Amicus Brief — Logan v. Zimmerman Brush Co.

No. 80-5950

Miles Sumisme Court, U.S.

FICE D

a MAY 13 1981

Supreme Court of the a tess « srevas,

Ocroser Term, 1980 |

LAVERNE L. LOGAN,

Appellant,

vs.

ZIMMERMAN BRUSH COMPANY,

Appellee.

On Appeal From The

Supreme Court Of Illinois

BRIEF FOR CONGRESS OF ORGANIZATIONS OF

THE PHYSICALLY HANDICAPPED AND

CHICAGO LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW, INC. AS AMICUS CURIAE

JAMES D. WEILL

DEBRA L. RASKIN

PHILLIP H. SNELLING

Legal Assistant Foundation

of Chicago,

343 S. Dearborn Street

Chicago, Illinois 60604

(312) 341-1070

Attorneys for Illinois Congress

of Organizations of

the Physicall Handicapped

KAY SIMON GROSSMAN

220 South State Street

Room 600

Chicago, Illinois 60603

(312) 939-5797

Attorney for Chicago Lawyers’

Committee for Civil

Rights Under Law, Inc.

Photex — 444 North Wabash Avenue — Chicago 60611 — 321-0223

TABLE OF CONTENTS

Table of Authorities . « « « « ee e i

Statement of Interest .....e.-. iiii

Summary of Argument ......s446.-s. 1

I. THE ILLINOIS SUPREME COURT'S

DECISION DENIES THE RIGHT OF

ILLINOIS HANDICAPPED PERSONS

TO BE FREE FROM DISCRIMINATION

IN EMPLOYMENT . . . + «+ «© «© « » 4

II. THE DECISION OF THE ILLINOIS

SUPREME COURT, TERMINATING

CHARGES OF EMPLOYMENT DISCRIMI-

NATION AS A RESULT OF THE IN-

VESTIGATING STATE AGENCY'S

FAILURE TO MEET STATUTORY TIME

LIMITS, DEPRIVES PARTIES ALLEGING

DISCRIMINATION OF THEIR RIGHTS

UNDER THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT. .. . 12

CONCLUS a ON . . . . . . . . al . 7 . . 2 8

TABLE OF AUTHORITIES

Cases: Page

Arnett v. Kennedy, 416 U.S. 134 (1974). . 23n.

Board of Governors v. Illinois Fair Em-

loyment Practices Commission, 78

Tll. 143, 399 N.E. 24 590 (1979). . 8

Board of Regents v. Roth, 408 U.S. 564

[eeres 66 6 0.8: 6 & 6 ste we 6 e «6G BS

Hammond Ste Co. v. Arkansas, 212

iM a: . . * * J . . . . 25, 26

Hovey v. Elliott, 167 U.S. 409 (1896) .. 25

Hughes v. Rowe, U.S. , 66 L.Ed.2d

163 (198

. . . . * . * . ll . . . * . ll

Ingraham v. Wright, 430 U.S. 651 (1977) . 14

Lindsey v. Normet, 405 U.S. 56 (1972) .. 24

Martinez v. California, 444 U.S. 277

~ (1980) . . . . . . . . . . . . . . . ae 17

Mathews v. Eldridge, 424 U.S. 319 (1976).

. . . . . * 7 . ° * * . . * . Ze 21, 22

Paul v. Davis, 424 U.S. 693 (1976)... . 15n.

Societe International Pour Participa-

tions Industrielles v. Rogers, 357

U.S. 197 (1958) - . . - . . . . - . . . 25

Springfield-Sangamon County Regional

Plan Commission v. Fair Employment

Practices Commission, 71 TIll.2nd 61,

ye Pa ee ey ) ee A

Stanley v. Illinois, 405 U.S. 645 (1972). 20

ii

Constitutions:

was Page

United States Const,

Amend. XIV, 8 1.-:¢ « «0s Sas bes Bee OTs oe

Illinois Constitution:

Article I § 12... «eevee 2 2 16

29 U.S.C. §§ 701-7961 (1976) ... . $

42 U.S.C. § 2000e to § 2000 e-17 .. . 5

I1l.Rev.Stat. ch.48, §§ 851-869 . 5, 17, 22n.

