Employers Can Be Liable For Sexual Harassment Committed by Non-Employees

Most people know that employees are protected against sexual harassment committed by co-workers or supervisors. But did you know that employees are also protected against sexual harassment committed by individuals outside of the company?

Sexual Harassment Law in Illinois

Title VII of the Civil Rights Act and the Illinois Human Rights Act prohibit an employer from discriminating against an employee on the basis of sex. An employer violates this provision the discrimination creates a hostile work environment. To establish a claim, the individual must show he or she was subject to unwelcome sexual conduct, advances, or requests because of his or her sex that was severe or pervasive enough to create a hostile relationship. Thus, regardless of whether the conduct is from a co-worker or someone outside the company, such as a customer, the harassment must be severe and pervasive.

In addition, the individual must show there is a basis for employer liability. If the sexual harasser is a supervisor of the employee, employer liability in Illinois is automatic. However, if the sexual harasser is a co-worker or non-employee, you must show the company was reckless in permitting, or failing to prevent the sexual harassment. EEOC v. Costo, 903 F.3d 618 (7th Cir. 2018). The Employer must know about the harassment and then fail to take reasonable steps to prevent the harassment.

Hewitt v. BS Transportation of Illinois

For example, a plaintiff recently filed a federal lawsuit claiming the employer is liable for sexual harassment committed by a nonemployee. Hewitt v. BS Transportation of Illinois, 2:18-cv-712 (E.D. P.A. Jan. 11, 2019). The Company moved to dismiss the case because no one at the Company committed the sexual harassment. However, the Court denied the Company’s motion, finding it would be equally illegal for a non-employee to commit sexual harassment so long as the above elements are met.

If you are victim to sexual harassment, regardless of source, contact an employment attorney immediately.

How to Make an Employment Complaint

My friend Branigan Robertson made the below video on raising effective workplace complaints while avoiding retaliation. He also writes about it here.

All of these tips are great, and they apply equally to Illinois employees. Tip number six is especially important: send a written complaint. Unfortunately, potential clients tell me all too often that they only complained about illegal conduct in-person or on the phone. Unfortunately, judges give these non-written complaints very little weight. Even more unfortunate, individuals who still work for the employer often have a different “memory” than you. Thus, if you make any complaint, it needs to be in writing. A simple email will do the trick, and you can print out a copy of the email for your records.

In the unfortunate event you need to make a workplace complaint, make sure to follow these tips. When in doubt, contact an experienced employment attorney.

The Size of the Employer Matters

In order to bring an employment lawsuit, sometimes the employer must have a minimum number of employees to bring a claim. For example, under the Age Discrimination in Employment Act (ADEA), the law that prohibits age discrimination and retaliation, the employer generally must have twenty or more employees. 29 U.S.C. § 630(b).

The Supreme Court recently agreed to hear a case to decide if employers with fewer than twenty employees can be considered “employers” if they are a state or political subdivision of a state. It is unclear if the political entity must also have twenty or more employees. The Seventh Circuit, which includes Illinois, found the state or political subdivision of a state must also have twenty or more employees. Kelly v. Wauconda Park Dist., 801 F.2d 269, 270 (7th Cir. 1986).

Many other laws require a company to have a minimum amount of employees to bring an employment lawsuit, such as wrongful termination. To bring a claim for most forms of discrimination (other than age) under federal and Illinois law, the employer must have at least fifteen employees. However, under claims for disability discrimination, pregnancy discrimination, and sexual harassment under Illinois law, there is no minimum amount of employees. To bring a claim under the Family and Medical Leave Act, the employer must have fifty or more employees.

If you think you have a legal claim against your employer, contact an experienced employment attorney to learn if you may have a case. The right attorney should know which laws apply to your specific case.

Are You Entitled to Severance?

Individuals often ask me if they are entitled to severance benefits after being terminated. Severance benefits are a lump sump payment to the employee which usually require the employee to sign an agreement waiving all potential legal claims against the company. Illinois law does not require employers to pay severance to terminated employees. However, there are some employees legally entitled to severance pay.

Contracts that Guarantee Severance

The exception to this general rule is when the company has contractually agreed to provide severance  if the employee is terminated. There are two common situations where employers offer these types of employment agreements. First, these types of contracts are sometimes provided to executive-level employees. The promise of future severance may help entice an employee to join the new company, or convince an existing employee to remain with the company.

