By GEORGE R. WENDT: Currently personnel manager of Administration/ Systems/ Communication, Inc., Lake Bluff, he previously served in personnel management assignments with All-Steel, Inc., Aurora, and the Reuben H. Donnelly Corp., Oak Brook. He has bachelor's and master's degrees in economics from the University of Illinois and formerly taught part-time at the College of DuPage, Glen Ellyn.
Chairman Vance, Director Jordan complement each other's style and ability as they enforce law which now bans almost all forms of job discrimination. Jordan thinks Illinois' law is one of strongest of its kind in the nation
CAN GOVERNMENT eliminate racial and other forms of job discrimination? Fifteen years ago Illinois embarked on an effort to achieve this goal when the legislature passed and Gov. Otto Kerner signed the Fair Employment Practices Act of 1961. But it was not until last year that the legislature authorized the Fair Employment Practices Commission (FEPC), to initiate its own complaints of discriminatory practices rather than waiting — as had been the law in the past — for someone to file a complaint.
Legislative background
The original law was directed at
discrimination based on race, color,
religion, national origin or ancestry. In
1971, discrimination because of sex was
added to the list of unfair employment
practices. Last year two more areas were
included: discrimination because of
physical or mental handicaps unrelated
to ability, and discrimination based on
military discharges other than dishonorable.
A bill seeking to include age
discrimination failed to become law;
llinois already has a separate act
forbidding age discrimination but there
is no enforcement machinery for that
act.
Whether Illinois now has "one of the strongest fair employment laws of all the states," as claimed by Mel F. Jordan, executive director of the commission, is a matter of judgment, but there can be no question that the agency chalked up an unusual record of success in the 1975 legislative session. It is reasonable to conclude that much of the credit for this achievement must go to the two people — Jordan and Susan Margaret Vance, chairperson of the FEPC — who offer an unusual example of teamwork. The way in which Jordan and Vance complement each other's style and ability is brought out in the double-barreled interview which comes after the following background information.
A staff of 75
The commission consists of five
members appointed by the governor
with the consent of the Senate.
Commission members serve overlapping
four-year terms, expiring in June of
odd-numbered years. The FEPC has an
appropriation for fiscal 1976 of just
over $1 million and a staff of about 75
persons. In its budget submission last
year, the commission predicted it would
handle more than 2, 500 complaints this
year.
The commission also conducts a public contract compliance program to assure that those doing business with the state do not discriminate in employment. Under this program, the commission expected to approve almost 15, 000 qualified bidders on state contracts. Contractors found to be underutilizing minority persons and women must file an affirmative action plan intended to correct inequities. ""Underutilization occurs when fewer minority persons or women are employed within particular job classifications than would reasonably be expected because of their availability," explains the FEPC in its 1976 budget request.
Ms. Vance was appointed a commission member in April 1973 and became acting chairperson in November 1974 and chairperson in September 1975. She is a graduate of DePaul College of Law, Chicago, June 1975, and holds a B. A. in political science from the University of Michigan. She served on the board of directors of the Evanston League of Women Voters in 1970-71 and participated in efforts to provide low and moderate-income housing in Evanston.
Experienced leadership
In contrast to the chairperson's relative inexperience in administrative and
executive roles, Jordan's leadership
experience in minority relations is
extensive. Before coming to the commission staff in March 1974, he served
as manager of the Human Resources
Department of the Illinois State Chamber of Commerce, as executive director
of the Joliet Community Relations
Commission, and as urban affairs
administrator for the Continental
Illinois Bank and Trust Co. in Chicago.
He also worked with the city of Chicago
for eight years in the area of human
relations. He has a bachelor's degree in
sociology from St. Sophia University,
Tokyo, Japan, and a graduate degree
from Georgetown University, Washington, D.C.
April 1976 / Illinois Issues / 3
'I think marital status is a serious problem in credit discrimination and has only been slightly dealt with in Illinois' — Vance
The joint interview took place in Jordan's office at the FEPC head- quarters, 179 West Washington Street, Chicago, on July 21, 1975.
Effect of new powers
How will the initiatory powers
amendment in P. A. 79-548 affect the
work of the commission?
