2025 IL App (1st) 250148-U No. 1-25-0148 Order filed December 4, 2025 Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ JOHN SCHOFF and JANE STOLLER-SCHOFF, ) Petition for Review of ) an Order of the Illinois Human Petitioners-Appellants, ) Rights Commission ) v. ) ) ILLINOIS HUMAN RIGHTS COMMISSION; ) JACQUELINE Y. COLLINS, as Commissioner of the ) Illinois Human Rights Commission; JANICE M. GLENN, ) as Commissioner of the Illinois Human Rights ) Commission; HOWARD A. ROSENBLUM, as ) Commissioner of the Illinois Human Rights Commission; ) ILLINOIS DEPARTMENT OF HUMAN RIGHTS; and ) VILLAGE OF SOUTH BARRINGTON, an Illinois ) Municipal Corporation, ) ) Respondents-Appellees. ) Charge No. 2021CH1683
PRESIDING JUSTICE NAVARRO delivered the judgment of the court. Justices Lyle and Quish concurred in the judgment.
ORDER
¶1 Held: We affirm the decision of the Illinois Human Rights Commission to sustain the Illinois Department of Human Rights’ dismissal of the petitioners’ charge of No. 1-25-0148
housing discrimination against the Village of South Barrington for lack of substantial evidence.
¶2 After petitioners, John Schoff and Jane Stoller-Schoff (collectively, the Schoffs), filed a
charge of housing discrimination against the Village of South Barrington (Village), the Illinois
Department of Human Rights (Department) investigated the charge and dismissed the charge for
lack of substantial evidence. The Schoffs filed a request for review with the Illinois Human Rights
Commission (Commission), which sustained the Department’s dismissal. Thereafter, the Schoffs
filed a petition for direct administrative review in this court and now contend for a multitude of
reasons that the Commission erred in sustaining the Department’s dismissal. For the reasons that
follow, we affirm the Commission’s decision.
¶3 I. BACKGROUND
¶4 The Village has approximately 5,000 residents and 1,500 households. Most properties in
the Village are not connected to public sewers, but rather rely on septic systems to dispose of
household waste. A septic system consists of two components: one or more septic tanks and a drain
field. The septic tanks collect the solid and liquid waste. While the solid waste sinks to the bottom
of the septic tank and remains there, the liquid waste moves through the tank and into the drain
field, where the liquid absorbs into the soil. The solid waste, meanwhile, must be periodically
pumped out of the septic tank. If a septic system is too small, raw sewage could spill out of the
septic tank and potentially flood the drain field and pollute nearby waterways.
¶5 The Village is governed by a municipal code, which has a chapter dedicated to the
governance of septic systems (the septic code). South Barrington Municipal Code § 4-7-1 (adopted
Feb. 12, 2015). In the septic code, the Village expressly adopted the Illinois Private Sewage
Disposal Code (77 Ill. Adm. Code 905.10 et seq. (2013)), but to the extent the Village had more
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restrictive requirements, the Village’s requirements govern. South Barrington Municipal Code §
4-7-1 (adopted Feb. 12, 2015). According to Village’s septic code, the minimum liquid capacity
of a septic tank system for a house with five bedrooms was 2,500 gallons. Id. § 4-7-2. For a house
with seven bedrooms, the minimum liquid capacity was 3,500 gallons. Id. The Illinois Private
Sewage Disposal Code has reduced capacity requirements. See 77 Ill. Adm. Code 905.Appendix
A, Illustration F (1996).
¶6 In 1985, the property at issue, a single-family residence, was built with 5 bedrooms and
two 1,500-gallon septic tanks in the Village, resulting in a 3,000-gallon septic capacity. At some
point prior to 2014, the property owner added two unpermitted bedrooms to the residence, bringing
the total number of bedrooms to seven. In 2014, the Schoffs, who are Episcopalian Christians,
bought the property. Due to their faith, the Schoffs believed they were called to provide short-term
housing to people in need, specifically asylum seekers, missionaries and refugees. The Schoffs’
beliefs led them to house, at various times, predominantly Black individuals from Africa, but also
occasionally Chinese, Japanese, Colombian and white individuals.
¶7 In June 2019, a woman, who had been pulled over by the police for reckless driving,
complained that she had been kicked out of the Schoffs’ residence after residing there for 18
months. The complaint reached Mike Moreland, the Village’s building and zoning officer, who,
upon further investigation, learned that the Schoffs housed various non-related individuals in their
residence, including renting rooms. Because the Village had a municipal ordinance prohibiting
short-term rentals, it notified the Schoffs that they were violating the municipal code and began an
administrative enforcement action against them. In response, the Schoffs requested an
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accommodation to continue providing short-term housing pursuant to the Illinois Religious
Freedom Restoration Act (Religious Freedom Act) (775 ILCS 35/1 et seq. (West 2018)).
