Argument Report: Illinois Supreme Court Considers Whether Cook County Commission on Human Rights Can Award Punitive Damages

On Tuesday morning, the Illinois Supreme Court gave little concrete indication of how it will likely rule during oral argument on Crittenden v. Cook County Commission on Human Rights[pdf]. Counsel for the Commission and the plaintiff both appeared and argued, but there was no appearance for the appellees. Our detailed summary of the facts and the Commission and lower court rulings is here. The video of the Supreme Court argument is here.

Crittenden arises out of a sexual harassment claim brought by a former bartender at a Cook County bar. The bartender filed a complaint with the Cook County Commission on Human Rights with respect to her supervisor. The hearing officer recommended an award of lost wages, compensatory and punitive damages, and the Cook County Commission on Human Right adopted the hearing officer’s recommended order. The Circuit Court denied the defendants’ petition for a writ of certiorari to review the administrative decision, effectively affirming the decision. The Appellate Court (First District, Sixth Division) affirmed with respect to a variety of evidentiary challenges, but reversed the Commission’s award of punitive damages, holding that the Cook County Human Rights Ordinance didn’t authorize such an award. The Court declined to follow an earlier decision of Division One of the First District, Page v. City of Chicago, where the Court had held that the Chicago Human Rights Ordinance does permit an award of punitive damages for acts of sexual harassment and discrimination.

Counsel for the Commission began the arguments. Counsel observed that the Appellate Court’s holding was a surprise for two reasons: the earlier decision in Page, and because the facts in the record warranted punitive damages. Counsel argued that three reasons supported a finding that the ordinance authorized punitive damages: (1) the list of enforcement remedies in the ordinance is expressly made non-exclusive; (2) the language of the ordinance is otherwise very broad; and (3) the ordinance gives the Commission the authority to file with the Department of Professional Regulation whenever a licensed real estate broker violates the ordinance, suggesting an intent to facilitate punitive measures. Justice Freeman asked whether the issue was could the ordinance permissibly authorize the Commission to award punitive damages; or was the issue whether the ordinance did in fact authorize an award? Counsel responded that the question was whether the ordinance did authorize an award, and that the power to authorize such an award was clear, given the home rule statutes. Justice Thomas asked whether the ordinance could simply be changed if the Supreme Court found that it did not, as currently written, authorize punitive damages; counsel agreed that it could, but argued that it was important to vindicate the Commission’s implied powers. Counsel also pointed out that the ordinance had not been changed following Page, suggesting an intent to acquiesce in the result. Justice Karmeier noted that the ordinance speaks of fines and asked counsel why it would not have expressly authorized punitive damages. Counsel argued that the list was not exclusive. Justice Theis asked whether the language in the ordinance authorizing the hearing officer to recommend such relief “as is appropriate to make the complainant whole” didn’t suggest that only compensatory damages were permitted. Counsel argued that in fact it was a grant of discretion to the Commission. Justice Garman asked whether the fact that punitive damages are not favored in the law should make the Court reluctant to read implied authority to award them. Counsel responded that the Court had previously found some torts were sufficiently serious to warrant such awards. Justice Freeman asked whether, if the ordinance authorized an award, the case should be remanded for a determination of whether the defendants’ conduct was willful and wanton. Counsel conceded that although the hearing officer had not used those precise words, the officer had found a wanton disregard for the complainant’s rights, which was sufficient.

Counsel for the complainant briefly concluded the argument. He argued that the facts at issue – which included both verbal degradation and physical accosting – met several of the prerequisites for punitive damages. Justice Theis asked whether punitive damages were requested from the hearing officer, and counsel stated that they were. Justice Freeman asked whether the conduct of the employer and the bar patron allegedly involved in the conduct should be separated for determining whether the conduct was willful and wanton, and counsel responded that the challenged conduct of the two individuals could not be disentangled on the record.  Counsel concluded by stressing that despite the alleged outrageousness of the defendants’ conduct, the punitive damages award was modest.

We expect the Court to decide Crittenden within four months.

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