Publications: Sexual Harassment: Who is a “Supervisor” Under Illinois Workplace Harassment Law

The Illinois Human Rights Act makes an employer strictly liable for sexual harassment by a supervisor regardless of any “fault” on the employer’s part. But who is a supervisor for purposes of Illinois strict employer liability law?

In federal cases, the answer is clear: only someone with authority to hire, transfer, suspend, lay off, recall, promote, discharge, discipline and/or handle grievances of the claimant employee is her supervisor. But under Illinois state law, the answer remains uncertain.

The Illinois Human Rights Act

The Human Rights Act, 775 ILCS 5/2-102(D), 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 be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.

But the Act does not define who is a “nonmanagerial,” “nonsupervisory,” “managerial” or “supervisory” employee. So litigants, the Human Rights Commission and the courts have been left to wrestle with the determination, on which the critical issue of employers’ strict liability turns.

Who Is A “Supervisor” Under The Human Rights Act?

According to the Illinois Human Rights Commission, an employer is strictly liable for a supervisor’s conduct regardless of whether that supervisor directly supervised the claimant employee.

In Sangamon County Sheriff’s Department v. Illinois Human Rights Comm’n, et al., Donna Feleccia filed a sexual harassment complaint under the Illinois Human Rights Act against her employer, the Sangamon County Sheriff’s Department, based on the alleged misconduct of a department sergeant who did not supervise her. After an initial evidentiary hearing, an administrative law judge recommended that her sexual harassment claim be dismissed, finding that because the accused sergeant never had supervisory authority over Feleccia, the Department could not be strictly liable for his actions. Feleccia filed exceptions with the Human Rights Commission, which remanded the case to the ALJ for a determination of damages. The ALJ subsequently recommended an award of damages, costs and fees to Feleccia, and the Commission adopted this determination, also finding that the Sheriff’s Department was strictly liable for the sergeant’s conduct even though he did not supervise Feleccia and had no authority over the terms and conditions of her work.

The Sheriff’s Department appealed this decision to the Illinois Appellate Court, Fourth District, which agreed with the Sheriff’s Department. Because the Act does not define “manager” or “supervisor” for strict liability purposes, the Appellate Court considered the terms’ common meaning, and found that a “supervisor” must have the “authority to hire, transfer, suspend, lay off, recall, promote, discharge, discipline, and handle grievances of other employees, by exercising independent judgment.” Because Feleccia’s alleged harasser had no such powers over her, the Appellate Court found that the Department was not strictly liable to her and could be liable only if it was negligent, or “knew or should have known” of the harassment and failed to take corrective measures.

Next Chapter in Sangamon County Sheriff’s Department Case

The Human Rights Commission and Feleccia petitioned the Illinois Supreme Court to review the Appellate Court’s decision, and the case is now pending before the Supreme Court. Which way it will rule is far from certain, but until it rules, the Appellate Court’s decision is the governing Illinois precedent. Under it, employers are strictly liable for sexual harassment only when the accused harasser is also the claimant employee’s supervisor.

Good Counsel

The continued uncertainty in this area of Illinois workplace harassment law emphasizes once again the need for employers to diligently educate and train all supervisors in their non-discrimination and anti-harassment policies. Employers must be ever-vigilant to effectively handle workplace discrimination and harassment complaints. Regularly reviewing and updating workplace policies, and conducting effective new-hire and annual training, are musts to ensure a safe and productive workplace environment and to contain costly employment liability exposure. However the Illinois Supreme Court may ultimately resolve the thorny issue of who will be deemed a supervisor for strict liability purposes, best workplace practices dictate that all supervisors know, comply with, and insist that others abide by anti-harassment policies and procedures.