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. 173 Ill. 2d at 485-88. 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.1 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. 173 Ill. 2d at 488-89. 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 noninfeetious.” 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. 173 Ill. 2d at 489-91. 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. 173 Ill. 2d at 491-93. 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.