Rozsavolgyi v. The City of Aurora , 2016 IL App (2d) 150493 ( 2016 )

2016 IL App (2d) 150493
No. 2-15-0493
Opinion filed April 27, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
PATRICIA ROZSAVOLGYI, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellee, )
)
v. ) No. 14-L-49
)
THE CITY OF AURORA, ) Honorable
) Thomas E. Mueller,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justice Zenoff concurred in the judgment and opinion.
Justice McLaren concurred in part and dissented in part, with opinion.
OPINION
¶1 Plaintiff, Patricia Rozsavolgyi, has a medical history of unipolar depression, anxiety,
panic attacks, and partial hearing loss. Her employer of 20 years, the City of Aurora (the City),
terminated plaintiff’s employment after she made a statement to a coworker in which she used
the word “idiots.” Plaintiff sued the City, alleging violations of the Illinois Human Rights Act
(Human Rights Act) (775 ILCS 5/1-101 et seq. (West 2014)), including refusal to accommodate,
disparate treatment, retaliation, and hostile work environment. Following several interlocutory
trial court orders, the City petitioned for leave to appeal under Illinois Supreme Court Rule 308
(eff. Feb. 26, 2010) (permissive interlocutory appeals), asking that we answer the following
certified questions:
2016 IL App (2d) 150493
(1) Does section 2-102(A) of the Human Rights Act prohibit “disability
harassment” as a civil rights violation? Alternatively, do counts I (refusal to
accommodate) and IV (hostile work environment) of plaintiff’s complaint state
cognizable civil rights violations under that section?
(2) If section 2-102(A) permits a cause of action for disability harassment, does
the provision in section 2-102(D) of the Human Rights Act “that an employer shall be
held responsible for sexual harassment of the employer’s employees by nonemployees or
nonmanagerial and nonsupervisory employees only if the employer becomes aware of the
conduct and fails to take reasonable corrective measures” (775 ILCS 5/2-102(D) (West
2014)) similarly apply to a cause of action for disability harassment brought under
section 2-102(A)? If yes, does the employee or the employer bear the burden of
alleging and proving that the employer: (a) is aware of the conduct by its nonmanagerial
and nonsupervisory employees; and (b) fails to take reasonable corrective measures? If
1
no, can an employer assert the Faragher-Ellerth affirmative defense to a
hostile-work-environment harassment claim brought under section 2-102(A)?
1
With respect to claims brought pursuant to Title VII of the Civil Rights Act of 1964
(Title VII) (42 U.S.C. § 2000e et seq. (2012)), where the harassing employee is a supervisor, but
the harassment does not result in tangible employment action, an employer may raise the
Faragher-Ellerth affirmative defense that: (1) it exercised reasonable care to prevent and correct
the harassment; and (2) the employee unreasonably failed to take advantage of the preventive or
corrective opportunities the employer provided. See Faragher v. City of Boca Raton, 524 U.S.
775, 807 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
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(3) Does the Local Government and Governmental Employees Tort Immunity Act
(Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2014)) apply to a civil action
under the Human Rights Act where the plaintiff seeks damages, reasonable attorney fees,
and costs? If yes, should this court modify, reject, or overrule its holdings, in People ex.
rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196, 202 (2001), Firestone v. Fritz, 119
Ill. App. 3d 685, 689 (1983), and Streeter v. County of Winnebago, 44 Ill. App. 3d 392,
394-95 (1976), that “the Tort Immunity Act applies only to tort actions and does not bar
actions for constitutional violations” (Birkett, 325 Ill. App. 3d at 202)?
¶2 We granted the petition, and, for the reasons set forth herein, we answer the certified
questions as follows: (1) section 2-102(A) of the Human Rights Act prohibits
hostile-work-environment disability harassment, and a reasonable-accommodation claim may be
brought as a separate claim under that provision; (2) section 2-102(D) of the Human Rights Act
applies to hostile-work-environment disability-harassment claims brought under section
2-102(A), and the employee always bears the ultimate burden of persuasion in such a case; and
(3) the Tort Immunity Act applies to actions under the Human Rights Act; the City thus can
assert immunity with respect to plaintiff’s request for damages but not to her request for
equitable relief; and we acknowledge that the supreme court has impliedly rejected our holdings
that the Tort Immunity Act applies only to tort actions and does not apply to constitutional
claims and, thus, we do not follow that precedent.
¶3 I. BACKGROUND
¶4 A. Plaintiff’s Complaint
¶5 Plaintiff sued the City on January 22, 2014. She had worked for the City from 1992 to
July 13, 2012, most recently as a property maintenance compliance officer (reporting to Dave
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Dykstra and Mark Anderson). Plaintiff alleged that she had a medical history of unipolar
depression, anxiety, panic attacks, and partial hearing loss, which together constituted a
“disability” under section 1-103(I) of the Human Rights Act (775 ILCS 5/1-103(I) (West 2014)).
Her conditions did not prevent her from performing her job duties. However, when she was
provoked, she was particularly likely to react strongly, though never in a physical manner.
Plaintiff would speak loudly or in a fast-paced manner, especially when provoked or agitated.
¶6 Plaintiff further alleged that she notified the City of her medical conditions, asking it to
take them into consideration in her requests and attempts to maintain a reasonable and professional
work environment. The City “failed and refused to take any action.” According to plaintiff, her
coworkers engaged in an intentional pattern and practice to “agitate, embarrass, humiliate,
degrade, harass, discriminate and provoke” her, creating a hostile and offensive work
environment. This conduct included name-calling (e.g., cuckoo, Shutter’s Island, prostitute,
bitch, ignorant, nuts, crazy, weird, whacko), notes, spitting on her car window, and creating false
rumors. Plaintiff alleged that this was a purposeful effort to cause her emotional distress and
agitate her. She also alleged that certain staff and coworkers falsely claimed that plaintiff was a
physical threat even though she was not, and never had been, violent.
¶7 Plaintiff alleged that she repeatedly complained to the City (specifically, to Dykstra and
Anderson) and her union representative, but they “failed and refused to take any action” to stop the
behavior. As a result, plaintiff sustained further emotional harm and aggravation of her medical
conditions. Also, the behavior impacted her ability to concentrate at work. She suffered from
depression, including fatigue, sadness, helplessness, irritability, restlessness, anxiety, sleep
disorders, and body aches.
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¶8 The City asked the union president to guarantee that plaintiff would not engage in physical
violence in the workplace and the union responded that plaintiff’s counselors and doctors did not
deem her to be a physical threat but that the union could never guarantee that anyone would never
commit an act of physical violence in the workplace.
¶9 As of July 2012, a counselor had diagnosed plaintiff as being in the throes of depressive
and panic disorders. On July 3, 2012, plaintiff made a statement to a coworker, using the word
“idiots.” The City then terminated her employment. Plaintiff alleged that other employees had
used far worse words and had not been disciplined. She argued that, if the City had taken
reasonable steps to prevent the harassment, she would not have been in a vulnerable position.
Also, the City perceived plaintiff as being a risk or a threat to her coworkers and she was
discriminated against based on this and her medical history.
¶ 10 Plaintiff’s four-count complaint alleged: (1) refusal to accommodate; (2) disparate
treatment; (3) retaliation; and (4) hostile work environment. She sought back pay, front pay, the
value of lost benefits, compensatory damages, reinstatement with full seniority, attorney fees, and
the costs of her suit. 2
¶ 11 In answers to interrogatories, plaintiff responded that she never filed a harassment
complaint pursuant to the City’s anti-harassment policy 3 or initiated with the City’s human
2
Plaintiff first filed her discrimination charge with the Department of Human Rights
(Department). Because the Department did not complete its investigation of her case within 365
days from the date she filed her charge, it issued a notice authorizing plaintiff to file a civil action
in the appropriate circuit court as of November 18, 2013. 775 ILCS 5/7A-102(G) (West 2014).
3
The policy provides that: “If an employee feels that he/she has experienced or witnessed
harassment, the employee is to immediately report the act of harassment to his/her Immediate
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resources department a request for a reasonable accommodation under the City’s
reasonable-accommodations policy. 4 However, she stated that she made numerous oral
complaints to the City about the harassment. In count I, she alleged that she reasonably
communicated to the City that she was seeking an accommodation due to her medical conditions
and that she made repeated requests to management to take action to stop the harassing and
demeaning conduct. According to plaintiff, she and her union representative were told that
plaintiff had to “live with it,” “deal with it,” and “ignore it.” They were also told, “I don’t think
that’s harassment” and “do what you gotta do.”
¶ 12 B. The City’s Answer and Affirmative Defenses
¶ 13 The City admitted that, prior to July 2012, it had received documentation that reflected
that plaintiff had been diagnosed with unipolar depression, anxiety, panic attacks, and partial
hearing loss. However, it denied most of plaintiff’s allegations, including that her medical
conditions constituted a disability or that they caused her difficulty at work.
¶ 14 The City also raised several affirmative defenses: (1) lack of subject matter jurisdiction
(all counts); (2) the existence of a policy prohibiting discrimination, harassment, and retaliation
Supervisor, Division Director, Department Head, Corporation Counsel or Director of Human
Resources.” The policy does not specify that the report must be in writing.
4
That policy provides that, pursuant to the Americans with Disabilities Act of 1990
(ADA) (42 U.S.C. § 12101 et seq. (2012)), an “employee with a known disability shall request an
accommodation from his immediate supervisor. The immediate supervisor, in concert with the
Department Head and the Reasonable Accommodation Committee, shall determine if the
accommodation is reasonable and provide the accommodation as provided herein.” The policy
does not specify that the request be in writing.
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on the basis of disability (per its collective bargaining agreement with the union and its employee
handbook) and plaintiff’s failure to pursue corrective opportunities thereunder, to request an
accommodation, or to report any harassment; and the lack of any harassment by any supervisory
or managerial employee, and the City’s lack of knowledge about any harassment by
nonsupervisory, nonmanagerial coworkers (counts I and IV); (3) supervisory immunity under
section 3-108 of the Tort Immunity Act (745 ILCS 10/3-108 (West 2014)) (counts I and IV); (4)
discretionary immunity under section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West
2014)) (counts I and IV); (5) plaintiff’s injuries were caused by the adoption of, or failure to
adopt, an enactment under section 2-103 of the Tort Immunity Act (745 ILCS 10/2-103 (West
2014)) (all counts); and (6) preemption by the Illinois Workers’ Compensation Act (820 ILCS
305/5(a) (West 2014) (counts I and IV). The City asked that the court strike and/or dismiss the
counts in plaintiff’s complaint.
¶ 15 B. Trial Court Orders
¶ 16 On October 17, 2014, the trial court struck and dismissed counts I and IV of plaintiff’s
complaint, finding that disability harassment (as opposed to disability discrimination) was not a
civil rights violation under the Human Rights Act. On January 23, 2015, however, the court
granted plaintiff’s motion to reconsider, reinstated counts I and IV, and gave the City leave to
file amended affirmative defenses. On April 22, 2015, the trial court denied plaintiff’s motion
to strike the City’s first and second affirmative defenses (subject matter jurisdiction and
existence of employer policy), but granted the motion to strike the third, fourth, fifth, and sixth
affirmative defenses (raising the tort immunity and workers’ compensation statutes).
¶ 17 On April 29, 2015, the court entered an order finding that its aforementioned
interlocutory orders involved questions of law as to which there were substantial grounds for
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difference of opinion and that an immediate appeal from said orders may materially advance the
ultimate termination of the litigation. Ill. S. Ct. R. 308 (eff. Jan. 1, 2015). It certified the
questions noted above.
¶ 18 On June 23, 2015, we granted the City’s petition for leave to appeal. 5
¶ 19 II. ANALYSIS
¶ 20 A. Standard of Review
¶ 21 An interlocutory appeal pursuant to Rule 308 is ordinarily limited to the question
certified by the trial court, which, because it must be a question of law, is reviewed de novo.
Thompson v. Gordon, 221 Ill. 2d 414, 426 (2006). Similarly, we review de novo statutory
construction issues (Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 237 (1996)),
and the question whether a pleading is substantially insufficient in law (Powell v. American
Service Insurance Co., 2014 IL App (1st) 123643, ¶ 13).