¶8 In October 2019, the Schoffs and the Village agreed to settle the administrative
enforcement action. The Village agreed to dismiss its enforcement action with prejudice, allow the
Schoffs to rent rooms in their residence to tenants with leases of at least one year, and allow the
Schoffs a religious accommodation to house short-term occupants, including “missionaries,
refugees, and asylum seekers” as long as they provided the Village notice. In exchange, the Schoffs
were required to pay the Village $2,500 and allow the Village to complete an inspection of their
property, including their septic system, to ensure that the property could safely house additional
residents. If any code violations arose, the Schoffs were required to correct them. The agreement
explicitly provided that the Village did not waive its police power or its right to enforce any other
municipal ordinance violations.
¶9 Following the settlement agreement, the Village performed an inspection of the Schoffs’
property. During the inspection, the Village learned someone had added two unpermitted
bedrooms, resulting in the Schoffs’ septic system being too small for the number of bedrooms in
the residence. Moreland informed the Schoffs that they either had to remove two bedrooms, which
also would require them to remove two bathrooms, or increase the size of their septic system. The
Schoffs were reluctant to do either, as increasing the size of their septic system was costly and
removing bedrooms would limit their abilities to house people.
¶ 10 Instead, in May 2020, the Schoffs inquired with the Village about the possibility of a
variance, but the Village told them that a variance was not possible and denied them a hearing on
their request. While the Village ultimately relented and provided the Schoffs a variance hearing,
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the Village did not grant them a variance. Later that month, after months of inaction by the Schoffs
on their septic code violations, the Village issued them four citations for violating the septic code.
The Village proceeded to an administrative hearing on the citations, where a hearing officer found
the Schoffs liable on three of the citations.
¶ 11 In April 2021, believing that the Village had discriminated against them, the Schoffs filed
a charge of housing discrimination against the Village with the United States Department of
Housing and Urban Development, which was cross-filed with the Department. The Schoffs alleged
that the Village’s prosecution of the septic code violations against them amounted to harassment,
interfered with their religious beliefs, and interfered with their association with Black and African
asylum seekers and missionaries. The Schoffs asserted that the Village’s interpretation of its septic
code was unreasonable and the Village engaged in selective enforcement of it. Based on their
allegations, the Schoffs contended that the Village had violated various federal laws and sections
3-102(B), 3-105(B)(1) and 3-105.1 of the Illinois Human Rights Act (Act) (775 ILCS 5/3-102(B),
3-105(B)(1), 3-105.1 (West 2020)).
¶ 12 The Schoffs’ charge of discrimination consisted of nine counts. Counts A, D and G alleged
that the Village imposed discriminatory terms and conditions against the Schoffs (Count A),
harassed the Schoffs (Count D), and imposed an unlawful restrictive covenant against the Schoffs
(Count G) due to their association with asylum seekers, missionaries and refugees whose race was
Black. Counts B, E and H alleged that the Village imposed discriminatory terms and conditions
against the Schoffs (Count B), harassed the Schoffs (Count E), and imposed an unlawful restrictive
covenant against the Schoffs (Count H) due to their association with asylum seekers, missionaries
and refugees whose national origin was Africa. Lastly, Counts C, F and I alleged that the Village
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imposed discriminatory terms and conditions against the Schoffs (Count C), harassed the Schoffs
(Count F), and imposed an unlawful restrictive covenant against the Schoffs (Count I) because of
their religion as Episcopalians. The Village denied the charge of discrimination and asserted that
none of its actions against the Schoffs were motivated or based on race, national origin or religion.
¶ 13 Shortly after filing their charge of discrimination against the Village, the Schoffs filed a
five-count complaint against the Village, Moreland and an administrative hearing officer in the
circuit court of Cook County. The Schoffs claimed that the Village violated federal law, the United
States Constitution and the Religious Freedom Act (775 ILCS 35/1 et seq. (West 2020)) by
enforcing the septic code against them where the septic code interfered with their free exercise of
religion. In their complaint, the Schoffs also sought administrative review of the administrative
hearing in which the hearing officer found them liable for three of the citations and a petition for
writ of certiorari to have the Village’s denial of a variance judicially reviewed. That case remains
pending in the circuit court.
