involved were not married. See generally Annot., What Constitutes Employment Discrimination on Basis of ”Marital Status” for Purposes of State Civil Rights Laws, 44 A.L.R.4th 1044 (1986). The highest State courts in Hawaii, Montana, Washington, and Minnesota have held that marital status discrimination reaches adverse treatment based on a spouse’s identity. Ross v. Stouffer Hotel Co., 72 Haw. 350, 816 P.2d 302 (1991); Thompson v. Board of Trustees, School District No. 12, 192 Mont. 266, 627 P.2d 1229 (1981); Kraft, Inc. v. State, 284 N.W.2d 386 (Minn. 1979); Washington Water Power Co. v. Washington State Human Rights Comm’n, 91 Wash. 2d 62, 586 P.2d 1149 (1978). See also Wexler, Husbands & Wives: The Uneasy Case for Antinepotism Rules, 62 B.U.L. Rev. 75 (1982); Note, Challenging No-spouse Employment Policies as Marital Status Discrimination: A Balancing Approach, 33 Wayne L. Rev. 1111 (1987). In contrast to the above authorities, the highest courts of Michigan and New York hold that marital status discrimination does not extend to spousal identity. Whirlpool Corp. v. Civil Rights Comm’n, 425 Mich. 527, 390 N.W.2d 625 (1986); Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, 51 N.Y.2d 506, 415 N.E.2d 950, 434 N.Y.S.2d 961 (1980).
In Thompson v. Board of Trustees, School District No. 12, 192 Mont. 266, 627 P.2d 1229 (1981), two male administrators married to teachers lost employment or rank because of a school district policy that barred school administrators from having a spouse employed in any capacity in the school system. The Montana Supreme Court invalidated the policy, holding that a liberal construction of "marital status,” which was not defined in the State statute, would vindicate the remedial aims of the legislature. The court also observed that a narrow interpretation of marital status discrimination could lead to the absurd result of a person being able to retain employment merely by dissolving his or her marriage.
The Minnesota Supreme Court held that "[a]bsent a compelling and overriding bona fide occupational qualification, an antinepotism employment rule denying full-time employment to individuals married to persons already employed full time by the employer constitutes a discriminatory practice based on marital status within the meaning of the Minnesota Human Rights Act.” Kraft, Inc. v. State, 284 N.W.2d 386, 387 (Minn. 1979). The Minnesota court stated that to allow employers to ■discriminate based on to whom a person was married would condone discrimination against a "portion of a protected class, i.e., job applicants already married to full-time Kraft employees,” and require an interpretation of marital status that "would elevate form over substance.” Kraft, Inc., 284 N.W.2d at 388. The court also expressed concern that where an employer is dominant in a particular geographic location, enforcing a "no-spouse” rule encourages employees to live together without marriage, in violation of public policy. Kraft, Inc., 248 N.W.2d at 387. Using similar reasoning in a case involving married employees working for a hotel on the island of Kauai, the Supreme Court of Hawaii invalidated the employer’s policy that prohibited direct relatives from working in the same department. Ross v. Stouffer Hotel Co., 72 Haw. 350, 816 P.2d 302 (1991). The majority opinion in Ross joined the Washington, Montana and Minnesota courts in holding that a total prohibition against employees married to each other constituted marital status discrimination.
Courts holding that the identity of a spouse does not come within the meaning of marital status include the highest courts of Michigan and New York. In Whirlpool Corp. v. Civil Rights Comm’n, 425 Mich. 527, 390 N.W.2d 625 (1986), the Michigan Supreme Court held that the legislature did not intend to include no-spouse rules as part of the proscription against marital status discrimination. In so holding the majority reliéd on and followed its earlier case, Miller v. C.A. Muer Corp., 420 Mich. 355, 362 N.W.2d 650 (1984), in which policies barring family members and relatives from working together at the same plant were held not to violate the human rights statute. The Miller court had expressly declined to decide whether a policy directed at spouses only, rather than other familial relationships, constituted marital status discrimination. In Whirlpool, by a 4 to 3 vote, the majority extended the ruling in Miller to encompass no-spouse rules and held that such policies did not constitute "discrimination on the basis of marital status. It is different treatment based on the fact that one’s spouse works in the same place as the applicant. Marital status is irrelevant to the employer unless there is a spouse already working for the employer. This is not discrimination based on a stereotypical view of the characteristics of marripd or single persons.” Whirlpool, 425 Mich, at 531, 390 N.W.2d at 627.
