Often times, employers and employees do not realize that there are common law torts associated with many forms of sexual harassment. If sexual harassment involved some form of touching or locking up of an employee in an employer facility, then the employer may be liable for common law torts, as well as, sexual harassment.
It used to be that the Illinois Human Rights Act (“IHRA”) pre-empted many of these common law torts; however, due to recent changes in the law these common law claims are now permitted. However, the common law torts must not be inextricably linked to the sexual harassment claim. A common law tort claim that is inextricably linked is still pre-empted by the IHRA. Johnson v. Chicago Board of Ed., 2002 WL 1769976 *5-7, (N.D. Ill.) and Quantock v. Shared Marketing Services Inc., 312 F.3d 899, 904-06 (7th Cir. 2002).
In addition, these common law tort claims are still subject to traditional common law defenses, such as the following: laches, statutes of limitations, consent, etc. In fact, voluntarily entering a room with the harasser can be the basis of a strong consent defense for an employer. Hanna v. Marshall Field & Co., 279 Ill. App.3d 784 (1st Dist. 1996) (affirming a trial courts dismissal of a false imprisonment claim based on the consent defense pursuant to the employer’s summary judgment motion).
Of course, this can vary based on the gravity of the sexual harassment from touching hair or genitalia, use of threats, weapons and/or physical violence. Understanding these employment related torts requires a careful review of current court opinions on these matters. If you have any concerns or questions relating to these matters, then please feel free to contact us.