¶ 22 B. Principles of Statutory Construction
¶ 23 Our primary objective in construing a statute is to ascertain and give effect to the
legislature’s intent. MidAmerica Bank, FSB v. Charter One Bank, FSB, 232 Ill. 2d 560, 565
(2009). The plain language of a statute is the most reliable indication of legislative intent.
DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). “[W]hen the language of the statute is clear, it
must be applied as written without resort to aids or tools of interpretation.” Id. The statute
should be read as a whole and construed “so that no term is rendered superfluous or
meaningless.” In re Marriage of Kates, 198 Ill. 2d 156, 163 (2001). We do not depart from
the plain language of a statute by reading into it exceptions, limitations, or conditions that
5
Further, we subsequently granted the Department’s motion for leave to file an amicus
curiae brief in support of plaintiff.
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conflict with the legislative intent. Harrisonville Telephone Co. v. Illinois Commerce Comm’n,
212 Ill. 2d 237, 251 (2004).
¶ 24 If the words used in a statute are ambiguous or if the meaning is unclear, a court may
consider the legislative history as an aid to construction. Armstrong v. Hedlund Corp., 316 Ill.
App. 3d 1097, 1106 (2000). A statute is ambiguous if it is capable of two reasonable and
conflicting interpretations. Tri-State Coach Lines, Inc. v. Metropolitan Pier & Exposition
Authority, 315 Ill. App. 3d 179, 190 (2000). Our supreme court has instructed that, “[i]f the
language of a statute is susceptible to two constructions, one of which will carry out its purpose
and another which will defeat it, the statute will receive the former construction.” Harvel v.
City of Johnston City, 146 Ill. 2d 277, 284 (1992). A court should not construe a statute in a
manner that would lead to consequences that are absurd, inconvenient, or unjust. McMahan v.
Industrial Comm’n, 183 Ill. 2d 499, 513-14 (1998). Further, a court should avoid an
interpretation of a statute that would render any portion of it meaningless or void. McNamee v.
Federated Equipment & Supply Co., 181 Ill. 2d 415, 422 (1998).
¶ 25 C. Human Rights Act Framework
¶ 26 The Human Rights Act expressly implements the guarantees provided by article I,
sections 17, 18, and 19, of the Illinois Constitution (Ill. Const. 1970, art. I, §§ 17, 18, 19). 775
ILCS 5/1-102(F) (West 2014). The statute provides a comprehensive scheme to “secure for all
individuals within Illinois the freedom from discrimination against any individual because of his
or her race, color, religion, sex, national origin, ancestry, age, order of protection status, marital
status, physical or mental disability, military status, sexual orientation, pregnancy, or
unfavorable discharge from military service in connection with employment, real estate
transactions, access to financial credit, and the availability of public accommodations.”
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(Emphases added.) 775 ILCS 5/1-102(A) (West 2014). The Human Rights Act is remedial
legislation. Arlington Park Race Track Corp. v. Human Rights Comm’n, 199 Ill. App. 3d 698,
703 (1990). Accordingly, we liberally construe it to effectuate its purposes. Id.
¶ 27 Sections 2-102 and 6-101 of the Human Rights Act set forth what constitute civil rights
violations in employment. Section 2-102(A) provides that it is a civil rights violation “[f]or any
employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion,
renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or
terms, privileges or conditions of employment on the basis of unlawful discrimination or
citizenship status.” (Emphases added.) 775 ILCS 5/2-102(A) (West 2014). Other subsections
of section 2-102 prohibit: employers’ restrictions on use of a language in communications
unrelated to the employee’s duties (775 ILCS 5/2-102(A-5) (West 2014)), employment agency
discrimination (775 ILCS 5/2-102(B) (West 2014)), labor organization discrimination (775 ILCS
5/2-102(C) (West 2014)), sexual harassment by various entities/persons, including employers
and employees (775 ILCS 5/2-102(D) (West 2014)), public employers’ restrictions on
employees’ practice of their religious beliefs (775 ILCS 5/2-102(E) (West 2014)), age
discrimination by employers or labor organizations with respect to selection for or conduct of
apprenticeship or training programs (775 ILCS 5/2-102(F) (West 2014)); certain
immigration-related practices (775 ILCS 5/2-102(G) (West 2014)); pregnancy discrimination
and refusals of pregnancy-related requests for reasonable accommodations (775 ILCS 5/2-102(I),
(J) (West 2014)); and the failure to post notices concerning employees’ rights under the statute
(775 ILCS 5/2-102(K) (West 2014)). The statute also prohibits retaliation against a person
because he or she has opposed, inter alia, unlawful discrimination or sexual harassment, because
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he or she has filed a charge, or because he or she has requested a reasonable accommodation.
775 ILCS 5/6-101(A) (West 2014).
¶ 28 “Unlawful discrimination” is defined as “discrimination against a person because of his
or her race, color, religion, national origin, ancestry, age, sex, marital status, order of protection
status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from
military service as those terms are defined in this Section.” (Emphasis added.) 775 ILCS
5/1-103(Q) (West 2014). “Disability,” in turn, is defined, in part, as “a determinable physical
or mental characteristic of a person *** which may result from disease, injury, congenital
condition of birth or functional disorder” and “is unrelated to the person’s ability to perform the
duties of a particular job or position.” 775 ILCS 5/1-103(I)(1) (West 2014).
¶ 29 The term “harassment” explicitly appears in the Human Rights Act in the employment
context only with respect to “sexual harassment,” which is defined as “any unwelcome sexual
advances or requests for sexual favors or any conduct of a sexual nature when (1) submission to
such conduct is made either explicitly or implicitly a term or condition of an individual’s
employment, (2) submission to or rejection of such conduct by an individual is used as the basis
for employment decisions affecting such individual, or (3) such conduct has the purpose or effect
of substantially interfering with an individual’s work performance or creating an intimidating,
hostile or offensive working environment.” (Emphasis added.) 775 ILCS 5/2-101(E) (West
2014). Similarly, the term “hostile or offensive working environment” explicitly appears only
in this context. The Human Rights Act explicitly prohibits sexual harassment. It provides that
it is a civil rights violation “[f]or any employer, employee, agent of any employer, employment
agency or labor organization to engage in sexual harassment; provided, that an employer shall be
responsible for sexual harassment of the employer’s employees by nonemployees or
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nonmanagerial and nonsupervisory employees only if the employer becomes aware of the
conduct and fails to take reasonable corrective measures.” 775 ILCS 5/2-102(D) (West 2014);
see also Sangamon County Sheriff’s Department v. Human Rights Comm’n, 233 Ill. 2d 125,
138-41 (2009) (employers are strictly liable for sexual harassment by supervisory employees,
even where the supervisory worker has no authority to affect the terms and conditions of the
complaining employee’s employment and regardless of whether the employer was aware of the
harassment or took measures to correct it).
¶ 30 D. First Certified Question
¶ 31 The first certified question asks: “Does section 2-102(A) of the Human Rights Act
prohibit ‘disability harassment’ as a civil rights violation? Alternatively, do counts I and IV of
plaintiff’s complaint state cognizable civil rights violations under that section?” For clarity and
to more accurately reflect the parties’ arguments, we address whether the following claims are
cognizable under the statute: (1) hostile-work-environment disability harassment (count IV); and
(2) refusal to provide reasonable accommodation (count I).
¶ 32 (1) Hostile-Work-Environment Disability Harassment
¶ 33 In count IV, plaintiff alleged that the City violated her civil rights by failing to take
actions to stop the harassment/hostile work environment based upon her disability. This claim
relies on section 2-102(A).
¶ 34 As noted above, although the Human Rights Act explicitly references disability
discrimination (in section 2-102(A)), it does not, with respect to employment, explicitly refer to
disability harassment. Rather, it explicitly makes only sexual harassment a civil rights
violation. 775 ILCS 5/2-102(D) (West 2014); see also 775 ILCS 5/5A-102 (West 2014)
(prohibiting sexual harassment in education, but not referring to disability harassment in that
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context). 6 Also, in the statute’s declaration of policy, the General Assembly explicitly
recognized the public policies to secure freedom from unlawful discrimination (in section
1-102(A)) and, separately, freedom from sexual harassment in employment and education (in
section 1-102(B)). 7
¶ 35 The City contends that the Human Rights Act unambiguously reflects that discrimination
and (only sexual) harassment are separate and distinct civil rights violations. It further asserts
that, had the General Assembly intended to prohibit a hostile work environment based on
disability (i.e., disability harassment), it would have done so by making disability harassment a
separate civil rights violation, just as it did for sexual harassment. (In 1983, the General
Assembly amended the Human Rights Act to add a provision addressing “sexual harassment”
under sections 2-102(D) (in employment) and 5A-102(A) (in education). Pub. Act 83-89 (eff.
Jan. 1, 1984 (amending section 2-102); Pub. Act 83-91 (eff. Jan. 1, 1984) (amending section
6
However, by rule, the Department and the Human Rights Commission (Commission)
have proscribed national-origin harassment. 56 Ill. Adm. Code 5220.900 (1986).
7
In the same provision, the legislature also listed as public policies: freedom from
employment discrimination based on citizenship status (775 ILCS 5/1-102(C) (West 2014));
freedom from discrimination based on familial status in real estate transactions (775 ILCS
5/1-102(D) (West 2014)); public health, welfare, and safety (775 ILCS 5/1-102(E) (West 2014));
implementation of the aforementioned constitutional guarantees (775 ILCS 5/1-102(F) (West
2014)); equal opportunity and affirmative action by the State (775 ILCS 5/1-102(G) (West 2014));
and freedom from unfounded charges of discrimination, sexual harassment in employment or
education, and employment discrimination based on citizenship status (775 ILCS 5/1-102(H)
(West 2014)).
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5A-102).) Alternatively, the City contends that the General Assembly could have amended
section 2-102(A) to expressly clarify that unlawful discrimination includes harassment/hostile
work environment, but it did not do so.
¶ 36 Pointing to foreign authority, the City contends that there is a well-recognized distinction
between discrimination and harassment. See Roby v. McKesson Corp., 219 P.3d 749, 762 (Cal.
2009) (noting the distinction in California’s civil rights statute; discrimination involves explicit
changes in the terms, conditions, or privileges of employment—changes involving official action
taken by the employer; harassment, in contrast, focuses on situations where the workplace’s
social environment becomes intolerable because the harassment communicates an offensive
message to the harassed employee).
¶ 37 Plaintiff and the Department respond that a disability harassment claim is legally
cognizable as a civil rights violation under the “terms, privileges or conditions of employment”
prong of section 2-102(A) of the Human Rights Act. In support, they point to: (1) case law that
recognized harassment/hostile work environment claims before the enactment of section
2-102(D); (2) Commission interpretations; and (3) longstanding case law addressing racial
harassment claims (which they note would not constitute viable civil rights violations if the
City’s argument were correct).
¶ 38 We turn first to the cases upon which plaintiff and the Department rely. In Old Ben
Coal Co. v. Human Rights Comm’n, 150 Ill. App. 3d 304, 309 (1987), the Fifth District held that,
even before the 1983 amendment that added section 2-102(D) to the Human Rights Act, the
statute prohibited sexual harassment as a form of sex discrimination. It noted that, although a
statutory amendment creates a presumption that the legislature intended to change the law, the
presumption may be rebutted by demonstrating that the amendment reflects the legislature’s
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intent to clarify the law as it previously existed. Id. at 306. After concluding that the statute
was subject to differing interpretations, the court determined that the presumption was rebutted
because: (1) the legislative history reflected that both proponents and opponents of the
amendment considered sexual harassment to be a form of sex discrimination and that an
amendment was necessary to clarify the prohibition; (2) federal decisions interpreting Title VII,
although considering a statute that did not contain a separate amendment specifically addressing
sexual harassment, did “not dissuade” the court from finding support therein in the cases’
rationale that “terms, conditions, or privileges of employment” is an expansive concept that
includes sexual harassment; (3) the Commission’s interpretation of the statute, under which it
considered sexual harassment allegations prior to the amendment, should be accorded
significance; and (4) the interpretation of sexual harassment as a form of sex discrimination with
respect to the “terms, privileges or conditions of employment” (775 ILCS 5/2-102(A) (West
2014)) was consistent with the Human Rights Act’s purpose to secure freedom from sex
discrimination in connection with employment. Old Ben Coal, 150 Ill. App. 3d 304 at 308-09;
see also Board of Directors, Green Hills Country Club v. Human Rights Comm’n, 162 Ill. App.
