Brian J. Graber, Ltd., represents employees in sexual harassment claims occurring in the workplace in violation of Illinois and federal law. Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991 (commonly referred to as Title VII) and the Illinois Human Rights Act (IHRA) protect employees from sexual harassment in the workplace. Sexual harassment is a form of gender discrimination. Employees of local governments like municipalities and counties may also have constitutional protections from workplace sexual harassment depending on the particular circumstances.
Sexual harassment is unwelcome verbal or physical behavior of a sexual nature. Sexual harassment claims in the workplace can include criminal acts such as sexual assault, unwelcome touching of a sexual nature (known a sexual battery), requests or demands for sexual favors, indecent exposure, sexually suggestive gestures, inappropriate comments of a sexual nature, viewing pornography, lewd comments of a sexual nature, threats of sexual violence, indecent emails or text messages of sexual nature. The IHRA, 775 ILCS 5/2-101(E) defines “sexual harassment” as 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 a 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 a hostile or offensive working environment. The courts acknowledge that in certain circumstances, drawing the line between conduct that violates sexual harassment in the workplace laws is not easy because the law does not prohibit simple teasing, offhand comments, or minor isolated incidents. If you believe that you have been subjected to unlawful sexual harassment in the workplace, you should seek a legal consultation as soon as possible to protect your rights.
Sexual harassment claims in the workplace brought under Title VII and the IHRA generally require an aggrieved employee to prove the following elements:
- The conduct was unwelcome;
- The conduct occurred because of the employee’s sex;
- The conduct was sufficiently severe or pervasive that a reasonable person in the employee’s position would find the employee’s work environment to be hostile or abusive;
- At the time the conduct occurred, the employee believed the conduct made his/her environment hostile or abusive;
- and there is a basis for the employer’s liability.
Title VII and the IHRA have different standards for imposing liability on an employer for workplace sexual harassment claims. These different requirements for imposing liability on the employer turn on the identity of the harasser and whether or not the aggrieved employee suffered tangible employment action.
Title VII protections for sexual harassment in the workplace claims only apply to employers engaging in an industry affecting commerce that has fifteen or more employees for each working day in each of the twenty or more calendar weeks in the current or proceeding year. While the IHRA, 775 ILCS 5/2-101(B)(1)(b), protections for sexual harassment apply to any employer who employs one or more employees.
EMPLOYER’S LIABILITY UNDER TITLE VII FOR A SUPERVISOR’S SEXUAL HARASSMENT
Under Title VII an employer is vicariously liable for a supervisor’s sexual harassment of an employee. For the purposes of Title VII, a supervisor is defined as someone who has the power to hire, fire, demote, promote, transfer, discipline, or significantly change the victim employee’s benefits. Under Title VII, if the victimized employee suffers tangible employment action, for example, a termination or a demotion, the employer is strictly liable. However, if the victimized employee does not suffer any tangible employment action, the employer is liable for the supervisor’s sexual harassment unless the employer proves an affirmative defense. In this circumstance, an employer can establish an affirmative defense to liability by proving: (1) the employer exercised reasonable care to prevent and correct sexual harassment in the workplace; and (2) the victimized employee unreasonably failed to take advantage of opportunities provided by the employer to prevent or correct sexual harassment, or otherwise avoid the harm. If the employer meets its burden of proof on this affirmative defense, the victimized employee does not recover any harms or losses caused by the sexual harassment.
Claims under Title VII for a supervisor’s sexual harassment resulting no tangible employment action require the victimized employee to follow the employer’s reporting policies. The victimized employee’s failure to follow the employer’s anti-harassment policy and report the supervisor’s sexual harassment may create a valid defense to liability. A generalized fear of reporting the sexual harassment or following the employment policy on reporting sexual harassment will generally not be sufficient prevent application of the employer’s affirmative defense. Title VII, 42 U.S.C. §2000e-3(a) prevents an employer from retaliating against any employees who reports sexual harassment to management. Any employer who retaliates against an employee for reporting sexual harassment may open itself up to liability for retaliation.
EMPLOYER LIABILITY UNDER THE IHRA FOR SUPERVISOR SEXUAL HARASSMENT.
The bottom line is that the IHRA provides much broader protection to employees who are sexually harassed by a supervisor than Title VII. The IHRA, 775 ILCS 5/2-102(D) imposes strict liability on an employer for a supervisor’s sexual harassment. The Illinois Supreme Court has interpreted 775 ILCS 5/2-102(D) as imposing strict liability on the employer for any sexual harassment caused by its supervisory employees, even when that supervisor has no authority to affect the terms and conditions of victim’s employment. Sangamon Co. Sheriff’s Dept. v. IHRC, 233 Ill.2d 125, 137 (2009). This is a major distinction between the protections available for sexual harassment under Title VII. The Illinois Supreme Court refused to adopt any affirmative defense to strict liability similar to the affirmative defense allowed under Title VII, described above, when the sexually harassed employee suffers no tangible employment action. See Sangamon Co. Sheriff’s Dept., 233 Ill.2d at 138-139. This is another major difference between protections available under IHRA versus Title VII.
