The Honorable Justice Harrison delivered the judgment of the court. Chief Justice Bilandic, specially concurring. Justices Miller, Heiple and McMORROW join in this special concurrence.
The opinion of the court was delivered by: Harrison
JUSTICE HARRISON delivered the judgment of the court:
James Davis, the original complainant in this case, filed a discrimination charge with the Illinois Department of Human Rights alleging that his employer, Raintree Health Care Center (Raintree), violated the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 1-101 et seq.) by discharging him after learning that he tested positive for the human immunodeficiency virus (HIV). After a three-day hearing, an administrative law judge (ALJ) concluded that Raintree had discriminated against Davis by constructively discharging him on the basis of a physical handicap, his infection with HIV. The ALJ recommended Davis' reinstatement to his former position, or a substantially equivalent position with pay and benefits, and awarded him back pay, plus interest, and reasonable attorney fees. The Illinois Human Rights Commission upheld the ALJ's recommended order and decision. Ill. Hum. Rts. Comm'n Rep. 1988CN2190 (April 15, 1994). The appellate court, with one justice dissenting, affirmed the final order of the Illinois Human Rights Commission. 275 Ill. App. 3d 387, 655 N.E.2d 944, 211 Ill. Dec. 561. We allowed Raintree's petition for leave to appeal. 155 Ill. 2d R. 315.
The central issue raised in this appeal is whether the Illinois Human Rights Commission properly determined that Raintree's constructive discharge of Davis, based on his HIV-positive status, amounted to a violation of the Illinois Human Rights Act. To resolve this issue we must also determine whether public healthstatutes and regulations in effect at the time of this action prohibited Davis from working at the Raintree nursing home and whether Raintree's belief that these regulations did in fact bar Davis from working at its facility is relevant in determining liability under the Illinois Human Rights Act. The final issue raised by Raintree is whether it was entitled to discovery and a hearing on Davis' petition for attorney fees. For the reasons which follow, we affirm the judgment of the appellate court.
The testimony presented at the evidentiary hearing before the ALJ established the following facts. Raintree operates a nursing home facility in Evanston, Illinois. Raintree hired James Davis as a kitchen helper in March of 1987. Raintree later promoted Davis to the position of cook at the facility. In June of 1987, Davis was fired for fighting on the job, but Raintree rehired Davis in November of 1987, when his supervisor asked him to return. Both parties stipulated that after Davis was rehired, he performed his duties as a cook in an acceptable manner consistent with Raintree's standards. Davis' responsibilities as a cook consisted of preparing the evening meal, placing the food on trays, and cleaning and straightening the kitchen and storeroom areas. In performing these duties, Raintree required Davis to wear gloves. Davis had no direct contact with the residents of the facility.
On January 12, 1988, Davis' doctor informed him that he had tested positive for HIV. After reporting to work that same day, Davis told his supervisor, Pearl Smith, that he had just been diagnosed as being HIV-positive. Smith suggested that Davis begin working while she went to discuss the matter with Burton Behr, the administrator of the facility. Behr then called Davis into his office for a meeting. At this first meeting, Behr told Davis that Raintree needed information from publichealth officials to determine whether Davis could continue his employment. Behr then allowed Davis to return to work. Behr testified that after this first meeting, he began looking through the Illinois Department of Public Health regulations and the City of Evanston regulations governing the licensing of nursing homes. Behr found nothing in the nursing home regulations that addressed the situation of an HIV-positive employee.
Behr testified that on this day, he made several telephone calls to the Evanston board of health, the Illinois Department of Public Health, and the Illinois Council on Long Term Care for advice on how to handle Davis' situation. Behr was unable to receive a definitive answer as to whether Davis' condition made him ineligible to work in a nursing home. Behr testified that when he spoke with Louise Brown, the director of the Evanston board of health, he explained to her that he "could not find anything in the rules and regulations anywhere that specifies HIV-positive," and asked whether Davis could continue working at the facility. Behr testified that Brown responded, "I can't tell you he can't work there, but I can tell you if something should occur because he is working there, then you are subject to the rules and regulations." Behr replied that "there are no rules and regulations governing this." Brown again responded, "You will have to go with the rules and regulations that stand until it can be clarified, so according to the rules and regulations, he is unable to work there at the present time ***." Behr also spoke with Rose Ferrell, a regional supervisor of the Illinois Department of Public Health. Behr testified that Ferrell simply told him to follow the rules and regulations and that she would check further and get back to him. Similarly, Terry Sullivan, the director of the Illinois Council on Long Term Care, offered no recommendation on how Behr should proceed.