I11.Rev.Stat. ch.48, 853 pls 15

I1l.Rev.Stat. ch.48, 856.97. . « « 16

I11.Rev.Stat. ch.48, 869 . « « « « 27

I11.Rev.Stat. ch.68, 1-101 to §9-102 . 5

I11.Rev.Stat. ch.68, 7-102(c) (3) . 10n.

Aa BAB ata

I1l.Rev.Stat. ch.68, 7-102(6)... 9n.

P.A. 79-186, § 1 -_ °©« «© © © © #@© @ # @ 17

P.A. 80-1452, § le ee © &© © 6 @ @ 6 = 17

Other Authorities

S.Rep. No. 2197, 93d Cong. 2d Sess.

(1974) . 7 . _ 2 = . — 2 . * _ o . o 7n.

iii

Page

Gittler, Fair Employment and The Handi-

capped: A Legal Perspective, 27

DePaul L. Rev. 953 (1978)... .. .6n., 8n.

Illinois Fair Employment Practices

Commission, Seventeenth Annual

Report. 7. . . . . . 7 . . _ >. - a oo . a 10n.

Illinois Fair Employment Practices

Commission, Eighteenth Annual

Repor . . 7 oa . 7 . . . . . . o . . . 7 10n.

Nagi, McBroom & Collette, Work, Employment

and the Disabled, 31 A. J. Econ. & Soc.

21 (1972) - . a . _ - *. . > . * - . . . 7n.

Note, Protecting the Handicapped From

Employment Discrimination in Private

Sector Employment: A Critical Anal-

ysis of Section 503 of the Rehabili-

tation Act of 1973, 54 Tul.L.Rev.

717 (1980) . « © © © © 80 © © © co ct et Sieg Mic

Olshansky, Grob & Malamud, Employers

Attitudes and Practices in the Hiring

of Ex-Mental Patients, 42 Mental Hy-

giene 391 (1958) . . 1... « « «© «© © © © =6o7Me

Richard, Triandis & Patterson, Indices

of Employer Prejudice Toward Disabled

Applicants, 45 J. Applied Psych. 52

(4907) cc eo 8 8 eS Se eee 7n.

U.S. Office of Personnel Management,

Handbook of Selective Placement of

Handicap in Federal Employment

(1979) . - . _ 7 . . . . . . . . . o . Tn.

iv

STATEMENT OF INTEREST

The Illinois Congress of Organizations

of the Physically Handicapped ("COPH") is

comprised of 32 organizations and approxi-

mately 4,000 individual members. COPH seeks

to promote the civil rights of all physically

handicapped individuals. COPH provides

counseling and referral to handicapped in-

dividuals,many of whom are unemployed or

under-employed as a result of unlawful dis-

crimination. COPH seeks to file this brief

amicus curiae in order to assert the signi-

ficant interest of the handicapped in pre-

venting the arbitrary dismissal of charges

of employment discrimination.

Chicago Lawyers' Committee for Civil

Rights Under Law, Inc. ("Lawyers' Committee")

is comprised of approximately 50 Chicago law

firms. In recent years, the Chicago Lawyers'

Committee has devoted substantial attention

to the area of employment discrimination.

For instance, the Lawyers' Committee has

been involved in class action litigation con-

cerning the hiring and promotion of

minorites by the Chicago Police and Fire

Departments and concerning Equal Pay Act and

Title VII discrimination practiced against

women employees of the City of Chicago.

While the Lawyers' Committee represents

poor, minority and handicapped persons

in class action litigation,it also recognizes

that it is impossible for such persons to

find counsel on every occasion when vindi-~

cation of their rights is necessary. The

Lawyers' Committee therefore urges reversal

of the decision below which creates insuperable

barriers to the ability of Illinois residents to

pursue without counsel state law remedies for

discrimination.

No. 80-5950

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

LAVERNE L. LOGAN,

Appellant,

vs.

ZIMMERMAN BRUSH COMPANY,

Appellee.