Ms. Vance: The commission will now be able to bring action in its own name without waiting for a signed complaint. I think we'll use that power very carefully. There are two ways in which an agency is limited: one is by the powers conferred on it by the legislature, and the other is budget. One of our serious difficulties is the state's troubled financial picture. We will use the power very selectively, very carefully. I would hope to do that anyway so we don't wind up taking on more than the agency can cope with. Very often companies don't recognize their problems until faced with a suit. Budget is not really under our control, but we would not want to take on more than we can handle.
In having a Public Contracts Division which may conduct compliance reviews, don't you already in a sense have some initiatory powers with state contractors?
Ms. Vance: In a sense, yes, but I think we have more of a discretion in terms of initiatory powers than we do in terms of state contractors and the new legislation affecting the handicapped and veterans. We have no choice but to accept charges of discrimination from the handicapped and from veterans under the new laws. Under initiatory powers we have a great deal of discretion in investigating respondents. I would not want the rest of the work production of the agency to decrease by trying to satisfy every request for investigating employers on our own initiative.
One new amendment changes the firm size covered from 25 employees to 15 employees. What is your estimate of the additional number of employers covered?
Jordan: We now cover roughly 80 per cent.
What per cent was covered before?
Jordan: Among major employers, about 62 per cent. The reason I qualify any figures is because many employers with less than 25 employees were covered before if they were state contractors.
Mr. Jordan, you have mentioned in commission meetings thai you feel Illinois now has one of the strongest fair employment laws of all the states. Yet the Illinois law does not cover marital status as is covered by laws in some other states. Do you have any plans to deal with that in the next session of the General Assembly?
Jordan: The commission clearly makes its decisions based on what it sees as the legislative intent of the act. I think the commission under its sex guidelines clearly deals with the issue of marital status. If you're thinking about single women, widowed, and divorced, it's not clearly spelled out in the statute. This commission would probably entertain a case in court that clearly remedies as a class, single people discriminated against in employment. Beyond the issue of employment, we would hesitate to support legislation which might get the commission into other areas.
Marital status discrimination
Ms. Vance: I think that marital status
is a serious problem in credit discrimination,
and that issue has only been
slightly dealt with in Illinois. It has been
dealt with in terms of credit cards, but
not in terms of mortgages or major
loans either in the state Constitution or
in state laws. There are no handles.
There are some federal handles, however.
Several federal agencies, use lay people (non-lawyers) to investigate, mediate, and conciliate fair employment cases. You use lay people to investigate, but lawyers to mediate and conciliate. Why?
Jordan: The statute provides that cases may be conciliated by commissioners or attorneys licensed to practice law in the state of Illinois, and that was specifically amended into the statute in 1972. In fact, I wrote the amendment. The commission had to bring its procedures up to date under the Administrative Review Act. And although there were some objections to the amendment at that. time, I think the effect is to give the commission a very sophisticated procession from the point of entry of a charge through conciliation. The change is probably significant for us because our staff in the past dealt mostly with personnel interviewers or personnel managers. Now we deal with corporate counsel or paid-for counsel on the part of the employer. The area of law has become so sophisticated Hasn't that forced employers to hire lawyers?
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FEPC legislation THE Fair Employment Practices Act is found in Illinois Revised Statutes in chapter 48, Employment, beginning at section 851. The law against age discrimination is found in the same chapter, beginning at section 881. Major 1975 additions to the FEPC law and their principal legislative sponsors are: Public Act 79-186, directed at discrimination because of physical or mental handicaps, Rep. Leland Rayson (D., Tinley Park). Public Act 79-370, directed at discrimination because of an unfavorable military discharge other than a dishonorable discharge, Rep. E. M. Barnes (D., Chicago). Public Act 79-465, raising the chairman's pay to $10,000 and making procedural changes, Sen. Cecil A. Partee (D., Chicago). Public Act 79-547. giving the commission added enforcement powers with respect to public contracts. Rep, Harold Washington (D., Chicago). Public Act 79-548, enabling the commission itself to initiate a charge of an unfair employment practice. Rep. Corneal A. Davis (D., Chicago). Public Act 79-550, reducing the size of the firms covered by the act from firms with 25 employees to those with 15, Rep. Susan Catania (R., Chicago). Public Act 79-125, the appropriation bill for the commission, Rep, Davis. |
Jordan: No. What I am saying is that we have respondents coming to the commission represented by counsel. Before, things were always settled by personnel officers.