3d 216, 221 (1987) (Fifth District, relying on Old Ben Coal, further held that, prior to effective
date of section 2-102(D), employers were strictly liable for sexual harassment by supervisory
personnel regardless of whether they knew of such conduct).
¶ 39 Similarly, in Village of Bellwood Board of Fire & Police Commissioners v. Human
Rights Comm’n, 184 Ill. App. 3d 339, 351 (1989), the First District upheld the Commission’s
determination that a racially charged atmosphere in a police department “amounted to racial
harassment, and thus, constituted discrimination based on race within the meaning of the
[Human Rights Act].” (Racial harassment, like disability harassment, is not explicitly
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addressed in the statute.) Noting that the former employee had been continuously subjected to
racially derogatory comments and that his supervisors were aware of the problem but did nothing
to correct it, the court noted that “this is exactly the type of racial harassment which the [Human
Rights Act] seeks to prevent.” Id. at 350-51 (further noting that racial harassment involves
more than a few isolated incidents of harassment; it must be severe and pervasive 8); see also ISS
International Service System, Inc. v. Human Rights Comm’n, 272 Ill. App. 3d 969, 975 (1995)
(assessing national origin harassment allegations as discrimination claim under section
2-102(A)); Hautpave, Ill. Hum. Rts. Comm’n Rep. 1980SF0097 (Jan. 6, 1984) (assessing racial
discrimination in the form of racial harassment); Korshak, Ill. Hum. Rts. Comm’n Rep.
8
Likewise, to create a hostile work environment, the misconduct “must be sufficiently
severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive
work environment.’ ” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (quoting
Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). The work environment “must be
hostile or abusive to a reasonable person and the individual alleging sexual harassment must have
actually perceived the environment to be hostile or abusive.” Trayling v. Board of Fire & Police
Commissioners of the Village of Bensenville, 273 Ill. App. 3d 1, 12 (1995) (sexual harassment
case). A court examines all of the circumstances in determining whether an environment is
hostile or abusive, including factors such as the “ ‘frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.’ ” Crittenden v. Cook
County Comm’n on Human Rights, 2012 IL App (1st) 112437, ¶ 55 (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993)).
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1980CF1267 (June 11, 1982) (religious harassment constitutes discrimination on basis of
religion).
¶ 40 In response, the City contends that Old Ben Coal was overruled sub silentio by two
subsequent supreme court decisions: Board of Trustees of Southern Illinois University v.
Department of Human Rights, 159 Ill. 2d 206, 213 (1994) (assessing whether an academic
program at a public institution of higher learning constitutes a public place of accommodation
such that Commission had jurisdiction to hear discrimination complaint, and holding that it did
not; court noted that its conclusion was bolstered by the 1983 enactment of section 5A-102,
which conferred on the Department jurisdiction over sexual harassment in higher education;
addition of article 5A reflected the legislature’s understanding that, until its passage, Department
had no jurisdiction over institutions of higher education; thus, since 1983, Department had
jurisdiction over higher education, but only as to a “very distinct” type of claim: sexual
harassment), and Sangamon County, 233 Ill. 2d at 138-41 (based on its finding that statute was
unambiguous and consideration of the public policy reasons supporting employer liability,
holding that an employer is strictly liable under section 2-102(D) for hostile-environment sexual
harassment by its supervisory employee, even where that employee has no authority to affect the
terms and conditions of the complaining employee’s employment and regardless of whether the
employer was aware of the harassment or took measures to correct it; rejecting suggestion to
look to federal case law, which uses a narrow definition of a supervisor). However, we find
these cases inopposite. Board of Trustees addressed the Department’s jurisdiction to hear racial
discrimination claims against a public university and whether a public university was subject to
the statute. The court, in dicta, stated that its conclusion that academic programs were not
“accommodations” under the statute was “bolstered” by the 1983 amendment that specifically
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conferred on the Department jurisdiction over claims of sexual harassment in higher education,
but the court did not address whether sexual harassment was a civil rights violation before the
amendment. Board of Trustees, 159 Ill. 2d at 213. As the Department notes, the question in
Board of Trustees was who was subject to the Human Rights Act, not what was prohibited by it.
Further, the question whether racial harassment claims were cognizable under the statute was not
before the court. Similarly, Sangamon County provides no guidance here because it did not
address the issue in this case; it involved discrimination by a supervisory employee, which is not
at issue here. Sangamon County, 233 Ill. 2d at 138-41.
¶ 41 The City contends that, unlike Title VII, which does not expressly distinguish between
harassment and discrimination, the General Assembly’s 1983 amendment reflects its intent to
create a separate and distinct cause of action only for sexual harassment and to expand the scope
of an employer’s liability for a supervisor’s harassment by imposing strict liability for any
supervisory sexual harassment, without regard to whether it culminates in tangible employment
action or the supervisor has authority over the victim’s terms, privileges, or conditions of
employment. The City also urges that the decision to expand beyond sexual harassment the
Human Rights Act’s protection against harassment in the workplace rests with the legislative
branch, not the judicial branch.
¶ 42 We reject the City’s arguments. We find the statute ambiguous. The ambiguity stems
from the statute’s prohibition in section 2-102(A) of unlawful discrimination with respect to the
terms, privileges, or conditions of employment, which can reasonably be read to include
harassment on the basis of an enumerated characteristic. Indeed, in Old Ben Coal, the Fifth
District held as much with respect to sexual harassment prior to the legislature’s enactment of
section 2-102(D). Old Ben Coal, 150 Ill. App. 3d at 309. Also, the statute does not explicitly
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state that sexual harassment is the only type of harassment that constitutes a civil rights violation.
However, another reading of the Human Rights Act is that the enactment of section 2-102(D)
effectuated a change of existing law to add sexual harassment as an additional civil rights
violation, to the (implicit) exclusion of other types of harassment.
¶ 43 Having determined that the statute is ambiguous, we turn to statutory-construction aids.
In our view, they support an expansive reading of section 2-102(A), such as the approach taken
in Old Ben Coal, and lead to the conclusion that disability harassment is a cognizable civil rights
violation under section 2-102(A).
¶ 44 First, we consider the Human Rights Act’s purposes. One of them is to “secure for all
individuals *** the freedom from discrimination against any individual because of his or her ***
physical or mental disability *** in connection with employment.” 775 ILCS 5/1-102(A)
(West 2014). It also implements several constitutional guarantees, including section 19 of
article I, which provides: “All persons with a physical or mental handicap *** shall be free from
discrimination unrelated to ability in the hiring and promotion practices of an employer” (Ill.
Const. 1970, art. I, § 19). 775 ILCS 5/2-102(F) (West 2014). Reading section 2-102(A) to
prohibit disability harassment undoubtedly comports with these purposes.
¶ 45 Turning to a second statutory-construction aid, the type of legislation, we note that the
Human Rights Act constitutes remedial legislation, which is liberally construed to effectuate its
purposes. Arlington Park Race Track, 199 Ill. App. 3d at 703. Broadly construing the phrase
“terms, privileges or conditions of employment” in section 2-102(A) to prohibit a hostile work
environment based on disability is clearly consistent with the statute’s purpose to effectuate the
right of every disabled person to be free from workplace discrimination. We find additional
support for this conclusion in the fact that the Commission, which, jointly with the Department,
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is the agency charged with enforcing the Human Rights Act (Boaden v. Department of Law
Enforcement, 171 Ill. 2d 230, 261 (1996)), has defined harassment “as any form of behavior
which makes a working environment so hostile and abusive that it constitutes a different term
and condition of employment based on a discriminatory factor.” Hines, Ill. Hum. Rts. Comm’n
Rep. 1988CN0644, at *3 (May 28, 1996) (finding that the employee established verbal
harassment on the basis of race). The Commission has also noted in its decisions that, though
there is no case law on the issue of disability harassment, “there is no logical reason why the
[Human Rights] Act should tolerate workplace harassment based on a handicap when it does not
tolerate harassment based on any other protected classification. [Citation.] Therefore,
Complainant’s handicap harassment claims should be analyzed in the same manner as the racial
and gender harassment claims.” Gonzalez, Ill. Hum. Rts. Comm’n Rep. 2006CF2012, at *8
(Aug. 23, 2010); see also 56 Ill. Adm. Code 5220.900 (1986) (proscribing national origin
harassment). We place significant weight on these interpretations. See Wanless v. Human
Rights Comm’n, 296 Ill. App. 3d 401, 403 (1998) (Commission’s interpretation of the Human
Rights Act is “accorded substantial weight and deference” by reviewing courts because its
interpretation “flows directly from its expertise and experience with the statute that it administers
and enforces”).
¶ 46 Furthermore, we note that federal law, which we routinely consult and rely upon in this
area (see Valley Mould & Iron Co. v. Illinois Human Rights Comm’n, 133 Ill. App. 3d 273, 279
(1985)), has been interpreted in a similar fashion. In Meritor Savings Bank, 477 U.S. at 66, the
Supreme Court held that the creation of a hostile work environment through harassment is a
form of proscribed discrimination under Title VII. The Court determined that the phrase
“terms, conditions, or privileges of employment,” which appears in both Title VII and the
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Human Rights Act, reflects a legislative intent to encompass the full spectrum of discriminatory
treatment in employment. Id. at 64. It also noted that EEOC guidelines, which it found
instructive, defined sexual harassment as a form of sex discrimination. Id. at 65. The Court
further noted that the guidelines had drawn on case law that held that Title VII
hostile-work-environment claims could be brought in the contexts of race, religion, and national
origin; thus, reading the statute to proscribe a hostile environment based on discriminatory sexual
harassment was consistent with the case law. Id. at 66. 9
¶ 47 We reject the City’s argument that Title VII case law is unhelpful because that statute
does not explicitly and separately address sexual harassment, as the Human Rights Act does.
This argument is unavailing because the Title VII case law interprets the phrase “terms,
9
Title VII does not address disability; however, the Americans with Disabilities Act of
1990 (ADA) (42 U.S.C. § 12101 et seq. (2012)) does by prohibiting certain employers from
discriminating against individuals on the basis of their disabilities. 42 U.S.C. § 12112(a) (2012).
That statute also contains the phrase “terms, conditions, and privileges of employment” (42 U.S.C.
§ 12112(a) (2012)). Several federal circuit courts of appeals expressly recognize
hostile-work-environment claims for disability harassment. Lanman v. Johnson County, Kansas,
393 F.3d 1151, 1155 (10th Cir. 2004); Shaver v. Independent Stave Co., 350 F.3d 716, 719 (8th
Cir. 2003); Flowers v. Southern Regional Physician Services Inc., 247 F.3d 229, 233 (5th Cir.
2001); Fox v. General Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001). Several other federal
reviewing courts have assumed that such a cause of action is authorized by the ADA, without
deciding the issue. See, e.g., Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 89 (1st
Cir. 2006); Silk v. City of Chicago, 194 F.3d 788, 803-04 (7th Cir. 1999); Walton v. Mental Health
Ass’n of Southeastern Pennsylvania, 168 F.3d 661, 666-67 (3d Cir. 1999).
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privileges or conditions of employment,” which, again, is also contained in section 2-102(A) of
the Human Rights Act.
¶ 48 The third statutory-construction aid we turn to is legislative history. The legislative
history of section 2-102(D) reflects that the provision was added to the statute to clarify existing
practices and to narrowly expand the available protections (the latter with respect to same-sex
harassment and male victims, which are not alleged here). It clearly did not effect a change in
the law by creating a new cause of action. See Old Ben Coal, 150 Ill. App. 3d at 307 (coming
to the same conclusion: “both proponents and opponents of the amendment considered sexual
harassment to be prohibited by the *** Human Rights Act as a form of sex discrimination and
that the amendment was needed only to clarify this proscription” (emphasis added)). During
the House debates, the sponsor, Representative Currie, responded as follows to the question
whether sexual harassment cases had “currently” been considered sex discrimination cases by
the Department and the Commission:
“Presently, the [Department] understands that it may interpret its authority to deal with
sex discrimination to include instances of sex harassment. The [Department] supports
this Bill, as does the Commission, on the grounds that there is some ambiguity in that
decision. It’s based on council’s opinion. Councils can change. Only through that
opinion is the Department able to establish rules and regulations. It would become much
clearer if we were to establish this program in the state statutes themselves. In addition,
same sex harassment or harassment when the victim is a male can clearly not be covered
under an interpretation of sex discrimination prohibition which the Department presently
uses for these cases.” (Emphasis added.) 83d Ill. Gen. Assem., House Proceedings,
Mar. 23, 1983, at 55 (statements of Representative Currie).