On Appeal From The

Supreme Court of Illinois

_BRIEF FOR CONGRESS

OF ORGANIZATIONS OF THE PHYSICALLY

HANDICAPPED AND CHICAGO LAWYERS'

COMMITTEE FOR CIVIL RIGHTS UNDER

LAW, INC. AS AMICI CURIAE

SUMMARY OF THE ARGUMENT

On September 29, 1980, the Illinois

Supreme Court issued a writ of prohibition

barring the Illinois Fair Employment

Practices Commission ("FEPC") from ever

reaching a decision on the merits of

appellant Laverne Logan's charge of handi-

cap discrimination under the Illinois Fair

Employment Practices Act , Ill. Rev. Stat.

ch. 48, §$ 851-867 (1979)} (repealed by and

re-enacted as the Illinois Human Rights Act,

Ill. Rev. Stat. ch. 68, § 1-101 to § 9-102,

effective July 1, 1980)("the FEPA"). Al-

though Mr. Logan had complied with all

procedural requirements in a timely fashion,

he was unable to obtain any decision on the

merits of his claim because the FEPC had

failed to perform its statutory duty of

convening a fact finding conference within

120 days of the filing of the charge of

discrimination.

-2-

The Illinois Supreme Court decision

thus deprives parties charging discrimina-

tion of rights accorded them by Illinois

law: the right to employment opportunity

free from discrimination based upon handi-

cap and the right to a cause of action to

secure such opportunity. The dismissal of

Mr. Logan's discrimination charge without any

adjudication on its merits denies him due process

of law under the tests articulated by this

Court.

Under the standard outlined in

Mathews v. Eldridge, 424 U.S. 319 (1976),

such a dismissal violates due process be-

cause it deprives an individual of sub-

stantial rights, without any procedural

safeguards and with negligible gains in

administrative efficiency. The decision

of the Illinois Supreme Court also must

fall under the due process test suggested

by this Court in Martinez v. California,

444 U.S. 277 (1980): the State cannot de-

=30

prive an individual of property or liberty

interests for reasons which are irrational

or arbitrary.

The termination of a charging party's

rights under the FEPA because the FEPC has

not met its own time limits does not further

the goal of just resolution of employment

disputes; such terminations have nothing

whatsoever to do with the merits of the

charge. Neither does such a dismissal pro-

mote the efficiency of the FEPC except in

the sense that a total bar to the filing of

charges or the random dismissal of such

charges could be said to promote admini-

strative efficiency.

Dismissal on this basis deprives a

charging party of any right under the FEPA to

pursue his discrimination charge against

his former employer. This deprivation

is particularly serious in the case of

individuals alleging discrimination on

the basis of physical handicap because

o4-

such persons are barred from any remedy

under federal law. The reversal of the

opinion below thus is essential to the

vindication of the rights of many

Illinois residents, and particularly of

those who are unemployed or under-employed

as a result of discrimination based upon

their physical handicap.

i. THE ILLINOIS SUPREME COURT'S

DECISION DENIES THE RIGHT OF

ILLINOIS HANDICAPPED PERSONS

TO BE FREE FROM DISCRIMINA-

TION IN EMPLOYMENT.

Appellant Laverne Logan's status as

a handicapped person seeking redress from

employment discrimination is central to

the due process and equal protection

issues raised in this appeal. Handicapped

résidents of the State of Illinois, under

current state and federal law, have only

one legal remedy for employment discrimin-

ation in cases such as this one, that

is, cases which involve private employers

-5-

with no federal contracts or federal

financial assistance. That remedy is the

Illinois Human Rights Act, Ill. Rev. Stat.

ch. 68, §1-101 to 59-102 (effective July 1, 1980),

("Human Rights Act"). The predecessor of this act in

effect at the time of Mr. Logan's charge

was the Illinois Fair Employment Practices

Act, which provided equivalent protection

against employment discrimination based on

handicap:

While other protected groups, such

as blacks, Hispanics, and women, have

legal remedies other than those provided

in the FEPA/Human Rights Act,

Mr. Logan and other handi-

capped persons do not. Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§2000e to

2000e-17 (1976), does not prohibit dis-

crimination in employment based on handi-

+

cap. The Rehabilitation Act of 1973, 29

U.S.C. § 701 (1976) does prohibit handi-

-6§=

cap discrimination in employment but only

with regard to companies or entities which

have federal contractsor which receive.

federal financial assistance. The Illinois

Supreme Court has placed in jeopardy the only

protection from employment discrimination

of handicapped persons in Illinois by

deciding that negligence by the I11li-

nois Fair Employment Practices Commission

can extinguish that protection.