¶ 14 After initiating their charge of discrimination against the Village, the Department
investigated the Schoffs’ allegations. In doing so, the Department interviewed John Schoff
multiple times and Moreland. During the Department’s interviews with John Schoff, he claimed
that homeowners who provide shelter to individuals not from Africa were “treated more favorably”
by the Village and were not issued septic code violations. During the Department’s interview with
Moreland, he explained the dangers of inadequate septic systems. Moreland asserted that, while
an insufficiently-sized system could work in the short term, the system would eventually “fail.”
During Moreland’s interview, he stated that he was a Christian, he did not know what specific
religion the Schoffs practiced, and he “did not care about race or religion.” Moreland only knew
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that the Schoffs “were Christians, and they feel they should share their home with people in need.”
Moreland believed that the Village had issued citations for septic code violations to other residents,
but “he preferred to deal with residents face to face” rather than issue citations.
¶ 15 The Department also reviewed various documents, including a letter from the Village
engineer to two Asian residents, whose religious affiliation was unknown. The engineer recounted
an in-person conversation with the couple about their drainage pipes causing standing water and
erosion in a right-of-way. The engineer noted that such issues violated the municipal code and
requested the couple resolve the issue by a certain date. Additionally, the Department reviewed
another letter from the Village engineer to a resident, whose religious affiliation was unknown,
where the engineer requested that the resident redirect a sump pump discharge pipe that was
causing issues for a neighbor.
¶ 16 Following the investigation, a Department investigator issued a report recommending that
all nine of the Schoffs’ counts be dismissed for lack of substantial evidence. In October 2023, the
Department accepted the investigator’s recommendations and dismissed the Schoffs’ charge of
discrimination for lack of substantial evidence.
¶ 17 Thereafter, the Schoffs filed a request for review with the Commission. The Schoffs
contended that the Department’s analysis was flawed because it relied entirely on whether they
were discriminated against based on their religious identity, not whether they were discriminated
against based on their religious observance and practice. Under the proper analysis, the Schoffs
asserted that the Village’s denial of a variance was evidence that they were discriminated against
based on their religious observance and practice. The Schoffs argued that, even absent evidence of
discrimination, the septic code could be viewed as having a disparate impact on their religious
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practice. Lastly, the Schoffs highlighted a mechanical evaluation performed by Kyle Osier, a
licensed professional engineer, which they attached to their request for review. Osier concluded
that, based on the specifications of the Schoffs’ septic system, their system was “acceptable to
accommodate numerous persons living” there. The Department and the Village responded to the
Schoff’s request for review, arguing that the Commission should sustain the Department’s
dismissal, as the Schoffs failed to make a prima facie showing of discriminatory terms or
conditions, harassment or the Village subjecting them to an unlawful restrictive covenant.
¶ 18 In December 2024, the Commission entered a final order by a vote of three commissioners
to zero to sustain the Department’s dismissal for lack of substantial evidence. For Counts A, B and
C, the Commission determined that the Schoffs failed to make a prima facie showing of
discriminatory terms or conditions because there was no evidence the Village treated a similarly
situated group outside of the Schoffs’ protected classes more favorably under similar
circumstances. For Counts D, E and F, the Commission determined that the Schoffs failed to make
a prima facie showing of harassment because there was no evidence that the Village’s actions were
motivated by an intent to discriminate. For Counts G, H and I, the Commission determined that
the Schoffs failed to make a prima facie showing of an unlawful restrictive covenant because there
was no evidence that the Village’s septic code restricted or limited the Schoffs’ use or enjoyment
of their property on the basis of race, national origin or religion. Lastly, the Commission observed
that the Schoffs raised their disparate-impact theory of discrimination for the first time in their
request for review. But the Commission asserted that it only had jurisdiction to review theories
raised in the charge of discrimination, and therefore, it could not address the disparate-impact
theory of discrimination.
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¶ 19 The Schoffs timely filed a petition for direct administrative review in this court. See 775
ILCS 5/8-111(B)(1) (West 2020); Ill. S. Ct. R. 335 (eff. July 1, 2017). The Commission and
Department have filed a joint appellees’ brief while the Village has filed its own appellee’s brief.
¶ 20 II. ANALYSIS
¶ 21 A. Evidence Not Before the Commission
¶ 22 At the outset, we note that, in the Schoffs’ opening brief, they refer to facts that were
allegedly included in documents before the Department, but not included in the administrative
record filed in this court. The Schoffs included these documents in the appendix to their brief. In
conjunction with the inclusion of these documents in their appendix, following the filing of their
opening brief, the Schoffs filed a motion to supplement the record on appeal with these documents.
This, court, however, denied their motion.
