On April 16, 2009, the Supreme Court of the State of Illinois (the “Court”) held that the plain language of the Illinois Human Rights Act (section 2-102(D)) imposes strict liability on employers for the “hostile environment” sexual harassment of employees by supervisory employees, even if the supervisor has no authority to affect the terms and conditions of the employee’s employment. Under the statute, an employer is liable for a supervisor’s sexual harassment of another employee regardless of whether it was aware of the harassment or took measures to correct the harassment. Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, et al., Nos. 105517, 105518 (April 2009).  

A records clerk in the Sangamon County Sheriff’s Department filed a charge of sexual harassment and retaliation against the Sheriff’s Department and a sergeant in the department. The sergeant was a supervisor, but he had no supervisory authority over the employee, who worked in a separate division in the Sheriff’s Department.

In this matter, the Illinois Human Rights Commission dismissed the retaliation charge, but concluded that the sergeant committed a variety of sexually harassing acts that cumulatively constituted a hostile work environment and that the Sheriff’s Department was liable for the harassment because the sergeant was a supervisor. The Commission awarded the employee $10,000 in damages and approximately $13,400 in fees and costs. The appellate court reversed the Commission and held that the Sheriff’s Department could not be liable for the sergeant’s conduct because he was not the employee’s supervisor. In addition, the appellate court

held that the Sheriff’s Department took reasonable corrective measures upon learning of the harassment by suspending him without pay and issuing a letter of reprimand. The Court granted petitions for leave to appeal. Before the Court, the Sheriff’s Department argued that the Court should follow Title VII of the Civil Rights Act of 1964. Under Title VII, an employer is subject to vicarious liability, and not strict liability, to a victimized employee for actionable hostile environment created by a supervisor with immediate authority over the employee. Further, an individual is not a supervisor unless he possesses the authority to directly affect the terms and conditions of the victim’s employment. Using the Title VII framework, because the sergeant was not the employee’s direct supervisor and because he did not directly affect the terms and conditions of the victim’s employment, there could be no liability. Here, however, the Court found that it was bound by the language of the Illinois Human Rights Act and not the decisions of federal courts.

The Sheriff’s Department also argued that applying strict liability to all supervisory employees would lead to “bizarre and unjust results” because large employers such as multilayered corporations and governmental agencies would be strictly liable anytime a low-level supervisor sexually harassed any employee in any location. The Court found this argument unpersuasive because the employee must still first establish the elements of a sexual harassment case. Further, the Court held that it is not unfair to hold employers responsible for sexual harassment by supervisory employees because “not 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 laws prohibiting sexual harassment.”

As the Court points out, employers should periodically conduct sexual harassment training for all employees. Frank Del Barto believes that the imposition of strict liability on Illinois employers for the acts of any supervisor will likely result in more sexual harassment claims being filed in state court versus federal court. Frank notes that the Firm routinely provides sexual harassment training on a fixed-fee basis to employees, supervisors and executives.