Discrimination against the handi-

capped in employment is pervasive and

thoroughly entrenched in our society .2/

More than twenty million Americans are

physically or mentally handicapped. 2/

Despite the large number of handicapped

persons in society, their employment

1/ Gittler, Fair Employment and the Handicapped:

A Legal Perspective, 27 DePaul L. Rev. 953, 954

(1978) (hereinafter cited as "Fair Employment" ].

2/ Note, Protecting the Handicapped from Enployment

(Footnote continued on next page)

oJ=

rate is extremely low. Conservative estimates

Piace at 7.2 million the number of handicapped

persons able to work, yet only 800,000, or one in

nine, are actually employed. 3/ Employer

fears and stereotyping of handicapped persons

have been long recognized as impediments’ to the

ability of the handicapped’ to obtain employment+/

(Footnote 2 continued fram previous page)

Discrimination in Private Sector Employment: A Critical

Analysis of Section 503 of the Rehabilitation Act of

1973, 54 Tul. L. Rev. 717, 717 n.1 (1980) [hereinafter

cited as "Protecting the Handicapped") ; United States

Office of Personnel Management,Handbook of Seiective

Placement of Persons with Physical and Mental Handi-

Cap in Federal Employment 1 (1979).

3/ Protecting the Handicapped, Supra, note 2 at 717 n.1;

$S. Rep. No. 2197, 93d Cong. he Sess. 34 (1974) reprinted

in [1974] U.S. Code Cong. & Ad. News 6373, 6408.

4/ Nagi, McBroom & Collette, Work Employment and the

Disabled, 31 Am. J. Econ. & Soc. 21, 27 (1972);

Olshansky, Grob & Malamud, Employers'Attitudes and

Practices in the Hiring of Ex-Mental Patients, 42

Mental Hygiene 391, 394-95 (1958); Richard, Triandis

& Patterson, Indices of Employer Prejudice Toward

Disabled Applicants, 45 J. Applied Psych, 52 (1953).

-8-

As noted by one commentator,

An employer's refusal to

hire or promote a handi-

capped person is premised

on a variety of factors

including fears of in-

creased costs, safety and

stereotyping assumptions

which frequently underesti-

mate the capabilities of a

handicapped person. 2/

The Illinois Supreme Court by its decision has

impaired seriously the ability of handicapped

persons to overcome such unfounded assumptions

since it leaves the rights of the handicapped

at the mercy of bureaucratic indifference.

The Illinois Supreme Court's decision

in this case is premised upon its opinionsin

Springfield-Sangamon County Regional Plan

Commission v. Fair Employment Practices

Commission, 71 Ill. 2d 61, 373 N.E. 2d 1307

(1978), and Board of Governors v. Illinois

Fair Employment Practices Commission, 78

Ill. 2d 143, 399 N.E. 24 590 (1979),which held

that a party's charge of discrimination

57 Fair Employment, supra,note 1 at 968 n.1.

-9-

must be dismissed when the FEPC does not

issue a complaint within 180 days of the

filing of the discrimination charge. £/

The court in Springfield-Sangamon inter-

preted the 180 day limit on the issuance

of a complaint finding substantial evidence

of discrimination as a statute of limita-

tions which. serves to divest the FEPC of juris-

diction. Although Mr. Logan's case does

not concern the 180 day limit on the issuance

of the complaint but rather the 120 day

limitation on the FEPC's conducting a fact-

finding hearing, the Illinois Supreme Court

applied the Springfield-Sangamon principle in in-

terpreting the 120 day time limit. It is

this principle,that inaction by the FEPC

can extinguish the rights of a charging

party who has complied with all the re-

o/ The Human Rights Act has extended the time for

ssuance of a complaint from 180 days to 300 days

of the filing of an initial charge. Ill. Rev.

Stat. ch. 68, §7-102(G) (effective July 1, 1980).

-10-

quirements of the FEPA/Human Rights Act,

which is at issue in this preceeding. 2/

Thus due solely to the negligence of

the Illinois Fair Employment Practices Com-

mission, Mr. Logan and untold numbers of

other handicapped persons in Illinois?’,

inois Supreme Court has left open the

question whether the 120 day limit on convening

a fact-finding conference remains mandatory in

light of the amendment to §7-102(c) (3) of the

Human Rights Act which became effective July 1,

1980. (Appendix to Jurisdictional Statement

at 6a) Regardless of how the 120 day limitation

is interpreted, the Springfield-Sangamon de-

cision still will operate to deny handicapped

persons any cause of action for discrimination

should the FEPC fail to issue a complaint with-

in 300 days of the filing of a charge.

