April 17, 2009Client Alert

Illinois Supreme Court Expands Employer “Strict Liability” for Sexual Harassment

The Illinois Human Rights Act provides that an employer is responsible for sexual harassment of its employees by “… non-managerial and non-supervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

The Illinois Supreme Court in a 4-2 ruling has greatly expanded the potential for a company to be held strictly liable for sexual harassment committed by its supervisors, regardless of whether the supervisor had any actual authority over the harassed employee. The decision in this case is a significant departure from established federal decisions interpreting Title VII, as well as a reversal of the Illinois appellate court. Under established federal cases, an individual is generally not a supervisor for harassment strict liability purposes unless he/she possesses the authority to directly affect the terms and conditions of a victim’s employment.

At issue in Sangamon County Sheriff’s Department v. The Illinois Human Rights Commission was the alleged sexual harassment of a records clerk by a Patrol Division Sergeant, a supervisor who had no supervisory authority over the victim and no actual authority to affect the terms and conditions of her employment. The Illinois Appellate Court had previously held that the Sheriff’s Department was not strictly liable because of the lack of supervisory authority by the harasser and because it took reasonable corrective steps after learning of the harassment.

The Court indicated that the employee still bears the burden of establishing that the offending conduct is indeed harassment, but stated that it is not unfair to hold an employer strictly liable for the acts of a supervisor, regardless of their actual authority. The court noted that supervisors are the public face of the employer, and that “…employers are in the best position to train supervisors and make them aware of the law prohibiting sexual harassment.”

The dissenting justices indicated that the Court’s ruling “…not only goes beyond the principles governing sexual harassment claims under Federal law, it imposes a standard of liability that appears to be without precedent in any jurisdiction in the United States.” It is likely that the Sheriff’s Department will seek review by the United States Supreme Court.

The increased exposure to employers for acts of harassment is a pointed reminder that the best way to prevent harassment in the workplace is to regularly and properly train supervisors, employees and new hires on harassment and discrimination prevention and recognition. Other issues implicated by this decision include the scope of supervisory positions within an organization and a determination of whether all designated positions are truly supervisory.

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