Section 2510.10  Scope and Purpose

 

This regulation construes in two respects the provisions of the Human Rights Act prohibiting discrimination in employment based on an individual's "unfavorable military discharge."  It first prescribes a caveat with regard to the statutory definition of "unfavorable military discharge," addressing a potential inconsistency in the terms of that definition.  Secondly, it construes the exemption from the prohibition which applies where the employment "involves the exercise of fiduciary responsibilities as defined by rules and regulations" of the Department.

 

Section 2510.20  Statutory Prohibition

 

Section 2-102 of the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, pars. 2-102), prohibits discrimination in employment in Illinois by employers, labor organizations and employment agencies.  Under Section 1-103(Q) of the Act, unlawful discrimination includes discrimination based upon a person's "unfavorable discharge from military service."  Section 1-103(P) of the Act defines an unfavorable military discharge as encompassing any discharge, from any component of the United States military service, which is less than honorable but not "Dishonorable."  A person who has received a military discharge falling within those parameters may not, as a result thereof, be subjected to discrimination except as permitted in an exemption to the Act.

 

Section 2510.30  Caveat; RE Codes

 

In defining what constitutes an "unfavorable military discharge" for purposes of the above prohibition, Section 1-103(P) of the Act indicates that the term includes discharges...which are classified as RE-3 or the equivalent thereof, but does not include those characterized as RE-4 or "Dishonorable."  The RE codes referred to in the definition are used by the armed forces to designate the reenlistment status of an individual at the time of discharge, but they do not always correlate exactly with the nature of the individual's discharge.  The RE-4 code is used by most (but not all) branches of the armed forces to designate that the individual is absolutely barred from reenlistment.  While all persons receiving "Dishonorable" discharges are likely to be assigned the RE-4 code, that code may also be assigned to an individual whose discharge is not "Dishonorable."  Moreover, individuals whose discharges have been upgraded by the military review boards may not have received corresponding changes in their reenlistment codes, since the review boards are not authorized to alter the codes.  Thus strict reliance on RE codes in evaluating job applicants may lead to results inconsistent with the legislative intent. Therefore, the nature of the discharge, rather than the RE code, should be regarded as the controlling factor.

 

Section 2510.40  Exemption for Employment Involving Fiduciary Responsibilities

 

Section 2-104(C) of the Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par 2-104(C)), provides that an individual who has received an unfavorable discharge from military service may be excluded from a particular job as authorized by federal law or regulation, or when a position of employment involves the exercise of fiduciary responsibilities as defined by rules and regulations which the Department shall adopt.  The term "fiduciary responsibilities" in this context applies where the nature of the employment requires that the employee be entrusted with the discretionary safekeeping or disposition of currency, negotiable instruments or other valuable property, without supervision and under circumstances where great trust, confidence and good faith are necessarily attendant.  Examples may include a trustee, guardian, broker, conservator, curator, receiver, partner, corporate or public officer, or business agent, where the foregoing characteristics exist.  The mere handling of or access to currency or negotiable instruments is not sufficient to establish "fiduciary responsibilities."  Examples which will not ordinarily qualify may include a retail salesperson, insurance salesperson or collector, customer service representative, clerk or cashier, service station attendant, ticket agent, librarian, teller, or appliance installer or repair person.  Except where a particular position or assignment requires the discretionary handling of valuables amid great trust, law enforcement and fire personnel do not exercise "fiduciary responsibilities" within the meaning of Section 2-104(C).