¶ 23 Under Illinois Supreme Court Rule 335(d) (eff. July 1, 2017), “[t]he entire record before
the administrative agency shall be the record on review” in direct administrative review cases
unless the parties agree to omit portions of the record. In this case, as the Commission entered the
final order, it is the relevant administrative agency for Rule 335(d). See Schwartz v. Illinois Human
Rights Comm’n, 2024 IL App (4th) 231248, ¶ 60. A case can reach the Commission if, following
the Department’s dismissal of a charge of discrimination, the complainant files a timely request
for review. 775 ILCS 5/7B-102(D)(2)(a), 8-103 (West 2020). When filing a request for review,
the complainant may provide the Commission any “supplemental evidence” it desires the
Commission to consider. Id. § 8-103(B); 56 Ill. Adm. Code § 5300.410 (2022). Once the request
for review is filed, the Commission must notify the Department. 56 Ill. Adm. Code § 5300.420
(1981). If the Department opposes the request for review, it must file a response that includes: (1)
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a copy of the charge of discrimination; (2) its investigative report; (3) the results of any additional
investigation; and (4) a position statement. 56 Ill. Admin. Code § 5300.430(a) (2022). In turn, the
documentation the Department provides to the Commission and any supplemental evidence
submitted by the complainant becomes the record before the Commission for purposes of Rule
335(d). Once the Rule 335(d) record is established, that is the only evidence the Commission
considers (Young v. Illinois Human Rights Comm’n, 2012 IL App (1st) 112204, ¶ 50) and the only
evidence we may consider on direct administrative review. 735 ILCS 5/3-110 (West 2020); see
Ill. S. Ct. R. 335(i)(2) (eff. July 1, 2017) (applying section 3-110 of the Code of Civil Procedure
to direct administrative review cases).
¶ 24 When the Schoffs filed their request for review, the only supplemental evidence they
submitted was the mechanical evaluation performed by Osier. In opposing the Schoffs’ request for
review, the Department met its documentation obligation by providing a copy of the charge of
discrimination, its final investigative report and its determination that the charge lacked substantial
evidence, among other documents. That is to say, the mechanical evaluation, the only supplemental
evidence submitted by the Schoffs, and the documents the Department provided to the
Commission became the Rule 335(d) record and the only evidence we may consider in this direct
administrative review. See 735 ILCS 5/3-110 (West 2020). Consistent with our denial of the
Schoffs’ motion for leave to supplement the record on appeal, we must ignore any alleged facts in
the Schoffs’ statement of facts based on documents not before the Commission and ignore the
corresponding documents contained in the appendix to their opening brief. Because we will simply
disregard any statement of fact based on documents not included in the Rule 335(d) record, we
need not strike those portions of the Schoffs’ brief, as suggested by the Village.
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¶ 25 Additionally, in the Schoffs’ opening brief, they posited that, if this court denied their
motion to supplement the record, we should summarily reverse the decision of the Commission or
remand the matter to the Commission to consider this additional evidence. Because the onus was
on the Schoffs to provide any supplemental evidence it wished the Commission to consider (see
775 ILCS 5/8-103(B) (West 2020); 56 Ill. Adm. Code § 5300.410 (2022)) and they failed to
provide this additional evidence to the Commission, there is no basis to summarily reverse the
decision of the Commission or remand the matter to the Commission.
¶ 26 B. The Commission’s Decision
¶ 27 With that preliminary issue resolved, we turn to the decision of the Commission to sustain
the Department’s dismissal for lack of substantial evidence. The Schoffs contend that the
Commission erred in sustaining the Department’s dismissal, primarily because the Commission
erred in how it analyzed their charge of housing discrimination based on their religion. In fact, the
Schoffs do not raise any dispute with the Commission’s findings on their alleged civil rights
violations based upon race or national origin. As such, any argument that the Commission erred in
dismissing Counts A, D and G, which alleged civil rights violations based on race, and Counts B,
E and H, which alleged civil rights violations based on national origin, are forfeited. See Ill. S. Ct.
R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited ***.”). Accordingly, we confine
our analysis to whether the Commission properly sustained the Department’s dismissal on Counts
C, F and I—the alleged civil rights violations based on religion.
¶ 28 Under the Act, it is a civil rights violation for a local government to “[a]lter the terms,
conditions or privileges of a real estate transaction or in the furnishing of facilities or services in
connection therewith” on the basis of religion. 775 ILCS 5/1-103(L), (Q); 3-102(B) (West 2020).
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It is also “a civil rights violation to coerce, intimidate, threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his or her having exercised or enjoyed” his or her
religion. Id. § 3-105.1. In addition, “[e]very provision in an oral agreement or a written instrument
relating to real property which purports to forbid or restrict the conveyance, encumbrance,
occupancy, or lease thereof on the basis of *** religion *** is void.” Id. § 3-105(A). And “[e]very
condition, restriction or prohibition, *** which directly or indirectly limits the use or occupancy
of real property on the basis of *** religion *** is void.” Id. § 3-105(B)(1). “Religion,” according
to the Act, “includes all aspects of religious observance and practice, as well as belief ***.” Id. §
1-103(N).