Second, these types of contracts are common when a company is in the process of merging with a bigger company. In these situations, employees for the company being bought-out are concerned (often rightly so) they will lose their job in the merger. To ensure a stable transition, the acquiring company will offer employees of the soon-to-be-acquired company a contract guaranteeing severance in the event the employee is terminated. Thus, the employees have an assurance that their job is safe, and in the event of termination, they still will be provided compensation.

Voluntary Severance

Companies are often still willing to pay severance benefits for a variety of reasons. Companies may provide severance benefits as a recognition of service to the company. For instance, some companies have a general policy of giving one week of severance for each year of service. Employers may also provide severance partly because they are concerned the employee may sue the company. To prevent any future litigation, the employer agrees to pay the employee a lump sum payment in exchange for the employee waiving all claims against the company.

Even if the company does not offer any type of severance, a terminated employee may still be entitled to unemployment benefits to ease the burden of losing his or her job. It is important to note that even if you are paid severance, you generally are still equally entitled to unemployment benefits, and the severance payments do not affect your unemployment benefit amount.

If you have been laid off and are presented with a severance agreement (or think you may be entitled to one), it is highly advisable to seek a qualified employment attorney to review your situation. Unfortunately, I have reviewed too many cases where an individual has strong claims against an employer, but is unable to pursue them due to prematurely signing a severance agreement. Contact us today if you are in need of employment advice.

New Sexual Harassment Legislation on Illinois Horizon

Illinois lawmakers are returning to session this week, and news laws related to sexual harassment are on the agenda. Since the #metoo movement began about one year ago, the House and Senate have been holding hearings to determine what measures can be taken to curb sexual harassment in the workplace. The legislature has not yet identified what laws will be enacted, but we will keep you posted as they are proposed and enacted.

Now is a good time to review the Illinois laws that are meant to protect employees from sexual harassment in the workplace. The Illinois Human Rights Act (IHRA) makes sexual harassment illegal. There are different forms of sexual harassment, such as inappropriate physical interactions and comments, The IHRA 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 the 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 an intimidating, hostile or offensive working environment.

The sexual harassment provisions of the IHRA apply to ALL employers. This is extremely important because some laws (like Title VII of the Civil Rights Act and the Family and Medical Leave Act) only apply to employers with a minimum number of employees. Any sexual harassment of an employee’s manager or supervisor is imputed to the company. However, if the sexual harassment is committed by anyone else (including a non-employee), the employer must become aware of the conduct and fail to take reasonable corrective measures.

If you are being sexually harassed at work, contact us immediately. There are very short time limitations for bringing claims under the IHRA and related statutes.

A Sexual Harassment Refresher

It seems every day there are more celebrities accused of groping and sexual harassment. (Here is a running list of stars who allegedly committed sexual misconduct). This has also started a #metoo campaign, where women across the Country are sharing their stories of having to endure inappropriate sexual comments or touching. Unfortunately, sexual harassment is all too common in the workplace, and it has largely gone ignored under the boys-will-be-boys attitude. Thankfully, since the allegations have surfaced against Harvey Weinstein, women and men across the country are getting the courage to confront their abusers. Now is as good of time as any to review laws that protect employees in Illinois from sexual harassment in the workplace.

What is Sexual Harassment

In order to show sexual harassment (or #metoo movementa hostile work environment), the employee needs to show (1) she was subjected to unwelcome sexual conduct, advances, or requests, (2) because of her sex, (3) that were severe or pervasive enough to create a hostile work environment, and (4) that there is a basis for employer liability.

Often the biggest issues is determining whether the conduct was severe or pervasive. As a general rule, is there is uninvited physical conduct, likely only one instance is enough to be considered severe and pervasive. Alternatively, if the employee is subject to vulgar banter, or inappropriate sexual comments by co-workers, it will likely need to continue for a period of time to be deemed pervasive. Whether the conduct will be deemed severe or pervasive will depend on the frequency, its severity, whether it is physically threatening or humiliating, and whether it interferes with the employee’s work performance.

Quid Pro Quo Sexual Harassment

There is also quid pro quo sexual harassment, which is all too common. This occurs where submission to sexual demands is made a condition of tangible employment benefits, or submission to or rejection of such conduct is used as the basis for employment decisions affecting the individual. This often happens when a supervisor requires a subordinate to submit to some form of sexual conduct in order to be promoted, given a raise, or keep employment with the company. Although this type of sexual harassment might seem more consensual, it is just as illegal and repulsive as all other types.