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Later in the proceedings, she stated that the Department took the position that passage of the
amendment would “clarify and specify its authority.” (Emphasis added.) Id. at 56.
Furthermore, Representative Mays, an opponent, related a conversation with a Department
representative who was asked if a case had ever come before the Commission that the
Department refused to handle; Mays related that the Department responded to that in the
negative but that the Department surmised that, as to an employer who harassed both male and
female employees, a claim could not be brought as discrimination. Id. at 56-57. These
excerpts reflect that the enactment of section 2-102(D) was a clarification of the law with respect
to the issue before us.
¶ 49 The City points to the legislative history of article 5A of the Human Rights Act, which
addresses elementary, secondary, and higher education. During the House debates on section
5A-102, which prohibits sexual harassment in education, Representative Koehler stated:
“[This amendment] amends the Illinois Human Rights Act to include sexual harassment
in higher education as a civil rights violation. Under the Human Rights Act,
discrimination on the basis of sex already constitutes a civil rights violation. However,
it is important to point out that there is a distinct difference between sex discrimination,
which deals with prejudice[,] and sexual harassment, which deals with a hostile
environment and repeated torment.” 83d Ill. Gen. Assem., House Proceedings, May 5,
1983, at 33-34 (statements of Representative Koehler).
Although the statement appears to somewhat conflict with the legislative history of section
2-102(D), we do not place much weight on it, because it addresses a different section of the
statute than the one at issue here and does not specifically address whether harassment claims
were already being heard under article 5A, as sexual-harassment employment claims were.
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¶ 50 In summary, we conclude that the presumption that the 1983 amendment changed the law
has been rebutted. We further hold that section 2-102(A) prohibits disability harassment.
Accordingly, we answer the first part of the first certified question in the affirmative.
¶ 51 (2) Reasonable Accommodation
¶ 52 In count I, plaintiff alleged that the City violated her civil rights by failing to provide a
reasonable accommodation for her disability after she asked it to take appropriate action to stop
her nonsupervisory coworkers’ harassment. This part of the first certified question asks if such
a claim is cognizable under section 2-102(A) of the Human Rights Act. The City argues that:
(1) the Human Rights Act does not expressly impose such a duty on employers and should not be
read to do so; and (2) a failure to provide a reasonable accommodation should be part of a prima
facie case for unlawful disability discrimination, not a separate and distinct civil rights violation.
For the following reasons, we conclude that a reasonable-accommodation claim is cognizable as
a separate claim under section 2-102(A).
¶ 53 Preliminarily, we note again that the Human Rights Act is a remedial statute that is
liberally construed to effectuate its purposes. Arlington Park Race Track, 199 Ill. App. 3d at
703. Also, “[a]n agency may adopt a rule and regulate an activity only insomuch as a statute
empowers the agency to do so. [Citation.] An administrative rule unauthorized by statute is
invalid, and we must strike it down.” Illinois Bell Telephone Co. v. Illinois Commerce
Comm’n, 362 Ill. App. 3d 652, 656 (2005); see 775 ILCS 5/8-102(E) (West 2014). Where the
legislature has charged an agency with administering and enforcing a statute, we “ ‘give
substantial weight and deference’ ” to its resolution of any ambiguities in the statute. Illinois
Bell Telephone Co., 362 Ill. App. 3d at 656 (quoting Illinois Consolidated Telephone Co. v.
Illinois Commerce Comm’n, 95 Ill. 2d 142, 152 (1983)). This is so because the agency’s
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interpretation “flows directly from its expertise and experience with the statute that it administers
and enforces.” Wanless, 296 Ill. App. 3d at 403. Where a statute is ambiguous, “the court
does not simply impose its own construction on the statute, as would be necessary in the absence
of an administrative interpretation. Rather, *** the question for the court is whether the
agency’s answer is based on a permissible construction of the statute.” Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). “A court will not
substitute its own construction of a statutory provision for a reasonable interpretation adopted by
the agency charged with the statute’s administration.” Church v. State, 164 Ill. 2d 153, 162
(1995).
¶ 54 (i) Duty to Provide a Reasonable Accommodation
¶ 55 The duty to reasonably accommodate disabled employees is explicitly imposed only by
administrative regulation. By joint rule, the Commission and the Department require that
employers provide reasonable accommodations for “known physical or mental limitations of
otherwise qualified disabled applicants or employees,” unless the accommodations are
prohibitively expensive or would unduly disrupt ordinary business conduct. 56 Ill. Adm. Code
2500.40(a) (2009). The employee seeking an accommodation has the burden to apprise the
employer of his or her condition and submit any necessary medical documentation. 56 Ill.
Adm. Code 2500.40(c) (2009); see also Truger v. Department of Human Rights, 293 Ill. App. 3d
851, 861 (1997) (“employee has the burden of asserting the duty and showing the
accommodation was requested and necessary for adequate job performance”). “Once an
employee requests an accommodation, it becomes the burden of the employer to show that there
is no possible reasonable accommodation or that the employee would be unable to perform the
job even with the accommodation.” Department of Corrections v. Human Rights Comm’n, 298
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Ill. App. 3d 536, 542 (1998). An accommodation may include: “alteration of the facility or
work site; modification of work schedules or leave policy; acquisition of equipment; job
restructuring; provision of readers or interpreters; and other similar actions.” 56 Ill. Adm. Code
2500.40(a) (2009). The duty to accommodate does not require an employer to reassign or
transfer an employee whose disability precludes him or her from performing the employee’s
present position. Fitzpatrick v. Human Rights Comm’n, 267 Ill. App. 3d 386, 392 (1994).
¶ 56 The statute itself expressly imposes a duty to reasonably accommodate only with respect
to: (1) “an employee’s or prospective employee’s religious observance or practice without undue
hardship on the conduct of the employer’s business” (emphasis added) (775 ILCS 5/2-101(F)
(West 2014)); (2) employees or applicants who are affected by a condition related to pregnancy or
childbirth (775 ILCS 5/2-102(I) (West 2014)); and (3) in the context of real estate transactions,
buyers’ or renters’ disabilities (775 ILCS 5/3-102.1(C) (West 2014)).
¶ 57 In adding section 2-102(I) of the Human Rights Act to address pregnancy-related
accommodations, the General Assembly expressly found: “Employers are familiar with the
reasonable accommodations framework. Indeed, employers are required to reasonably
accommodate people with disabilities. Sadly, many employers refuse to provide reasonable
accommodations or decline to extend workplace injury policies to pregnant women.” (Emphasis
added.) Pub. Act 98-1050, § 5(4) (eff. Jan. 1, 2015).
¶ 58 The City argues that plaintiff cannot state a cognizable civil rights violation in her
reasonable-accommodation count, because the Human Rights Act unambiguously does not
expressly impose on employers a duty to provide reasonable accommodations to disabled
employees. If there is no statutory basis for the alleged duty, the regulations cannot create such
a duty; rather, the better approach, the City urges (and as discussed in the next section), is to treat
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a failure to provide a reasonable accommodation as an element of the prima facie case for
plaintiff’s claim in count II, for disability discrimination based on disparate treatment. Under
the City’s reading, if the General Assembly had intended to make an employer’s failure to
reasonably accommodate a disability an independent civil rights violation, then it would have
enacted a statutory amendment expressly stating so, just as it did with respect to pregnant
employees and real estate transactions. By example, the City notes that the General Assembly
specifically amended the Human Rights Act to add sections 2-102(J) and 3-102.1(C), despite the
existence of statutory provisions that already made it a civil rights violation to discriminate in the
“terms, privileges or conditions of employment” on the basis of pregnancy or to commit
unlawful discrimination in the “terms, conditions or privileges of a real estate transaction.” See
Pub. Act 98-1050 (eff. Jan. 1, 2015) (adding 775 ILCS 5/2-102(j)); Pub. Act 86-910 (eff. Sept. 1,
1989) (adding 775 ILCS 5/3-102.1). Citing case law that stands for the proposition that a
statutory amendment creates a presumption that the legislature intended to change the law
(People v. Hicks, 119 Ill. 2d 29, 34 (1987)), the City argues that these amendments reflect the
General Assembly’s determination that a failure to provide a reasonable accommodation is a
distinct species of civil rights violation that must be specifically enumerated in order to be
proscribed. It also suggests that its reading is logical because a reasonable-accommodation
obligation essentially changes the “terms, privileges or conditions of employment” by imposing
on an employer an affirmative duty to treat different employees differently due to their unique
needs. Employers have no notice, the City asserts, that the Human Rights Act obligates them to
develop reasonable-accommodation practices for employees’ disabilities. It also notes that the
Human Rights Act’s definition of religion expressly states that an employer must provide a
reasonable accommodation. 775 ILCS 5/2-101(F) (West 2014). Finally, the City notes that
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the Human Rights Act’s definition of unlawful discrimination does not require a reasonable
accommodation, in contrast to the ADA, which does so in a comparable definition. See 42
U.S.C. § 12112(a), (b)(5)(A) (2012) (defining “discriminate against a qualified individual on the
basis of disability” to include the failure to provide reasonable accommodation).
¶ 59 No case has squarely addressed this issue, but case law has assumed that employers have
a duty to reasonably accommodate a disability. See, e.g., Truger, 293 Ill. App. 3d at 861
(referring to “an employer’s duty to accommodate” a disability, without deciding whether duty is
statutorily imposed); Fitzpatrick v. Human Rights Comm’n, 267 Ill. App. 3d 386, 392 (1994)
(same and further holding that such duty extends only to accommodating a disabled employee in
his or her present position); Illinois Bell Telephone Co. v. Human Rights Comm’n, 190 Ill. App.
3d 1036, 1050 (1989) (referring to duty to accommodate, without deciding whether duty is
statutorily imposed). In addition, there is case law specifically citing or applying the
regulations, which were initially promulgated in 1982. 6 Ill. Reg. 11489 (eff. Sept. 15, 1982);
see, e.g., Brewer v. Board of Trustees, 339 Ill. App. 3d 1074, 1080 (2003) (further noting that
disability discrimination includes failure to reasonably accommodate), abrogated on other
grounds by Blount v. Stroud, 232 Ill. 2d 302 (2009); Department of Corrections, 298 Ill. App. 3d
at 541-43 (noting that, once the employee requests accommodation, it becomes the employer’s
burden to show that there is no possible reasonable accommodation or that the employee would
be unable to perform job even with accommodation; holding that failure to provide reasonable
accommodation violated the statute); Whipple v. Department of Rehabilitation Services, 269 Ill.
App. 3d 554, 559 (1995) (citing regulations for proposition that an employer can rebut a
discrimination charge by showing that the claimant was unqualified even with accommodation).
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¶ 60 We find the statute ambiguous, defer to the Commission, and hold that the regulations are
a valid exercise of its power to interpret the Human Rights Act and, further, that a reasonable
accommodation claim may be brought as a separate claim under section 2-102(A). We find
unconvincing the City’s argument that the General Assembly’s amendment of the Human Rights
Act to add the pregnancy-accommodation provision and its failure to similarly add a
disability-accommodation provision reflects that no such duty exists with respect to disability.
Although the duty exists only via regulation, we note that the regulations have been in effect for
over 30 years without specific action by the General Assembly. Thus, for over three decades,
employers have been on notice of their obligations with respect to disabled employees. We find
additional support for our conclusion in the fact that, in enacting the pregnancy-accommodation
provision, the General Assembly expressly found: “Employers are familiar with the reasonable
accommodations framework. Indeed, employers are required to reasonably accommodate
people with disabilities.” (Emphasis added.) Pub. Act 98-1050, § 5(4) (eff. Jan. 1, 2015). The
General Assembly’s acknowledgement, in the legislative findings, of a
reasonable-accommodation duty and its enactment of pregnancy-related protections reflect, in our
view, its approval of the Commission’s reasonable-accommodation regulations.