8/ The statistics for charges filed indicate the

significance of the FEPA remedy to handicapped

Illinois residents. In state fiscal year 1977

(July 1, 1976- June 30, 1977), 211 individuals

filed charges alleging handicap discrimination;

this number represented 10% of all charges filed

with the FEPC. In fiscal year 1978, 348 handicap

charges, representing 20% of all charges, were

filed, and in fiscal year 1979, 349 handicap

charges, representing 15% of all charges, were

filed. These statistics do not include charges

of handicap discrimination filed in conjunction

with charges of race or sex discrimination.

Illinois Fair Employment Practices Commission,

Seventeenth Annual Report 14; Illinois Fair

Employment Practices Commission, Eighteenth

Annual Report 14,

-ll-

have been or will be stripped of their

only protection against discrimination.

Such a result is grossly unfair, particularly

in light of the fact that large numbers of

these persons, like Mr. Logan, will not

have the.assistance of a lawyer in the

FEPC proceedings. To expect such individuals

to know the procedural requirements the FEPC

must meet,in addition to those which must be

followed by a charging party,is unrealistic

and unfair. This Court recently stated in

Hughes v. Rowe, U.S. __, 66 L.Ed. 2d 163, 173

(1980), "An unrepresented litigant should

not be punished for his failure to recognize

subtle factual or legal deficiences in his

claims." Certainly, a pro se party to an ad-

ministrative proceeding is no more worthy of

punishment. when the error is not of his own mak-

ing or even within his power to correct.

The Illinois Supreme Court's decision

subverts the pro se nature of the administrative

procedure established by the FEPA. In a real

-12-

sense, the decision rewards the FEPC for ineffi-

ciency since the FEPC can dispose quickly of excess

cases simply by doing nothing. The FEPC has

no accountability to charging varties; it

does not represent them. Rather, it acts as

a neutral third party which investigates the

charges and determines whether a complaint is

warranted. Handicapped persons cannot in

fairness have their rights made contingent on

the FEPC's taking action within 120 days.

II. THE DECISION OF THE ILLINOIS SUPREME

COURT, TERMINATING CHARGES OF EMPLOY-

MENT DISCRIMINATION AS A RESULT OF

THE INVESTIGATING STATE AGENCY'S

FAILURE TO MEET STATUTORY TIME LIMITS,

DEPRIVES PARTIES ALLEGING DISCRIMINA-

TION OF THEIR RIGHTS UNDER THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT.

Mr. Logan, as a result of the action

of the Illinois Fair Employment Practices

Commission, lost his right to an adjudication

of his charge of employment discrimination

under the FEPA. The FEPC failed to convene

a fact-finding conference within 120.

days of Mr. Logan's filing of his charge, and the

-13-

Illinois Supreme Court ruled that, as a

consequence, the FEPC must terminate

processing of Mr. Logan's charge without

any ruling on its merits. If the Illinois

Supreme Court's decision is not reversed,

large numbers of individuals will be

barred, through no fault of their own,

from ever asserting their right under the

Illinois FEPA to be free from employment

discrimination. See Section I, supra at 9-10.

In fact, those Illinois residents who, like

Mr. Logan, claim discrimination based upon

physical handicap, will lose their right

to proceed in any forum to assert their

legal claim. See Section I, supra at 5-6.

The state thus has deprived such individuals

of significant rights without due process

in violation of the Fourteenth Amendment.

This Court has used a two part analysis

in determining whether governmental action

violates the Due Process Clause. First,

the court must find that a protected

-14-

property or liberty interest has been injured

and, second, the court must determine whether

or not adequate protections have accompanied

the deprivation effected by the state. Ingra-

ham v. Wright, 430 U.S. 651, 672 (1977).

Mr. Logan's right to proceed to an adjudi-

cation of his discrimination claim is a property

right which the Illinois General Assembly has

afforded him. As this Court stated in Board

of Regents v. Roth, 408 U.S. 564, 571-72 (1972):

The Court has also made clear

that the property interests pro-

tected by procedural due process

extend well beyond actual owner-

ship of real estate, chattels, or

money.

