finding no "compelling reason for expanding judicial oversight of the workplace to include review of demotions, transfers, or other adverse work conditions that are alleged to be retaliatory in nature"
How later courts described this case
- finding no "compelling reason for expanding judicial oversight of the workplace to include review of demotions, transfers, or other adverse work conditions that are alleged to be retaliatory in nature"
- stating the adoption of a cause of action short of termination would “replace the well-developed element of discharge with a new, ill-defined, and potentially all-encompassing concept of retaliatory conduct or discrimination”
- prohibiting discharge or discrimination against employee who files workers’ compensation claim and prescribing nature and scope of remedy
- noting the concern that a broad definition of discharge “would replace the well-developed element of discharge with a new, ill-defined, and potentially all-encompassing concept of retaliatory conduct or discrimination”
Written by the judges who cited it.
Distinguished
Distinguished by Welsh v. Commonwealth Edison Co., 306 Ill. App. 3d 148 (1999)
The plaintiffs candidly concede that our supreme court refused to recognize the tort of retaliatory demotion in Zimmerman v. Buckheit of Sparta, Inc., 164 Ill. 2d 29, 645 N.E.2d 877 (1994), but argue that Zimmerman, a plurality opinion, is readily distinguishable from the facts present in this case.
The opinion
CHIEF JUSTICE BILANDIC, concurring:
The plurality does not create a cause of action for retaliatory demotion but continues to recognize a cause of action for retaliatory discharge. The plurality’s reasoning is flawed because, if we do not have a cause of action for retaliatory demotion, we, in effect, will not have a cause of action for retaliatory discharge. We have invited those who wish to discharge in retaliation to simply demote in retaliation, and thereby escape the effect of the law. This glaring loophole will create more problems than it solves.
I agree with the plurality’s conclusion that section 4(h) of the Workers’ Compensation Act does not create an implied cause of action for retaliatory demotion. I also agree, however, with the dissenting justice’s conclusion that recognition of a cause of action for retaliatory demotion is a logical and necessary extension of Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172 .
Under the circumstances, it is my judgment that the only reasonable explanation for the apparent inconsistency between the plurality decision and the Kelsay decision is an outright acknowledgment that the Kelsay court erred when it recognized an "implied” cause of action for retaliatory discharge. As Justice Underwood pointed out in his dissenting opinion in Kelsay, recognition of a cause of action for retaliatory discharge was clearly a matter for the legislature and not the courts. In Kelsay, the court made an unwarranted intrusion into the legislative arena and amended the Workers’ Compensation Act in a manner that the legislature had undoubtedly considered, but declined to adopt.
As Justice Underwood’s dissent to Kelsay noted, the legislature amended the Workers’ Compensation Act (Act) in 1975 to make 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)). In adopting this 1975 amendment, the members of the General Assembly undoubtedly thought they were creating a remedy for retaliatory discharge and established what they considered to be a sufficient deterrent, namely, criminal prosecution. The amendment did not create a civil remedy for discharged employees against their employers. As Justice Underwood pointed out, it was unrealistic to suppose that those who drafted, sponsored and adopted the 1975 amendment simply ignored the question of civil remedies. (Kelsay, 74 Ill. 2d at 193 (Underwood, J., concurring in part and dissenting in part).) On the contrary, had the legislature thought that recognition of a civil cause of action for retaliatory discharge was desirable or necessary to effectuate the policies underlying the Act, it would have included such a remedy within the statute. The Kelsay majority ignored this deliberate omission and found that the policy against retaliatory discharge could only be effectively implemented and enforced by allowing a civil remedy for damages. As the dissent aptly noted, however, the fact that the Kelsay majority was convinced that such a cause of action was necessary was irrelevant, since the legislature was not so convinced.
In this appeal, we are asked again to assume the role of a legislative body and to enact a new rule of law simply because the proponents of that rule are unable to secure its passage in the legislature. (See Alvis v. Ribar (1981), 85 Ill. 2d 1, 38 (Ryan, J., dissenting).) The plurality wisely exercises self-restraint and declines the invitation to create yet another "judge-made law.” At the same time, the plurality decision is obviously inconsistent with the rationale adopted in Kelsay. The Act prohibits both discrimination against and the discharge of employees who exercise their rights under the Act. If, as the plurality holds, an implied civil remedy for retaliatory demotion is not necessary to effectuate that portion of the Act which prohibits discrimination against employees who seek workers’ compensation benefits, why is an implied civil remedy necessary to effectuate that portion of the Act which prohibits employers from discharging employees who seek workers’ compensation benefits?
Instead of acknowledging this inconsistency and repudiating Kelsay, the plurality makes an unconvincing and disingenuous attempt to distinguish the holding in that case. In my judgment, if we hold that there is no cause of action for retaliatory demotion, we should also recognize that the Kelsay court erred in creating an implied cause of action for retaliatory discharge. In both instances, the legislature is in a manifestly better position to determine whether such a cause of action is necessary, appropriate or desirable. Policy questions such as those involved here and in Kelsay are best left to the judgment of a General Assembly.
For the reasons stated above, I concur with the plurality’s holding that there is no implied cause of action for retaliatory demotion under section 4(h) of the Workers’ Compensation Act.
JUSTICE HEIPLE joins in this concurrence.