On April 11, 2019, the Illinois state Senate passed Senate Bill 1829, also known as the Workplace Transparency Act. If passed by the Illinois House of Representatives and if signed by the Governor, this Act would impose new requirements and limitations with respect to harassment and discrimination claims on Illinois employers. As of May 10, 2019, this bill is pending before the House Rules Committee.
Wait, what? If the conduct directed at an employee is sexual in nature or has sexual connotations, doesn't that automatically make it unlawful sexual harassment? Not necessarily.
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.
In the March, 2017 Client Alert, the Author submitted an Article on giving guidance to Employers in the creation of good documentation to substantiate and defend Employment Decisions when those Decisions are called into question. While the presence (or lack thereof) of good documentation can be the success or failure in any Employment Litigation, there are certain situations where an Employer's documentation may create a "tangled web" in which an Employer catches himself/herself.
In a February 9, 2017 Decision (Glenda Cable v. FCA US LLC, case number 16-2283), the United States Court of Appeals for the Seventh Circuit located in Chicago ("the Court") found that Fiat Chrysler Automobiles ("Fiat") was not liable for racial harassment.
To protect the Company from becoming a defendant in a devastating lawsuit, all managers and supervisors must be carefully and periodically trained to recognize workplace harassment, discrimination, and retaliation.