dissenting in part and concurring in part:
I would uphold the decision of the HRC except to the. extent that it orders Burnham to make Clifton whole for lost wages. As to that issue, I consider the appropriate measure to be a remandment to the HRC pursuant to section 3 — 111(a)(7) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 111(a)(7)) for further evidence and reconsideration. Accordingly, I would (1) reverse the judgment of the circuit court except to the extent that it reverses the portion of the HRC decision ordering reimbursement for lost wages, and (2) affirm that portion of the judgment, but remand to the circuit court with directions that the case be remanded to HRC for further hearing as above described.
The HRC did not determine the amount of back pay to which Clifton was entitled. Under the existing order, there is no way that Burnham can comply with that portion of the HRC decision unless Burnham and Clifton could reach agreement as to an amount. Notably, the HRC did not order Burnham to employ Clifton, apparently because it did not believe that Clifton would then want the job in question. Perhaps, Clifton would likewise have not been ready, willing, and able to perform the work up to the time of the decision. Furthermore, I share the concern of the majority as to whether Clifton, as a third-year law student, was in a position to perform the work at the time of the hiring.
The record before the HRC and its decision indicate that insufficient attention was given to this aspect of the case. Section 3— 111(a)(7) of the Code of Civil Procedure permits the circuit court “to remand for the purpose of taking additional evidence when from the state of the record of the administrative agency or otherwise it shall appear that such action is just.” (Ill. Rev. Stat. 1983, ch. 110, par. 3— 111(a)(7).) This would appear to be the appropriate course of action in this case. (Sola v. Clifford, (1975), 29 Ill. App. 3d 233, 329 N.E.2d 869; Rizzo v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 460, 297 N.E.2d 247.) The HRC should hear further evidence as to whether Clifton would have been in a position to take the job and, if so, what amount he should be awarded for lost earnings.
The majority correctly sets forth that, under the disparate treatment theory, the critical issue is whether the employer’s motive is discriminatory. Thus, the insufficiency of the record and of HRC’s decision to deal with the question of whether Clifton suffered lost earnings does not necessarily detract from the determination that Burnham was guilty of discrimination. The unavailability or shortcomings of the applicant is generally immaterial unless known by the prospective employer. As also properly stated by the majority, we are bound by the HRC determination that discrimination was proved unless a different decision was clearly evident. While an HRC decision favorable to Burnham would find support in the record, I do not find such a decision to be clearly evident. As with the verdict of a jury, we are required to give deference to the decision of the HRC, whose administrative law judge heard and saw the witnesses, and who was better able than we are to appraise their credibility and accuracy.
The majority correctly describes the allocations of the burdens of proof and persuasion under the disparate treatment theory and that under the evidence here, Clifton had the burden of persuasion, without the benefit of any presumptions, that Burnham had discriminated against him. The circumstantial evidence presented supports the HRC’s determination that Clifton had sustained that burden by showing that Burnham’s explanation for his rejection was not accurate. United States Postal Service Board of Governors v. Aikens (1983), 460 U.S. 711, 75 L. Ed. 2d 403, 103 S. Ct. 1478.
One of the crucial aspects of the case, where the administrative law judge’s vantage point was superior to ours, was in evaluating Clifton’s explanation of the number of times he had applied for work at the Burnham pharmacy and of the extent of his conversations with Wolf. From this evidence, the judge could have concluded that Wolf was aware that Clifton would be likely to apply for the opening which gave rise to this dispute. While, as the majority points out, if Burnham intended to discriminate, the steps taken to do so were quite complicated, the hiring procedure adopted at this time was one which had never been used previously and was one which was apparently not used subsequently. In fact, when a subsequent vacancy was filled in the summer of 1979, it was filled by a person with experience whose resume showed substantial gaps. Of those persons denied interviews at the same time as Clifton, several had resumes showing greater experience, training and job stability than those granted an interview.
The stated reasons for the special hiring procedures used were twofold: (l)(a) A recently terminated unsatisfactory employee had presented a resume which showed “gaps” in his employment record, and (b) Wolf had later learned that the employee had prior unstated employment which, had it been known to Wolf, would have caused the employee to have been rejected; and (2) the requirement of experience for an employee was not as important during the summer of 1979, because an apprentice would be available to help during that summer. The explanation was logical. As determined by the hearing officer, it “burst the bubble” of any presumption in favor of Clifton, but it did not require a determination against Clifton. Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.
Several matters could have been considered by the HRC in weighing the good faith of the Burnham explanation. Wolf’s testimony was somewhat ambiguous as to whether the focus of the alleged special policy used for the occasion was on the applicant’s prior work record or on all of the applicant’s prior activities. The testimony was also unclear as to whether the focus was on determining whether the applicant had been unemployed or on knowing what employment the individual had previously held so that inquiry could be made to see if the employment was in an improper occupation or with an employer who was dissatisfied with the work. As in determining the weight to be given to Clifton’s testimony, the person in the best position to determine the weight to be given to this testimony was the administrative law judge.
The HRC and its hearing officer may also have considered whether the addition of a pharmacy apprentice would substitute for the need for experience by the technician to be hired. The work load would be reduced with more people to do the work, but there was no showing that the apprentice would have the experience to substitute for that which an experienced technician would possess. The HRC and its hearing officer may also have wondered whether the problem of “gaps” in the employment record of an applicant might be handled reasonably well by questioning the applicant at an interview.
Clifton’s latest resume given at the time of the application in question did leave much to be desired and did contain “gaps.” Burnham may very well have eliminated him from consideration because of those gaps. The majority properly mentions that the existence of a recently hired black employee among the eight Burnham pharmacy technicians is a circumstance tending to negate a discriminatory intent upon Burnham’s part. Nevertheless, in view of the circumstantial evidence presented, particularly the one-time hiring policy used on the occasion, I cannot say that a determination different from that of the HRC in regard to the proof under the disparate treatment theory is clearly evident.
I agree with the majority that the proof failed under the disparate impact theory.