June 2009

A records clerk with the Sangamon County Sheriff's Department filed a charge of sexual harassment and retaliation against the Sheriff's Department based on the conduct of one of its sergeants. The sergeant was a supervisor in the Sheriff's Department, but was not the supervisor of this particular employee.

After rejecting the sergeant's advances, the employee received a letter printed on Illinois Department of Public Health letterhead stating that she may have been recently exposed to a communicable or sexually transmitted disease. The letter directed her to contact her local public health office for an appointment. An internal investigation revealed that the letter was a forgery. Eventually, the sergeant admitted that he wrote the letter as a practical joke. The Sheriff's Department suspended the sergeant for four days without pay.

The employee continued to experience stress and anxiety and was unhappy about the way the incident was handled. The employee felt degraded and upset by the fact the Department accepted the letter as a joke. Not satisfied with the way the Department handled her complaint, the employee filed a charge with the Illinois Department of Human Rights (IDHR). The IDHR subsequently filed a complaint with the Illinois Human Rights Commission.

The Commission determined that the sergeant's conduct constituted unlawful harassment under the Act and, therefore, the Department was strictly liable for the harassment. The Department appealed and the appellate court reversed the Commission, finding that the Sheriff's Department could not be strictly liable for the sergeant's conduct because he was not the employee's supervisor. The appellate court found that the four day suspension showed that the Department took reasonable corrective measures upon learning of the harassment. The decision was appealed to the Illinois Supreme Court to address whether under Illinois law an employer is strictly liable for sexual harassment committed by a supervisory employee, even when the supervisor has no authority to affect the terms and conditions of the employee's employment.

The Department argued that the Court should follow federal authority, which states that liability for "hostile environment" sexual harassment depends on the harasser's status relative to the victim. The Court acknowledged that Illinois courts often examine federal decisions to construe the Act, but only when the provisions of federal law are similar to Illinois law. The Court noted that under federal law employers are not automatically liable for "hostile environment" sexual harassment by their supervisors, whereas Illinois law imposes strict liability for all forms of harassment committed by a supervisor. Thus, the Court refused to follow federal decisions that limit vicarious liability to hostile environment harassment created by a supervisor with immediate (or successively higher) authority over the employee.

The Court's decision imposes a standard of liability that reaches beyond federal law and any other jurisdiction of the United States. This decision reinforces the fact that it is critical for employers to thoroughly screen applicants for supervisory positions and provide extensive training in the area of unlawful harassment. Absent a change to the statute, it is clear that employers are strictly liable for all forms of harassment committed by a supervisor. The harasser's status relative to the victim, the employer's knowledge of the harassment, and/or corrective action taken against the harasser has no bearing on the employer's liability. Accordingly, refresher harassment training should be on the "to do" list of all employers. Please contact Wessels Sherman for guidance in this important area.

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