¶ 61 We also reject the City’s argument that the fact that the Human Rights Act’s definition of
“religion” contains a reasonable-accommodation requirement but the disability provisions do not
evinces the legislature’s determination that no accommodation duty exists with respect to disabled
employees. The City elsewhere contends that the only civil rights violations are those expressly
stated in section 1-103(D), which defines “civil rights violation” to include only those set forth in
specific sections of the statute. 775 ILCS 5/1-103(D) (West 2014) (specifying, inter alia,
sections 2-102, 2-103, 2-105, and 3-102.1). The definition of “religion” is contained in section
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2-101, a provision that is not included in the definition of “civil rights violation.” Thus, the City’s
argument, that a “civil rights violation” must be expressly noted in section 1-103(D), fails.
¶ 62 Finally, we similarly reject the City’s argument that a reasonable-accommodation
obligation changes the “terms, privileges or conditions of employment.” This position is
illogical. Taking reasonable steps to place a disabled person in a position to perform his or her
job without discrimination does not change the terms, privileges, or conditions of that person’s
employment on the basis of discrimination. See 775 ILCS 5/2-102(A) (West 2014) (prohibiting
actions with respect to the conditions of employment on the basis of unlawful discrimination).
¶ 63 (ii) Prima Facie Case
¶ 64 The City next contends that a failure to provide a reasonable accommodation should be
part of a prima facie case for unlawful discrimination (pointing again to count II of plaintiff’s
complaint, where she alleges disparate treatment), not a separate, distinct, or independent civil
rights violation. It contends that, by pleading refusal to accommodate (count I), disparate
treatment (count II), and hostile work environment (count IV), plaintiff is seeking a triple
recovery for the same alleged discriminatory acts. 10 Plaintiff’s position is that a failure to
provide a reasonable accommodation is a separate disability discrimination theory. For the
following reasons, we conclude that a reasonable-accommodation claim is a distinct action that
may be separately/alternatively pleaded.
¶ 65 Counts I, II, and IV each allege adverse employment consequences, and each is based on
a different theory. In count I, the refusal-to-accommodate claim, plaintiff alleged that: she was
qualified to perform and adequately performed her job; her medical conditions (unipolar
depression, anxiety, panic attacks, and partial hearing loss) constituted a disability under the
10
Count III is a retaliation claim, which is not relevant to this certified question.
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statute; plaintiff communicated to the City that she sought a reasonable accommodation for her
disability; the City had a duty to engage in the interactive process; the City dismissed plaintiff’s
request; and the City denied her request without making an individualized assessment; and, as a
result, she sustained damages. In count II, the disparate-treatment claim, plaintiff alleged that:
her medical conditions constituted a disability under the statute; she was qualified for and
adequately performed her job; the City terminated her employment because she was disabled;
other individuals who did not have such a disability were assigned her duties; other employees
were not terminated for behavior similar to or worse than that for which plaintiff was terminated;
plaintiff’s disability was a substantial and motivating factor in the City’s decision to terminate
plaintiff; the City would not have terminated her absent consideration of her disability; and the
termination constituted intentional disability discrimination in violation of the statute. In count
IV, the hostile-work-environment claim, plaintiff alleged that: her medical conditions constituted
a disability under the statute; the work environment created by her coworkers substantially
interfered with her work performance and created an intimidating, hostile, and offensive work
environment; the City was aware of the environment but failed to take action to make the
conduct cease and desist; the environment aggravated her medical conditions; and, as a result,
plaintiff sustained damages.
¶ 66 In analyzing employment discrimination actions under the Act, courts use the analytical
framework contained in decisions addressing Title VII and other federal statutes. Zaderaka v.
Human Rights Comm’n, 131 Ill. 2d 172, 178 (1989). Within this framework, a plaintiff can
prove discrimination in one of two ways: (1) through direct evidence; or (2) through the indirect
method of proof. Lalvani v. Human Rights Comm’n, 324 Ill. App. 3d 774, 790 (2001).
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¶ 67 In the indirect method, the plaintiff uses the framework for Title VII claims set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Bultemeyer v. Fort Wayne
Community Schools, 100 F.3d 1281, 1283 (7th Cir. 1996) (McDonnell Douglas method is used to
indirectly establish discrimination). First, the plaintiff must establish a prima facie case of
discrimination, which will give rise to a rebuttable presumption that the employer unlawfully
discriminated. Next, to rebut the presumption, the employer must articulate a legitimate and
nondiscriminatory reason for its action. If the employer meets its burden of production, the
presumption of unlawful discrimination falls. Then, the plaintiff must prove by a
preponderance of the evidence that the employer’s reason was simply a pretext for unlawful
discrimination. Peck v. Department of Human Rights, 234 Ill. App. 3d 334, 336-37 (1992).
“The indirect method is a formal way of analyzing a discrimination case when a certain kind of
circumstantial evidence—evidence that similarly situated employees not in the plaintiff’s
protected class were treated better—would permit a jury to infer discriminatory intent.”
(Emphasis added.) Smith v. Chicago Transit Authority, 806 F.3d 900, 905 (7th Cir. 2015).
¶ 68 In contrast, the direct method refers to “anything other than the McDonnell Douglas
indirect approach.” (Emphasis in original.) Id. at 904. To directly prove discrimination, the
employee may present direct evidence of an employer’s discriminatory intent or relevant
circumstantial evidence (e.g., suspicious timing, ambiguous statements, treatment of other
employees in the protected class) pointing to a discriminatory reason for the employer’s action.
Id. at 905. Once the employee directly establishes that in making its decision the employer
substantially relied on a prohibited factor, the burden of proof, not merely of production, shifts to
the employer to show that it would have made the same decision even if the prohibited factor had
not been considered. Lalvani, 324 Ill. App. 3d at 790. The indirect method is relevant here.
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¶ 69 Returning to the indirect method, to establish a prima facie case of disability
discrimination, as set forth in McDonnell Douglas, a plaintiff must demonstrate that: (1) he or
she is disabled as defined in the Act; (2) his or her disability is unrelated to the plaintiff’s ability
to perform the functions of the job he or she was hired to perform; and (3) an adverse job action
was taken against the plaintiff because of the disability. Department of Corrections v. Human
Rights Comm’n, 298 Ill. App. 3d 536, 540 (1998). However, to prove a failure to accommodate
a disability, a plaintiff must show that: (1) he or she is a qualified individual with a disability; (2)
the employer was aware of the disability; and (3) the employer failed to reasonably
accommodate the disability. See, e.g., Curtis v. Costco Wholesale Corp., 807 F.3d 215, 224
(7th Cir. 2015); cf. Robinson v. Village of Oak Park, 2013 IL App (1st) 121220, ¶ 36 (separately
assessing religious-discrimination and reasonable-accommodation claims; stating that reasonable
accommodation claim is established by first showing three-part prima facie case: (1) a religious
practice/belief that conflicts with an employment requirement; (2) communication by the
employee to the employer of the need to observe the religious practice/belief; and (3) adverse
employment action because of the employee’s religious practice/belief; further noting that, if
employee establishes prima facie case, the burden shifts to employer to show either that
reasonable accommodation was offered or that any accommodation would result in undue
hardship). 11
¶ 70 Generally, employment discrimination claims assert either disparate treatment or
disparate impact. Peyton v. Department of Human Rights, 298 Ill. App. 3d 1100, 1108 (1998).
11
Robinson cites a Seventh Circuit case using the McDonnell Douglas framework for a
reasonable-accommodation claim. Robinson, 2013 IL App (1st) 121220, ¶ 36 (citing Equal
Employment Opportunity Comm’n v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997)).
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A disparate-treatment claim, which plaintiff seeks to allege in count II, requires a showing “that
the employer simply treated some people less favorably than others because of their race, color,
religion, sex, or national origin.” (Internal quotation marks omitted.) Id. Under a
disparate-impact theory, which was not alleged by plaintiff here, there must be a showing of
“employment practices that are facially neutral in their treatment of different groups but that in
fact fall more harshly on one group than another and cannot be justified by business necessity.”
(Internal quotation marks omitted.) Id. Proof of discriminatory motive is required under a
disparate-treatment theory but not a disparate-impact theory. Id.
¶ 71 However, a question exists concerning how reasonable-accommodation claims should be
treated. There is ADA case law that holds that a “plaintiff need not allege either disparate
treatment or disparate impact in order to state a reasonable accommodation claim” (McGary v.
City of Portland, 386 F.3d 1259, 1266 (9th Cir. 2004)), because a reasonable-accommodation
claim asserts solely that an employer has failed to reasonably accommodate the employee’s
disability, not that the employer treated the employee differently and less favorably than other,
nondisabled employees (Bultemeyer, 100 F.3d at 1283 (“He is not comparing his treatment to
that of any other *** employee. His complaint relates solely to [the defendant’s] failure to
reasonably accommodate his disability.”)). The McGary court noted that “the crux of a
reasonable accommodation claim is a facially neutral requirement that is consistently enforced”
and that the reasonable-accommodation requirement’s purpose “is to guard against the façade of
‘equal treatment’ when particular accommodations are necessary to level the playing field.”
McGary, 386 F.3d at 1267; see also Riel v. Electronic Data Systems Corp., 99 F.3d 678, 681 (5th
Cir. 1996) (“By requiring reasonable accommodation, the ADA shifts away from similar
treatment to different treatment of the disabled by accommodating their disabilities.”). The
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logic behind these holdings is that the McDonnell Douglas burden-shifting framework is not
appropriate, because it is used to prove indirectly that an employer discriminated against an
employee, whereas a claim for failing to reasonably accommodate a disability alleges facts that,
if proven, directly establish a violation of the ADA. Bultemeyer, 100 F.3d at 1283. “There is
no need for indirect proof or burden shifting,” because the employee is not alleging that he or she
was treated differently and less favorably than nondisabled employees. Id.
¶ 72 Illinois case law has not directly addressed this issue and reflects some confusion as to
how to treat such claims. Some cases fit the accommodation issue within the prima facie case.
See, e.g., Department of Corrections, 298 Ill. App. 3d at 541-43 (characterizing the reasonable
accommodation regulations as “augment[ing]” the prima facie requirements and analyzing
accommodation issue in the context of a prima facie disability discrimination case); Whipple v.
Department of Rehabilitation Services, 269 Ill. App. 3d 554, 557-58 (1995) (determining that
prior case law did not address how reasonable-accommodation issue fits within framework and
concluding that “we would expand the second prong of the” prima facie test to incorporate
reasonable-accommodation analysis), abrogated on other grounds by Webb v. Lustig, 298 Ill.
App. 3d 695 (1998); Milan v. Human Rights Comm’n, 169 Ill. App. 3d 979, 984 (1988) (holding
that prima facie case of disability discrimination includes reasonable-accommodation issue,
without specifying how it factors into analysis). Other case law recites the McDonnell Douglas
framework, but reflects an uncertainty as to how the reasonable-accommodation analysis fits
within it and/or separately addresses the issue without comment. See, e.g., Owens v.
Department of Human Rights, 356 Ill. App. 3d 46, 53 (2005) (after finding that claimant was
discharged for a nondiscriminatory reason, turning to reasonable-accommodation issue and
characterizing it as “a more fundamental issue that we are required to address”); Truger, 293 Ill.
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App. 3d at 860-61 (reciting framework, concluding that second and third prima facie
requirements were not met, and then separately addressing several additional issues, including
reasonable-accommodation argument, without explaining its import to prima facie case or the
framework in general); Illinois Bell Telephone, 190 Ill. App. 3d at 1050 (after affirming
administrative finding that the plaintiff was terminated because of her disability, turning next to
separately assess reasonable-accommodation issue).
¶ 73 We find the ADA cases persuasive and hold that a reasonable-accommodation claim
constitutes a separate type of disability discrimination claim that is distinct from
disparate-treatment and disparate-impact claims. In count I (refusal to accommodate), plaintiff
argued that the City failed to consider her accommodation request and denied it without making
an individualized assessment. In count II, she alleged disparate treatment, asserting that she
was terminated because of her disability. As plaintiff notes, a fact finder could, on the one
hand, find that, although the City did not violate its duty to accommodate plaintiff, it nonetheless
terminated her employment because of an unlawful motive related to her disability; or, on the
other hand, it could find that the City violated its duty to accommodate but did not terminate
plaintiff’s employment because of an unlawful motive. Thus, the claims are distinct, they
involve different facts and considerations, and they are established by different approaches.
