NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 80075--Agenda 20--May 1996.
RAINTREE HEALTH CARE CENTER, Appellant, v. THE ILLINOIS HUMAN
RIGHTS COMMISSION et al., Appellees.
Opinion filed October 18, 1996.
JUSTICE HARRISON delivered the judgment of the court:
James Davis, the original complainant in this case, filed a
discrimination charge with the Illinois Department of Human Rights
alleging that his employer, Raintree Health Care Center (Raintree),
violated the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch.
68, par. 1--101 et seq.) by discharging him after learning that he
tested positive for the human immunodeficiency virus (HIV). After
a three-day hearing, an administrative law judge (ALJ) concluded
that Raintree had discriminated against Davis by constructively
discharging him on the basis of a physical handicap, his infection
with HIV. The ALJ recommended Davis' reinstatement to his former
position, or a substantially equivalent position with pay and
benefits, and awarded him back pay, plus interest, and reasonable
attorney fees. The Illinois Human Rights Commission upheld the
ALJ's recommended order and decision. Ill. Hum. Rts. Comm'n Rep.
1988CN2190 (April 15, 1994). The appellate court, with one justice
dissenting, affirmed the final order of the Illinois Human Rights
Commission. 275 Ill. App. 3d 387. We allowed Raintree's petition
for leave to appeal. 155 Ill. 2d R. 315.
The central issue raised in this appeal is whether the
Illinois Human Rights Commission properly determined that
Raintree's constructive discharge of Davis, based on his HIV-
positive status, amounted to a violation of the Illinois Human
Rights Act. To resolve this issue we must also determine whether
public health statutes and regulations in effect at the time of
this action prohibited Davis from working at the Raintree nursing
home and whether Raintree's belief that these regulations did in
fact bar Davis from working at its facility is relevant in
determining liability under the Illinois Human Rights Act. The
final issue raised by Raintree is whether it was entitled to
discovery and a hearing on Davis' petition for attorney fees. For
the reasons which follow, we affirm the judgment of the appellate
court.
The testimony presented at the evidentiary hearing before the
ALJ established the following facts. Raintree operates a nursing
home facility in Evanston, Illinois. Raintree hired James Davis as
a kitchen helper in March of 1987. Raintree later promoted Davis to
the position of cook at the facility. In June of 1987, Davis was
fired for fighting on the job, but Raintree rehired Davis in
November of 1987, when his supervisor asked him to return. Both
parties stipulated that after Davis was rehired, he performed his
duties as a cook in an acceptable manner consistent with Raintree's
standards. Davis' responsibilities as a cook consisted of preparing
the evening meal, placing the food on trays, and cleaning and
straightening the kitchen and storeroom areas. In performing these
duties, Raintree required Davis to wear gloves. Davis had no direct
contact with the residents of the facility.
On January 12, 1988, Davis' doctor informed him that he had
tested positive for HIV. After reporting to work that same day,
Davis told his supervisor, Pearl Smith, that he had just been
diagnosed as being HIV-positive. Smith suggested that Davis begin
working while she went to discuss the matter with Burton Behr, the
administrator of the facility. Behr then called Davis into his
office for a meeting. At this first meeting, Behr told Davis that
Raintree needed information from public health officials to
determine whether Davis could continue his employment. Behr then
allowed Davis to return to work. Behr testified that after this
first meeting, he began looking through the Illinois Department of
Public Health regulations and the City of Evanston regulations
governing the licensing of nursing homes. Behr found nothing in the
nursing home regulations that addressed the situation of an HIV-
positive employee.
Behr testified that on this day, he made several telephone
calls to the Evanston board of health, the Illinois Department of
Public Health, and the Illinois Council on Long Term Care for
advice on how to handle Davis' situation. Behr was unable to
receive a definitive answer as to whether Davis' condition made him
ineligible to work in a nursing home. Behr testified that when he
spoke with Louise Brown, the director of the Evanston board of
health, he explained to her that he "could not find anything in the
rules and regulations anywhere that specifies HIV-positive," and
asked whether Davis could continue working at the facility. Behr
testified that Brown responded, "I can't tell you he can't work
there, but I can tell you if something should occur because he is
working there, then you are subject to the rules and regulations."
Behr replied that "there are no rules and regulations governing
this." Brown again responded, "You will have to go with the rules
and regulations that stand until it can be clarified, so according
to the rules and regulations, he is unable to work there at the
present time ***." Behr also spoke with Rose Ferrell, a regional
supervisor of the Illinois Department of Public Health. Behr
testified that Ferrell simply told him to follow the rules and
regulations and that she would check further and get back to him.
Similarly, Terry Sullivan, the director of the Illinois Council on
Long Term Care, offered no recommendation on how Behr should
proceed.
After conducting this inquiry, Behr called Davis back to his
office. Behr told Davis that he thought it was best that Davis go
home until he found out more information as to whether the nursing
home regulations prohibited HIV-positive persons from working at
Raintree. Behr advised Davis that when he found out more
information he would telephone him. Behr also requested that Davis
bring a note from his doctor stating that "he was free of a
communicable disease or that he was allowed to work with the HIV
virus." That same week, Davis obtained a doctor's note as Behr
requested. The note, signed by Davis' doctor stated:
"To Whom It May Concern:
Mr. James Davis HIV status does not restrict him
from performing his current job as a cook in a nursing
home. The HIV (AIDS Virus) is NOT transmitted through the
preparation or serving of food and beverages.