EMPLOYER LIABILITY UNDER TITLE VII AND THE IHRA FOR SEXUAL HARASSMENT BY CO-WORKERS AND NON-EMPLOYEES.
The standard for employer liability for sexual harassment committed by co-workers (non-supervisory/non-managerial employees) and non-employees is the same under Title VII and the IHRA. This is a negligence standard that requires proof that the employer knew or should have known about the sexual harassment and failed to take steps or take reasonable corrective measures to prevent further sexual harassment.
THE IHRA IMPOSES LIABILITY ON EMPLOYERS FOR SEXUAL HARASSMENT OF NON-EMPLOYEES IN THE WORKPLACE.
As of January 1, 2020, the IHRA, 775 ILCS 5/2-102(D-5) imposes liability on employers for its supervisors’ sexual harassment of non-employees in the workplace. As of January 1, 2020, §2-102(D-5) imposes liability on an employer for its non-managerial employees’ sexual harassment non-employees only if the employer knows of the sexual harassment and fails to take reasonable corrective measures.
§2-102(D-5) defines a “non-employee” as 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 and it includes contractors and consultants.
Title VII AND IHRA PROTECT AGAINST SAME-SEX SEXUAL HARASSMENT.
Title VII and the IHRA protect against male on female sexual harassment and female on male sexual harassment. Since Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) sexual harassment by a member of the same sex is actionable. Under both Title VII and the IHRA male on male and female on female same-sex sexual harassment are unlawful employment practices.
TIME LIMITS FOR FILING A SEXUAL HARASSMENT CLAIM UNDER TITLE VII AND IHRA.
The law limits the amount of time you have to file a sexual harassment claim against your employer under Title VII and the IHRA. Under Title VII and the IHRA, an aggrieved employee is required to file a Charge of Discrimination for sexual harassment with either the Equal Employment opportunities Commission (EEOC) or the Illinois Department of Human Rights within 300 days of the last act of sexual harassment. Failure to timely file a Charge of Discrimination with either the EEOC or the IDHR for sexual harassment bars the aggrieved employee from recovering against his/her employer.
Brian J. Graber, Ltd., is a Chicago sexual harassment lawyer practicing sexual harassment law in the Chicagoland area. Brian J. Graber, Ltd., prepares and dual files Charges for Sexual Harassment on behalf of its clients with the EEOC and IDHR. If you believe you have a claim for sexual harassment, contact Brian J. Graber, Ltd., at (312) 291-4648 as soon as possible for a free consultation. You should have an experienced employment lawyer prepare your Charges for Sexual Harassment. However, you can file Charges for sexual harassment with the EEOC at https://publicportal.eeoc.gov/Portal/Login.aspx and the forms and instructions for filing a Charge for Sexual Harassment with the IDHR can be found at https://www2.illinois.gov/dhr/Publications/Pages/Forms.aspx
OTHER CLAIMS FOR SEXUAL HARASSMENT.
Victims of sexual harassment may have other common law claims and other statutory claims against an employer and the sexual harasser. A victim of a sexual battery or an assault may have claims under the Illinois Gender Violence Act and common law claims for assault and battery. A witness to sexual harassment who provides truthful information during an investigation into sexual harassment has protections under the anti-retaliation provisions of Title VII and the IHRA and depending on the circumstances may have Illinois common law claims for retaliatory discharge claim. Contract Brian J. Graber, Ltd., at (312) 291-4648 for a free consultation to see if we can help you.
RETALIATION CLAIMS UNDER Title VII AND IHRA FOR REPORTING SEXUAL HARASSMENT.
Title VII, 42 U.S.C. §2000e-3(a) and the IHRA, 775 ILCS 5/6-101 impose liability on employers for retaliating against employees who engage in protected activities such as in good-faith reporting sexual harassment, filing a complaint of sexual harassment internally with the employer or with a government agency like the EEOC or the IDHR, testifying, assisting or participating in any investigation, proceeding, or hearing into sexual harassment conducted by the employer, or government agencies like the EEOC or IDHR. Both Title VII and the IHRA anti-retaliation provisions provide protection to cover co-workers who cooperate with a sexual harassment investigation who are not the target of the sexual harassment.
Retaliation under Title VII and the IHRA is broadly defined as any adverse action that would dissuade a reasonable employee from engaging in any of the protected activities identified above. Examples of adverse action include but are not limited to termination, discipline, demotion, loss of pay or benefits.
Title VII and the IHRA require an aggrieved employee to file a Charge of Discrimination with the Equal Employment Opportunities Commission (EEOC) and/or the Illinois Department of Human Rights (IDHR) within 300 days after the date of the adverse act claimed to be retaliation. Failure to timely file a Charge of Discrimination with the EEOC and the IDHR bars the aggrieved employee from ever recovering against an employer for any alleged retaliation.
Brian J. Graber, Ltd., is a Chicago retaliation lawyer practicing retaliation law under Title VII and the IHRA in the Chicagoland area. Contract Brian J. Graber, Ltd., (312) 291-4648 for a free consultation to see if you have a claim for retaliation under Title VII and the IHRA.