After conducting this inquiry, Behr called Davis back to his office. Behr told Davis that he thought it was best that Davis go home until he found out more information as to whether the nursing home regulations prohibited HIV-positive persons from working at Raintree. Behr advised Davis that when he found out more information he would telephone him. Behr also requested that Davis bring a note from his doctor stating that "he was free of a communicable disease or that he was allowed to work with the HIV virus." That same week, Davis obtained a doctor's note as Behr requested. The note, signed by Davis' doctor stated:
Mr. James Davis HIV status does not restrict him from performing his current job as a cook in a nursing home. The HIV (AIDS Virus) is NOT transmitted through the preparation or serving of food and beverages. Transmission is through blood and body fluids. Should Mr. Davis cut himself in the course of the food preparation, that food should be discarded the same as if any employee had bled into food. Should you have any further questions, please contact the nurse with the clinic, Kathy Pietschmann, R.N., M.S. at 943-6600 ext. 401.
Despite the note, Behr did not allow Davis to return to work at Raintree. Behr testified that the Evanston board of health informed him that the note was insufficient to permit Davis to return to work because it did not specify that Davis was free from a contagious or infectious disease. Behr further stated that he contacted the nurse referred to in the doctor's note and she just reiterated the information contained in the note. Behr continued to communicate with the Illinois Department of Public Health and the Evanston board of health to try to get an opinion as to whether Davis' condition made him ineligible to work in a nursing home. Asstated, Behr never received a conclusive answer from either of these agencies.
For several weeks after he was initially requested to go home, Davis contacted the Raintree facility on numerous occasions to find out if Behr had received an answer from the board of health and if he could return to work. Each time he called, Davis was told that Raintree had not yet received an answer from public health officials. From the time that he left the facility on January 12, 1988, Davis was never contacted by either Behr or Smith and was never allowed to return to work. Throughout this time when Behr was seeking an official opinion as to the impact of Davis' condition on his employment, Davis received no salary from Raintree.
In early February 1988, Davis' brother, who also worked as a cook at Raintree, informed Davis that he had been fired. Davis testified that he believed what his brother told him because he had not heard from anyone at Raintree for over three weeks. Davis did not call Raintree or seek confirmation that he had been fired. In early February, Davis filed for unemployment compensation benefits. Raintree contested the unemployment claim contending that it had never terminated Davis' employment. Davis was ultimately denied unemployment benefits.
On February 3, 1988, Davis filed a discrimination charge with the Illinois Department of Human Rights. After an investigation of the charge, on January 5, 1989, the Department of Human Rights filed a complaint on behalf of Davis, alleging that Raintree discriminated against Davis on the basis of a physical handicap. In February of 1989, Raintree offered Davis another position, at the same $4.20 rate of pay per hour, at a different nursing home facility located in Highland Park, Illinois. At the time of the offer, Davis lived at 43rd and Michigan Avenue in downtown Chicago. Davis did notown a car and relied on public transportation. The job at Highland Park was over 40 miles from Davis' home and would require approximately a 2 1/2-hour commute each way on public transportation. Davis refused the job due to the long commute.
The parties appeared for a three-day hearing before an ALJ beginning on February 24, 1992. Upon consideration of the evidence presented, the ALJ issued a recommended liability determination on October 9, 1992. The ALJ found that Raintree discriminated against Davis by constructively discharging him based on his HIV-positive status, a protected physical handicap. On October 28, 1992, Davis filed a petition for attorney fees and costs in the amount of $42,909.98, supported by affidavits of his counsel and a billing worksheet. Davis also requested a multiplier in the amount of 50%. Raintree filed a motion for discovery and depositions regarding the reasonableness of the attorney fees. After a hearing on Raintree's motion, the ALJ denied the request for discovery. Raintree eventually responded to Davis' petition for fees and moved for an evidentiary hearing and oral argument on these issues. The ALJ denied Raintree's motion, noting that oral arguments in such a circumstance were "highly unusual" and that Raintree offered "no explanation why this case required a variation from standard procedure." On July 8, 1993, the ALJ issued a recommended order and decision ...