FEPA accorded Mr. Logan the property rights of

employment conditions free from discrimination on the

basis of handicap and a cause of action to

secure such conditions. Such rights have the

attributes of property interests in employ-

-15-

ment or government benefits which this

Court has described as protected by the

Due Process Clause:

To have a property interest in

a benefit, a person clearly

must have more than an abstract

need or desire for it. He

must have more than a unilateral

expectation of it. He must, in-

stead, have a legitimate claim

of entitlement to it. It is

a purpose of the ancient institu-

tion of property to protect

those claims upon which people

rely in their daily lives, re-

liance that must not be arbi-

trarily undermined.9/

Board of Regents v. Roth, 408 U.S. at 577.

Mr. Logan's expectation that Illinois

law would protect him from discrimination

based upon his handicap was not mere wish-

ful thinking on his part. I11l. Rev. Stat.

ch. 48, §853 (1979) provides:

9/ The line between property interests and liberty

interests protected by the Due Process Clause may

be difficult to discern, Paul v. Davis, 424 U.S. 693,

§710 (1976). Appellant has shown in his brief

that he has been deprived of an interest in

liberty as well as an interest in property. Regard-

less of how the interest in the discrimination claim

is characterized, however, it is one which is vro-

tected by’ the Fourteenth Amendment.

-16-

It is an unfair employment practice:

(a) For any employer, because of the

race, color, religion, sex, national

orgin, ancestry or physical or

mental handicap unrelated to

ability of an individual, or an

unfavorable discharge from

military service to refuse to

hire, to segregate, or otherwise

to discriminate against such in-

dividual with respect to hire ;

selection and training for

apprenticeship in any trade or

craft, tenure, terms or conditions

of employment.

In addition, Ill. Rev. Stat. ch. 48, §856.07

(1979) lists among the powers and the duties

of the FEPC, "To issue, receive, investigate

and determine charges [of unlawful dis-

crimination] filed with it in conformity

with this Act." Finally, Art. 1,§12 of the

Illinois Constitution guarantees;

Every person shall find a certain

remedy in the laws for all in-

juries and wrongs which he receives

to his person, privacy, property

or reputation. He shall obtain

justice by law, freely, completely

and promptly.

In fact, the General Assembly created the

right to be free from employment discrimi-

nation long before it imposed the 120 day

-17-

time limit governing when fact-findingL’’ conferences

must be held, a limit which it modified sub-

stantially only two years later. See Section

I, supra at 10 n.7.

This Court has recognized that such

state-created causes of action may consti-

tute property within the meaning of the Four-

teenth Amendment. In Martinez v. California,

444 U.S. 277, 281-82 (1980), the Court

stated in dicta: "Arguably the cause of

action for wrongful death that the state has

created is a species of 'property' protected

by the Due Process Clause." The Court said

that the state's ability to deprive an indi-

vidual of property is subject to

10/ The FEPA originally was enacted in 1961. 1961 111.

Laws 1845. In 1975, the General Assembly amended the

law to prohibit discrimination on the basis of handicap

unrelated to ability. P.A. 79-186, §1. In 1978, the

Act was further amended to require the FEPC to convene

a fact-finding conference within 120 days of the filing

of a discrimination charge. P.A. 80-1452, §1l.

-18-

the “federal [constitutional] interest...

in protecting the individual citizen from

state action that is wholly arbitrary or

irrational." Martinez v. California, 444 U.S. at 287.

The Court went on to hold that if a

wrongful death action did constitute property,

a state could erect barriers to such an action

consistent with the requirements of Due Pro-

cess only if the barriers furthered another

rational and legitimate state policy. In that

case, the Court ruled that a parole board's

immunity to a wrongful death law suit ra-

tionally furthered the state policy of

allowing the parole board wide discretion

in deciding whether or not to accord

parole.

In this case, however, in depriving

Mr. Logan ° of any right to a deter-

mination of his discrimination charge,

through no fault of his own,

the FEPC has acted in a manner which is

totally arbitrary and irrational.

