The Illinois Supreme Court recently resolved a conflict between the Appellate Courts as to whether no-spouse policies violate the Illinois Human Rights Act's prohibition against discrimination based on marital status. The Court held that an employer's no-spouse policy is not marital discrimination under the Act. Boaden v. State Department of Law Enforcement, 171 Ill.2d 230, 215 Ill.Dec. 664, 664 N.E.2d 61 (Il.Sp.Ct. 1996).

In 1992, the Third District Appellate Court 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) held that a school district's policy prohibiting one spouse from directly supervising the other was marital status discrimination prohibited under the Illinois Human Rights Act (775 ILCS 5/1-101 et seq.). Id. at 846. Two years later, the Fourth District Appellate Court in Boaden v. State Department of Law Enforcement, 267 Ill.App. 645, 205 Ill.Dec. 213, 642 N.E.2d 1330 (4th Dist. 1994) held that the Illinois Department of Law Enforcement's unwritten policy prohibiting spouses from working on the same shift and in the same patrol area was not marital status discrimination prohibited under the Act. The husband and wife plaintiffs, relying on the River Bend decision, appealed the Fourth District Appellate Court's decision to the Illinois Supreme Court. The Illinois Supreme Court, recognizing the conflict between the districts, granted the plaintiffs leave to appeal.

In its decision, the Court noted that under the Act, "It is a civil rights violation:
For any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination or citizenship status." 775 ILCS 5/2-102(A) (West 1992).

The Act defines unlawful discrimination as follows:
"'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." 775 ILCS 5/1-103(Q) (West 1992). (Emphasis added.)

The Act then defines marital status:
"'Marital status' means the legal status of being married, single, separated, divorced or widowed." 775 ILCS 5/1-103(J) (West 1992).

The Court agreed with the Fourth District Appellate Court's interpretation of the Act that marital status discrimination does not include no-spouse policies, i.e., discrimination based on the identity of one's spouse. The Court held that as defined under the Act, "marital status discrimination is discrimination based on an individual's legal status as married, single, separated, divorced, or widowed. In our view, a policy prohibiting spouses from working together presents an entirely different kind of harm than discrimination based on an individual's legal status. In order to find discrimination under these facts, we must consider not only the individual's legal status, but also the individual's relationship to a particular employee. Had the legislature intended to reach this kind of conduct, it would have done so in specific and certain terms." Boaden, 664 N.E.2d at 65. Even though the Court held that no-spouse policies are not prohibited under the Act, the Court declined to express an opinion as to whether such anti-nepotism policies are wise or based on sound reasoning. Id.

Thus, the Illinois Supreme Court has resolved the conflict between the Appellate Courts and has made it clear that no-spouse policies are not marital discrimination prohibited by the Illinois Human Rights Act. •

August 1996 / Illinois Municipal Review / Page 9