Time Limitations

Bear in mind that in order to successfully pursue a sexual harassment claim, you or your attorney must first file a charge of discrimination with the Equal Employment Opportunity Commission or the Illinois Department of Human Rights. If filed with the EEOC, the charge must be filed within 300 days of the illegal conduct. If filed with the IDHR, it must be filed within 180 days. In determining the last date of illegal conduct, if there is a violation that continues over a period of time, the employee can obtain relief by linking all acts with the last act that falls within the limitations period.

If you have been subjected to sexual harassment, contact an attorney immediately.

Are You Entitled to Your Personnel File?

Workers often ask me whether they can get their personnel file from their current or former employer. For example, the Pennsylvania Supreme Court recently found that former employees are not entitled to their employee records once he or she stops working for the company. However, Illinois employees are usually entitled to their personnel file.

The Personnel Record Review Act requires Personnel Fileemployers to provide, upon request, “any personnel documents which are, have been or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action…” 820 ILCS 40/2. The Act applies to most political entities, as well as private businesses that have 5 or more employees. Keep in mind the Act does not simply require the employer to turn over a “file,” but rather defines the specific types of documents, regardless of where they are stored, that must be turned over to the employee.

There are two important consequences if the employer denies an employee’s right to his or her personnel file. First, the employee has a cause of action against the company if the personnel file is not turned over to the employee. 820 ILCS 40/12. The employee must first file a Complaint with the Department of Labor, and can proceed to Illinois Circuit Court if the employer still refuses to turn over the file. An employee who prevails under this cause of action may be entitled to contempt damages, actual damages, costs, a $200 fine, and reasonable attorney’s fees.

The second important consequence of an employer refusing to provide a personnel record is that any employee document not provided in response to a request under the act cannot later be used by the employer in any judicial proceeding. 820 ILCS 40/4.

If you are having difficulty obtaining your personnel file from your current or former employer, or are having any other employment disputes, contact an experienced employment attorney immediately.

Fox Terminates Host for Racial Remark

Companies have a duty to prevent employees from working in a hostile work environment. On Friday, it appears Fox attempted to do just that. The company fired “The Five” co-host Bob Beckel for a remark he made to an African American employee. Fox believes it acted appropriately by firing Beckel due to the remark. However, lawyers who represent former Fox employees say otherwise.

 no seinfeld never finger wag no gif GIF

There have been a number of newly-filed racial discrimination lawsuits against Fox. Lawyers for these plaintiffs say that Fox created a hostile work environment for their clients. Moreover, lawyers allege that not only were there racial comments made in this case, but Beckel also attempted to get the employee to withdraw a subsequent complaint about the incident. The company denies such retaliation.

Title VII of the Civil Rights Act of 1964 prohibits employers from fostering a hostile work environment on claims based on racial harassment. 42 U.S.C. § 2000e-2. In order to establish a hostile work environment claim, the plaintiff must show (1) that he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe or pervasive so as to alter the conditions of the work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. Smith v. Northeastern Illinois University, 388 F.3d 559, 566 (7th Cir. 2004). An employer is strictly liable for harassment by a supervisor. If the harassment is committed by a co-worker, the plaintiff must show the employer knew or should have known about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir. 2004). Thus, in this situation, the determination will partly depend on whether Beckel was the employee’s supervisor, or whether he was merely a co-worker, which requires a higher showing.

Title VII also prohibits retaliation for raising complaints about discrimination. Specifically, it is unlawful for an employer to discriminate against an employee for opposing an unlawful employment practice. 42 U.S.C. § 2000e-3(a). Here, the employee will likely also claim Beckel retaliated against her for raising a complaint of racial discrimination.

The ultimate determination for this employee and those bringing racial discrimination claims against Fox will depend on the specific facts and circumstances of each plaintiff. If you believe you have been discriminated against based on race, or retaliated against for raising a complaint, contact Osborne Employment Law today.


BREAKING: 7th Circuit Finds Sexual Orientation Discrimination Illegal

Big news in the employment law world today. As I have blogged, a three-judge panel on the Seventh Circuit Court of Appeals previously held that sexual orientation discrimination is not discrimination based on sex as contemplated by Title VII of the Civil Rights Act of 1964. The Court reluctantly found sexual orientation discrimination is not prohibited almost purely based on binding Seventh Circuit precedent dating back to 1984. However, the Plaintiff requested the entire Seventh Circuit to rehear the case, which it did in Hively v. Ivy Tech Community College, No. 15-1720 (April 4, 2017). Well, the decision was released yesterday, and the Seventh Circuit held “that discrimination on the basis of sexual orientation is a form of sex discrimination.”