¶ 29 Under the Act, when a complainant timely files a charge of a civil rights violation, the
Department must conduct a full investigation of the charge. Id. § 7B-102(A), (C). Following the
Department’s investigation, if it determines there is not “substantial evidence” to support the
charge, it shall dismiss the charge. Id. § 7B-102(D)(2)(a). “Substantial evidence is evidence which
a reasonable mind accepts as sufficient to support a particular conclusion and which consists of
more than a mere scintilla but may be somewhat less than a preponderance.” Id. § 7A-102(D)(2).
“[M]ere speculation and conjecture does not constitute substantial evidence.” Folbert v.
Department of Human Rights, 303 Ill. App. 3d 13, 25 (1999). During the investigatory phase, the
critical question is whether there is “enough evidence” of a civil rights violation to proceed to the
adjudicatory phase. Id. at 20. If the Department dismisses a charge of discrimination, the
complainant may file a request for review with the Commission. 775 ILCS 5/7B-102(D)(2)(a)
(West 2020). If the Commission sustains the Department’s dismissal, the Commission’s decision
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becomes the final order. Id. § 8-111(B)(1). From there, the complainant may file a petition for
direct administrative review to this court. Id.
¶ 30 On direct administrative review, we review the decision of the Commission, not the
Department (Spencer v. Illinois Human Rights Comm’n, 2021 IL App (1st) 170026, ¶ 31), and we
are “empowered to review any and all questions of law or fact presented by the record.” Anderson
v. Illinois Human Rights Comm’n, 314 Ill. App. 3d 35, 41 (2000). But “the Commission’s findings
of fact shall be sustained unless the court determines that such findings are contrary to the manifest
weight of the evidence.” 775 ILCS 5/8-111(B)(2) (West 2020). We do not provide such deference
to conclusions of law or issues of statutory construction, questions over which we exercise
independent review. Raintree Health Care Center v. Illinois Human Rights Comm’n, 173 Ill. 2d
469, 479 (1996). We, however, review the Commission’s ultimate decision to sustain the
Department’s dismissal for lack of substantial evidence for an abuse of discretion. Spencer, 2021
IL App (1st) 170026, ¶ 32; Young, 2012 IL App (1st) 112204, ¶ 32. Under this standard, we will
not reverse the Commission’s decision unless no reasonable person could agree, or the
Commission’s decision “contravenes legislative intent, fails to consider a critical aspect of the
matter, or offer[s] an explanation so implausible that it cannot be regarded as the result of an
exercise of the agency’s expertise.” Young, 2012 IL App (1st) 112204, ¶ 33.
¶ 31 In arguing that the Commission improperly sustained the Department’s dismissal, some of
the Schoffs’ key arguments concern the definition of religion under the Act. First, they assert that
religious discrimination can be based not only on religious identity, but also on religious exercise
and practice. As noted, the Act defines religion broadly to “include[] all aspects of religious
observance and practice, as well as belief ***.” 775 ILCS 5/1-103(N) (West 2020). That is to say,
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the Schoffs are correct that religious discrimination under Illinois law encompasses more than just
discrimination based on a religious identity, but extends to discrimination based on religious
observance and practice.
¶ 32 Second, the Schoffs posit that the Commission only analyzed whether the Village
discriminated against them based on their religious identity. According to the Schoffs, the
Commission completely failed to consider whether the Village discriminated against them based
on their religious observance and practice. Relatedly, the Schoffs argue that the Commission failed
to consider that the Act has expanded protections in religious practice discrimination cases as
compared to the federal Fair Housing Act (42 U.S.C. § 3601 et seq. (2018)). In turn, the Schoffs
contend that the Commission overlooked a critical aspect of the case, mandating reversal. See
Young, 2021 IL App (1st) 170026, ¶ 33 (the Commission abuses its discretion if it “fails to consider
a critical aspect of the matter”). Both of these latter arguments are based on the broad definition of
“religion” in the Act. But there is nothing in the record indicating that, when sustaining the
Department’s dismissal for lack of substantial evidence, the Commission misinterpreted or
misapplied the definition of religion, failed to consider that religion encompassed religious
observance and practice, or failed to consider that the Act has expanded protections in religious
practice discrimination.
¶ 33 1. Count C
¶ 34 We now turn to the specific counts of the Schoffs’ charge of housing discrimination
involving religion, beginning with Count C. In Count C, the Schoffs alleged a civil rights violation
based on the Village subjecting them to discriminatory terms or conditions based on their religion.
