In a case decided April 16, 2009, the Illinois Supreme Court expanded the reach of Illinois law, finding an employer strictly liable under the Illinois Human Rights Act (the "Act") for the "hostile work environment" sexual harassment of its supervisory employee, notwithstanding that the offending supervisor had no authority to affect the terms and conditions of the complainant’s employment.
In this case, a records clerk with the Sangamon County Sheriff’s Department filed a charge of sexual harassment against the Sheriff’s Department and a sergeant who was a supervisor in the Sheriff’s Department but not the complainant’s supervisor.
The Illinois Human Rights Commission (the "Commission") found that the complainant established sexual harassment based on a hostile work environment and that the Sheriff’s Department was strictly liable for the sergeant’s harassment of the complainant because he was a supervisory employee.
The Illinois Appellate Court reversed, finding that the sergeant was a co-employee of the complainant and not her direct supervisor and, as such, the Sheriff’s Department was not liable for the sergeant’s harassment of the complainant because it took reasonable corrective measures upon learning of the harassment by suspending him for four days without pay and issuing him a letter of reprimand.
The Supreme Court, however,found that, under the Act, the Sheriff’s Department was strictly liable for the sergeant’s conduct based on his status as a supervisory employee, and, accordingly, upheld the Commission’s ruling.
The applicable section of the Act provides as follows:
It is a civil rights violation: * * * [f]or any employer, employee, agent of any employer, employment agency or labor organization to engage in sexual harassment; provided, that an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.
Illinois courts have previously interpreted this section of the Act as imposing strict liability on an employer for the sexual harassment of an employee by the employee’s direct supervisor. In other words, the employer is liable for the sexual harassment regardless of whether the employer knew of the offending conduct and regardless of whether the conduct is quid pro quo (sexual harassment that results in tangible economic consequences) or "hostile work environment" (offensive working conditions) sexual harassment.
But the facts of this case did not fall within the limitation in the second clause of the applicable section of the Act: the sergeant was neither a "nonemployee" nor a "nonmanagerial or nonsupervisory employee." He was a supervisor. Therefore, the Court stated, the Sheriff’s Department was liable for the sergeant’s sexual harassment of the complainant regardless of whether the Sheriff’s Department was aware of the harassment or took measures to correct the harassment.
When reviewing issues of employer liability for a sexual harassment claim, Illinois courts are bound by the language in the Act, not by decisions of the federal courts. Under federal law, employers are not always automatically liable for sexual harassment by their supervisors where the misconduct has created an intimidating, hostile or offensive work environment. An employer’s vicarious liability is conditioned on, among other things, a determination that an offending supervisor had the authority to directly affect the terms and conditions of a victim’s employment.
By contrast, the Act has no such requirement. There is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim. Where the statutory language is clear, courts will not read into it limitations that the legislature did not express. Where an employee has been sexually harassed by supervisory personnel, the Act imposes strict liability on the employer, regardless of whether the employer knew of the offending conduct and whether the supervisor could affect the terms and conditions of the employee’s employment.
The take away from this case is that supervisors are the "public face" of the employer and act on its behalf. As a result, a supervisor’s sexual harassment will be imputed to the employer. Illinois employers are in the best position to train supervisors and make them aware of the law prohibiting sexual harassment. Notwithstanding that this case imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States, Illinois employers are advised to take this matter seriously.
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