In Manhattan Pizza Hut v. New York State, 51 N.Y.2d 506, 415 N.E.2d 950, 434 N.Y.S.2d 961 (1980), over the chief justice’s dissent, the New York Court of Appeals held that a restaurant’s enforcement of its "no-relatives” rule against an employee married to her supervisor was not actionable. The employee who lost her job had been working under her husband’s direct supervision for four years before a new area general manager decided to enforce the company’s no-relatives rule. The Manhattan Pizza Hut majority held that the employee’s claim did not come within the scope of marital status discrimination because "the disqualification of the complainant was not for being married, but for being married to her supervisor.” Manhattan Pizza Hut, 51 N.Y.2d at 515, 415 N.E.2d at 954, 434 N.Y.S.2d at 965.
In my view, the better-reasoned cases are those which have adopted the broader concept of marital status discrimination to include employees who are automatically penalized simply for marrying another employee. Therefore, I would reject the restrictive construction of marital status adopted by the majority in the case at bar and instead would apply the principle of liberal construction advocated in our own precedent (Board of Trustees, 88 Ill. 2d 22) and followed for more than 10 years by the agency charged with enforcing the Act (Burton, 13 Ill. Hum. Rts. Comm’n Rep. 246). It is illogical and unfair to construe the scope of marital status discrimination so narrowly that certain employees may lose their jobs or be transferred for no other reason than their decision to marry a co-employee. In such cases, the employer’s stereotypical assumptions about the way married co-employees will behave in the work place are based on the event of their marriage, which cannot be separated from the employee’s marital status. An employee whose marriage automatically results in loss of a job or forced acceptance of less desirable terms and conditions of employment is being penalized for marrying someone in the work place and for no other reason.
It should be further noted that, although the marital partner most directly affected is the employee who must resign, transfer, or seek alternative employment, the other spouse likely will suffer adverse consequences as well. Each partner in a marriage is affected by what happens to the other, and in the case of co-employees, the one who stays on the job bears the fallout of being the partial cause of the other spouse’s loss of employment. This reality further underscores the fact that it is the marriage that is being penalized when employers’ blanket no-spouse policies are enforced; it is unrealistic in this context to separate the individual partners from the marriage itself.
For these reasons, I disagree with the holding of the appellate panel in the instant, case that the phrase "legal status” in the definition of marital status "limit[s] the scope of unlawful marital status discrimination to the relation an individual bears to the marital state.” 267 Ill. App. 3d at 652. In adopting such a view, the majority in the case at bar states that prohibited discrimination is based on an individual’s legal, status as married, single, divorced, or widowed, and that a policy prohibiting spouses from working together "presents an entirely different kind of harm than discrimination based on an individual’s legal status.” 171 Ill. 2d at 238. I am not persuaded by attempts to distinguish the legal status of being married from the status of an individual who is or becomes married to another employee. Indeed, it is more reasonable to infer that the legislature defined marital status as the legal status of being married simply to distinguish the legally recognized relationship of marriage from other relationships lacking legal recognition, such as common law marriage or conjugal cohabitation between unmarried persons of the same or opposite sex.
By adopting a reductionist construction of the "plain language” of the Act, the majority opinion suggests that it is irrelevant for this court to consider the remedial aims of the Act or the authorities from other jurisdictions in construing marital status discrimination. The majority comments that if the legislature had intended to prohibit discrimination based on the identity of a spouse it would have expressly incorporated such a concept into the definition of marital status. I disagree with the majority’s unstated assumption that it is reasonable to infer from legislative silence that the legislature intended to exclude spousal identity from the scope of marital status discrimination. The statutory scheme proscribes certain general categories of conduct while remaining flexible enough to encompass various types of fact-specific discriminatory conduct without requiring an ongoing amendment process by the legislature. This court recognized in Board of Trustees that the issue of compulsory retirement was not specifically addressed in the statutory definition of age discrimination, but was nonetheless deemed actionable under the Illinois Human Rights Act. I find nothing in the statutory scheme to suggest that this court, faced with two possible interpretations of the scope of a category of proscribed conduct, should choose the narrower construction over the broader one. The legislature has repeatedly amended the Act in the years following the Commission’s decision in Burton and this court’s decision in Board of Trustees, but has never amended the Act to reject the Commission’s interpretation of marital status discrimination. See River Bend, 232 Ill. App. 3d at 843.
It should be noted, moreover, that the majority’s reasoning imposes on the legislature a highly specific drafting standard. The majority suggests that the legislature should have replaced its general definition of marital status with an itemization of specific types of marital status discrimination in order for the Act to reach the type of conduct raised in the case at bar. However, implicit in the very phrase "marital status” is the status of having a spouse; to require the definition of marital status to include the existence of a specific spouse calls for a clairvoyance on the part of the legislature that appears questionable at best.