Transmission is through blood and body fluids. Should Mr.
Davis cut himself in the course of the food preparation,
that food should be discarded the same as if any employee
had bled into food. Should you have any further
questions, please contact the nurse with the clinic,
Kathy Pietschmann, R.N., M.S. at 943-6600 ext. 401.
Sincerely,
(Signed) TOM SKOUTELIS
Tom Skoutelis, M.D."
Despite the note, Behr did not allow Davis to return to work
at Raintree. Behr testified that the Evanston board of health
informed him that the note was insufficient to permit Davis to
return to work because it did not specify that Davis was free from
a contagious or infectious disease. Behr further stated that he
contacted the nurse referred to in the doctor's note and she just
reiterated the information contained in the note. Behr continued to
communicate with the Illinois Department of Public Health and the
Evanston board of health to try to get an opinion as to whether
Davis' condition made him ineligible to work in a nursing home. As
stated, Behr never received a conclusive answer from either of
these agencies.
For several weeks after he was initially requested to go home,
Davis contacted the Raintree facility on numerous occasions to find
out if Behr had received an answer from the board of health and if
he could return to work. Each time he called, Davis was told that
Raintree had not yet received an answer from public health
officials. From the time that he left the facility on January 12,
1988, Davis was never contacted by either Behr or Smith and was
never allowed to return to work. Throughout this time when Behr was
seeking an official opinion as to the impact of Davis' condition on
his employment, Davis received no salary from Raintree.
In early February 1988, Davis' brother, who also worked as a
cook at Raintree, informed Davis that he had been fired. Davis
testified that he believed what his brother told him because he had
not heard from anyone at Raintree for over three weeks. Davis did
not call Raintree or seek confirmation that he had been fired. In
early February, Davis filed for unemployment compensation benefits.
Raintree contested the unemployment claim contending that it had
never terminated Davis' employment. Davis was ultimately denied
unemployment benefits.
On February 3, 1988, Davis filed a discrimination charge with
the Illinois Department of Human Rights. After an investigation of
the charge, on January 5, 1989, the Department of Human Rights
filed a complaint on behalf of Davis, alleging that Raintree
discriminated against Davis on the basis of a physical handicap. In
February of 1989, Raintree offered Davis another position, at the
same $4.20 rate of pay per hour, at a different nursing home
facility located in Highland Park, Illinois. At the time of the
offer, Davis lived at 43rd and Michigan Avenue in downtown Chicago.
Davis did not own a car and relied on public transportation. The
job at Highland Park was over 40 miles from Davis' home and would
require approximately a 2½-hour commute each way on public
transportation. Davis refused the job due to the long commute.
The parties appeared for a three-day hearing before an ALJ
beginning on February 24, 1992. Upon consideration of the evidence
presented, the ALJ issued a recommended liability determination on
October 9, 1992. The ALJ found that Raintree discriminated against
Davis by constructively discharging him based on his HIV-positive
status, a protected physical handicap. On October 28, 1992, Davis
filed a petition for attorney fees and costs in the amount of
$42,909.98, supported by affidavits of his counsel and a billing
worksheet. Davis also requested a multiplier in the amount of 50%.
Raintree filed a motion for discovery and depositions regarding the
reasonableness of the attorney fees. After a hearing on Raintree's
motion, the ALJ denied the request for discovery. Raintree
eventually responded to Davis' petition for fees and moved for an
evidentiary hearing and oral argument on these issues. The ALJ
denied Raintree's motion, noting that oral arguments in such a
circumstance were "highly unusual" and that Raintree offered "no
explanation why this case required a variation from standard
procedure." On July 8, 1993, the ALJ issued a recommended order and
decision regarding attorney fees in this case. The ALJ rejected
Davis' request for a fee multiplier of 50%, reduced the hourly rate
requested for two of the attorneys, and rejected Raintree's
challenge to the number of hours billed and the costs requested.
The ALJ awarded Davis $28,956.50 in attorney fees.
Raintree filed exceptions to the ALJ's recommendations as to
liability and attorney fees with the Human Rights Commission. On
April 15, 1994, the Commission issued its order and decision
adopting the recommended decision of the ALJ and rejecting the
exceptions filed by Raintree. Ill. Hum. Rts. Comm'n Rep. 1988CN2190
(April 15, 1994). The Commission reasoned that Raintree
discriminated against Davis on the basis of a physical condition
which was unrelated to his ability to do the job in question, which
amounted to a violation of the Illinois Human Rights Act. The
Commission noted that the only medical evidence presented was the
doctor's note obtained by Davis, which stated that Davis' infection
with HIV did not restrict him from performing his current job. The
Commission further determined that the guidelines which Raintree
relied on, section 300.650(a)(4) of Title 77 of the Illinois
Administrative Code (77 Ill. Adm. Code §300.650(a)(4) (1985)) did
not bar Davis from working at the facility with his condition. The
Commission concluded that HIV was not included in the list of
"contagious and infectious diseases" outlined in section 690.100 of
Title 77 of the Illinois Administrative Code (77 Ill. Adm. Code
§690.100 (Supp. 1987)) which would have limited Davis' ability to
work in a nursing home. The Commission further held that Raintree's
good-faith belief that the public health regulations prohibited it
from employing Davis was not relevant in determining whether it had
violated the Human Rights Act. Davis died on November 27, 1994, and
his estate was substituted as the complainant in this action in
March 1995.
