In a significant ruling interpreting the Illinois Human Rights Act, the Illinois Supreme Court recently expanded employers’ potential exposure to sexual harassment claims and damages by holding that an employer is strictly liable for sexual harassment committed by a supervisor, even if the supervisor does not directly supervise the employee who is harassed. Sangamon County Sheriff’s Department v. The Illinois Human Rights Commission, IL Nos. 105517, 105518 (April 16, 2009). Under this ruling, an employer is automatically liable for sexual harassment by any of its supervisors, without regard to whether the employer even knew about the harassment, or took reasonable corrective measures upon learning of the harassment.
The Sangamon County decision represents a significant departure from prior state court rulings which had imposed strict liability on an employer only for sexual harassment by the employee’s direct supervisor or a supervisor in the employee’s chain of command. The decision also stands in stark contrast to the court decisions under Title VII for hostile environment harassment, which hinges on the harasser’s status as supervisor or co-employee of the victim. Indeed, this new and expansive Illinois standard prompted one of the dissenting justices to decry that the decision “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”
The plaintiff in Sangamon County, a records clerk with the Sheriff’s Department, filed sexual harassment and retaliation claims against the Sheriff’s Department and a patrol division sergeant based on several incidents which occurred over a six month period. The sergeant drafted a forged memo from the Department of Public Health advising plaintiff that she had been exposed to a sexually transmitted disease. The sergeant also propositioned the plaintiff numerous times. The sergeant was a supervisor but had no supervisory authority over the plaintiff, who worked in a separate division of the department and on a different shift.
Following a hearing, the Illinois Human Rights Commission concluded that the plaintiff had established sexual harassment based on hostile environment, in violation of Section 2-102(D) of the Illinois Human Rights Act, which provides:
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.
The Commission found as a matter of law that the department was strictly liable for the sergeant’s harassment because he was a supervisory employee. The Commission gave no weight to the corrective measures taken by the Sheriff’s Department. The Illinois Appellate Court reversed the Commission’s findings, holding that the sergeant stood not as a supervisor but rather as a co-employee in relation to the plaintiff. As a result, the Sheriff’s Department was able to escape the strict liability standard, and avoid liability by demonstrating that it had taken reasonable corrective measures after learning of the harassment -- which included suspending the sergeant and issuing a letter of reprimand.
The Illinois Supreme Court, however, reversed. The Court found the language of Section 2-102(D) unambiguous, and held that an employer is strictly liable for the hostile environment harassment of any of its supervisory employees, even when the supervisor at issue has no authority to affect the terms and conditions of the harassed employee. The Court explained that where the harasser is a “nonemployee” or “nonmanagerial or nonsupervisory employee,” an employer is responsible for the harassment only if it was aware of the conduct and failed to take reasonable measures. The sergeant, according to the Court, was neither a “nonemployee” nor a “nonmanagerial or nonsupervisory” employee so the Sheriff’s Department was strictly liable for the harassment “regardless of whether it was aware of the harassment or took measures to correct the harassment.”
The Illinois Supreme Court refused to follow federal law interpreting Title VII under which an employer’s liability depends on whether the harasser is a co-worker or supervisor of the harassed employee. The Court bluntly explained that it was not bound by the decisions (or reasoning) of the federal courts, but rather by the language of the Illinois Act itself. In justifying its holding from a policy perspective, the Court went on to explain that “[n]ot only are supervisors the ‘public face’ of the employer, but employers are in the best position to train supervisors and make them aware of the law prohibiting sexual harassment.”
The Illinois Supreme Court’s admonitions in Sangamon County are clear. Employers will be held responsible for harassment by their supervisors, even if the supervisor in question has no authority over the harassed employee, even if the harassed employee never suffers an adverse job action, and even if the employer never knew that the harassment occurred. To be sure, this ruling greatly expands the scope of potential liability, and serves as a wake-up call to employers to revisit their policies, procedures and reporting mechanisms. The best way for employers to reduce this risk of liability is to ensure all supervisors receive regular and effective sexual harassment training, particularly on the significance of their roles as supervisors, the implications and consequences of their conduct, and the importance of adhering to the terms of the employer’s sexual harassment policy. While the training alone may not serve as a defense to supervisory harassment claims, it certainly may prevent supervisors from engaging in inappropriate conduct in the first place, and ultimately contribute to a healthier work environment.