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¶ 35 An individual may prove discrimination through direct evidence or indirect evidence.
Lalvani v. Illinois Human Rights Comm’n, 324 Ill. App. 3d 774, 790 (2001). In the instant case,
there was no direct evidence of discrimination, so the Schoffs were required to show discrimination
through indirect evidence under the burden-shifting framework articulated by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Zaderaka
v. Illinois Human Rights Comm’n, 131 Ill. 2d 172, 178-79 (1989) (adopting the McDonnell
Douglas burden-shifting framework). Under this framework, the complainant bears the initial
burden to establish a prima facie case of discrimination by a preponderance of the evidence. Id. If
the complainant establishes a prima facie case, the burdens shifts to the respondent to rebut that
presumption by articulating, though not proving, “a legitimate, nondiscriminatory reason for its
decision.” Id. at 179. If the respondent does so, the burden shifts back to the complainant to “prove
by a preponderance of the evidence that the [respondent’s] articulated reason was not its true
reason, but was instead a pretext for unlawful discrimination.” Id.
¶ 36 The elements of a prima facie case of discrimination will depend on the circumstances.
Acorn Corrugated Box Co. v. Illinois Human Rights Comm’n, 181 Ill. App. 3d 122, 137 (1989).
To make a prima facie case for Count C, the Schoffs had to show that: (1) they were a part of a
protected group; (2) the Village was aware of it; (3) the Village subjected them to discriminatory
terms or conditions; and (4) the Village treated a similarly situated person outside of their protected
group more favorably under similar circumstances. See Atkins v. City of Chicago Comm’n on
Human Relations ex rel. Lawrence, 281 Ill. App. 3d 1066, 1074 (1996); Turner v. Human Rights
Comm’n, 177 Ill. App. 3d 476, 487 (1988). As the Commission found, there was no evidence that
the Village treated a similarly situated person outside of the Schoffs’ protected group more
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favorably under similar circumstances. Neither the evidence presented by the Schoffs nor any
evidence uncovered by the Department during its investigation revealed a comparator, in particular
a non-Episcopalian, who was not cited for septic code violations under similar circumstances.
Though not completely analogous, the Department’s investigation uncovered that the Village
demanded other homeowners, whose religions were unknown, fix drainage issues, at least one of
which was based on a municipal code violation.
¶ 37 While the record did not show the Village instituting administrative enforcement
proceedings against these homeowners, we can reasonably infer that these homeowners corrected
the issues upon request obviating the need for the Village to cite them administratively like what
occurred with the Schoffs. Simply put, there is no evidence that the Schoffs were treated differently
than any other homeowner in the Village. See Barricks v. Eli Lilly & Co., 481 F.3d 556, 560 (7th
Cir. 2007) (concluding that the complainant failed to establish a prima facie case of age
discrimination where she failed “to point to a younger employee who was similarly situated and
received more favorable treatment” than her); see Sangamon County Sheriff’s Department v.
Illinois Human Rights Comm’n, 233 Ill. 2d 125, 138 (2009) (noting that appellate courts have often
relied on federal cases in analyzing discrimination claims under the Act). Consequently, the
Commission properly found that the Schoffs failed to make a prima facie showing on Count C,
and therefore, it did not abuse its discretion by sustaining the Department’s dismissal on Count C
for lack of substantial evidence.
¶ 38 2. Count F
¶ 39 We next turn to the Commission’s decision to sustain the Department’s dismissal on Count
F, which alleged a civil rights violation based on the Village coercing, intimidating, threatening,
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or interfering with the Schoffs in their exercise or enjoyment of, or on account of them having
exercised or enjoyed, their religion. Given the similarity between section 105.1 of the Act (775
ILCS 5/3-105.1 (West 2020)) and section 3617 of the Fair Housing Act (42 U.S.C. § 3617 (2018)),
we can rely on federal case law to provide the prima facie test for Count F. See Sangamon County,
233 Ill. 2d at 138. To make a prima facie case for Count F, the Schoffs had to show that: (1) they
belonged to a protected group; (2) they were engaging in or enjoying their housing rights; (3) the
Village coerced, threatened, intimidated, or interfered with them on account of their housing rights;
and (4) the Village was motivated by an intent to discriminate. Bloch v. Frischholz, 587 F.3d 771,
783 (7th Cir. 2009). As the Commission found, there was no evidence that the Village was
motivated by an intent to discriminate when enforcing the septic code. Neither the evidence
presented by the Schoffs nor any evidence uncovered by the Department during its investigation
revealed any evidence of discriminatory intent. Rather, at all times, the evidence pointed to the
Village enforcing its septic code due to concerns of the Schoffs’ septic system failing and the
resulting consequences.