On August 25, 1995, the appellate court issued its opinion
confirming the Commission's decision. 275 Ill. App. 3d 387. The
court agreed that firing Davis based solely on his infection with
HIV, a protected physical condition, violated the Human Rights Act.
The court reasoned that before rejecting Davis for employment,
Raintree should have made an individualized determination as to
Davis' ability to perform the work of a cook. The court further
rejected Raintree's argument that its decision to terminate Davis
was compelled by nursing home regulations. The dissenting justice
believed the Commission's decision to be against the manifest
weight of the evidence. He would have held that Raintree's good-
faith belief that it was required to terminate Davis' employment
based on public health regulations exempted it from liability for
handicap discrimination. Raintree now appeals, arguing that the
dissenting justice properly determined that the Commission's
decision was against the manifest weight of the evidence.
When reviewing a decision by an administrative agency, "the
findings and conclusions of the administrative agency on questions
of fact shall be held to be prima facie true and correct." 735 ILCS
5/3--110 (West 1994). In addition, the Commission's findings of
fact should be sustained unless the court determines that such
findings are against the manifest weight of the evidence. Zaderaka
v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 180 (1989).
However, a reviewing court is not bound to give the same deference
to an administrative agency's conclusions of law and statutory
construction, and exercises independent review over such questions.
See Illinois Bell Telephone Co. v. Human Rights Comm'n, 190 Ill.
App. 3d 1036, 1046 (1989).
On this appeal, we will first address whether Raintree's
decision to discharge Davis, because he tested positive for HIV,
constituted employment discrimination under the Human Rights Act.
We will later address whether the existing health regulations
compelled Raintree's discriminatory actions and whether Raintree's
belief that Davis' discharge was required should relieve the
nursing home from liability.
The Illinois Human Rights Act (the Act) specifically
prohibits discrimination in employment against the physically and
mentally handicapped. Ill. Rev. Stat. 1987, ch. 68, par. 1--102(A).
The term "unlawful discrimination" is defined by the Act as
"discrimination against a person because of his *** handicap." Ill.
Rev. Stat. 1987, ch. 68, par. 1--103(Q). The Human Rights Act
further defines "handicap," for purposes of employment
discrimination, as: "a determinable physical or mental
characteristic of a person, *** the history of such characteristic,
or the perception of such characteristic by the person complained
against, which may result from disease, injury, congenital
condition of birth or functional disorder and which characteristic
*** is unrelated to the person's ability to perform the duties of
a particular job or position." Ill. Rev. Stat. 1987, ch. 68, par.
1--103(I)(1). Finally, the Act provides that it is a civil rights
violation "[f]or any employer to *** discharge *** on the basis of
unlawful discrimination." Ill. Rev. Stat. 1987, ch. 68, par. 2--
102(A). Therefore, under the Act, it would be unlawful for an
employer to fire an employee because of his physical handicap, if
that handicap was unrelated to his ability to perform his job
duties. Such a firing would be deemed "unlawful discrimination"
based on a physical handicap under the terms of the Human Rights
Act.
Respondents, the estate of Davis and the Illinois Human Rights
Commission, assert that it is undisputed that Davis' HIV infection
is a protected condition under the Act. We agree that infection
with HIV is a determinable physical characteristic resulting from
a disease which has been held to be a qualifying condition under
civil rights laws. See Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp.
1310, 1321 (E.D. Pa. 1994); Doe v. District of Columbia, 796 F.
Supp. 559, 568 (D.D.C. 1992). The issue then becomes whether Davis'
handicap was unrelated to his ability to perform his job duties,
rendering his termination unlawful.
Traditionally, when analyzing employment discrimination claims
under the Human Rights Act, Illinois courts and the Commission
generally apply a three-part analysis. Zaderaka v. Illinois Human
Rights Comm'n, 131 Ill. 2d 172, 178-79 (1989). First, under this
analysis, "plaintiff must establish by a preponderance of the
evidence a prima facie case of unlawful discrimination." Zaderaka,
131 Ill. 2d at 178-79. Second, to rebut the presumption that an
employer unlawfully discriminated against an employee, the employer
must articulate a legitimate, nondiscriminatory reason for its
decision, such as an employee's poorly performing his job,
committing some act of misconduct, or missing excessive days of
work. Finally, if an employer articulates a legitimate,
nondiscriminatory reason, then plaintiff must prove by a
preponderance of the evidence "that the employer's articulated
reason was not its true reason, but was instead a pretext for
unlawful discrimination." Zaderaka, 131 Ill. 2d at 179.
Although this is the conventional formulation, this three-part
analysis is not useful in the case before us because, here, there
is no dispute as to why Raintree discharged Davis. The facts
establish that the sole reason Raintree terminated Davis was
because he tested positive for HIV. Where, as here, the reasons for
an adverse job action are uncontroverted, the dispositive issue is
simply whether the handicapped person could perform the particular
work involved. See Board of Trustees of the University of Illinois
v. Human Rights Comm'n, 138 Ill. App. 3d 71, 75 (1985).
