By: Sean F. Darke, Esq.
In April 2009, the Illinois Supreme Court changed the game for businesses when it held that employers are strictly liable for sexual harassment by a supervisor. As published in our June 2009 Client Alert (available at www.wesselssherman.com), the Illinois Supreme Court determined by a 4-2 margin that it does not matter whether or not the individual was the direct supervisor of the victim, but simply that the individual was a company supervisor. Further, the Illinois Supreme Court even went as far as to state that it doesn't even matter that the employer investigated the allegations and took actions to prevent future acts of harassment. As long as the harasser was a supervisor, the company is going to be strictly liable for the harassment. This court's decision is forcing each company to review their chain of command.
As a result, Illinois companies should be on heightened alert and should re-evaluate their chains of command and sexual harassment policies because of this court decision. What should a company do? One option is to streamline its chain of command by providing authority to a smaller portion of upper management. An Illinois employer can no longer provide authority to a large number of its management staff; otherwise, the company will increase its risk of being liable for sexual harassment claims from any individual with management authority. Companies will also want to review policies and clearly define who has, and who does not have, authority over other employees. Changing the company policies and making everyone aware as to who can change the employees' terms or conditions of employment, will put the company in a better position to reduce its exposure to sexual harassment claims. It will also allow the company to have more control over its workforce.
Further, this court decision provides companies with a reminder that they need to perform sexual harassment training. When was the last time your company provided sexual harassment training to its supervisors? With this new decision, employers may want to provide their supervisors yearly harassment training and make sure that supervisors understand the consequences that their actions will have on the company, in addition to understanding their roles when confronted with a sexual harassment complaint or when witnessing harassment in the workplace.
But be warned! By changing the duties or responsibilities for these supervisors, the company may be opening itself up to other risks under other laws. For example, changing the duties and responsibilities of supervisors may remove the individual from the exempt status under the Fair Labor Standards Act. When your company decides to change its chain of command or train supervisors on harassment issues, we urge you to contact your Wessels Sherman attorney to guide you through the process and reduce the company's exposure to liability.
Questions? Please contact WS Senior Attorney Sean F. Darke at (312) 629-9300 or sedarke@wesselssherman.com
