The River Bend Decision And How It Affects Municipalities' Personnel Rules And Regulations

By RICHARD G. FLOOD and KELLY A. CAHILL
Zukowski, Rogers, Flood & McArdle

Municipalities that have provisions in their Personnel Rules and Regulations prohibiting co-workers from having a familial relationship should review these provisions as they may be in violation of the Illinois Human Rights Act. 775 ILCS 5/1-101 (1992) et seq. On December 2, 1992, the Illinois Supreme Court refused to reconsider the Third District Appellate Court's decision, in River Bend Community Unit School District No. 2 v. Illinois Human Rights Commission, 232 Ill.App.3d 838, 173 Ill. Dec. 868, 597 N.E.2d 842 (3rd Dist. 1992), that a school district's prohibition against the transfer of a teacher to a school where her husband was principal violated the Human Rights Act. Based upon this decision, a municipality may no longer prohibit spousal relationships between co-workers and should revise its personnel rules and regulations so as to comply with the Human Rights Act and the River Bend decision.

In River Bend, the school district had a policy "forbidding intra-district faculty transfers that would result in one spouse directly supervising another." River Bend, 173 Ill. Dec. at p. 869. Virginia Ray, a teacher in a River Bend school was denied a transfer to a school where her husband was principal. Thereafter, she filed a complaint with the Illinois Department of Human Rights alleging that the school district's policy unlawfully discriminated against her "on the basis of her sex and marital status." River Bend, 173 Ill. Dec. at p. 870. Following a hearing, the Illinois Human Rights Commission found that the school district policy unlawfully discriminated against the teacher. On appeal, the Third District Appellate Court affirmed the Commission's decision. River Bend, 173 Ill. Dec. at p. 869.

One of the Human Rights Act's policies is to "secure for all individuals ... the freedom from discrimination because of ... marital status ... in connection with employment ..." 775 ILCS 5/1-102 (1992). "Marital status" is defined as "the legal status of being married, single, separated, divorced or widowed." River Bend, 173 Ill. Dec. at 870. The issue presented in River Bend was "whether the definition of 'marital status' includes the identity of one's spouse or whether that phrase refers solely to the condition of being married or single." River Bend, 173 Ill. Dec. at p. 870. The Court determined that the definition includes the spouse's identity. In other words, a policy that "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." River Bend, 173 Ill. Dec. at p. 871.

Thus, an employer is prohibited from discharging or refusing to hire, transfer, or promote an individual merely because the individual's spouse is employed by the same employer. The employer may, however, take marital status into consideration if it is a bona fide occupational qualification ("BFOQ"). The employer can show a BFOQ where the employment qualification is "reasonably related to the essential operation of the job involved and if there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job." If a BFOQ is found, then the employer may take the employment qualification into account in his decision making. River Bend, 173 Ill. Dec. at p. 872. The BFOQ exemption "also applies when it is shown that it is impossible or impracticable to determine job fitness on an individual basis." River Bend, 173 Ill. Dec. at p.872. This is a very narrow exception and is only available "when the employer can show that no one in the excluded class is capable of performing the duties essential to the job." River Bend, 173 Ill. Dec. at p. 872.

In River Bend, the school district argued that "marital status" was a BFOQ claiming that when one spouse supervises another there is a potential for problems to arise. Indeed, the District presented expert testimony regarding the potential problems which could arise when one spouse supervises another. The Court noted that the teacher's husband had been her principal during the years 1966-1970 and that there had been no problems with that arrangement. However, the Court also noted that the District policy did not apply to other close personal relationships or apply if a principal were to marry a teacher. Rather, the policy only applied to transfers. Noting that the District had the burden of proof, the Court therefore held that the Commission's rejection of the school district's BFOQ defense was not against the manifest weight of evidence. River Bend, 173 Ill. Dec. at p. 872.

In light of the Illinois Supreme Court's refusal to review the River Bend decision, it is clear that spousal relationships are protected under the Illinois Human Rights Act. Thus, a municipality must review their personnel rules and regulations to ensure that they do not contain any provisions prohibiting familial relationships between co-workers. •

June 1993 / Illinois Municipal Review / Page 7