As stated, the Illinois Human Rights Act provides that adverse
employment actions cannot be taken against any person due to his or
her physical handicap if the handicap is unrelated to the person's
ability to perform job duties. Ill. Rev. Stat. 1987, ch. 68, par.
1--103(I)(1). Courts have applied this principle to require
employers to make individualized determinations of whether a
particular handicapped employee or applicant is able to perform the
work required by a particular job. See Board of Trustees, 138 Ill.
App. 3d at 75; Melvin v. City of West Frankfort, 93 Ill. App. 3d
425, 429 (1981). An individualized determination of a handicap
person's abilities is required because "it is the express policy of
this State that eligibility for employment be based upon individual
capacity." See Melvin, 93 Ill. App. 3d at 429.
In Melvin, the court examined whether a section of the
Illinois Municipal Code which barred amputees from employment
eligibility with the fire and police departments, except for
clerical duties, was unconstitutional. The court reasoned that the
Illinois Constitution, article I, section 19 (Ill. Const. 1970,
art. I, §19), prohibits "distinctions in hiring handicapped
individuals which are not related to the ability of a particular
applicant to satisfactorily perform particular work." See Melvin,
93 Ill. App. 3d at 429. The court noted that these guarantees set
forth by article I, section 19, have since been implemented by the
Illinois Human Rights Act which prohibits discrimination in
employment based on a physical handicap. See Melvin, 93 Ill. App.
3d at 430. The court concluded that this section of the Municipal
Code was unconstitutional because the regulation imposed a blanket
restriction against all amputees and failed to allow for an
individualized determination of whether a particular person could
perform a particular job. See Melvin, 93 Ill. App. 3d at 429-31.
In Board of Trustees, the court applied the standard
enunciated in Melvin to hold that the University of Illinois
discriminated against an amputee because it did not make a more
thorough inquiry into plaintiff's ability to overcome his handicap
and perform the duties required. See Board of Trustees, 138 Ill.
App. 3d at 76. In Board of Trustees, an amputee who had been a
sheet metal worker for over 17 years applied for a sheet metal
position with the university. The university would not hire him due
to his amputation. The court held that the university unfairly
discriminated against the plaintiff by deciding not to hire him
without first testing his agility or ability to climb, and without
any evidence that his handicap impaired his past work performance
as a sheet metal worker. See Board of Trustees, 138 Ill. App. 3d at
75. The court further noted that the reason for rejecting plaintiff
seemed to be "a good faith but overly cautious decision after an
insufficiently thorough investigation" of whether this particular
handicapped person could perform the particular work involved. See
Board of Trustees, 138 Ill. App. 3d at 76.
In this case, both the appellate court and the Commission
found that Raintree did not prove that it had made an
individualized determination of Davis' ability to perform his job
duties without undue harm to himself or others. 275 Ill. App. 3d at
395. The appellate court and the Commission also noted that the
only medical evidence submitted, the doctor's note, stated that
Davis' handicap would not prevent him from performing his job as a
cook. We agree with the appellate court's holding.
In the case at bar, Raintree discharged Davis without making
a determination on its own whether employing Davis as a cook would
pose a risk to its residents. The doctor's note was the only
medical evidence presented, and it established that Davis'
infection with HIV was unrelated to his ability to perform his
duties as a cook at Raintree. The note specifically stated that
Davis' HIV status did not restrict him from performing his job as
a cook and that HIV was not transmitted through food preparation.
Raintree presented absolutely no contrary medical evidence. Nothing
in the record indicates that Raintree made any inquiry as to how
HIV is transmitted or whether there was any risk of an HIV-infected
cook passing on the disease to nursing home residents. There is no
evidence that Raintree spoke to any other doctors, such as the ones
working at their nursing home facility, or consulted any medical
literature as to the characteristics and risks of transmission of
HIV. Raintree was only concerned with receiving a definitive answer
from the Department of Public Health or the Evanston board of
health as to whether it would violate any rules or regulations to
continue to employ Davis. Raintree's actions do not constitute an
individualized inquiry as to whether James Davis could safely
perform his duties as a cook with the HIV virus. But rather, just
as the University of Illinois in the Board of Trustees decision,
here, Raintree seems to have made an overly cautious decision after
an insufficiently thorough investigation which resulted in unfair
treatment for Davis. Illinois courts have not tolerated blanket
restrictions against the employment of amputees in Melvin and Board
of Trustees and we will not allow such an unqualified bar against
the employment of an individual inflicted with HIV. We conclude
that Raintree's constructive discharge of Davis amounted to
unlawful discrimination in violation of the Illinois Human Rights
Act.
Raintree argues that the public health regulations outlining
nursing home policies in existence at the time of this action,
prohibited Davis from working in its nursing home. Specifically,
Raintree refers to section 300.650(a)(4) of Title 77 of the
Illinois Administrative Code, which outlined personnel policies for
nursing homes and provided:
"An employee diagnosed or suspected of having a
contagious or infectious disease shall not be on duty
until such time as a written statement is obtained from
a physician that the disease is no longer contagious or
is found to be noninfectious." 77 Ill. Adm. Code
§300.650(a)(4) (1985).
