Typically, in claims for violation of Title VII for sexual harassment, Employers are not subject to strict liability for harassment or hostile work environments created by an individual that is not the immediate or successively higher supervisor.
Essentially, under Title VII, acts by supervisors that are not the direct supervisor or directly higher in authority to the employee claiming to be harassed cannot be used to impose strict liability on an employer. However, this may not be the case for claims for claims of sexual harassment and hostile work environment under the Illinois Human Rights Act.
In a recent Illinois Supreme Court Opinion, (Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, 233 Ill.2d 125, 908 N.E.2d 39, (2009), the Court imposed strict liability upon an employer for acts committed by a Supervisor that had no direct authority over the employee. Essentially, the Illinois Supreme Court stated, we are not bound by Federal precedent, because we are interpreting the Illinois Human Rights Act. We are not interpreting Title VII.
The Illinois Supreme Court explained that based on the plain language of section 2-102 (D), an employer is strictly liable for an employee’s claim of sexual harassment, unless the harasser is a “nonemployee”, “nonmanagerial” or a “nonsupervisory” employee. Thus, under the IHRA, employers face a greater risk from harassment or hostile work environment by any supervisor.
If you have any concerns or questions about the new risk from claims under the IHRA, then feel free to contact us.
Also see: Strict Liability under the IHRA