Illinois Supreme Court Holds Employer Strictly Liable For Supervisory Sexual Harassment

By Darcy L. Proctor and Jody Knight

Ancel, Glink, Diamond, Bush, DiCianni and Krafthefer, P.C.

Sexual harassment claims can be a serious liability issue for employers. Under a recent Illinois Supreme Court decision these claims are likely to increase. Employer liability was expanded for a supervisor’s sexual harassment even if the harasser is not the employee’s supervisor, and regardless of whether the employer was aware of the harassment or took measures to correct the harassment.

Until this year, Illinois courts interpreted the Illinois Human Rights Act to hold employers strictly liable for sexual harassment in instances where: (1) the employer failed to take corrective measures; or (2) the harasser was the victim’s direct supervisor or in the victim’s chain of command, an interpretation of the Act consistent with federal law. Now, with the case of Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, 233 Ill.2d 125, 908 N.E.2d 39 (April 16, 2009), the Illinois Supreme Court has significantly expanded employer liability by interpreting the language of the Act to impose liability in cases of harassment by any supervisory employee, regardless of whether the harasser had direct supervisory authority over the employee alleging harassment.

In Sangamon County Sheriff’s Department, Donna Feleccia, a records clerk with the Sangamon County Sheriff’s Department, filed a charge of sexual harassment and retaliation against the Sheriff’s Department and Sergeant Ron Yanor. Yanor was a supervisor in the Department, but had no supervisory authority over Feleccia, who worked in a separate division. Yanor made various advances to Feleccia at work and at social gathering outside of work. He also sent her a letter through interoffice mail purported to be from the Illinois Department of Public Health stating that Feleccia had been exposed to a sexually transmitted disease and should be tested. Feleccia, who was deeply upset by the letter and other conduct by Yanor, reported the harassment to the Department, which conducted an investigation and then suspended Yanor without pay for four days. Yanor admitted that he had typed the letter as a practical joke.

Although the Department immediately responded to Feleccia’s complaint, she was dissatisfied with the response and the fact that her co-workers joked about the letter. When Feleccia asked Sheriff Neil Williamson about Yanor’s punishment, Williamson allegedly told Feleccia that Yanor was given the maximum suspension that could be given “without the merit board finding out.” Williamson allegedly told Feleccia not to file sexual harassment charges, not to go to the media, and not to go near Yanor.

Feleccia, who felt that her complaint was not sufficiently addressed, filed a claim for sexual harassment and retaliation with the Illinois Department of Human Rights. The Illinois Human Rights Commission found the Department strictly liable on the harassment claim, a finding reversed by the appellate court because the Department could not be held strictly liable for Yanor’s conduct, as he was not Feleccia’s supervisor, and the Department had taken reasonable corrective measures to respond to the harassment.

On appeal to the Illinois Supreme Court, the appellate court’s decision was reversed, with the Supreme Court interpreting the Illinois Human Rights Act as imposing strict liability for harassment by any supervisory employee, even one who is not the direct supervisor of the victim. The Court reasoned that its interpretation of the statute would not completely remove all the burden from plaintiffs because, in the case of "hostile environment" sexual harassment, an employee must still establish a prima facie case of harassment by showing that the conduct substantially interfered with the employee’s work performance or created an intimidating, hostile, or offensive working environment.

This decision significantly impacts employer liability for sexual harassment, and will particularly affect large employers with multiple independent departments. For example, an employer could be held liable for the conduct of its supervisors even if the employee claiming the harassment is not under the supervisor’s direct control as long as the employee is able to establish a significant interference with his or her work performance, or the creation of an intimidating, hostile, or offensive working environment. Now, employers could in theory be held liable when a lower level supervisor in one department harasses a higher level supervisor in another department, so long as the harasser has supervisory responsibilities in his or her own department.

The far-reaching implications of the Sangamon County Sheriff’s Department decision make it even more important that Illinois employers adopt strong sexual harassment policies and training procedures. Although such policies are not a defense to a sexual harassment claim, they can eliminate harassing behavior before it begins, which is the only sure protection against harassment claims. In addition, policies that direct a quick and definitive response to harassment complaints can serve to make harassed employees feel that their concerns are being taken seriously, decreasing the likelihood of eventual litigation.