Raintree contends that Davis' infection with HIV constituted a
diagnosis of a contagious and infectious disease and that section
300.650(a)(4) prevented such an employee from working in a nursing
home. According to Raintree, section 300.650(a)(4), on its face,
encompassed HIV as a contagious and infectious disease and no
extrinsic sources needed to be consulted. Furthermore, Raintree
notes that since the Public Health Code compelled it to terminate
Davis because of his HIV status, it cannot be held liable under the
Human Rights Act. It is Raintree's position that section
300.650(a)(4) conflicted with the Human Rights Act and required it
to commit a discriminatory employment action against Davis to
comply with the health regulations governing nursing homes.
Raintree argues that complying with health regulations is a
legitimate reason for terminating Davis' employment.
In this case, both the Commission and the appellate court held
that section 300.650(a)(4) did not serve to bar Davis from working
at Raintree because HIV was not considered a contagious and
infectious disease. 275 Ill. App. 3d at 394. The appellate court
and the Commission noted that the section in question,
300.650(a)(4), did not define the terms contagious and infectious
disease. Both the Commission and the appellate court turned to
section 690.100 for such a definition. 77 Ill. Adm. Code §690.100
(Supp. 1987). Section 690 was cross-referenced in section
300.650(a)(3)(A), which was the same subject regulation as
300.650(a)(4). In general, section 300.650 outlined personnel
policies for nursing homes, and made reference to section 690 which
addresses the reporting and control of communicable diseases.
Section 690.100 lists reportable diseases and conditions and
specifically states: "The following are declared to be contagious,
infectious, communicable and dangerous to the public health and
each suspected or diagnosed case shall be reported to the Illinois
Department of Public Health." 77 Ill. Adm. Code §690.100 (Supp.
1987). The section goes on to list a number of contagious,
infectious, communicable and dangerous conditions and diseases.
AIDS is among the diseases listed, but the status of being HIV
positive is not on the list. There are no other regulations
declaring which diseases are considered contagious and infectious
to the public or which diseases must be reported to protect the
safety of others. We cannot interpret section 300.650(a)(4) as
referring to all possible contagious and infectious diseases, when
another section, which was cross-referenced in the subject
regulation, specifically lists which diseases the Illinois
Department of Public Health considers to be contagious, infectious,
communicable, and dangerous. We hold that the terms "contagious"
and "infectious" are terms of art defined within section 690.100 of
the public health regulations, and if the disease was not included
in the list, it is not considered to be "contagious" or
"infectious." It is undisputed that when Davis was terminated in
January 1988, he did not suffer from AIDS, and was just diagnosed
as having HIV. Since HIV was not listed within section 690.100, it
was not considered a contagious and infectious disease for purposes
of applying section 300.650(a)(4). Therefore, section 300.650(a)(4)
did not serve to bar Davis from continuing his employment with
Raintree or require him to obtain a doctor's clearance.
Raintree argues that the distinction drawn between HIV and
AIDS by the appellate court and the Commission in this case was
inappropriate and irrational. However, other sections in these
public health regulations support this distinction. At the time of
this action, section 690.290, part of the chapter on the control
and reporting of communicable disease, defined a suspected case of
AIDS as having two or more of the following signs or symptoms:
"unexpected weight loss of greater than 10% body weight, chronic
fever, chronic lymphadenopathy, night sweats and chronic diarrhea."
77 Ill. Adm. Code §690.290(a) (Supp. 1987). This definition did not
encompass the status of being HIV positive and showing no visible
signs of AIDS. In addition, the regulation goes on to state, at
section 690.290(d), that "Persons who are prohibited from donating
blood *** because of evidence of infection with HTLV-III virus,
increased risk of infection with HTLV-III virus, AIDS or suspected
AIDS may make donations for the limited purpose of autologous
transfusion, instillation, transplantation or injection." 77 Ill.
Adm. Code §690.290(d) (Supp. 1987). Furthermore, section
690.290(c)(3) provides that all blood and serum from blood donors
should be tested for HTLV-III. 77 Ill. Adm. Code §690.290(c)(3)
(Supp. 1987). The term HTLV-III was an early name for HIV, and was
referred to as a separate condition, distinct from AIDS, in
sections 690.290(c) and (d). Accordingly, from the references in
sections 690.290(a), (c), and (d), it is clear that the Department
of Public Health recognized the difference between HIV-positive
status and AIDS in 1988. Therefore, the Department's reference to
AIDS as an infectious and contagious disease cannot be interpreted
as automatically including the condition of HIV. When the
Department meant HIV in other regulations, it referred to it
separately or as its early name HTLV-III. We hold that on its face,
the regulation in question did not prevent employees infected with
HIV from working in nursing homes.
Moreover, Raintree cites the language of section 300.650(a)(4)
of Title 77 of the Illinois Administrative Code as completely
justifying its decision to terminate Davis, reasoning that the
section required Raintree to prevent an HIV-positive cook from
working at its facility. However, the language from section
300.650(a)(4) was not a blanket restriction compelling all
employees with HIV to be terminated and never allowed to return to
their nursing home jobs. Rather, section 300.650(a)(4) allowed
employees diagnosed as having contagious or infectious diseases to
return to work after obtaining a doctor's note stating the disease
was no longer contagious or found to be noninfectious.
