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Sexual Harassment Liability in Illinois: Who is Putting Your Company At Risk?

It is nearly impossible to glance at a current news source without seeing or hearing a story about sexual harassment. While the catalyst for this recent surge in sexual harassment stories has been the rampant harassment alleged, and at times admitted, in the entertainment industries, sexual harassment claims continue to be a substantial source of employment litigation in the courts.

In the employment context, there are real bottom-line consequences for sexual harassment. Given its prominent position in the public consciousness, it's an opportune time to look at sexual harassment liability in Illinois and, more importantly, if there is anyone who could be putting your company at risk for this liability.

This determination is best accomplished by first dividing individuals into two separate groups based on the different types of sexual harassment liability to which they can subject the company.

The first type of liability is vicarious liability. Vicarious liability is simply defined as an employer's liability for the sexual harassment of an employee by a co-worker. Vicarious liability is not automatic liability. Rather, under the Illinois Human Rights Act (IHRA), an employer is only vicariously liable for the sexual harassment of an employee by a co-worker if it knew or should have known of the harassment and failed to take immediate and appropriate action to stop the harassment.

The second type of liability is strict liability. Strict liability is defined as an employer's liability for the sexual harassment of an employee by a supervisor. For sexual harassment claims under Illinois law, "supervisor" is defined as any individual in a supervisory role regardless of whether he/she is the victim's supervisor. In Illinois, an employer is strictly liable for any supervisor's actionable harassment, regardless of whether the employer took immediate and appropriate action. As a result, strict liability is best understood as automatic liability.

In addition to vicarious and strict liability, it is important for employers, supervisors, and co-workers to understand that sexual harassment claims in Illinois include the possibility of personal liability. The IHRA explicitly ALLOWS PLAINTIFFS TO BRING SEXUAL HARASSMENT CLAIMS AGAINST INDIVIDUALS IN ADDITION TO THEIR EMPLOYERS. Since the damages for a sexual harassment claim can include back pay, reinstatement or front pay, actual damages (e.g. emotional distress), injunctive relief, attorneys' fees and costs, and such action as may be necessary to make the individual whole (e.g. interest on actual damages or back pay), the possibility of personal liability is a significant consequence.

As a result, it should come as no surprise that sexual harassment claims under the IHRA almost always include a named individual defendant in addition to the employer.

So what can employers do to minimize this risk? For harassment of employees by co-workers, employers need to make sure that they have a solid sexual harassment policy in place and take immediate and appropriate action aimed at stopping any sexual harassment as soon as they know about or should know about the harassment.

Minimizing harassment of employees by supervisors is tougher since strict liability prevents employers from escaping liability by taking immediate and appropriate action, i.e. righting the wrong. That said, a solid sexual harassment policy and periodic (e.g. yearly) training of supervisors is helpful. Of course, training that specifically addresses the very real possibility of personal liability helps even more.

Questions? Contact Ryan Young in our Chicago office at (312) 629-9300 or by email at [email protected]

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