As the Court aptly stated, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'” The opinion is especially important because it stands in stark contracts to the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital, which found Title VII does not prohibit sexual orientation discrimination. Generally, when different circuits “split” on an important issue, it becomes much more likely the Supreme Court will address the circuit split.

Keep in mind, although federal law now prohibits sexual orientation discrimination in states encompassing the Seventh Circuit (Illinois, Indiana, and Wisconsin), there may be other laws and ordinances which also prohibit sexual orientation discrimination. In Illinois, for example, the Human Rights Act prohibits sexual orientation discrimination. In Chicago, the Chicago Human Rights Ordinance similarly prohibits sexual orientation discrimination.

Although the Court’s employment decision is a victory for human rights, the Supreme Court will likely get the final say. In the meantime, however, the Seventh Circuit’s ruling will help prevent wrongful terminations based on sexual orientation in the future.

Unemployment Benefits When “You’re Fired”

Yesterday acting Attorney General Sally Yates announced that she would not defend President Trump’s recent executive order barring citizens of seven Muslim-majority countries from entering the United States for 120 days, and indefinitely suspending the Syrian refugee program. President Trump immediately responded with his favorite phrase: your’e fired. Okay, he may have not actually said the phrase, but he did fire her. Would Ms. Yates be entitled to unemployment benefits if she was an Illinois employee?

You're fired

The purpose of the Unemployment Insurance Act is to alleviate the harsh effects of involuntary employment. Under Illinois law, the employee is ineligible for unemployment benefits if the worker was discharged for misconduct connected with work. 820 ILCS 405/602(A). The most common provision that employees are found to be ineligible under the Act is when the employee commits a deliberate and willful violation of a reasonable rule or policy, provided such violation has harmed the employing unit, other employees, or has been repeated by the individual despite a warning or explicit instruction.

This reasonable rule or policy language was the only definition of misconduct until last year. This is very important because employees are often terminated without violating a clear rule or policy, if the employer even has any. Many employers, particularly smaller companies, do not have clear rules or policies, making it difficult to show the employee ever violated one. Moreover, not only must the employee violate a rule or policy, but the violation must be deliberate and willful, a relatively high standard of culpability. For example, in Washington v. Board of Review, 211 Ill. App. 3d 663 (1991), the Court found an employee falling asleep on the job, despite a policy prohibiting sleeping during work, was not misconduct because the employee did not deliberately or willfully fall asleep.

In former Attorney General Yates’ case, if she were an Illinois employee, it would likely be difficult to show that she violated a specific rule or policy. There would need to be a policy requiring her position to find every action by the President lawful, and she must defend any executive action regardless of the constitutional basis. It is unlikely these rules or policies are in place.

However, beginning in 2016, there are 8 new prongs that allow an employer to claim the employee committed misconduct connected to work. These consist of:

  1. Falsification of an employment application, or any other documentation provided to the company;
  2. Failure to maintain the necessary licenses, registrations, and certifications;
  3. Knowing, repeated violation of the attendance policies;
  4. Damaging the employer’s property through gross negligent conduct;
  5. Refusal to obey an employer’s reasonable and lawful instruction, unless the refusal is due to the lack of ability, skills, or training for the individual required to obey the instruction or the instruction would result in an unsafe act;
  6. Consuming alcohol or illegal or non-prescribed prescription drugs, or using an impairing substance in an off-label manner, on the employer’s premises during working hours in violation of the company’s policies;
  7. Reporting to work under the influence of alcohol, or an illegal or non-prescribed prescription drugs; and
  8. Grossly negligent conduct endangering the safety of the individual or coworkers.

As you can tell, these additional provisions make it much easier to find a terminated employee is ineligible for unemployment benefits. Many of these provisions do not require any existing rule or policy for the employee to violate, as opposed to the original misconduct definition. In Ms. Yates’ case, the government could theoretically argue that she refused to obey an employer’s reasonable and lawful instruction (obviously assuming there was an instruction, and such instruction was lawful).

In all likelihood, an attorney as successful as Ms. Yates is unlikely to need to rely on unemployment benefits for any period of time, as she is likely to find new employment quickly. However, for many individuals, the determination whether the employee was terminated for misconduct can have vital consequences, potentially allowing the worker essential benefits until the employee finds new employment.