Although Davis himself was not subject to the note
requirement, he obtained such a note and presented it to Burton
Behr. The note, signed by Davis' physician, explained that Davis'
HIV status did not prevent him from performing his job as a cook
and that HIV was not transmitted through food preparation or
service. Behr stated that he was informed by the Evanston board of
health that the note was inadequate because it did not state that
Davis was free of contagious or infectious disease. However, Behr
did not specify that the note had to contain this exact language.
Behr admitted at the hearing before the ALJ that he asked Davis to
get documentation stating "that he was free of a communicable
disease or that he was allowed to work with the HIV virus." Davis
complied producing a note which stated that his infection with HIV
did not restrict him from performing his job as a cook. Yet
Raintree refused to return Davis to work, and never contacted Davis
to give him further information explaining what he could do to
return to work.
We hold that Davis was not required to present a note since
section 300.650(a)(4) did not apply in this case. However, even if
this section applied to Davis, the doctor's note which he provided
may have complied with the provisions of section 300.650(a)(4), and
certainly complied with the instructions he was given from Burton
Behr. At this point, Raintree should have conducted its own
investigation concerning whether it was safe to return Davis to
work, and contacted Davis to give him a chance to comply with any
further requirements in order to get his job back.
Raintree next argues that even if it improperly interpreted
the regulation in question, its good-faith belief that Davis'
continued employment was in violation of section 300.650(a)(4)
relieved it from liability under the Illinois Human Rights Act.
Raintree contends that it was entitled to rely on the Evanston
health department director's interpretation of the subject
regulation. According to Raintree, Louise Brown, the director of
the Evanston health department, informed him that Davis could not
work at Raintree at the present time, and that his doctor's note
was inadequate. Raintree states that when it sent Davis home it was
only making a good-faith attempt to comply with state law as
interpreted by the Evanston health department. The dissenting
justice in the appellate court agreed that the only reason for
Davis' termination was Behr's good-faith belief that keeping Davis
would be a violation of section 300.650. Both Raintree and the
dissenting appellate court justice assert that under the reasoning
of Le Beau v. Libbey-Owens-Ford Co., 727 F.2d 141 (7th Cir. 1984),
a good-faith belief that one's actions are required to comply with
state law is a defense to liability under the Illinois Human Rights
Act.
The Le Beau case was a gender discrimination suit concerning
a conflict between a state law prohibiting women from working
overtime and Title VII of the Civil Rights Act of 1964, which
forbade employers from refusing to offer overtime work to women. In
Le Beau, plaintiffs, female employees of Libbey-Owens-Ford, brought
suit claiming that defendants violated Title VII by restricting
females to employment in only two departments, and by employing men
in departments where overtime was required, while employing women
in departments where overtime was less frequent. Beginning in 1909,
Illinois had in effect the Illinois Female Employment Act (Ill.
Rev. Stat. 1908, ch. 48, par. 25), which provided that women could
not work more than eight hours in any one day or more than 48 hours
in any one week. Therefore, Libbey-Owens-Ford separated men and
women into these two different departments, placing men in the
continuous operations of glass production because these jobs
frequently required overtime. In making their employment decisions,
Libbey-Owens-Ford relied on 1965 guidelines promulgated by the
Equal Employment Opportunity Commission (EEOC) providing that state
laws protecting women against overtime work would be considered by
the EEOC as bona fide occupational qualifications not in conflict
with Title VII. In Le Beau, the court held that the employer did
not violate Title VII because it relied in good faith on these 1965
EEOC guidelines. See Le Beau, 727 F.2d at 149.
We find that Le Beau is distinguishable from the case at bar,
and its reasoning should not be applied to create a good-faith
defense to liability under the Human Rights Act when the state
regulation Raintree relied on did not even apply in this case.
Title VII contains a defense to liability for a civil rights
violation when it was pleaded and proved that the act or omission
complained of was in good faith and in reliance on "any written
interpretation or opinion" of the EEOC. 42 U.S.C. §2000e--12(b)
(1994). In the Le Beau decision, the employer, Libbey-Owens-Ford,
relied on EEOC guidelines which specifically stated that actions to
protect women from exploitation and hazard would not violate Title
VII. Therefore, in Le Beau, the employer's actions fell under this
good-faith defense to liability. The Human Rights Act does not
contain any good-faith exemption analogous to the exemption in
section 2000e--12(b) of the Civil Rights Act. Nowhere does the
Human Rights Act state that a good-faith belief that one's
discriminatory actions are required by state law is a defense to
liability. A statute must be enforced as enacted by the
legislature. Abrahamson v. Illinois Department of Professional
Regulation, 153 Ill. 2d 76, 91 (1992). Because the Human Rights Act
does not contain a good-faith exemption, we will not apply the
reasoning from Le Beau to create one.
Moreover, in Le Beau, there was an actual conflict with the
Illinois Female Employment Act preventing overtime employment for
women and Title VII. In the case at bar, there was no conflict
between the state regulation and the Illinois Human Rights Act.
This is because the state regulation does not even apply in this
case. We previously stated that section 300.650(a)(4) did not ban
Davis from working at Raintree because his HIV-positive status was
not considered a contagious or infectious disease. An employer's
good-faith belief that it is required to discriminate under another
law is of no legal consequence when that law does not apply. Unlike
the employer in Le Beau, Raintree was not required to violate one
act to comply with another. In Board of Trustees, the court held
that a good-faith belief that an employment restriction is
justified did not negate the impropriety of unfairly denying a
handicapped plaintiff employment. We agree that the question is not
whether Raintree had a good-faith belief that the rules prohibited
Davis from working at a nursing home with the HIV virus, but
whether in fact the rules so provided. We find that Raintree's
alleged good-faith belief, that it was required to terminate Davis,
is irrelevant in determining liability under the Human Rights Act.
