In the past, I have been asked to review Employee Handbooks and Personnel Policies for a number of our clients. Many of those documents contained Nepotism policies. Traditionally, nepotism policies prohibit the employment of an immediate family member of a current employee by the Company. I have advised a number of businesses that a nepotism policy is legal unless it addresses employment of a spouse of an existing employee. The Illinois Human Rights Act prohibits discrimination based on an individual’s marital status. This has been consistently interpreted by the Illinois Human Rights Commission to prohibit policies that do not allow employment of an individual because of their spouse’s employment with the Company.
The most famous case that addressed this issue was River Bend Community School District #2 v. Illinois Human Rights Commission, 232 Ill. App. 3d 54, 112 Ill. Dec. 447, 513 N.E. 2d 1056 (3rd Dist. 1992). In River Bend, the school district had a policy that prevented an individual from supervising his/her spouse. As a result of a transfer, a situation developed where a husband was a principal at the school where his wife was a teacher. The school district insisted that the teacher transfer to ensure she was not being supervised by her spouse. The Third District Appellate Court found that this was in fact marital status discrimination and a violation of the Illinois Human Rights Act.
However, River Bend is now history. In 1996, the Illinois Supreme Court issued a decision in Boaden v. Department of Law Enforcement, 171 Ill 2d 230, 664 N.E. 2d 61, 215 Ill. Dec. 664 (1996). Boaden was a case developing out of the Fourth District Appellate Court. Jim and Colleen Boaden were both Illinois State Police Officers. The Illinois State Police have a policy which prohibits spouses from working on the same shift in the same geographic location. Jim and Colleen had worked in the same geographic location on the same shift for some time; however, after they married, the policy was applied and they were offered various options to ensure they were not working “together”. Traditionally, marital status discrimination, like any other discrimination, is prohibited unless the employer can articulate a legitimate business reason for the discrimination. In this case, the Illinois State Police were prepared to offer the court the justification for this policy for safety considerations. However, the court found that there was no need for the Illinois State Police to articulate such a reason. The court found that this policy was not discrimination on the basis of marital status. The Human Rights Act defines “marital status” as the legal status of being married, single, separated divorced or widowed. The Illinois Supreme Court found that Jim and Colleen Boaden were not being discriminated against on the basis of their legal status of being married. They were actually being treated differently on the basis of who they were married to. The Court found that this was not discrimination prohibited by the Act and that there was no prohibition against “no-spouse” policies.
Obviously this is directly contrary to the Third District’s decision in River Bend and the Illinois Human Rights Commission’s interpretation of marital status discrimination. However, the Illinois Supreme Court has now addressed this issue and to the extent that the appellate court districts or the Human Rights Commission interpreted marital status discrimination differently in the past, those decision are overruled. As a practical matter, if you as an employer wish to insitute a no-spouse policy or incorporate such a policy into an existing nepotism policy, the Illinois Supreme Court has now given its stamp of approval.