Brian J Graber LLC is an Illinois sexual harassment lawyer representing Illinois employees sexually harassed in violation of Illinois and federal sexual harassment laws. The Illinois Human Rights Act, (IHRA), provides Illinois employees with strong rights to be free from workplace sexual harassment. Illinois employees also have federal rights to be free from sexual harassment. Learn more about your federal rights to be free from sexual harassment here.
Under the IHRA, 775 ILCS 5/2-101(B)(1)(b), Illinois sexual harassment law applies to any Illinois employer employing one or more employees when a complainant alleges a civil rights violation based on sexual harassment. Effective on July 1, 2020, Illinois amended the IHRA, 775 ILCS 5/2-101(B)(1)(a) so that its civil rights protections apply to any person employing one or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation. This is significant because federal sexual harassment law under Title VII of the Civil Rights Act of 1964 only applies to employers employing 15 or more employees.
The IHRA defines “sexual harassment” as follows:
“Sexual harassment” means any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. For the purposes of this definition, the phrase “working environment” is not limited to a physical location where an employee is assigned to perform his or her duties.
775 ILCS 5/2-101(E).
The Federal Arbitration Act was amended effective March 3, 2022, to ban mandatory arbitration agreements covering workplace sexual harassment and sexual assault claims. Click here to learn more about your rights to be free from mandatory arbitration agreements filed under Illinois and federal law.
Illinois Sexual Harassment Law Imposes Strict Liability on Employers for Sexual Harassment Committed by Its Managers and Supervisors
The Illinois Human Rights Act makes it a civil rights violation:
For any employer, employee, agent of any employer, employment agency or labor organization to engage in sexual harassment; provided, that an employer shall not be responsible for sexual harassment of the employer’s employees by non-employees or non-managerial and supervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.
775 ILCS 5/2-102(D)
The Illinois Supreme Court interprets 775 ILCS 5/2-102(D) as imposing strict liability on the employer for any sexual harassment caused by its supervisory employees, even when the supervisor has no authority to affect the terms and conditions of the victim’s employment. See Sangamon Co. Sheriff’s Dept. v. IHRC, 233 Ill.2d 125, 137 (2009). The Illinois Supreme Court refused to adopt any affirmative defense to strict liability similar to the affirmative defenses allowed under Title VII when the sexually harassed employee suffers no tangible employment action. See Sangamon Co. Sheriff’s Dept., 233 Ill.2d at 138-139.
Illinois Sexual Harassment Law Imposes Liability on Employers for Sexual Harassment Committed by Co-workers and Non-employees Under a Negligence Standard
The IHRA imposes liability on employers under a negligence standard for sexual harassment committed by co-workers (non-managerial and supervisory) and non-employees as follows:
. . . an employer shall be responsible for sexual harassment of the employer’s employees by non-employees or non-managerial and non-supervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.
775 ILCS 5/2-102(D)
Illinois sexual harassment law imposes liability on an employer under a negligence standard identical to federal sexual harassment law where the employer has actual or constructive knowledge of the sexually harassing conduct committed by non-employees and/or its non-managerial and non-supervisory employees and fails to take any corrective action to stop or prevent further sexual harassment.
Most employers in Illinois have a written sexual harassment reporting policy. These written sexual harassment reporting policies identify the persons whom an employee is required to report occurrences of sexual harassment. Following your employer’s written sexual harassment reporting policy and immediately reporting clearly the details of any occurrences of sexual harassment assures that your employer will have notice of the sexual harassment under 775 ILCS 5/2-102(D) so as to impose liability on the employer for its negligence in failing to prevent further sexual harassment. Failure to report sexual harassment of non-employees or co-workers under your employer’s sexual harassment reporting policy may allow your employer to escape liability for sexual harassment by claiming a lack of knowledge of the sexual harassment and, therefore, its failure to take action to prevent further sexual harassment was not negligent.
An employer that retaliates against an employee for reporting sexual harassment of non-employees or co-workers opens itself up to liability under the IHRA, 775 ILCS 5/6-101(A) for a retaliation claim. The IHRA provides as follows:
It is a civil rights violation for a person, or for two or more persons to conspire, to: (A) Retaliation. Retaliate against a person because he or she has opposed that which he or she reasonably and in good faith believes to be unlawful discrimination, sexual harassment in employment . . .because he or she has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this Act . . . .
775 ILCS 5/6-101
Illinois Sexual Harassment Law Imposes Liability on Employers for Same-Sex Sexual Harassment
Under Illinois sexual harassment law, same-sex sexual harassment violates 775 ILCS 5/2-102(D) and imposes liability on employers as described above for male-on-male and female-on-female sexual harassment. If you would like to learn more about your rights under Illinois and federal law to be free from same-sex sexual harassment, contact Brian J. Graber, Ltd., an Illinois sexual harassment lawyer at (312) 291-4648, or email us for a free consultation.
Illinois Sexual Harassment Law Imposes Liability on Employers for Sexual Harassment of Non-Employees
Effective on January 1, 2020, Illinois sexual harassment law imposes liability on employers for sexual harassment of non-employees as follows:
Sexual harassment of non-employees. For any employer, employee, agent of any employer, employment agency, or labor organization to engage in sexual harassment of non-employees in the workplace. An employer is responsible for sexual harassment of non-employees by the employer’s non-managerial and non-supervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures. For the purposes of subdivision (D-5), “non-employee” means a person who is not otherwise an employee of the employer and is directly performing services for the employer pursuant to a contract with that employer. “Non-employee” includes contractors and consultants.
775 ILCS 5/2-102(D-5)
IHRA, 775 ILCS 5/2-102(D-5) tracks the language 775 ILCS 5/2-102(D) that imposes strict liability on employers for committed by its managerial and supervisory employees. Therefore, based on the Illinois Supreme Court’s decision in Sangamon Co. Sheriff’s Dept. v. IHRC, 233 Ill.2d 125, 137 (2009) 775 ILCS 5/2-102(D-5) will likely be interpreted to impose strict liability on employers for sexual harassment of non-employees committed by its managerial and supervisory employees.
The IHRA, 775 ILCS 5/2-102 (D-5) appears to impose liability on an employer for sexual harassment committed against non-employees by its non-managerial and non-supervisory employees and other non-employees under a negligence standard. This means any non-employee should immediately and clearly report any sexual harassment committed by an employer’s non-managerial employees or other non-employees so as to impose liability on the employer if it negligently fails to take proper corrective action to stop and prevent further sexual harassment as described above.
The plain language of the IHRA, 775 ILCS 5/6-101 imposes liability on any “person,” including an employer who would retaliate against a non-employee who reports sexual harassment.
Statute of Limitations
The IHRA, 775 ILCS 5/7A-102(A)(1) requires an employee to timely file a Charge of Discrimination with the Illinois Department of Human Rights within 300 calendar days after the date that a civil rights violation allegedly has been committed. Illinois employees may also have federal rights to be free from workplace sexual harassment under Title VII which carries a similar 300-day statute of limitations. The statutes of limitations under Illinois and federal sexual harassment law are complicated and you should consult a competent Illinois sexual harassment lawyer as soon as possible to protect your Illinois and federal rights to be free from workplace sexual harassment.
If you believe that you have been subjected to unlawful sexual harassment in violation of your rights under Illinois and federal sexual harassment law, contact Brian J Graber LLC, an Illinois sexual harassment lawyer for a free confidential consultation at (312) 291-4648 or by email. Brian J Graber LLC, an Illinois sexual harassment lawyer prepares Charges of Discrimination and dual files those Charges with The Illinois Department of Human Rights and the EEOC for its clients.