Furthermore, we find it questionable whether the facts of this
case even support a finding that Raintree was acting in good faith.
Raintree contends that it believed in good faith that it was
required to fire Davis to comply with the regulation, yet the ALJ
and the Commission determined that Raintree never received a
definitive answer from health authorities regarding whether Davis
could continue to work there. The only information close to a
definite answer was from Louise Brown, the Director of the Evanston
board of health. Brown first stated that she could not tell Behr
that Davis could not work there, but that if something should
occur, Raintree would be subject to the rules and regulations.
Brown went on to state that Behr should go with the rules and
regulations until it could be clarified, "so according to what is
in the rules and regulations, he is unable to work there at the
present time." Raintree claims that it should be permitted to rely
on Brown's interpretation of the subject regulation. However,
section 300.650(a)(4), the regulation cited by Raintree, is an
Illinois Department of Public Health Regulation. Raintree has not
cited any authority indicating that it was permitted to rely on a
local official's construction of state law. In addition, this
information from Brown was not a definitive interpretation of the
regulation. She merely told Behr that Davis should not work at
Raintree until the regulations could be clarified.
Raintree claims that its actions were compelled by state
regulations and Brown's directives, yet it still clings to its
assertion that neither the public health regulations nor the public
health authorities ever gave it guidance on how to handle Davis'
situation. Behr claims that throughout the entire time Davis waited
for a decision, he attempted to obtain an official opinion
regarding Davis' future employment. Behr concedes that he never
received a definitive answer. Behr also admitted that the
regulation itself did not specifically address the situation of an
HIV-positive employee when he testified that he did not "find
anything in the rules and regulations anywhere that specifies HIV-
positive." Raintree cannot persuasively argue that Behr's
subjective belief was that the regulation unequivocally prohibited
Davis from working at the facility, when throughout his testimony
Behr maintained that he never really knew what to do about Davis.
Furthermore, if Raintree had a strong belief that Davis'
continued employment would be in violation of public health
regulations, one would have expected Raintree to have contacted
Davis and explained to him that it would have to let him go to
comply with state law. However, Davis was never contacted by
Raintree, and every time he called Raintree to find out his status,
it informed him that it was still searching for an answer as to
whether the public health regulations actually prohibited his
employment. In addition, the evidence Davis presented, which proved
that it was safe for him to continue to work at Raintree, was
dismissed as insufficient. Without any medical inquiry or
discussion, Raintree concluded that the doctor's note Davis
obtained was completely inadequate, in spite of the fact that the
note complied with the instructions given by Behr himself.
Accordingly, even if Raintree's good faith were a defense under the
Human Rights Act, it could not be invoked by Raintree here.
Raintree next makes a very brief argument that the Human
Rights Act and the health regulation in question failed to give it
adequate notice of what conduct was warranted or prescribed under
these circumstances. According to Raintree, to hold it liable under
the Human Rights Act for its efforts to comply with the law
violates its due process rights and amounts to a taking of property
without just compensation. We need not consider the merits of these
constitutional issues because Raintree concedes that it raised this
argument for the first time in its petition for rehearing before
the appellate court. It is well established that "issues not raised
during an administrative proceeding are waived and will not be
considered for the first time on appeal." See Illinois Bell
Telephone Co. v. Human Rights Comm'n, 190 Ill. App. 3d 1036, 1044
(1989).
Finally, Raintree contends that it was entitled to discovery
and a hearing on Davis' petition for attorney fees and that the
award of attorney fees constituted an abuse of discretion by the
ALJ. According to Raintree, a party who is charged with the payment
of attorney fees should be afforded an evidentiary hearing and
ample opportunity to cross-examine as to the reasonableness of the
amounts claimed. Raintree claims that it is entitled to such a
hearing because in its response to Davis' petition for attorney
fees it raised numerous issues concerning the credibility,
authenticity, and reliableness of the attorney's time records and
whether they were kept contemporaneously and in the normal course
of litigation.
It is well established that it is within the discretion of the
trier of fact to determine the reasonableness of the attorney fees
requested, and a court of review should not make a de novo decision
as to the appropriate award of attorney fees. See Harris Trust &
Savings Bank v. American National Bank & Trust Co., 230 Ill. App.
3d 591, 598-99 (1992). The Illinois Human Rights Act specifically
states that upon a finding of a civil rights violation, an ALJ may
recommend and the Commission may require that reasonable attorney
fees be paid to the complainant for the cost of maintaining the
action. Ill. Rev. Stat. 1987, ch. 68, par. 8--108(G). The Human
Rights Commission's rules governing petitions for attorney fees and
costs impose no requirements that a hearing be conducted to resolve
contested issues regarding claims for fees. But rather, the rule
states that the ALJ "may convene a hearing to resolve contested
issues and may take other steps to produce a complete record with
regard to a claim for fees and/or costs." 56 Ill. Adm. Code
§5300.765(e) (1996). The rules go on to state that after the
submission of the petition for fees and objections thereto "and the
completion of a hearing, if any, the Administrative Law Judge shall
prepare a Recommended Order and Decision." 56 Ill. Adm. Code
§5300.765(f) (1996). Under these authorities, it is within the
ALJ's discretion to determine whether or not a hearing is
necessary. As long as the ALJ is able to determine what amount
would be a reasonable award of attorney fees, from evidence
presented in the petition and the answer, such a determination
should not be disturbed on review.
