An Illinois employer can be held strictly liable for the sexual harassment of an employee by a supervisor--even if the supervisor has no direct authority over the victim--following an April 16 decision by the Illinois Supreme Court. The ruling in Sangamon County Sheriff's Department v. The Illinois Human Rights Commission marks a significant departure from the way federal courts have interpreted sexual harassment cases under Title VII, and from the way courts have interpreted other states' sexual harassment laws.
"The ruling makes Illinois the most expansive jurisdiction on the planet with regard to imputing liability to an employer based on a supervisor's harassment," says David Christlieb, a lawyer at Littler Mendelson. "As Judge [Lloyd] Karmeier noted in his dissent, this standard of liability not only departs from federal law, it is without precedent in any jurisdiction in the United States."
The case grew out of Donna Feleccia's 1999 sexual harassment and retaliation charge against the Sangamon County Sheriff's Department and Sgt. Ron Yanor, who was a supervisor in the department but not her supervisor. Feleccia, a records clerk, alleged in her complaint to the Illinois Human Rights Commission that Yanor had retaliated against her because she refused to engage in sexual activity with him. Feleccia said his actions, and the department's response, created a hostile, embarrassing and intimidating work environment and that she experienced different terms and conditions of employment following her report of the sexual harassment.
Feleccia's attorneys entered as evidence a fictitious letter composed on Illinois Department of Public Health stationery informing her that she had contracted a sexually transmitted disease. Fingerprint analysis revealed Yanor wrote the forged letter. He confessed and called it a practical joke. The department subsequently reprimanded Yanor and gave him a four-day suspension. Although the letter was to remain a private matter between Feleccia and the sheriff's department, Feleccia testified that co-workers heard about the letter and assumed it to be real, and a sheriff's deputy called to talk about her "affair with Yanor." After these incidents, her visits to a psychiatrist for work stress and anxiety increased and the psychiatrist doubled the dosage of her anxiety medication.
The Illinois Human Rights Commission found that Feleccia had established sexual harassment based on a hostile work environment, and that the sheriff's department was strictly liable, even though Yanor was not Feleccia's supervisor. Under strict liability, employers are liable for sexual harassment regardless of whether they were aware of the offending conduct. The Illinois Court of Appeals reversed the opinion, finding that Yanor was merely a co-employee of Feleccia who had no supervisory authority over her and that the sheriff's department took reasonable corrective measures upon learning of the harassment when it suspended Yanor.
A Revised Reading
In reversing the appellate court's decision, the Illinois Supreme Court said the plain language of the Illinois Human Rights Act did not differentiate between harassers who are direct supervisors and those who are not. The court added that the act "should be construed liberally to achieve its purpose--the prevention of sexual harassment in employment for all individuals."
Several Illinois employment attorneys say the court's interpretation of the Illinois Human Rights Act departs widely from precedent established under federal law. James Botana, a partner at Jackson Lewis, says the court's decision makes it easier to hold a company strictly liable under the Illinois Human Rights Act than under Title VII.
"Under Title VII, for strict liability the supervisor must have some authority over the complainant resulting in a tangible employment action, such as the authority to discipline," Botana explains. "In Illinois it's a different ballgame. Any supervisor accused of sexual harassment, in the court's opinion, can present strict liability to the employer, irrespective of his or her supervisory relationship to the complainant."
The court's ruling creates singular risks for Illinois employers that separate them from other employers across the country. "The chief financial officer of a fast food chain headquartered in Illinois can say she was sexually harassed by the manager of one of its restaurants in another state, even though the restaurant manager's supervisory authority is far less than the CFO's," says Christlieb. "I don't think this case makes good policy."
The ruling increases the burden on Illinois employers to prevent sexual harassment--a challenging task. "This is not something for which an employer can reasonably prepare," says Craig Annunziata, a partner at Fisher & Phillips. "It will be hard to police."
Nevertheless, the ruling is a stark reminder to all employers to have strict policies in place regarding sexual harassment and procedures for reporting alleged abuses. "In Illinois, companies must step up their training and possibly revise policies that presently prohibit relationships between supervisors and their subordinates to prohibit relationships between all employees," Annunziata says.
Christlieb advises employers to improve training for managers to identify harassment "and even things that are harassment-like," he says.
Botana believes the ruling creates an incentive for plaintiffs attorneys in Illinois to file sexual harassment cases in state court rather than federal court. Additionally, plaintiffs lawyers in other states with statutes similar to the Illinois Human Rights Act "might point to this opinion and say this is how one of our sister states decided," he says.