Bultemeyer, 100 F.3d at 1283 (no need for indirect proof or burden shifting to establish failure to
reasonably accommodate; alleged facts, if proven, would directly establish violation of ADA).
¶ 74 The cases upon which the City relies do not persuade us to hold otherwise. See Harton
v. City of Chicago Department of Public Works, 301 Ill. App. 3d 378, 390-92 (1998) (rejecting
argument that an employer commits a per se civil rights violation when it fails to investigate
possibility of accommodation, even if applicant could not have performed job even with
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accommodation; commenting that court did “not wish to be interpreted as suggesting that
employers should neglect to explore *** reasonable accommodation,” because the failure “to do
so might well expose an employer to liability under the [Human Rights] Act if it is subsequently
determined that a reasonable accommodation would have enabled the applicant to perform the
job despite her disability”); Truger, 293 Ill. App. 3d at 861 (noting duty to accommodate
disability, but holding that the plaintiff’s claim failed because she offered no evidence that she
asked for a reasonable accommodation or that any type of accommodation would enable her to
perform her job); Whipple, 269 Ill. App. 3d at 559 (applying regulations to hold, in part, that
employer rebutted discrimination charge by showing that the employee was unqualified even
with accommodation, i.e., third prong of prima facie case not met). These cases do not address
the issue before us.
¶ 75 We also reject the City’s argument that a reasonable-accommodation claim may not be
brought as a separate claim because this would result in double or even triple (as the City alleges
here) recovery for the same alleged discriminatory acts. See Wilson v. Hoffman Group, Inc.,
131 Ill. 2d 308, 320-22 (1989) (“The law in Illinois is that a plaintiff shall have only one
recovery for an injury [citation]; double recovery is a result which has been condemned
[citation].”); see also Kim v. Alvey, Inc., 322 Ill. App. 3d 657, 672 (2001) (double recovery is
against public policy). The City claims that the only injury asserted here is plaintiff’s
termination and that she can recover only once for this alleged injury if she proves that the City
violated the Act. We cannot question the policy against multiple recovery and we agree, for
example, that a successful plaintiff cannot recover two back-pay awards for the same period.
However, even if a plaintiff alleges the same injury in multiple counts, which plaintiff here did
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not necessarily do, 12 the policy against multiple recoveries does not preclude a plaintiff from
asserting alternative theories of recovery in separate counts of a complaint. See Robinson, 2013
IL App (1st) 121220, ¶¶ 23-35 (the plaintiff brought separate claims, one alleging religious
discrimination and one alleging failure to accommodate her religious beliefs; the reviewing court
separately analyzed the claims because, although the “two claims are factually related, they are
analytically distinct”).
¶ 76 Finally, the City asks us to hold as a matter of law that plaintiff’s request for appropriate
action to stop the harassment was not a request for a reasonable accommodation cognizable
under the statute. For two reasons, we decline to address this question. It was not certified by
the trial court, and, contrary to the City’s assertion, it involves factual considerations that are
inappropriate in a Rule 308 appeal.
¶ 77 In summary as to the first certified question, we hold that: (1) section 2-102(A) prohibits
hostile-work-environment disability harassment; and (2) reasonable-accommodation claims may
be brought as separate claims under that section. We do not address whether plaintiff
sufficiently pleaded any of her claims.
¶ 78 E. Second Certified Question
¶ 79 The second certified question 13 asks:
12
In count I (refusal to accommodate), plaintiff alleged unspecified damages as a result of
the City’s refusal to accommodate; in count II (disparate treatment), she alleged termination of
employment; and, in count IV (hostile work environment), she alleged interference with her work
performance and aggravation of her medical conditions.
13
The Department does not offer an argument with respect to this question.
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If section 2-102(A) permits a cause of action for disability harassment, does the
provision in section 2-102(D) “that an employer shall be held responsible for sexual
harassment of the employer’s employees by nonemployees or nonmanagerial and
nonsupervisory employees only if the employer becomes aware of the conduct and fails
to take reasonable corrective measures” (775 ILCS 5/2-102(D) (West 2014)) similarly
apply to a cause of action for disability harassment brought under section 2-102(A)? If
yes, does the employee or the employer bear the burden of alleging and proving that the
employer: (a) is aware of the conduct by its nonmanagerial and nonsupervisory
employees; and (b) fails to take reasonable corrective measures? If no, can the
employer assert the Faragher-Ellerth affirmative defense to a hostile-work-environment
harassment claim brought under section 2-102(A)?
¶ 80 (1) Does Section 2-102(D) Apply to Disability Harassment Claims?
¶ 81 In the first part of the second certified question, the issue is whether the parameters in
section 2-102(D) apply to disability harassment claims brought under section 2-102(A). For the
following reasons, we hold that those parameters apply to such claims.
¶ 82 Again, the statute’s plain language is the most reliable indicator of legislative intent.
DeLuna, 223 Ill. 2d at 59. We resort to statutory-construction aids only when the statute is
ambiguous. Id. We also place substantial weight on and accord deference to the
Commission’s interpretation of the statute. See Wanless, 296 Ill. App. 3d at 403.
¶ 83 In proscribing sexual harassment, section 2-102(D) of the Human Rights Act states that it
is a civil rights violation “[f]or any employer, employee, agent of any employer, employment
agency or labor organization to engage in sexual harassment; provided, that an employer shall be
responsible for sexual harassment of the employer’s employees by nonemployees or
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nonmanagerial and nonsupervisory employees only if the employer becomes aware of the
conduct and fails to take reasonable corrective measures.” (Emphasis added.) 775 ILCS
5/2-102(D) (West 2014). Thus, in the context of claims of sexual harassment, the Human
Rights Act provides that, where the offending employee is nonmanagerial and nonsupervisory,
such as here, the employer is liable for the sexual harassment only if it: (1) was aware of the
conduct; and (2) failed to take corrective measures. Id. However, if the offending employee
is supervisory, regardless of whether he or she has authority to affect the terms and conditions of
the complainant’s employment, the employer is strictly liable for the sexual harassment,
regardless of whether the employer knew of the conduct. Sangamon County, 233 Ill. 2d at
137-39.
¶ 84 Further, although the parties do not address it, we note that, by rule, the Commission and
Department have proscribed national origin harassment, including hostile-work-environment
harassment. 56 Ill. Adm. Code 5220.900 (1986). In the regulations, they have adopted a
standard of employer liability for coworker harassment nearly identical to that for sexual
harassment. Compare 56 Ill. Adm. Code 5220.900(d) (1986) (“[w]ith respect to conduct
between fellow employees, an employer is responsible for acts of harassment, in the workplace
on the basis of national origin, where the employer, its agents or supervisory employees, [(1)]
becomes aware of the conduct, and [(2)] fails to take immediate and appropriate corrective
action”) with 775 ILCS 5/2-102(D) (West 2014) (employer is liable for coworker sexual
harassment only if it: (1) was aware of the conduct; and (2) failed to take corrective measures).
They have also done the same with respect to supervisory harassment. Compare 56 Ill. Adm.
Code 5220.900(c) (1986) (employer is liable “regardless of whether the specific acts complained
of were authorized or even forbidden by the employer and regardless of whether the employer
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knew or should have known of their occurrence”) with 775 ILCS 5/2-102(D) (West 2014) (strict
liability regardless of whether the employer knew of the conduct and regardless of whether the
offending employee has authority to affect the terms and conditions of the complainant’s
employment).
¶ 85 The standard for coworker harassment under federal law is similar. Title VII does not
require or expect employers “to be aware of every impropriety committed by every low-level
employee.” Hall v. Bodine Electric Co., 276 F.3d 345, 356 (7th Cir. 2002). Rather, under
federal law, when the harassing employee is a coworker, the employer is liable under Title VII
“only if it was negligent in controlling working conditions.” Vance v. Ball State University,
570 U.S. ___, ___, 133 S. Ct. 2434, 2439 (2013). The employer was negligent “if the employer
knew or reasonably should have known about the harassment but failed to take remedial action.”
Id. at ___, 133 S. Ct. at 2440-41; Faragher, 524 U.S. at 789. In the case of supervisory
harassment, the federal standard differs somewhat from that under the Human Rights Act. If
the harassing employee was a supervisor and the harassment resulted in tangible employment
action, the employer is strictly liable. Vance, 570 U.S. at ___, 133 S. Ct. at 2439; Faragher,
524 U.S. at 807; Burlington Industries, Inc., 524 U.S. at 765. If the harassing employee was a
supervisor, but the harassment did not result in tangible employment action, the employer may
raise the Faragher-Ellerth affirmative defense that: (1) it exercised reasonable care to prevent
and correct the harassment; and (2) the employee unreasonably failed to take advantage of the
preventive or corrective opportunities the employer provided. Vance, 570 U.S. at ___, 133 S.
Ct. at 2439; Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Under federal law, a
“supervisor” for purposes of vicarious liability under Title VII is an employee who “is
empowered by the employer to take tangible employment actions against the victim.” Vance,
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570 U.S. at ___, 133 S. Ct. at 2439. The Faragher and Ellerth cases involved
hostile-work-environment sexual harassment claims. Id. at ___ n.3, 133 S. Ct. at 2442 n.3.
Several federal courts of appeals have applied the Faragher-Ellerth affirmative defense to other
types of hostile-work-environment claims. Id. at ___ n.3, 133 S. Ct. at 2442 n.3.
¶ 86 Turning to the case before us, the City’s position is that section 2-102(D)’s parameters for
employer liability should apply to disability harassment claims and that plaintiff must show her
affirmative compliance with the City’s reporting and corrective policies as a precondition to
establishing the City’s liability. Plaintiff’s position is that section 2-102(D)’s parameters do not
apply and that compliance with any City policies is not a precondition, but should be assessed only
within the McDonnell Douglas framework.
¶ 87 The City notes that section 2-102(D) provides that, in the case of nonsupervisory
harassment, an employer is liable only if it: (1) was aware of the conduct; and (2) failed to take
reasonable corrective measures. The City does not disagree that claims under the Human Rights
Act should be analyzed under the McDonnell Douglas burden-shifting framework, but it urges this
court to construe the statute to require an employee like plaintiff to show affirmative compliance
with her employer’s reasonable reporting and corrective policies as a necessary precondition to
establishing liability under the statute. In the City’s view, such a bright-line rule is consistent
with the Human Rights Act and the General Assembly’s purpose in protecting employers from
unfounded charges, preventing harassment, promoting conciliation rather than litigation, and
ensuring that victims do not profit from their failure to mitigate avoidable consequences.
¶ 88 As support for this position, the City points to the legislative history of section 2-102(D).
During the House proceedings, Representative Currie stated, in response to a question about
employer liability for nonsupervisory sexual harassment:
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“If the issue is two co-workers, I think the Bill *** will *** make clear that if the company
has a policy, a practice, a review process for dealing with complaints of sex harassment,
that review policy would have to be instituted before it would be appropriate for the
complaint to come before the Commission.” 83d Ill. Gen. Assem., House Proceedings,
Mar. 23, 1983, at 57-58 (statements of Representative Currie).
¶ 89 Plaintiff first argues that section 2-102(D)’s parameters should not apply to disability
harassment claims under section 2-102(A), because a contrary reading violates
statutory-construction rules. Plaintiff suggests that, instead of section 2-102(D)’s provisions, the
McDonnell Douglas burden-shifting framework adequately governs the parties’ respective
burdens of proof as to a hostile-work-environment disability claim under section 2-102(A).
Specifically, once plaintiff sets forth her prima facie case of discrimination based on a hostile work
environment, it then becomes the City’s burden to articulate a legitimate, nondiscriminatory
reason for its actions. Plaintiff suggests that the City could set forth that it had no notice of the
harassment or that it took reasonable corrective measures to prevent it. Then, plaintiff notes, she
could rebut the City’s allegations by showing that its assertion is pretext, such as by showing that
the City was aware of the hostile work environment or that plaintiff reported the harassment.
Plaintiff urges, however, that this court not find that the failure to use an employer’s policies is an
absolute bar to a hostile-work-environment claim. Instead, she suggests that a plaintiff can
contest that assertion under the McDonnell Douglas framework, under which a plaintiff always
maintains the ultimate burden of proof (e.g., to show that, in a case of coworker harassment, the
employer was negligent).
