The Illinois Supreme Court has held that under that state’s Human Rights Act (the “Act”), an employer is strictly liable for sexual harassment by any of its supervisors, even if the harasser does not supervise the victim. Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, Nos. 105517 and 105518 consolid. (Apr. 16, 2009). In other words, an employer is automatically responsible if any of its supervisors sexually harasses any of its employees, regardless of whether the supervisor has any direct or indirect authority over the employee.

Facts

A sheriff’s department records clerk complained that a supervisor named Yanor, who did not supervise her, pressed himself on her and kissed her, and asked her a month later if she would go with him to a motel for the night. Two months after that, the clerk received a letter on official stationery of the state public health department which said that she might have been recently exposed to a communicable or sexually transmitted disease according to a confidential source who tested positive. Frantic, the clerk reported the letter to a friend in management at the sheriff’s department. The department investigated and determined that Yanor had written and sent the fraudulent letter. After Yanor explained that he had meant the letter as a joke, the employer suspended him for four days without pay and urged the clerk not to take the matter any further.

Despite that request, the clerk filed a complaint with the Illinois Human Rights Commission, alleging in part that the sheriff’s department had sexually harassed her in violation of the Act. The Commission agreed, finding that Yanor had engaged in a series of acts “that cumulatively constituted a hostile work environment,” and because he was a supervisor, the department was liable for his conduct.

The Court’s Decision

The Act provides that an employer is responsible for sexual harassment “by nonemployees or nonmanagerial or nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.” The court read that to mean that an employer is strictly liable for all sexual harassment by its supervisors, even those who have no authority to affect the terms and conditions of the victim’s employment. It rejected the employer’s argument that it should follow the lead of courts holding that under federal law an employer is not liable for supervisory harassment which involves no tangible job action against the victim if the employer “exercised reasonable care to prevent and correct promptly” any harassment, and the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). The court held that it was bound by the specific language in the Illinois statute, not by federal court decisions interpreting a different law. Because Yanor was neither a “nonemployee” nor a “nonmanagerial or nonsupervisory employee,” the court ruled that the sheriff’s department was liable for his harassment regardless of whether it knew about his conduct or sought to correct it.

The court rejected the argument that strict liability places an unreasonable burden on Illinois employers. First, it noted that an employee still bore the burden of proving sexual harassment, including, for “hostile environment” harassment, that the harasser engaged in “unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature,” which had “the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.” Second, the court said that because employers empower their supervisors to act as their “public face,” “are in the best position to train supervisors and make them aware of the law prohibiting sexual harassment,” and can be presumed to have notice of sexual harassment by their supervisors, it was fair to hold employers strictly liable for supervisory harassment. Finally, the court held that as remedial legislation, the Act should be construed liberally to prevent sexual harassment, and that its reading of the Act “ensure that victims have full incentive to report” such conduct without fear of retaliation.

What The Case Means

This decision leaves no doubt that every Illinois employer is automatically responsible for all sexual harassment by its supervisors, whether or not the supervisor has any authority over the victim. Even if the supervisor takes no tangible job action or threatens or promises to do so, even if the employee never reports the harassment to anyone, and even if the employer takes prompt corrective action as soon as it learns about the conduct, the employer will still be liable for the supervisor’s harassment. Whenever any supervisor engages in sexual harassment, therefore, his or her employer may be required to make the complainant whole for any loss of job or position, including all lost wages and benefits, and pay the victim’s compensatory damages, costs, and attorney’s fees. Since 2008, moreover, all cases under the Act can be heard by juries rather than administrative law judges, making harassment cases particularly risky.

It is thus more important than ever that Illinois employers take every possible step to ensure that none of their supervisors engage in any conduct that might be considered sexual harassment. Management should make certain that each and every supervisor receives effective training on proper workplace behavior, understanding clearly what behavior is off-limits. And even though such steps may not provide a legal defense, policies and practices that encourage employees to report any possible harassment without fear of retaliation will not only make for a more civil workplace, but will allow many problems to be resolved before employees feel the need to contact a third party such as a federal or state agency or plaintiff’s attorney.