Klein v. Fair Employment Practices Commission ( 1975 )

Mr. PRESIDING JUSTICE McGLOON,

dissenting:

The majority’s opinion is predicated upon its initial holding that the legislature intended judicial review of the Commission’s decision to dismiss a charge after an investigation disclosed the lack of substantial evidence of an unfair employment practice. The legislative intent is found in the statutory provisions that any complainant may obtain judicial review of a Commission order. The majority acknowledges that the legislature may restrict judicial review of administrative action if the legislature’s intent is shown by clear and convincing evidence, but does not find such evidence. The majority sees its duty to interpret the law as it is written, and therefore discounts the secrecy argument advanced by the Commission. I cannot agree with my colleagues. It is my belief that the legislature intended that such a Commission decision to dismiss should not be open to review inasmuch as the secrecy of the Commissions investigation of the charge precludes the making of a record subject to review.

The primary feature of the Commissions procedures under the Act is that its investigation of the charge and the following conciliation meeting with the parties are to be conducted in secrecy. The Act provides that “[w]hat occurs in the conference or conciliation meeting shall not be disclosed by the Commission unless the complainant and respondent agree in writing that such disclosure be made.” (Ill. Rev. Stat. 1973, ch. 48, par. 858.) The Act is implemented by the Commission’s rules of practice, of which section 2.2(5) further provides that “[n]o stenographic report or recording shall be taken of the proceedings of any conciliation conference.” The reason for such confidentiality is succinctly stated in the first section of the Act, which provides: “It is also the public policy of this State to protect employers, labor organizations and employment agencies from unfounded charges of discrimination.” Ill. Rev. Stat. 1971, ch. 48, par. 851.

Ry not keeping a reviewable record of the precomplaint proceedings, the Commission is protecting the respondent from the unfavorable publicity which would attend the publication of the fact that charges, whether substantiated or not, were filed against him. If the investigation finds substantial evidence that an unfair employment practice has been committed, the respondent must be given an opportunity to attempt to effectuate a settlement in private. If and only if the respondent cannot or will not remedy the situation may the Commission file a complaint against respondent and hold public hearings. Under the Act, the record generated by the public hearings and the Commission’s decision based upon the record are reviewable by the courts under the Administrative Review Act.

In my opinion, the legislative intent of the Act was that there should be secrecy throughout the precomplaint proceedings in order to encourage the amicable settlement of unfair employment practices charges, and to protect respondents from the dissemination of any information concerning unfounded charges placed with the Commission. To require a record to accompany the Commission’s decision to dismiss a charge for lack of substantial evidence would be contrary to the procedures intended by the legislature.