5 May 2009
The Supreme Court of Illinois recently held that under the Illinois Human Rights Act (IHRA), an employer is strictly liable not only for the sexual harassment of an employee by his or her direct supervisor, but also for the sexual harassment of an employee by any supervisor. Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, 2009 WL 1011986, at *5 (Ill. 2009). This decision is noteworthy for several reasons, among them that the court’s holding represents a break from federal law, under which an employer’s liability for creating a hostile work environment depends on whether the offending supervisor had direct authority to change the terms of the harassed employee’s working conditions. Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 724 (1998).
In Sangamon County Sheriff’s Department, the harassed employee, Donna Feleccia, was a records clerk for the sheriff’s department. Her harasser, a patrol division sergeant who worked in a different division and on a different shift, did not supervise Feleccia.
In 1999, Feleccia received a letter in her office mailbox on what appeared to be the Illinois Department of Public Health’s letterhead “informing” her that, among other things, she “may have been exposed to a communicable or sexually transmitted disease.” The employee was distraught and told her supervisor. They later confirmed with the Department of Public Health that the letter was a hoax, but word of the letter’s contents had already spread throughout the workplace.
The sheriff’s department conducted an investigation and ultimately discovered that the patrol division sergeant had sent the letter to the employee as a practical joke. One month later the department suspended the sergeant for four days without pay and warned him that “[a]ny further actions of this magnitude will result in a substantially harsher suspension and possible demotion or termination.” Feleccia was dissatisfied with this response. Though she had not informed the department at the time of these incidents, she asserted that the sergeant had previously assaulted and otherwise harassed her on more than one occasion.
Feleccia filed a sexual harassment charge under the IHRA, which provides, in relevant part, 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.” 775 ILCS 5/2-102(D).
After a hearing, the Illinois Human Rights Commission found that the sergeant had created a hostile work environment. The sheriff’s department was held strictly liable for that harassment because the sergeant was a supervisor. Feleccia was awarded $10,000 in damages and $13,400 in attorneys’ fees. The department appealed, and the Appellate Court of Illinois reversed, finding that because the sergeant was not a direct supervisor to the employee, he was not a “supervisor” within the meaning of the statute.
The Supreme Court of Illinois disagreed. The Supreme Court noted that the statute on its face only required the harasser to be a supervisor, not necessarily the direct supervisor of the harassed employee. The court rejected the department’s request to follow federal law interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, which makes an employer’s vicarious liability contingent on whether the harasser had supervisory authority over the victim.
The court found that it was “not unfair” to hold employers responsible for sexual harassment by supervisory employees because supervisors are representatives of the employers, and because employers are in the best position to train supervisors. The court therefore held that employers are strictly liable for sexual harassment of an employee by any supervisor.
The dissent argued that because the sergeant was essentially a co-worker with respect to Feleccia, the department should not be held vicariously liable for his sexual harassment of her. The dissent emphasized that the reason that harassment by supervisors is seen as much worse than harassment by other employees—because supervisors are able to directly affect the terms and conditions of the victim’s employment—simply does not exist if neither party has power over the other. The dissent also asserted that no other jurisdiction has expanded liability for sexual harassment to this extent.
As a result of this decision, it is even more important for employers to have an anti-harassment policy that clearly explains what actions may constitute harassment and that specifies that workplace harassment will not be tolerated. Employers should make efforts to ensure that all employees are aware of the policy, have access to the policy, and are complying with the policy. Finally, employers should be reasonably diligent in responding to any reports of harassment. Specific actions that an employer may take include conducting a prompt and thorough investigation of claims of harassment, interviewing any witnesses, taking any necessary corrective action, and ensuring that the employee who made the complaint is not subjected to retaliation.
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