¶ 90 Having held above that section 2-102(A) proscribes disability harassment, we conclude
that the statute is ambiguous as to whether section 2-102(D)’s parameters for employer liability for
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sexual harassment also apply to disability harassment. Thus, we turn to statutory-construction
aids.
¶ 91 Assessing the Commission’s interpretation and mindful of the policy underlying the
statute, we hold that section 2-102(D)’s parameters apply to claims brought under section
2-102(A) for disability harassment. Our reading is consistent with the Commission’s
interpretation of the statute, under which the Commission promulgated nearly identical
parameters for employer liability for national origin harassment. 56 Ill. Adm. Code 5220.900
(1986). Applying section 2-102(D)’s parameters to disability harassment claims will result in
consistent treatment of all types of harassment claims under the Human Rights Act, and
consistency promotes the policy to secure for all persons freedom from discrimination.
¶ 92 The City urges that we further hold that an employee’s failure to use an employer’s
formal antiharassment policy absolutely bars his or her harassment claim. The legislative
history the City noted above reflects that using an employer’s antiharassment reporting
mechanism or policy was contemplated by the General Assembly as a means to finding employer
liability. It is unclear to us if it goes as far as the City’s reading, i.e., that a failure to use a
policy constitutes an absolute bar. Specifically it is unclear if the statute’s requirement of
employer awareness of harassment contemplates actual and constructive notice of the
harassment. Cf. Vance, 570 U.S. at ___, 133 S. Ct. at 2439 (under Title VII, employer is
negligent and thus liable for coworker harassment if it knew or reasonably should have known of
the harassment and failed to take remedial action). In any event, the certified question asks us
to answer only whether section 2-102(D)’s awareness and corrective-measure parameters apply
to harassment cases under section 2-102(A). The City’s argument addresses an issue beyond
that certified for our review. Accordingly, we do not reach it.
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¶ 93 (2) Burden of Proving Awareness and Failure to Take Corrective Measures
¶ 94 Given our holding as to the first part of the second certified question—that section
2-102(D)’s parameters apply to disability harassment claims brought under section
2-102(A)—we note that the second part of the second certified question asks: If yes, does the
employee or the employer bear the burden of alleging and proving that the employer: (a) is aware
of the conduct by its nonmanagerial and nonsupervisory employees; and (b) fails to take
reasonable corrective measures? It has been noted that, under the McDonnell Douglas
framework, the ultimate burden of persuasion always rests with the plaintiff; only the burden of
production shifts between the plaintiff and the employer. St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 510 (1993); see also Mockler v. Multnomah County, 140 F.3d 808, 812 (9th Cir.
1998) (under Title VII, the plaintiff must establish employer’s knowledge and lack of effectual
corrective action). In our view, the statutory language does not suggest any departure from this
general rule. Thus, we conclude that the plaintiff bears the burden of proving awareness and
failure to take corrective measures.
¶ 95 In summary, as to the second certified question, we hold that the parameters for employer
liability under section 2-102(D) of the Human Rights Act apply to disability harassment claims
brought under section 2-102(A) and that the employee bears the burden of persuasion with
respect to such claims.
¶ 96 F. Third Certified Question
¶ 97 The third certified question asks: does the Tort Immunity Act apply to a civil action
under the Human Rights Act where the plaintiff seeks damages, reasonable attorney fees, and
costs? If yes, should this court modify, reject, or overrule its holdings, in Birkett, 325 Ill. App.
3d at 202, Firestone, 119 Ill. App. 3d at 689, and Streeter, 44 Ill. App. 3d at 394-95, that “the
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Tort Immunity Act applies only to tort actions and does not bar actions for constitutional
violations” (Birkett, 325 Ill. App. 3d at 202)? The City argues that the Tort Immunity Act
applies to plaintiff’s Human Rights Act claims because they are not claims under the Illinois
Constitution. Alternatively, the City contends that we should reject our previous holdings that
the Tort Immunity Act applies only to tort actions and does not apply to actions for constitutional
violations. For the following reasons, we conclude that the Tort Immunity Act applies to
actions under the Human Rights Act. The City can assert immunity with respect to plaintiff’s
request for damages but not to her request for equitable relief. We acknowledge that the
supreme court has impliedly rejected our holdings that the Tort Immunity Act applies only to tort
actions and does not apply to constitutional claims. Accordingly, we do not follow that
precedent.
¶ 98 (1) Statutory Frameworks
¶ 99 (a) Tort Immunity Act
¶ 100 The 1970 Illinois Constitution abolished the doctrine of sovereign immunity, except as
the General Assembly may provide by statute. Ill. Const. 1970, art. XIII, § 4. Thus, the
General Assembly is “the ultimate authority in determining whether local units of government
are immune from liability.” (Internal quotation marks omitted.) Harris v. Thompson, 2012 IL
112525, ¶ 16. The Tort Immunity Act’s purpose “is to protect local public entities and public
employees from liability arising from the operation of government.” 745 ILCS 10/1-101.1(a)
(West 2014). By providing immunity, the General Assembly sought to prevent public funds
from being diverted from their intended purpose to the payment of damages claims. Village of
Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001). The Tort Immunity Act
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does not create duties but, rather, merely codifies existing common-law duties, to which the
delineated immunities apply. Id.
¶ 101 The Tort Immunity Act adopts the general principle that local governmental units are
liable in tort and other civil actions, but it limits this liability with an extensive list of immunities
based on specific government functions. Barnett v. Zion Park District, 171 Ill. 2d 378, 386
(1996). The statute is in derogation of the common law and, therefore, must be strictly
construed against the public entities involved. Aikens v. Morris, 145 Ill. 2d 273, 278 (1991).
¶ 102 Section 2-101 of the Tort Immunity Act states that it does not affect the right to obtain
relief, other than damages, against a local public entity or public employee. 745 ILCS
10/2-101 (West 2014). Further, the statute expressly states that it does not affect the liability of
a local public entity or public employee based on: (1) contract; (2) operation as a common
carrier; (3) the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2014)); (4) the
Workers’ Occupational Diseases Act (820 ILCS 310/1 et seq. (West 2014)); (5) section 1-4-7 of
the Illinois Municipal Code (65 ILCS 5/1-4-7 (West 2014) (municipal liability for damage to
property by the removal, destruction, or vacation of any unsafe or unsanitary building)); or (6)
the Illinois Uniform Conviction Information Act (20 ILCS 2635/1 et seq. (West 2014)). 745
ILCS 10/2-101(f) (West 2014).
¶ 103 Section 2-109 of the Tort Immunity Act provides that “[a] local public entity is not liable
for an injury resulting from an act or omission of its employee where the employee is not liable.”
745 ILCS 10/2-109 (West 2014). Section 2-201 states: “Except as otherwise provided by
Statute, a public employee serving in a position involving the determination of policy or the
exercise of discretion is not liable for an injury resulting from his act or omission in determining
policy when acting in the exercise of such discretion even though abused.” (Emphases added.)
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745 ILCS 10/2-201 (West 2014). Section 1-204, which defines the term “injury,” states, in
part, that the term “includes any injury alleged in a civil action, whether based upon the
Constitution of the United States or the Constitution of the State of Illinois, and the statutes or
common law of Illinois or of the United States.” 14 (Emphases added.) 745 ILCS 10/1-204
(West 2014).
¶ 104 The supreme court has rejected the claim that the Tort Immunity Act “categorically
excludes” nontort actions. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 261
(2004) (“we do not adopt or approve of the appellate court’s reasoning that the Tort Immunity
Act categorically excludes actions that do not sound in tort”). But see Birkett, 325 Ill. App. 3d
at 202 (Tort Immunity Act applies only to tort actions and not constitutional violations);
Firestone, 119 Ill. App. 3d at 689 (Tort Immunity Act “applies only to tort actions [citations],
and does not bar a civil rights action”; count alleged equal protection violations of federal and
Illinois constitutions, as well as violation of section 1983); Streeter, 44 Ill. App. 3d at 395 (the
plaintiffs sought damages for county’s vacation of road that they alleged reduced the value of
their property without compensation and, separately, they sought compensation for the
unconstitutional taking; court held that claim did not allege a tort but was “analogous to a claim
for compensation in an eminent domain proceeding”; notice provisions of Tort Immunity Act did
not bar the plaintiffs’ suit).
14
However, the statute does not shield a defendant from a federal claim, such as a
section 1983 claim (42 U.S.C. § 1983 (2012)), because the supremacy clause of the United States
Constitution provides that federal laws are supreme to state laws. See Thomas ex rel. Smith v.
Cook County Sheriff, 401 F. Supp. 2d 867, 875 (N.D. Ill. 2005); Anderson v. Village of Forest
Park, 238 Ill. App. 3d 83, 92 (1992).
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¶ 105 (b) Human Rights Act
¶ 106 The Human Rights Act defines “employer” to include: (1) the “State and any political
subdivision, municipal corporation or other governmental unit or agency, without regard to the
number of employees” (775 ILCS 5/2-101(B)(1)(c) (West 2014)); and (2) any “person” (defined
to include “the State of Illinois and its instrumentalities, political subdivisions, [and] units of
local government” (775 ILCS 5/1-103(L) (West 2014))) “employing one or more employees
when a complainant alleges civil rights violation due to unlawful discrimination based upon his
or her physical or mental disability unrelated to ability, pregnancy, or sexual harassment” (775
ILCS 5/2-101(B)(1)(b) (West 2014)). Further, in section 2-102(A), the Human Rights Act
provides that it is unlawful for any “employer to refuse to hire, to segregate, or to act with respect
to recruitment, hiring, promotion, renewal of employment, selection for training or
apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on
the basis of unlawful discrimination or citizenship status.” (Emphasis added.) 775 ILCS
5/2-102(A) (West 2014).
¶ 107 (2) Tort Immunity Act Applies to Claims Under the Human Rights Act
¶ 108 The City argues that the Tort Immunity Act applies to plaintiff’s Human Rights Act
claims because they are not claims under the Illinois Constitution. Alternatively, it argues that,
even if plaintiff’s claims are constitutionally based, the Tort Immunity Act applies. The City
contends that we should reject our previous holdings that the Tort Immunity Act applies only to
tort actions and does not apply to actions for constitutional violations.
¶ 109 Again, in her four-count complaint, plaintiff alleged: (1) refusal to accommodate; (2)
disparate treatment; (3) retaliation; and (4) hostile work environment. In each count, she sought
back pay, front pay, the value of lost benefits, actual damages, “emotional and other compensatory
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damages,” reinstatement with full seniority, attorney fees, and the costs of suit. All of those forms
of relief are available under the Human Rights Act. 775 ILCS 5/8A-104 (West 2014) (among
other forms of relief, the Commission may award: (1) actual damages; (2) hiring, reinstatement or
upgrade, back pay, and fringe benefits; (3) restoration of labor organization membership; and (4)
attorney fees and costs; further, it may (5) make the complainant whole, including by way of
awarding interest); 775 ILCS 5/10-102(C) (West 2014) (circuit court may award: (1) actual and
punitive damages; (2) injunctive relief; and (3) attorney fees and costs to a prevailing party other
than the State).
¶ 110 The central issue here is whether the Tort Immunity Act applies to plaintiff’s claims for
damages (i.e., her prayers for “actual damages” and “emotional and other compensatory
damages”), not her ability to obtain equitable relief. The statute, as noted above, does not affect
the right to obtain relief, other than damages, against a local public entity or public employee.
745 ILCS 10/2-101 (West 2014); see, e.g., In re Consolidated Objections to Tax Levies of School
District No. 205, 193 Ill. 2d 490, 500-02 (2000) (section 2-101 excludes injunctive remedies
from the statute). Therefore, the City clearly cannot assert immunity with respect to plaintiff’s
request for back pay, front pay, lost benefits, or reinstatement. See, e.g., Hertzberg v. SRAM
Corp., 261 F.3d 651, 659 (7th Cir. 2001) (back pay, front pay, and reinstatement constitute
equitable remedies under Title VII); see also Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d
495, 501 (7th Cir. 2000) (“[f]ront pay and back pay under Title VII and the ADA are ‘equitable’
matters, but they still are dollar values”).
¶ 111 We first conclude that claims under the Human Rights Act are constitutionally grounded
and/or derived. As relevant here, the Human Rights Act expressly implements the
constitutional guarantee of freedom from disability discrimination in employment (Ill. Const.