Ms. Vance: It has added to our credibility. Respondents know they; have to respond. This is serious business, not to be dealt with lightly, nor is it something they can just brush off. Our legal staff works with the investigators to make sure the right questions are
4 / April 1976 / Illinois Issues
asked so that cases coming to the commission are adequate and will be supported by the evidence, it there is any.
Jordan: Statistically, that's true too. A year ago the commission dismissed 83 per cent of the charges coming to it. Now it is 71 per cent which are dismissed for one reason or another. More cases coming into the system are now being found to have substantial evidence [of discrimination]. A large percentage of the charges that used to get into the system no longer get in there. We no longer process a case to determine whether we have jurisdiction; that is done in the intake procedure. Some charges which are deemed to have merit are being settled at the intake level as well.
Efficient procedures
Ms. Vance: The other thing that is
happening is that when someone comes
in to file a charge, a lot of the time it
concerns an employer who has a contract with the state of Illinois, so we
already have had a look at their workforce. And if their workforce shows an
underutilization of minorities or women, obviously there is a great deal more
concern and more willingness on the
part of the employer to look at the seriousness of the situation.
Jordan: That's illustrated time and again. When we accept a charge now, we conduct a record search and look at the history — if there is one — of that employer before the commission, and extend that search to see whether the employer has a public contract. We also look to see whether the employer has an affirmative action plan on file. We look at charges against public contract employers to see whether any charge may be a violation of the affirmative action plan. We are one of the few state agencies that has a Public Contracts Division with contract compliance powers. It has been an effective tool of enforcement....
Credibility of the commission
What is the makeup of the current
commission?
Jordan: I've been associated with this Commission on and off over the last 10 years, and intimately in the last five. By any standards, the current commission - probably unlike any others before it - does not represent the key leadership in business or labor. It doesn't represent the traditional power structures. But I think the members of the commission do represent legitimate constituencies. But probably more important is that this commission has the ability not only to look at the issues legally, but as they affect, people. And I think that's been the key element ....
There is an evolving, creative interpretation of the statutes by the commission. Members look at the intent of the legislation in making decisions and at the right or wrong of what's happened. And if there is a legitimate question, whether we proved that or not in the investigation, they'll remand a case back to the appropriate division for more issues, more answers. When you combine that with the guidance our legal division gives to the investigators on the issues that must be determined before a charge can be brought before the commission, I think our procedures have clearly served to give us law enforcement credibility, as opposed to an old image of being a social service agency. The fact that this commission has awarded nearly three million dollars in salaries, benefits, and cash to complainants in 1975 is a real credit to our operation. The fact that we have five million dollars in committed jobs under affirmative action plans is another credit.
Who makes decisions?
Yet some would argue that many
cases are decided by the staff and not by
the commission decisions. How do you
answer that?
Jordan: Not true. The staff makes an initial decision in terms of the evidence submitted as to whether the case should be referred to the commission, but there's no rubber stamp by this commission on anything that comes before it.
Ms. Vance: If there's any question in our mind on the substantive evidence or lack of it in a case recommended by the staff, we tend to refer it back to the staff.
There is a significant difference between this commission and anything prior to it. The commissioners are committed to reading the volumes of material we get each month. One of the first changes we made when I became chairperson in November 1974 was to require that materials be ready before the monthly meeting so the commissioners would have the materials over the weekend. They come prepared to discuss the issues from particular cases.
And morale is up. Each person sees that he or she is as important as any commissioner in an integrated team effort.
Jordan: When we keep clerks and division directors late evenings to prepare material for the commission meetings, you can see the difference in the staffs reaction when the commissioners come prepared.
State or federal courts?
If you had a choice, would you rather
be using federal courts than the state
court system to pursue those cases
which get into court?
Ms. Vance: No. If you look at the federal Constitution and Supreme Court as against the state Constitution and state Supreme Court, you have to admit that under the Illinois Constitution the remedies and protections are broader for individuals than in the federal Constitution, even for sex discrimination. I have consistently felt very strongly, and the commission has finally supported me, that employers must include maternity leave physical disability benefits. But there is a problem at the circuit court level, in that we are generally not successful there.