-19-

The Illinois Supreme Court asserted

that it could find two justifications

for dismissing a charge because the

FEPC inadvertently had failed to con-

vene a fact finding conference within

120 days. In fact, the Illinois

Supreme Court's action in dismissing

a charge under these circumstances and

depriving parties alleging discrimina-

tion of their rights serves no legitimate

state purpose whatsoever.

The Illinois Supreme Court first

suggests that the dismissal promotes

the just and expeditions resolution of

employment disputes. Such a dismissal,

however,cannot be seen to promote a "just"

resolution of a dispute, since the dis-

missal has no connection whatsoever to

11/

the merits of the charge,— and is not a

I is Supreme Court also suggests that

dismissal based on the FEPC's failure to conr

ply with time limits serves the purpose of pro-

tecting employers from unfounded charges

(Footnote continued on next page)

-20-

"resolution" of the charge in any sense

other than that in which an arbitrary,;baseless

death knell may be "expeditious."

This Court has recognized that efficiency

itself cannot justify the deprivation,

without certain protections, of rights or

property protected by the Due Process Clause.

In Stanley v. Illinois,405 U.S. 645, 656-

57 (1972), the Court stated:

[T]he Constitution re-

cognizes higher values than

speed and efficiency. Indeed,

one might fairly say of the

Bill of Rights in general,

and the Due Process Clause in

particular, that they were

designed to protect the fragile

values of a vulnerable citizenry

from the over-bearing concern

for efficiency and efficacy

that may characterize praise-

worthy government officials

no less, and perhaps more,

than mediocre ones.

(Footnote 11 continued fran previous page)

of discrimination. Appendix to Jurisdictional State-

ment at 6a. Again, since processing of the charge is

terminated with no determination whatsoever with regard

to the merits, there is no reason to believe that any

charge so dismissed was unfounded. This sort of dispute

resolution’ can be deemed "just" or deemed to

"protect employers fram Sentek chaneen,* tn the

same respect that a total bar to the filing of

charges could be said to accomplish these purposes.

-2l-

Procedure by presumption is

always cheaper and easier than

individualized determination .

The Court in Mathews v. Eldridge, 424

U.S. 319, 335 (1976), set forth a slightly

different measure of the due process re-

quirements which a state must meet before

it can deprive a person of property.

[I]dentification of the specific

dictates of due process generally

requires consideration of three

distinct factors: first, the

private interest that will be

affected by the official action;

second, the risk of an erroneous

deprivation of such interest

through the procedures used, and

the probable value, if any, of

additional or substitute pro-

cedural safeguards; and finally,

the Government’s interest, in-

cluding the function involved

and the fiscal and administra-

tive burdens that the additional

or substitute procedural re-

quirement would entail.

The private interests at stake here,

the right to freedom from employment dis-

crimination and to a procedure to vindicate

that right, are also the public policy of

the State of Illinois, as reflected in its

=~22=

statutes and constitution.22/ the risk of

an erroneous deprivation of this right is

enormous; the FEPC reaches no deter-

mination on the merits of the terminated

discrimination charge and utilizes no

procedural safeguards to reduce the likeli-

hood of error when the charge is terminated

because of agency delay.

To be weighed against this total de-

privation of private and public interests

are the state's administrative interests.

The court in Eldridge, 424 U.S. at 348,stated:

Financial cost alone is

not a controlling weight in

determining whether due process

requires a particular procedural

safeguard prior to some admini-

strative decision. But...[a]t

some point the benefit of an

additional safeguard to the

Individual affected by the ad-

ministrative action and to

society in terms of increased

assurance that the action is

just, may be outweighed by

the cost. (emphasis added)

127 See Til. Rev. Stat. ch. 48, §851 (1979). See

p. 16, supra.

-23-

The parties whose charges have been dismissed

as a result of the FEPC's failure to meet

a time deadline have not simply been denied

"an additional safeguard." While administra-

tive cost factors may serve to limit the number

of procedural protections accorded someone

affected by government action, such admini-

strative considerations cannot justify what

has occurred in this case: the obliteration

13/

of rights without any process whatsoever.--

The state's interest in administrative

efficiency has been accorded significance

by this Court in instances in which state

us the state law-accorded property right of

employment conditions free from discrimination and of

processing of a discrimination charge cannot be

eliminated constitutionally by state procedural law.

