Illinois Employers Now Face Broader Liability For Supervisors’ Harassment Under State Law Than Federal Law

Sexual Harassment in Illinois

Sexual Harassment in Illinois

by Paul E. Starkman
Chair of Arnstein & Lehr’s Labor & Employment Law Practice Group

The problems for Illinois employers when supervisors harass subordinates just got more complicated.  On April 16, 2009, in Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, ___ Ill. 2d ___ (Ill. April 16, 2009) (link: www.state.il.us/court/opinions/supremecourt/2009/april/105517.pdf), the Illinois Supreme Court adopted a new standard that imposed strict liability on employers in cases under the Illinois Human Rights Act involving sexual harassment by supervisors.  As discussed below, the Illinois Supreme Court’s new standard is different from the one used in federal harassment cases.  Now, according to the Illinois Supreme Court, an employer with one or more employees in Illinois can be strictly liable whenever any supervisory employee sexually harasses any employee, even if the supervisor was not in the victims chain of command supervisor of the plaintiff, even if the supervisor had no authority over the victim and even if the employer does not have any knowledge of the offending conduct.

The Impact of the Illinois Supreme Court’s Ruling.

The case before the Illinois Supreme Court involved sexual harassment.  The court held that the plain language of the Illinois Human Rights Act states that an employer is liable for the sexual harassment unless the harasser is either a “nonemployee” or “nonmanagerial” or “nonsupervisory employee” (in which case the employer will be responsible only if it was aware of the conduct and filed to reasonable corrective measures).  Given the Illinois Supreme Court’s reliance on the Human rights Act’s sexual harassment provisions, it is unclear whether this ruling will be applied to supervisory harassment on the basis of race, age, religion, disability, sexual orientation, marital status, the other characteristics that are protected by other sections of the Illinois Human Rights Act.  The significance of the Illinois Supreme Court’s new strict liability standard is magnified by recent amendments to the Illinois Human Rights Act that allow jury trials of harassment claims in state court without the caps on compensatory/punitive damages awards that exist under federal law.

Federal Law Is Different.

In contrast to this newly established rule of Illinois law, under federal law, an employer will not be strictly liable for a supervisor’s harassment unless the supervisor had the authority to hire, fire, demote, promote, transfer or discipline the plaintiff.  Under federal law, an employer will not be liable for the harassment of a supervisor who was not in the chain of command above the plaintiff unless the employer knew or should have known of the harassment but failed to take reasonable measures to prevent or rectify the harassment.  Even if a harasser was a direct supervisor of the victim, if the harassment did not involve an adverse employment decision, federal law provides an affirmative defense for an employer to avoid liability if the employer had an effective anti-harassment policy and the plaintiff failed to use it.

The Facts of the Case

In Sangamon County Sheriff’s Department v. The Illinois Human Rights Commission, __ Ill.2d __ (Ill. 4/16/09), the plaintiff was a records clerk with the Sangamon County sheriff’s department.  She complained about sexual harassment by a sergeant who was a supervisor in the sheriff’s department, but was not her supervisors. After a hearing, the Illinois Human Rights Commission found that, as a matter of law, the sheriff’s department was strictly liable for harassment by the sergeant, even though he did not supervise of the victim and even though the department did not know about the offending conduct. The plaintiff was awarded $10,000 in damages and $13,400 in fees and costs.  In a 4-2 decision, Illinois Supreme Court confirmed the result reached by the Illinois Human Rights Commission.  The Illinois Supreme Court refused to follow harassment cases decided under federal law, even though Illinois courts in the past had frequently relied upon federal cases when interpreting the Illinois Human Rights Act.

The Illinois Supreme Court noted that its new strict liability standard did not obviate the necessity for a plaintiff to establish a prima facie case of sexual harassment, but the court ruled that this had done here.  However, as the dissent pointed out, the court’s decision not only went beyond federal law, it imposed a standard of liability which appear to be without precedent in any jurisdiction in the United States

What Must Illinois Employers Do Now?

  • Small and large employers in Illinois must deal with this new form of strict liability. The sexual harassment provisions of the Illinois Human Rights Act cover employers with one or more employees (though it protects only Illinois residents). The federal anti-harassment law, Title VII, covers employers with 15 or more employees.
  • Employers operating in multiple states must make sure that their operations in Illinois conform to these new rules.
  • Employers in Illinois should take care not to label as supervisors those employees who have glorified job titles, but no real authority such as team leaders, lead employees and the like.
  • Employers must re-examine their anti-harassment policies (or establish a policy if they have not already done so) and make sure it clearly prohibits harassment by any supervisor.
  • Harassment reporting procedures must be reviewed to make sure they are effective and up-to-date. Are the persons who are supposed to receive harassment complaints clearly identified? Do all employees have access to a means to report harassment, such as a hotline or an executive who is frequently on site? Is the harassment policy translated for workers who do not speak English?
  • Supervisors, managers and executives must regularly be trained that the harassment of any employee is prohibited. They must be trained about the consequences of violating this company policy. Supervisors must also be trained on how to recognize harassment when they encounter it and what to do when a complaint of harassment is made.

An Illinois employer’s failure to take these steps will now result in strict liability whenever any supervisor harasses any Illinois employee.  The only questions will be: Did the supervisor’s conduct rise to the level of actionable harassment and how much damages should be awarded to the employee.

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