Jordan: What we've done over the last
year and a half is attempt to educate the
courts to the provisions of the statute,
and change this agency's status from a
social service agency to the level of a law
enforcement agency. I think the
appellate courts and the state Supreme
Court have recognized that, and they
have reversed the lower courts. The
pattern of reversals is starting to bring
some results at the circuit level. We are
dealing with issues of local culture, but
the broader issue of the law is being
addressed at the appellate level and by
the state Supreme Court. This
commission has sued some of the nation's
biggest companies and has been upheld
April 1976 / Illinois Issues / 5
'Universities in the state tend to be abominable in their blatant sex discrimination, coupled with race'— Jordan
by the state Supreme Court.
Unlike many other states, the Illinois statute provides for a redress of grievances outside the commission. But in the courts, this commission had a 500 per cent record of losing until about two and a half years ago.
On July 1, 1975, you created an Administrative Law Division. What impact will that have?
Ms. Vance: It means having full-time hearing examiners on staff rather than contracting out all that work to private attorneys. According to our figures there should be a substantial savings to the taxpayer.
Discrimination in universities
Does any one employer group in the
state provide more discrimination
problems than any other?
Jordan; It depends on what issue you're alleging is a problem. If it's sex discrimination, the universities in the state tend to be abominable in their blatant sex discrimination, coupled with race. We settle a massive number of these cases. The commission just approved 137 cases at its last meeting just on discrimination against women involving disparate wages compared to males. We find race discrimination more in organized labor and manufacturing. We find a combination of sex and race discrimination in financial institutions and in the insurance industry. The apprentice trades is another area where we find race discrimination.
How about banks? Have you started to withdraw state funds from banks and savings and loans?
Ms. Vance: We don't have the power to withdraw funds, only the power to order funds withdrawn.
Jordan: Banks have always been state contractors, and those arrangements predate the existence of fair employment law. When the Public Contracts Division started three years ago, it inherited the problem of having to deal with banks' employment discrimination. I think the commission has decided it is not going to be able to deal effectively with this issue on the basis of morality. The remedies are not where people's hearts are, but where their pocketbooks are. If banks discriminate, it's going to cost them.
Ms. Vance: Financial institutions provide a service — a service no different from that of a small laundry providing service to an institution of mental health, for example. Through affirmative action programs we have learned that banks — whether intentionally or not — have discriminated against people on race and sex. They now have to deal with those past acts and try to remedy the situations. Generally, what we are asking is really not too difficult a task. We are asking that banks and savings and loan associations make an attempt at solving their problems, show good faith, submit an affirmative action program, and that they indeed go out and try to hire employees so their workforce represents a proper utilization of the available workforce in the state. We have been very generous in our willingness to accept affirmative action programs and have given them extensive time to solve their problems. And if they make any kind of a good stab, chances are we won't even hold them to what they said in their affirmative action plan in the first place, if they have been unable to reach their goals.
Financial institution
One of the commissioners once asked
in a meeting how the commission could
approve second year affirmative action
goals when first year goals had not been
met. How can you?
Ms. Vance: What we want to see is a substantial effort to go along with our requests, and if employers do that we will make every effort to go along with their requests. Obviously that's very subjective; it's difficult to decide when somebody has done it and when somebody hasn't. What we always do in this commission is to treat all employers and all complainants equally. I believe we have given some preference to financial institutions in the state, and that makes me even more sad and more discouraged in terms of being unable to solve those problems.
Jordan: I think the exceptions were made because they were rather late entries under the public contract rules.
So wouldn't a smart employer agree on paper with your goals for hiring even though he may not agree in principle, just to get by the first year hoping that his goals thereafter would be approved, anyhow?
Ms. Vance: I wouldn't want an employer to put forth an unrealistic affirmative action program, because if an employer didn't meet first year goals; and again not meet second year and third year goals, then the employer; would certainly be in hot water.
Jordan: When an employer gives us a goal, we look at the variables of the; economy; that employer's effort to recruit minorities and women; we look at turnover; we look at whom they've hired, and what efforts they have made to recruit —
Ms. Vance: — where they've gone to recruit; whether they have just talked to the staid old civil rights organizations and said, "Gee, I wish we could find some blacks," as opposed to going to some of the manpower sources in the state that have been funded by federal money. Our contract compliance people give out lists to companies seeking employees. We know generally employers will be able to solve their problems if they go to those sources, which are listed by our Division of Contract Compliance.
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Fair Employment Practices Commission
Members
Key personnel |
6 / April 1976 / Illinois Issues