On April 16, 2009, the Illinois Supreme Court refused to follow federal harassment case law and ruled that under the Illinois Human Rights Act, an employer is strictly liable for sexual harassment committed by any supervisor, regardless of whether the perpetrator holds direct, or even remote, authority over the victim. In so ruling, the court subjects Illinois employers to substantial financial exposure, and, as noted by Justice Karmeier in his dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”
The case involved Donna Feleccia, a records clerk with the Sangamon County Sheriff’s Department, and Sergeant Ron Yanor, a supervisor who worked in a separate division. Feleccia received a letter in her office mail purportedly from the Illinois Department of Public Health, which read in part:
Dear Ms. Feleccia: This is to inform you that you may have recently been exposed to a communicable or sexually transmitted disease. A confidential source who has tested positive has brought this matter to our attention…
It is important that you schedule a screening within the next 7 days. Please contact your local public health office for an appointment. This service is provided at no cost to you.
Understandably, the correspondence extremely upset Feleccia. After the Department of Public Health confirmed the letter was a forgery, the Sheriff’s Department conducted an internal investigation. When the State Police confirmed that Yanor’s fingerprints were on the letter, he confessed to sending it as a “practical joke.” The Sheriff’s Department suspended Yanor without pay for four days, issued a disciplinary memorandum and advised him not to have any further contact with Feleccia.
In addition to the forged letter incident, Feleccia testified about several other instances of unwelcome conduct that contributed to a hostile work environment. The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable because Yanor was a “supervisor,” but the appellate court reversed that decision, finding that Yanor was a co-employee of Feleccia and not her supervisor. As such, the Sheriff’s Department was not liable for Yanor’s harassment because it took reasonable corrective measures upon learning of the harassment.
In this regard, the Illinois Human Rights Act provides that it is a civil violation:
For 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 non-employees or non-managerial and non-supervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures. 775 ILCS 5/2-102(D)(West 1998)
The Sheriff’s Department urged the Illinois Supreme Court to follow precedent established by the United States Supreme Court interpreting harassment claims under Title VII of the Civil Rights Act of 1964. Justice Burke acknowledged that under federal law an individual is not a supervisor for purposes of imputing liability to the employer unless the supervisor has the authority to directly affect the victim’s employment. As noted by the dissent:
Sexual harassment of an employee by a supervisor triggers vicarious liability on the part of an employer not simply because the employer is assumed to have greater knowledge of and control over a supervisor’s behavior, but also because such harassment is qualitatively worse than such harassment by nonsupervisory employees. The reason it is qualitatively worse is that harassment by supervisors involves an abuse of power. The potential for such abuse is not present when, as here, the parties involved have no authority over one another.
Nevertheless, the majority of justices refused to disregard the clear language of the Illinois Human Rights Act and reversed the Appellate Court’s finding in favor of the Sheriff’s Department.
This case dramatically alters the employment litigation landscape. Essentially, the only way to limit liability for hostile work environment sexual harassment claims caused by a supervisor is to ensure that inappropriate workplace conduct does not occur in the first place or is stopped before it becomes actionably severe or pervasive. Given the recent amendment to the Illinois Human Rights Act that allows employees to bring actions directly in state court and obtain jury trials, where awards are not subject to the damage caps provided under federal law, employers need to take corrective litigation avoidance action immediately.
All managers and supervisors need to receive harassment training now and be retrained at least annually. Remind them that they are the eyes and ears of management and owe a duty to the employer as a condition of continued employment to promptly report any inappropriate workplace conduct, especially conduct involving other supervisors and managers. Low-level supervisors merit special attention. These individuals are often promoted from within the ranks and maintain personal relationships with fellow workers that often lead to harassment claims.
Regardless of the training cycle, anytime an employee is promoted to a supervisory position, the employer needs to conduct thorough harassment training of the individual. When conducting training, please remind supervisors that unlike federal law, under the Illinois Human Rights Act the supervisor can be named as an individual defendant. Under such circumstances, employees may be required to fund their own defense and personally pay any damage award.
Additionally, send a memo every six months to all employees reminding everyone of your commitment to maintaining fair employment practices. Attach copies of your equal employment opportunity, retaliation and harassment policies. The memo should direct all employees to notify the human resource director and specific members of senior management of any conduct that might violate any of the policies, even if management is or should be aware of the situation. Include a statement that no employee will be retaliated against for bringing such a matter to management’s attention. Require employees to sign a form acknowledging receipt of the memo. Promptly investigate any reported incidents and take appropriate action to make sure inappropriate conduct stops immediately. iBi