Employment Law Corner – Two Recent Cases Mark Significant Changes

Margherita M. Albarello

Two recent cases, one decided by the Illinois Supreme Court and one by the United States Supreme Court, mark significant changes in employment law.

Strict Liability for Sexual Harassment by Supervisors Under Illinois Human Rights Act

The Illinois Supreme Court has held that under the Illinois Human Rights Act, an Illinois employer is “strictly liable for the sexual harassment of an employee by a supervisory employee” even where the supervisor has no authority to affect the terms and conditions of the complainant’s employment. Sangamon County Sheriff’s Dept. v. Illinois Human Rights Commission (2009).

“Strict liability” means that the employer has no defense if an employee can prove harassing conduct by a supervisory employee. An employer can be liable for harassment by anyone in a supervisory capacity, regardless of whether the employer knew of the harassment, whether the harasser has any authority over the complainant, or what action the employer took if or when it learned of the harassment.

This ruling marks a widening difference between Illinois and Federal Title VII law regarding employer liability for sexual harassment. Under Title VII, an employer is strictly liable (subject to certain defenses) for a supervisor’s hostile environment harassment where the supervisor has immediate or higher authority over the complainant.

In light of the Sangamon County case, an employee can hold an employer strictly liable for harassment perpetrated by a supervisor, regardless of whether the harasser has any authority over the complainant, regardless of whether the employer knew of the harassment, and regardless of what action the employer took if or when it learned of the harassment.

Consequences: More exposure for Illinois employers; increased need to train supervisors about sexual harassment; widens net for Illinois employers who have non-dating policies between supervisors and their subordinates.

Supreme Court Increases Employee’s Burden in Age Bias Discrimination Cases

In a 5-4 decision by Justice Thomas, the United States Supreme Court held that the Age Discrimination in Employment Act requires that a plaintiff prove that age was not only a motivating factor for the employer’s action, but that “but-for” the plaintiff’s age, the employer would not have taken the offensive action. Gross v. FBL Financial Services (2009).

Think about the termination of Chicago Blackhawks general manager Dale Tallon after he failed to send out timely qualifying offers to players that were restricted free agents. When team owner Rocky Wirtz was asked what Tallon’s replacement had that Tallon didn’t, Wirtz said, as quoted by MSNBC.com: “He’s 36, Dale is 58. We always want younger people. What he brings is a system in place to get better.”

Before the Gross case, Wirtz’s comment may have allowed Tallon to take an age case to a jury. But Blackhawks president John McDonough, who appears to have been a pivotal decision-maker in Tallon’s firing, acknowledged that Tallon probably wouldn’t have gotten the axe if not for the free agent blunder. This likely would torpedo Tallon’s ability to meet his “but-for” burden of proof.

Consequences: Age claims are now even harder to prove; more age claims will be dismissed on motions for summary judgment; however, Congress has announced that it will hold hearings directed at overturning the Gross decision.


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