¶ 40 Notably, pursuant to the settlement agreement between the Schoffs and the Village, the
Village explicitly granted the Schoffs a religious accommodation to continue housing
missionaries, refugees, and asylum seekers on a short-term basis, belying any notion that the
Village harbored ill intent toward them based on their exercise of their religious observance or
practice. Moreover, when interviewed by the Department during its investigation, Moreland,
himself a Christian, was adamant that he did not consider religion when he found septic code
violations on the Schoff’s property. Simply put, there is no evidence that the Village was motivated
by any discriminatory intent when enforcing its septic code against the Schoffs. While the
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Village’s enforcement of its septic code may have inconvenienced the Schoffs, that does not mean
the Village was motivated by an intent to discriminate. See East-Miller v. Lake County Highway
Department, 421 F.3d 558, 564 (7th Cir. 2005) (while a highway department may have
“inconvenienced” a Black homeowner through various instances of damaging her property, she
failed to present any evidence that the highway department’s actions were motivated by an intent
to discriminate).
¶ 41 Nevertheless, the Schoffs argue that there is substantial evidence to establish that the
Village had an intent to discriminate against them based on their religious observance and practice,
namely because the Village’s septic code had a variance procedure, yet the Village denied them a
variance. Relying on Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of New
Berlin, 396 F.3d 895 (7th Cir. 2005), the Schoffs posit that, when an ordinance contains a variance
procedure and the government refuses to grant a variance based upon an applicant’s need to use a
property for religious observance and practice, an inference of religious practice discrimination
exists. Saints Constantine involved a land-use dispute between a church and a city related to the
church building a worship center on property zoned for residential use. Id. at 898. In analyzing the
plaintiff-church’s claim, which was brought under the federal Religious Land Use and
Institutionalized Persons Act of 2000 (42 U.S.C. § 2000cc(a)(1) (2000)), the United States Court
of Appeals for the Seventh Circuit stated: “If a land-use decision, in this case the denial of a zoning
variance, imposes a substantial burden on religious exercise *** [citation], and the decision maker
cannot justify it, the inference arises that hostility to religion, or more likely to a particular sect,
influenced the decision.” Saints Constantine, 396 F.3d at 900. The problem for the Schoffs is that
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Saints Constantine was a case brought, as noted, under the federal Religious Land Use and
Institutionalized Persons Act of 2000.
¶ 42 The standards applicable in Saints Constantine are simply not present in the instant case.
Equally as important, the critical issue when reviewing the Commission’s decision to sustain the
Department’s dismissal for lack of substantial evidence is whether the Commission abused its
discretion in finding a lack of substantial evidence. All the Schoffs can do with the fact that the
Village denied them a variance is speculate that the denial had a discriminatory intent. But
speculation cannot create substantial evidence. See Folbert, 303 Ill. App. 3d at 25. Consequently,
the Commission properly found that the Schoffs failed to make a prima facie showing on Count
F, and therefore, it did not abuse its discretion by sustaining the Department’s dismissal on Count
F for lack of substantial evidence.
¶ 43 3. Count I
¶ 44 We next turn to the Commission’s decision to sustain the Department’s dismissal on Count
I, which alleged a civil rights violation based on the Village subjecting the Schoffs to an unlawful
restrictive covenant in the form of the septic code.
¶ 45 As previously discussed, “[e]very provision in an oral agreement or a written instrument
relating to real property which purports to forbid or restrict the conveyance, encumbrance,
occupancy, or lease thereof on the basis of race, color, religion, or national origin is void.” 775
ILCS 5/3-105(A) (West 2020). And “[e]very condition, restriction or prohibition, *** which
directly or indirectly limits the use or occupancy of real property on the basis of race, color,
religion, or national origin is void.” Id. § 3-105(B)(1). No Illinois court has interpreted this section
of the Act. But the quintessential example of a restrictive covenant related to real property was
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discussed in the United States Supreme Court decision of Shelley v. Kraemer, 334 U.S. 1, 4-7
(1948), where private agreements among neighbors were created to exclude people of specific
races or colors from owning or otherwise occupying real estate in the neighborhood.
¶ 46 As the Commission found, neither the evidence presented by the Schoffs nor any evidence
uncovered by the Department during its investigation revealed any evidence to show that the
Village’s septic code forbade, restricted or encumbered the Schoffs’ property on the basis of
religion, or that the septic code limited the use or occupancy of their property on the basis of
religion. The concerns elucidated from Shelley, agreements and restrictions specifically designed
to preclude individuals of a particular protected class from enjoying their housing rights, are not
present here. Consequently, the Commission properly found that the Schoffs failed to make a
prima facie showing on Count I, and therefore, it did not abuse its discretion by sustaining the
Department’s dismissal on Count I for lack of substantial evidence.
