Can the Cook County Commission on Human Rights Award Punitive Damages?

Our previews of the new civil cases granted review at the end of the Illinois Supreme Court’s November term conclude with Crittenden v. Cook County Commission on Human Rights [pdf]. Crittenden involves a question of administrative law which, depending on the breadth of the Court’s ultimate decision, could have broad implications: when can an administrative board award punitive damages?

Crittenden arises out of a sexual harassment claim. A bartender working at a Cook County bar filed a police report against her supervisor, resulting in a criminal trial at which he was acquitted. Shortly thereafter, the alleged victim filed a complaint with the Cook County Commission on Human Rights, alleging that her supervisor’s alleged conduct violated the Cook County Human Rights Ordinance. After a contentious hearing on the complaint, a hearing officer recommended that the employee receive an award of lost wages, compensatory and punitive damages. The Commission adopted the hearing officer’s recommended order.   The supervisor and the bar filed a petition for writ of certiorari with the Circuit Court, seeking administrative review of the Commission’s decision. The Court denied the writ, affirming the Commission’s decision on liability and compensatory and punitive damages.

The Appellate Court (First District, Sixth Division) affirmed the Commission in most respects. The appellants – the supervisor and the bar – argued that the Commission’s determination that the complainant was more credible that the appellants’ witnesses was against the manifest weight of the evidence. The Appellate Court rejected the argument, concluding that the appellants were essentially asking the Court to reweigh the evidence and substitute its assessment of credibility on a cold record for that of the hearing officer and Commission. The Appellate Court also found no reason to disturb the decision of the hearing officer, confirmed by the Commission, to allow the complainant to contradict her complaint with respect to the date of the principal events at issue.

The appellants also claimed that the hearing officer and Commission had erred by considering hearsay – testimony that the employee’s son had accompanied her to the bar the day after the principal events and damaged the bar in a fit of anger. The Appellate Court disagreed, pointing out that the rules of evidence didn’t apply to Commission proceedings, and any error in considering the expressive acts of the son was harmless anyway. The Court also concluded that there was sufficient evidence in the record to support the award of compensatory damages, and that the appellants hadn’t proven that the plaintiff failed to mitigate her damages.

The Court reversed the Commission’s award of punitive damages, however. According to the Court, in an action based on a statutory violation, punitive damages may be awarded either because the statute authorizes them, or the facts of the case support common law punitive damages. The Court concluded that the Cook County Human Rights Ordinance doesn’t authorize punitive damages awards, either expressly or by fair implication. Although the Ordinance states that the enumerated penalties are not an exhaustive list, the Court observed that each of the enumerated penalties is compensatory in nature, rather than a windfall like punitive damages. The Court also thought it was significant that the power to award punitive damages was expressly given in other ordinances, suggesting that if such a power had been intended, the Ordinance would say so.

The Appellate Court acknowledged that Division One of the First District had come to the opposite conclusion in Page v. City of Chicago, holding that the Chicago Human Rights Ordinance does permit an award of punitive damages for acts of sexual harassment and discrimination, but the Court declined to follow Page, noting among other things that the Page Court had failed to adequately address the limited powers of administrative agencies.

Finally, the Court refused to permit a common law award of punitive damages. As an administrative agency, the Commission had no common law authority, the Court held. Moreover, even if the Commission did have such authority, the Court pointed out that the Commission had made no findings that the supervisor’s alleged actions were committed with malice, or any of the other grounds which justify a common law award of punitive damages.

We expect the Supreme Court to decide Crittenden within four to six months.

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