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1970, art. I, § 19). 775 ILCS 5/1-102(F) (West 2014). The civil rights protected by the
Human Rights Act are constitutional rights, and, thus, plaintiff’s claims are constitutionally
grounded and/or derived; they are not tort actions. See Maksimovic v. Tsogalis, 177 Ill. 2d 511,
518 (1997) (“An action to redress a civil rights violation has a purpose distinct from a common
law tort action,” and each type of claim must be separately proved); see also Yount v. Hesston
Corp., 124 Ill. App. 3d 943, 947-49 (1984) (the Illinois Constitution does not authorize a private
right of action to enforce section 19 of article I; thus the plaintiff could not bring a private action
under section 19 for employment discrimination based on disability; the Human Rights Act is the
exclusive remedy that the plaintiff could have pursued); cf. Melvin v. City of Frankfort, 93 Ill.
App. 3d 425, 432 (1981) (holding first that statute that barred disabled applicants from certain
firefighter positions with municipalities was unconstitutional under section 19; further holding
that Tort Immunity Act immunized city employees with respect to the applicant’s claim for
damages, because his pleadings raised constitutional challenge asserting denial of wages, which
“follows the traditional model of a tort claim,” not a contractual one, and thus was barred;
constitutional provision did not create a contractual right).
¶ 112 Having determined that plaintiff’s claims are constitutionally grounded, we next address
whether the City may assert immunity as to plaintiff’s claims for damages. We answer that
question in the affirmative. As noted, the supreme court has rejected the claim that the Tort
Immunity Act “categorically excludes” nontort actions. Raintree Homes, 209 Ill. 2d at 261
(“we do not adopt or approve of the appellate court’s reasoning that the Tort Immunity Act
categorically excludes actions that do not sound in tort”). However, as noted, there is case law
in this district that holds that the Tort Immunity Act applies only to tort claims and does not
apply to constitutional claims. See Birkett, 325 Ill. App. 3d at 202; Firestone, 119 Ill. App. 3d
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at 689; Streeter, 44 Ill. App. 3d at 395. Raintree Homes, in our view, has impliedly rejected our
holdings, including, as relevant here, our holdings that constitutional claims and civil rights
actions are not subject to the Tort Immunity Act.
¶ 113 Given Raintree Home’s pronouncement that the statute generally does not exclude
nontort actions, we turn to the provision that answers the precise question before us. As the
City notes, section 1-204 of the Tort Immunity Act, which defines the term “injury,” states, in
part, that the term “includes any injury alleged in a civil action, whether based upon the
Constitution of the United States or the Constitution of the State of Illinois, and the statutes or
common law of Illinois or of the United States.” (Emphases added.) 745 ILCS 10/1-204
(West 2014); see also 745 ILCS 10/8-101(c) (West 2014) (one-year statute of limitations for a
“civil action” under the Tort Immunity Act; “civil action” includes an action based upon the
“Constitution of this State”). We agree with the City that the Tort Immunity Act clearly
encompasses constitutional claims, including those brought under the Human Rights Act. 15
¶ 114 In Birkett, we quoted this passage from section 1-204, but we rejected the plaintiff’s
argument that the Tort Immunity Act provided immunity for constitutional causes of action.
Birkett, 325 Ill. App. 3d at 201-02. We did so without analyzing section 1-204 and apparently
based our conclusion concerning constitutional claims on our holding that the statute applies
only to tort actions, as the former necessarily flows from the latter. Id. at 202 (the statute
“applies only to tort actions and does not bar actions for constitutional violations”). Birkett
cited Firestone and Streeter, which merely adopted the same erroneous conclusion that the
15
Of course, the Tort Immunity Act would also apply even if a Human Rights Act claim
were not constitutional, but merely statutory, as it also applies to actions based upon “the statutes
*** of Illinois.” 745 ILCS 10/1-204 (West 2014).
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statute is limited to tort claims, and Anderson v. Village of Forest Park, 238 Ill. App. 3d 83, 92
(1992), which held that the statute did not apply to a federal (i.e., section 1983) claim. Those
cases are further problematic because they were decided before or overlooked the amendment of
section 1-204’s definition of injury to add claims brought under the “Constitution of the State of
Illinois.” See Pub. Act 84-1431, art. 1, § 2 (eff. Nov. 25, 1986 (amending Ill. Rev. Stat. 1985,
ch. 85, ¶ 1-204)); see also Stephanie M. Ailor, Notes, The Legislature Versus the Judiciary:
Defining “Injury” Under the Tort Immunity Act, 57 DePaul L. Rev. 1021, 1051-52 (Summer
2008) (addressing the current discrepancy between the statute and outstanding case law and
noting that the problem “arose from a failure to recognize the statutory amendment”).
¶ 115 In summary, we hold that the Tort Immunity Act applies to actions under the Human
Rights Act. The City can assert immunity with respect to plaintiff’s requests for damages but
not to her requests for equitable relief. We acknowledge that the supreme court has impliedly
rejected our previous holdings that the Tort Immunity Act applies only to tort actions and does
not apply to constitutional claims. Accordingly, we do not follow that precedent.
¶ 116
¶ 117 III. CONCLUSION
¶ 118 We have answered the certified questions, and we remand the cause to the trial court for
further proceedings.
¶ 119 Certified questions answered; cause remanded.
¶ 120 JUSTICE McLAREN, concurring in part and dissenting in part.
¶ 121 Although I concur with some of what the majority has opined, I must also dissent from
portions of the majority opinion.
¶ 122 First, I dissent from the majority’s determination that the legislature has created the cause
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of action of “disability harassment.” The majority correctly relates that the term “harassment”
and the phrase “hostile or offensive working environment” explicitly appear in the Human Rights
Act in the employment context only in connection with “sexual” harassment. Supra ¶ 29. The
majority also correctly states that the Human Rights Act: “explicitly prohibits sexual harassment”
(id.); “does not, with respect to employment, explicitly refer to disability harassment” (emphasis
in original) (supra ¶ 34); and “explicitly makes only sexual harassment a civil rights violation”
(emphasis in original) (id.). From these explicit observations, the majority then concludes that
the Act is “ambiguous” and “does not explicitly state that sexual harassment is the only type of
harassment claim that constitutes a civil rights violation.” Supra ¶ 42.
¶ 123 I believe that the majority is not considering the legal maxim of statutory interpretation
“inclusio unius est exclusio alterius,” which provides that the inclusion of one thing implies the
exclusion of another; in other words, “where a statute lists the thing or things to which it refers, the
inference is that all omissions are exclusions, even in the absence of limiting language.” City of
St. Charles v. Illinois Labor Relations Board, 395 Ill. App. 3d 507, 509-10 (2009). The efficacy
of this maxim is demonstrated by the logical gymnastics required by the majority’s analysis: while
the Human Rights Act “explicitly makes only sexual harassment a civil rights violation” (emphasis
in original) (supra ¶ 34), the Act “does not explicitly state that sexual harassment is the only type
of harassment claim that constitutes a civil rights violation” (supra ¶ 42). Simply put, if the
legislature wanted to enlarge the reach of the statute to include any or all types of harassment
beyond sexual harassment, it easily could have done so. It did not.
¶ 124 Additionally, if section 2-102(D) was added as a clarification (see supra ¶ 48), it is
puzzling why the clarification was made to “narrowly expand the available protections” (emphasis
in original) (supra ¶ 48) and was not all-inclusive, adding hostile-work-environment harassment as
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a civil rights violation in regard to all of the enumerated protections. In any event, the fact that
this question was certified to this court suggests that the legislative “clarification” is far from clear.
¶ 125 I submit that the answer to the first part of the first certified question should be that there is
no statutory cause of action for disability harassment. (However, the complaint stated a cause of
action for disability discrimination.) I would thus answer the question with a qualified negative.
¶ 126 I further dissent, for two reasons, from the majority’s answer to the third certified question.
First, I do not believe that the question is a proper question; second, I believe that the majority’s
answer is incorrect.
¶ 127 I do not believe that there are reasonable grounds for a difference of opinion as to whether
the Tort Immunity Act applies to a Human Rights Act claim. The form of the question implies
that we would be effectively overruling three prior decisions of this court. The only reason for us
to depart from this line of cases (stretching back almost 40 years) would be the supreme court’s
overruling of those cases. This has not occurred. Therefore, there is no difference of opinion,
and the question is not a proper question to be answered under Rule 308.
¶ 128 The majority references a quote from Raintree Homes and claims that, by this, the supreme
court impliedly rejected our previous holdings. I disagree. The majority states, “The supreme
court has rejected the claim that the Tort Immunity Act ‘categorically excludes’ non-tort actions.
Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 261 (2004) (‘we do not adopt or
approve of the appellate court’s reasoning that the Tort Immunity Act categorically excludes
actions that do not sound in tort’).” Supra ¶ 8. The supreme court declined to “adopt or
approve” our reasoning; however, the court did not reject our reasoning, nor did it overrule our
holdings. It merely affirmed on a different basis. See Raintree Homes, 209 Ill. 2d at 261. I
interpret the supreme court’s statement as a general proposition that did not overrule the
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previously cited decisions but merely established an outer limit of the Tort Immunity Act.
Additionally, the facts in Raintree Homes are not the same, or even substantially the same, as the
facts herein; thus, Raintree Homes is not controlling. See Blount v. Stroud, 232 Ill. 2d 302, 324
(2009) (“the precedential scope of our decision is limited to the facts that were before us.”); see
also People v. Trimarco, 364 Ill. App. 3d 549, 555 (2006) (McLaren, J., dissenting).
¶ 129 The supreme court in Raintree Homes also said that “logic” similar to that employed by the
majority here was not controlling as well:
“While the Village correctly asserts that Village of Bloomingdale may have implicitly
found that the Act applied to some nontort actions specifically at issue in that case, such a
holding does not imply that the Act applies to all nontort actions against a government,
including impact fee refund actions.” (Emphasis in original.) Raintree Homes, 209 Ill.
2d at 259.
In my opinion, Raintree Homes did not address the precedent that the majority here is willing to
reject. Even if it did, the court did not reject it with such a broad generalization. I submit that the
supreme court might say the same thing quoted above about the majority’s implication that, per the
Raintree Homes generalization, the Tort Immunity Act categorically applies to actions that do not
sound in tort.
¶ 130 The second reason for my dissent from the majority’s answer to the third certified question
is that I believe that the specific inclusion of municipal corporations in the Human Rights Act
meant that the legislature intended that public employees be given the same rights as employees in
the private sector. The City claims that these are not rights that are set forth in the constitution. I
submit that the Human Rights Act was intended to prescribe the forms of relief for what are
constitutional rights, and not some brooding omnipresence in the sky. Apparently, the majority
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agrees:
“We first conclude that claims under the Human Rights Act are constitutionally
grounded and/or derived. As relevant here, the Human Rights Act expressly implements
the constitutional guarantee of freedom from disability discrimination in employment (Ill.
Const. 1970, art. I, § 19). 775 ILCS 5/1-102(F) (West 2014). The civil rights protected
by the Human Rights Act are constitutional rights, and, thus, plaintiff’s claims are
constitutionally grounded and/or derived; they are not tort actions. See Maksimovic v.
Tsogalis, 177 Ill. 2d 511, 518 (1997) (‘An action to redress a civil rights violation has a
purpose distinct from a common law tort action’ ***.” Supra ¶ 15.
I bolster my opinion with the submission that violating the Human Rights Act does not
comport with any formulation of reasonable policy or exercise of discretion that the Tort
Immunity Act is supposed to protect. The majority concludes that the Tort Immunity Act’s
definition of injury is the basis for its application to this cause of action. See supra ¶ 7. This
is incorrect. I submit that the relationship between plaintiff and defendant here is that of
employee and employer. I also submit that plaintiff’s employment contract implicitly
included the Human Rights Act. Plaintiff’s right to be free from unlawful discrimination in
the “terms, privileges or conditions of employment” (775 ILCS 5/2-102(A) (West 2014)) is
based on the fact that she is employed. As such, any injury in this case arose from a breach of
contract, not from a tort. The Tort Immunity Act explicitly states that it does not affect the
liability of a local public entity or public employee based on contract. See 745 ILCS
10/2-101(a) (West 2014); see also Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill.
2d 484, 500 (2001). Thus, the Tort Immunity Act does not apply to this contract-based cause
of action.
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