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Illinois Employers - Liable for Criminal Acts of Supervisors?

While the liability of employers in the State of Illinois has been expanded substantially by recent amendments to the Illinois Human Rights Act and the recent decision of the US District Court of Appeals for the Seventh Circuit in the Hively v. Ivy Tech Community College of Indiana (Case No. 15-1720), which was a landmark decision holding that Title VII of the Civil Rights Act of 1964 bars discrimination on the basis of sexual orientation, there have been few, if any, cases in which Illinois employers have had to bear the responsibility for the criminal conduct of their employees. Unfortunately, the United States Court of Appeals for the Seventh Circuit recently issued a decision (March 24, 2017) in the Case of Sherry Anicich v. Home Depot USA, Inc.; Grand Service, LLC and Grand Flower Growers, Inc. (Case No. 16-1693). The Federal Court, acting and applying Illinois law, found that the joint employers were liable for the criminal acts of a supervisor (Brian Cooper - Regional Manager) in his rape and murder of Alisha Bromfield.

The Seventh Circuit Court of Appeals, which has changed quite substantially over the last few years (its previous moniker as an "Employer Favored Circuit"), found that the joint employers had a duty to protect its employee, Alisha Bromfield, from the criminal acts of the supervisor, Brian Cooper, based on Cooper's unfortunate behavior as the Regional Manager. Cooper had a history of sexually harassing his female subordinates and, quite candidly, prior employees as well as Ms. Bromfield had reported his sexual harassment to the employer. While the employer investigated the complaints and ordered Mr. Cooper to take anger management classes, the employer never enforced upon Cooper the requirement to take anger management classes nor did the employer remove Cooper from his supervisory responsibilities. When Cooper threatened Alisha Bromfield with termination or reduction of hours if she failed to accompany him on a trip to a family wedding, she agreed and was ultimately raped and murdered when she refused to enter into a consensual sexual relationship with him.

While the Seventh Circuit Court of Appeals fashioned in this case a remedy based on Illinois law, the Seventh Circuit said that it was quite clear that all employers have a duty to act reasonably in the hiring, supervising and retaining of employees. If they fail to "act reasonably in the hiring, supervising and retaining of employees", they must bear the burden of the "inappropriate conduct" of the involved employee. Even though the rape and murder of Bromfield occurred "off work", the Seventh Circuit interpreted Illinois law as imposing liability. The Court relied in large part on two (2) decisions of the Illinois Courts - Van Horn v. Mueller, 705 NE 2nd 898 (Illinois - 1998) and Pelatson v. NSM America, Inc., 748 NE 2nd 1278 (Illinois Appellate - 2001). Both cases held that Illinois law recognizes a cause of action against an employer for negligently hiring or retaining in its employ an employee that it knew, or should have known, was unfit for the job and could create a danger of harm to third parties.

In essence, the Seventh Circuit was stating that but for the employer's granting to Mr. Cooper his authority of supervision over Ms. Bromfield, he would not have had the opportunity to commit these heinous acts.

It is strongly recommended that every employer in the State of Illinois thoroughly and completely investigate and document any claims of sexual harassment. If there is validity/credence to the complaint, appropriate disciplinary action should be taken, including the possibility of termination. No employer wants to put itself in the position of expending its valuable assets to pay for a claim that could have been avoided through prompt action.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

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