The situation in this case thus is distinguish-

able from that described by the plurality opinion in

Arnett v. Kennedy, 416 U.S. 134 (1974). In Arnett,

a Civil service employee's statutory right to be dis-

charged only for cause was limited by a procedural

statute which accorded him only post-termination con-

sideration of whether this right had been violated. In

this case, the rightsto pursue employment free from dis-

Crimination and to processing of a discrimination claim

were not limited, but rather were nullified completely by

procedural rule.

-24-

procedural rules do not bar completely any

possibility of redress of a party's griev-

ance. In Lindsey v. Normet, 405 U.S. 56 (1972),

for example, this court ruled that Oregon

did not violate the requirements of due

process when it limited the defenses and

counterclaims a tenant could assert in

summary eviction proceedings. The Court

reasoned that these rights were not for-

ever lost to the tenant since he was "not

foreclosed from instituting his own action

against the landlord and litigating his

right to damages or other relief in that

action." Id. at 66. This situation is completely

different from that of Illinois residents

charging handicap discrimination who can

lose all state law rights with respect to

their charge if the decision below is up-

held.

The Illinois Supreme Court's decision

thus has created a situation which is com-

parable to that of parties to litigation

-25-

who, through no fault of their own, have

failed to comply with discovery requests

and as a consequence have had their claims

dismissed. This Court has stated that

such a dismissal contravenes not only the

federal rules governing discovery but the

requirements of due process as well. In

Societe Internationale Pour Participations

Industrielles v. Rogers, 357 U.S. 197, 209

(1958), the Court held that a petitioner's

claim could not be dismissed as a sanction

for not producing requested documents when

the petitioner was unable to secure the

documents.

The provisions of Rule 37

[of the Federal Rules of Civil

Procedure] which are here in-

volved must be read in light of

the provisions of the Fifth

Amendment and that no person

shall be deprived of property

without due process of law, and

more particularly against the

opinions of this Court in Hove

v. Elliott, 167 U.S. 409, 42 L.

Ed. 215, 17 S.Ct. 841 and Hammond

Packing Co. v. Arkansas, 212 U.S.

322, 53 L.ed. 530, 29 Ss. Ct. 370,

-26-

15 Ann Cas 645. These decisions

establish that there are consti-

tutional limitations upon the

power of courts, even in aid of

their own valid processes, to

dismiss an action without afford-

ing a party the opportunity

for a hearing on the merits

of his cause.14/

The Illinois Supreme Court ruling

here, based on the FEPC's failure

to schedule a timely fact-finding con-

ference,has barred individuals alleging

handicap discrimination from any admini-

strative or judicial action whatsoever under

Illinois law. They cannot present their

unresolved discrimination charge to any

other forum. In short, the FEPC has de-

prived such persons completely of any ability

to assert their state constitutional and

statutory claimsof employment discrimina-

147” The Court in Hammond Packing Co. v. Arkansas,

712 U.S. 322 (1908 ) authorized entry of a default

judgment against a defendant who failed to produce

Gocuments but noted that the defendant had not been

punished "for a failure to do that which it may not

have been in its power to do." 212 U.S. at 315.

-27-

tion. Individuals whose charges have been

dismissed due to the FEPC's malfeasance

thus are in a situation substantially worse

than that of a party charging discrimination

who has received an adverse decision from

the FEPC; such an individual at least is

entitled to seek judicial review of the

FEPC's action. Ill. Rev. Stat. ch. 48,

§860 (1979). This result constitues

arbitrary and irrational governmental action

which denies due process. of law to in-

dividuals whose discrimination charges are

dismissed as a result of the FEPC's negligence.

-28-

III CONCLUSION

For the foregoing reasons, this

Court should reverse the decision below.

Respectfully submitted,

Me Aa, fe—

One of the Attorneys for

Amici Curiae

JAMES D. WEILL

DEBRA L. RASKIN

PHILLIP H. SNELLING

Legal Assistance Foundation

of Chicago be J

343 South Dearborn Street

Chicago, Illinois 60604

(312) 341-1070

Attorneys for Illinois Congress of

Organizations of the Physically

Handicapped

KAY SIMON GROSSMAN

220 South State Street

Room 600

Chicago, Illinois 60603

312/939-5797

Attorney for Chicago Lawyers'

Committee for Civil Rights

Under Law, Inc.