Furthermore, courts frequently award attorney fees without
discovery by the party charged with paying them and without holding
evidentiary hearings. In Singer v. Brookman, 217 Ill. App. 3d 870,
880 (1991), the appellate court affirmed the trial court's award of
attorney fees and costs as sanctions, without holding a hearing.
The Singer court found that the attorney fees awarded by the lower
court without an evidentiary hearing were not unreasonable and were
properly determined "after a detailed breakdown of fees and
expenses by defendant's counsel." See Singer, 217 Ill. App. 3d at
880. In addition, in Kellett v. Roberts, 276 Ill. App. 3d 164, 174-
75 (1995), the court held that the trial court did not err in
failing to hold a hearing on the amount of sanctions or attorney
fees. The court reasoned that since the trial court was able to
rely on the plaintiff's attorney's legally sufficient affidavit and
detailed time sheet, and defense counsel was not denied an
opportunity to present evidence, "the trial court did not err in
failing to hold a hearing on the amount of fees." See Kellett, 276
Ill. App. 3d at 175.
In this case, once a civil rights violation was established,
and the ALJ and Commission decided to award attorney fees, all that
remained was a determination of the amount. The ALJ carefully
examined the fee petition, affidavits, the detailed billing
worksheet submitted by Davis' counsel, and the written response
submitted by Raintree, to calculate what amount would be considered
a reasonable fee. Based on this evidence, the ALJ reduced the
hourly rate requested for two of Davis' attorneys, rejected the
request for a fee multiplier, and reduced the requested amount of
$42,909.98 to an award of $28,956.50. The Commission affirmed this
recommendation. We hold that the ALJ did not err in failing to hold
a hearing on Davis' petition for attorney fees.
For the foregoing reasons, we affirm the judgment of the
appellate court.
Affirmed.
CHIEF JUSTICE BILANDIC, specially concurring:
I concur in the plurality opinion except for its discussion of
two issues.
First, the plurality needlessly restricts the definition of
"contagious" or "infectious" disease in section 300.650(a)(4) of
the public health regulations to those diseases actually listed in
section 690.100 of the regulations. Slip op. at 12-14. The
plurality states that because section 690.100 did not list HIV as
being a "contagious" or "infectious" disease at the time of Davis'
discharge, then HIV infection was not considered, for purposes of
section 300.650(a)(4), to be a "contagious" or "infectious"
disease. In my view, the plurality thereby unnecessarily and
unwisely limits the term "contagious" or "infectious" disease as
used in section 300.650(a)(4). This case can be resolved without
the potentially far-reaching holding that if a disease is not
listed in section 690.100, then it is not considered to be
"contagious" or "infectious" under section 300.650(a)(4).
As the plurality later concludes, Raintree's argument that it
was required to discharge Davis pursuant to section 300.650(a)(4)
fails even if HIV was a "contagious" or "infectious" disease within
that section because Raintree failed to comply with the provisions
of that section. Slip op. 14-15. Section 300.650(a)(4) expressly
allows employees diagnosed as having "contagious" or "infectious"
diseases to return to work after obtaining a doctor's note stating
that the disease "is no longer contagious or found to be
noninfectious." In this case, Davis obtained a note from his doctor
explaining that his HIV status did not prevent him from performing
his job as a cook and that HIV was not transmitted through food
preparation or service. Raintree was informed by the Evanston board
of health that the note was inadequate. Under these circumstances,
the plurality opinion finds that Raintree should have contacted
Davis to give him a chance to comply with any further requirements
necessary for him to return to work and also should have conducted
its own investigation to determine whether it was safe for Davis to
return to his position as a cook. Raintree, however, did nothing in
response to Davis' note. Raintree therefore did not comply with
section 300.650(a)(4). Raintree's argument that it was compelled to
commit a discriminatory employment action in order to comply with
the public health regulations therefore fails even if HIV was a
"contagious" or "infectious" disease within the meaning of those
regulations.
Limiting the definition of "contagious" or "infectious"
disease, as the plurality opinion does, is not only unnecessary, it
is also ill-advised. New diseases may develop that are "contagious"
or "infectious." An employer should not be precluded from relying
on section 300.650(a)(4) to protect the public health merely
because such disease has not yet been listed in section 690.100.
Second, I do not join in the plurality's broad holding that a
good-faith defense to liability does not exist for violations of
the Human Rights Act. Slip op. at 15-17. I would not resolve in
this case whether the Human Rights Act bars all good-faith defenses
to liability. Like the plurality, I agree that the facts of this
case show that Raintree did not act in good faith. Slip op. at 17-
18. I would therefore limit this court's holding to only the facts
of this case.
For these reasons, I do not join in either of the
aforementioned discussions.
JUSTICES MILLER, HEIPLE and McMORROW join in this special
concurrence.