Publications: Illinois Supreme Court Rules Employers Strictly Liable for All Supervisors’ Sexual Harassment

In a major precedent interpreting the Illinois Human Rights Acts’ prohibition on sexual harassment, the Illinois Supreme Court ruled on April 16 that employers are strictly liable for a supervisor’s sexual harassment, whether the supervisor victimizes a direct subordinate or an employee supervised by another, and even when the employer acted reasonably and diligently to detect and prevent harassment.

In Sangamon County Sheriff’s Department v. Illinois Human Rights Commission,¹ the Court considered the case of Donna Feleccia, a Sheriff’s Department records clerk who charged the Department with sexual harassment based on the misconduct of one of its sergeants, Ron Yanor. Yanor supervised other Department employees but did not supervise Feleccia. He had no responsibility for the terms or conditions of Feleccia’s employment, and she worked in a separate division of the Department. Despite this, the Illinois Human Rights Commission reversed an administrative law judge’s finding that Feleccia failed to establish her hostile work environment sexual harassment charge. On the contrary, the Commission found that the Department was strictly liable for Yanor’s conduct as a matter of law because he was a supervisor. The Appellate Court reversed this decision because it found that Yanor was merely Feleccia’s co-employee, and that the Department took reasonable corrective measures after learning of Yanor’s harassment. But the Illinois Supreme Court reversed the Appellate Court, reinstating and confirming the Human Rights Commission’s decision that the Department was strictly liable for Yanor’s harassment of Feleccia.

In so ruling, the Illinois Supreme Court re-visited the well-traveled legal terrain of when employers may be held vicariously liable for their employees' sexual harassment, and diverged materially from Federal sexual harassment law while specifically construing the language of Section 2-102(D) of the Human Rights Act. That Section makes it illegal for

“. . . 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.”

Applying the plain language of the Statute, the Supreme Court found it irrelevant to the Department’s vicarious liability for Yanor’s actions that he was not Feleccia’s supervisor. Since Yanor was a supervisor (therefore neither a “nonmanagerial” nor a “nonsupervisory” employee for purposes of the Statute), the Department was strictly liable for his misconduct without the need for any proof that it failed to take reasonable corrective measures upon learning of that misconduct. The Court observed “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.”

The Illinois Supreme Court's four-justice majority in the Sangamon County Case disagreed with the employer Sheriff's Department, friends of the court (the Illinois Municipal League and the Illinois Counties Risk Management Trust) and two dissenting justices, all of whom argued that employers should face no more vicarious liability for sexual harassment under Illinois law than they confront under comparable federal law, the Title VII of the Civil Rights Act of 1964.  Under federal sexual harassment law, employers are strictly liable to employees harassed by their own supervisors, those who have the authority to directly affect their victims’ terms and conditions of employment. But the majority found it “not unfair to hold employers responsible for sexual harassment by supervisory employees,” noting that “employers are in the best position to train supervisors and make them aware of the law prohibiting sexual harassment.” It also remarked that irrespective of employers’ actual knowledge of their supervisors misconduct, “they are presumed to have notice of sexual harassment committed by managerial and supervisory employees.” This was a critical bone of contention in the case, as the evidence was uncontested that as soon as Feleccia complained to the Department about Yanor’s actions, it investigated and disciplined him. Finally, the Supreme Court’s majority was unimpressed by the specter of “large employers such as multilayered corporations and governmental entities” being found strictly liable “any time a low-level supervisor, regardless of ability to control the complainant’s working environment, sexually harasses an employee in any location.”

The Illinois Supreme Court can hardly be said to have spoken with a single voice in the Sangamon County case: the 7-member Court rendered a 4-2 decision in which one justice took no part. But the Majority’s opinion sends a single, loud and clear message to Illinois employers: liability for any supervisor’s sexual harassment is absolute, whether perpetrated against a direct subordinate or not. It cannot be avoided even through evidence that the harassment occurred despite the employer’s utmost good faith, care and diligence in preventing, identifying and eradicating sexual harassment. Employers must select, train, monitor, evaluate and retrain their managers carefully and thoroughly in an ongoing program of compliance to prevent supervisor workplace harassment before it ever occurs. To do otherwise is to invite strict liability for sexual harassment.

_______________
¹ Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, ___ Ill.2d ___, ___ N.E.2d ___, 2009 WL 1011986.