dissenting:
Because I believe the Commission’s decision is against the manifest weight of the evidence, I would reverse. The record does not contain any evidence to contradict the testimony of Raintree’s administrator, Burton Behr, who, upon being informed of Davis’ status, did everything possible to balance the competing interests of the Human Rights Act and section 300.650(a)(4) of title 77 of the Illinois Administrative Code.
It is axiomatic that Raintree’s actions must be judged in light of the applicable law in effect and the extent of knowledge regarding HIV infection at the time these facts occurred (January 1988). Section 300.650(a)(4), applicable at the time, 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).
Dr. Skoutelis’ note is at best ambiguous. It does not state that Davis’ condition is no longer contagious or found to be noninfectious. In fact it implies to the contrary wherein it states:
"HIV (Aids Virus) *** [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.”
I also note that, unlike the Commission’s order and the majority opinion, Dr. Skoutelis’ letter does not distinguish between HIV infection and AIDS.
Upon being informed of Davis’ HIV status, Behr first contacted Rose Farrell, the Illinois Regional Director for Public Health. When Behr asked whether or not Mr. Davis could continue to work at the facility, the following occurred:
"THE WITNESS: She wouldn’t give me that information. What she had said to me is, 'In the rules and regulations that you have read, it states that if someone has an infectious or contagious disease, they’re not allowed to work there.’
I said, 'It doesn’t specify HIV.’
And she said, 'Well, those are the rules and regulations. I will check further and get back to you.’
BY MS. SHERWIN:
Q. Did she get back to you that day?
A. No, which is not unusual.”
Next, Behr contacted C. Louise Brown, director of the Evanston health department. Behr testified:
"A. *** Tm looking for guidance from the people who licensed me.’
Q. Did you ask her [Ms. Brown] if he could continue to work at the facility?
A. I asked her if he could continue to work there.
Q. Did she say that he could?
A. She said that, T can’t tell you he can’t work there, but I can tell you if something should occur because he’s working there, then you are subject to the rules and regulations.’ And I had said that, 'There are no rules and regulations governing this.’
And then she said, 'You will have to go with the rules and regulations that stand until it can be clarified, so according to what is in the rules and regulations, he is unable to work there at the present time,’ and that’s the course I took.”
Armed with this information (or lack thereof), Behr spoke to Mr. Davis and requested documentation stating that he was free of a communicable disease or that he was allowed to work with the HIV virus. Behr then received the aforementioned letter from Dr. Skoutelis. After reviewing the letter, Behr again contacted C. Louise Brown at the Evanston health department. When Behr read her the letter, she stated "[t]hat is not sufficient and it doesn’t say that he is free from infectious or contagious disease.” Behr further asked if she had found any additional information regarding this situation, to which she stated "I’m still looking.” Behr then called the Illinois Department of Public Health and again spoke to Rose Farrell. Behr read the letter to Ms. Farrell, who did not have any further information and said "[w]e’re still checking.”
It is upon these facts that the administrative law judge and the Illinois Human Rights Commission found that Raintree was in violation of the Illinois Human Rights Act. In its decision, the Commission stated that "[w]e can sympathize with the respondent’s dilemma.” Nonetheless, it held that Davis’ termination was a violation of the Act.
In my opinion, based upon these facts, the Commission’s decision is against the manifest weight of the evidence. While an appellate court is hesitant to reverse a Commission decision on a factual question, we will do so when that decision is clearly contrary to the manifest weight of the evidence. Nowhere in the Commission’s decision are there any articulable facts from which a trier of fact could conclude that Davis’ termination was for any reason other than Behr’s good-faith belief that Davis’ continued employment was in violation of section 300.650(a)(4). See Le Beau v. Libbey-Owens-Ford Co. (7th Cir. 1984), 727 F.2d 141; Le Beau v. Libbey-Owens-Ford Co. (7th Cir. 1986), 799 F.2d 1152.
Accordingly, I would reverse the decision of the Commission.