¶ 47 Despite the lack of substantial evidence to support Counts C, F and I, the Schoffs, relying
on Robinson v. Village of Oak Park, 2013 IL App (1st) 121220, ¶¶ 35-36, argue that the
Commission’s decision must be reversed because the Village had an obligation not to enforce its
septic code once they asserted that the septic code interfered with their religious observance and
practice unless the Village could show an undue hardship from not enforcing the septic code. As
an initial matter, the Schoffs raised this argument for the first time in their reply brief, which,
generally, results in a party forfeiting that argument. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1. 2020)
(“Points not argued are forfeited and shall not be raised in the reply brief ***.”)
¶ 48 Forfeiture notwithstanding, Robinson, 2013 IL App (1st) 121220, ¶ 18, involved alleged
religious discrimination in the employment context. Religion, for purposes of employment
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discrimination, has a unique definition compared to other types of discrimination. Under section
2-101(F) of the Act (775 ILCS 5/2-101(F) (West 2020)), “ ‘religion’ with respect to employers
includes all aspects of religious observance and practice, as well as belief, unless an employer
demonstrates that he is unable to reasonably accommodate an employee’s or prospective
employee’s religious observance or practice without undue hardship on the conduct of the
employer’s business.” (Emphasis added.) Section 2-101 notes that this definition is “strictly in the
context of this Article,” i.e., the article dealing only with discrimination in the employment context.
Id. § 2-101. On the other hand, the definition of “religion” for other types of discrimination,
including in the real estate context, is “all aspects of religious observance and practice, as well as
belief except that with respect to employers, *** ‘religion’ has the meaning ascribed to it in
paragraph (F) of Section 2-101.” Id. § 1-103(N). Given the different definitions of religion for
purposes of employment discrimination and housing discrimination, while the Schoffs repeatedly
argue about the Village needing to prove “undue hardship,” the Act explicitly limits the “undue
hardship” standards to employment discrimination claims, not housing discrimination claims.
¶ 49 Additionally, in their brief on direct administrative review, the Schoffs make cursory
references to a disparate-impact theory of discrimination. In a disparate-impact theory of housing
discrimination, a complainant alleges that a facially neutral ordinance has the effect of
discriminating against a protected class. Anderson v. City of Blue Ash, 798 F.3d 338, 364 (6th Cir.
2015). Under this theory, it is not the intent of a particular government entity that matters, but
rather “the broader effects of the disputed housing practice” or ordinance. Hollis v. Chestnut Bend
Homeowners Ass’n, 760 F.3d 531, 539 (6th Cir. 2014). To the extent that the Schoffs raise a
disparate-impact theory on direct administrative review, it fails because, as the Commission
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observed, this theory was raised for the first time in their request for review. As a result, the
Commission did not have jurisdiction to consider the theory. See Kalush v. Illinois Department of
Human Rights Chief Legal Counsel, 298 Ill. App. 3d 980, 991 (1998).
¶ 50 In their reply brief, the Schoffs argue that a recent circuit court ruling in their separate
lawsuit, which alleges claims under federal law, the United States Constitution and the Religious
Freedom Act, constitutes a “change in the law” which requires us to remand this matter to the
Commission. However, neither of the cases cited by the Schoffs support this argument nor their
requested remedy. Accordingly, we reject it.
¶ 51 Lastly, the Schoffs argue that, because the Department’s investigation failed to properly
analyze their claims of religious discrimination to include whether they were discriminated against
based on their religious observance and practice, the Commission should have used its authority
to obtain additional information to reach its decision on their request for review. Under the Act
and its regulations, the Commission has discretion to further investigate factual matters
underpinning a request for review (see 775 ILCS 5/8-103(B) (West 2020)) or obtain additional
information to aid in its consideration of a request for review. See 56 Ill. Adm. Code § 5300.470
(1981). Here, there was a complete lack of any evidence that the Village subjected the Schoffs to
discriminatory terms or conditions on the basis of religion, or harassed them on the basis of
religion, or that the septic code amounted to an unlawful restrictive covenant on the basis of
religion. Because of this lack of evidence, the Commission did not need to exercise its discretion
to investigate the Schoffs’ charge of discrimination further or obtain additional information to aid
in its consideration of their request for review.
¶ 52 III. CONCLUSION
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¶ 53 For the forgoing reasons, we affirm the decision of the Commission.
¶ 54 Affirmed.
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