An additional concern arises when considering the group of employees most likely to be adversely affected by no-spouse rules. If a burden is imposed on co-employees once they are wed, the one most affected may well be the person holding the position of lesser power or prestige. A clerical worker married to a supervisor, for example, is more likely to be viewed as more "expendable” than the supervisor. The amicus curiae brief filed in this court on behalf of Women Employed and the National Employment Lawyers Association suggests that no-spouse policies disproportionately affect women as a group, despite the fact that such policies are gender-neutral on their face. In EEOC v. Rath Packing Co., 787 F.2d 318 (8th Cir. 1986), plaintiffs established that for a five-year period in the 1970s, defendant employer hired only 7 of 95 female job applicants, and that 26 additional female applicants were denied employment because their husbands were current employees. Such a result is not in keeping with the remedial aims of the Act to prevent unlawful discrimination based on one’s marital status, sex, or other category included within the statutory scheme.
Unlike the majority and the appellate panel in the case at bar, I do not view the Commission’s interpretation of marital status discrimination as inappropriately expansive or beyond the power of the agency. On the contrary, the Commission’s interpretation best implements the purposes of the Act. Therefore, I would confirm the Commission’s interpretation that unlawful discrimination based on the identity of one’s spouse is actionable. However, because I further agree with the Commission’s ruling that under the circumstances of this case the Boadens did not ultimately sustain their claim of unlawful employment discrimination, I concur in the judgment of the majority of this court. I would therefore affirm the appellate court judgment, but on different grounds than those stated in that opinion and in the opinion of the majority of this court. My reasons for affirming the ultimate result in the instant case follow.
The Commission is the agency charged with enforcing the Act, and in that role must review claims arising from a wide range of factual circumstances involving alleged discrimination. Certain types of employer conduct may be more difficult to categorize as discriminatory than other types, and the Commission must attempt a fair and uniform disposition of all cases that come before it. With respect to the standard of judicial review on appeal from final agency decisions, the degree of deference given to the fact finder depends upon whether the issue is one of law, fact, or mixed fact and law. See, e.g., Bran-son v. Department of Revenue, 168 Ill. 2d 247 (1995). In the case at bar it should be noted that the material facts are not in dispute, but only the legal conclusions drawn therefrom. Accordingly, a de nova standard of review is appropriate.
The Boadens worked together on the same shift and in the same location until they were married. Their supervisor informed them of an unwritten policy forbidding spouses from working together on the same shift and location. They were given three options, which included working in the same county but different shifts, working the same shift in different counties with the same supervisor, or working the same shift with matching vacation schedules, but patrolling different counties with different supervisors. The husband selected the first option. This change in his shift was in effect for only a short time because the Department of State Police soon rescinded its policy.
The administrative law judge found the existence of marital status discrimination and rejected the argument of the State Police that the no-spouse policy was a bona fide occupational qualification. The administrative law judge concluded that Jim Boaden had suffered changes to his employment by the shift reassignment and that Colleen Boaden had suffered a change in the condition of her employment because she was no longer able to work with her husband. Damages were awarded to both Boadens. The State Police then appealed to the 'three-member panel of the Commission, which sustained the administrative law judge’s interpretation of marital status discrimination but rejected the damages award and held that the Boadens had failed to establish their claim for marital status discrimination. The Commission held that the minor adjustments to Jim Boaden’s schedule did not infringe on his terms and conditions of employment. Further, the Commission rejected the administrative law judge’s ruling that Colleen Boaden had stated a claim for marital status discrimination based on her theory that "who a person works with” is a term, condition or privilege of employment under the Act. The Commission concluded that the Boadens did not prove a violation of the Act.
I would affirm the decision of the Commission regarding the failure of the Boadens to establish an actionable infringement upon the terms, conditions, and privileges of their employment. The fairly minor scheduling changes in Jim Boaden’s assignment did not affect his salary, wages, vacation days or other terms, conditions, or privileges of employment under the Act. Colleen Boaden’s schedule did not change at all. The Boadens were prevented only from being scheduled for patrol duty at the same time in the same place. Although the change in Jim Boaden’s shift meant that the couple would not work the same hours, they were not forced to work in different geographical locations or under vastly different circumstances. It was, therefore, reasonable for the Commission to view the facts of the instant case as not significantly infringing on the Boadens’ terms, conditions, and privileges of employment. Different facts might have, justified the granting of relief for marital status discrimination. However, under the circumstances presented in the case at bar, I believe that the Commission did not err in holding that the Boadens failed to establish their claims for marital status discrimination under the Act. I express no opinion regarding the Commission’s alternative or additional finding that the Boadens sustained no damages because of the short duration of the time in which their employment situation was affected.
In conclusion, I would reverse the judgment of the appellate court insofar as it holds that the Act does not prohibit discrimination based on spousal identity. I would affirm the judgment of the appellate court only as modified in conformance with the reasoning stated herein.
JUSTICE FREEMAN joins in this special concurrence.