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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.

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.

McDonald’s Settles Disability Discrimination Lawsuit

As a McDonald’s franchise recently learned, companies cannot discriminate against individuals with disabilities in the application process, hiring, firing, advancement, compensation, and other terms of employment. Moreover, employers are required to offer reasonable accommodations to individuals with disabilities when doing so would not result in an “undue hardship.” The Americans with Disabilities Act and the Illinois Human Rights Act both provide these protections to individuals with disabilities.

Cheese burger

EEOC v. McDonald’s Corporation, et al.

Plaintiff, a man who is deaf, applied for a vacant position at the McDonald’s located in Belton, Missouri. The gentleman had experience working at a McDonald’s in Louisiana as a cook and clean-up team member. The restaurant initially scheduled Plaintiff for an interview. When company’s hiring personnel learned the applicant was deaf and required an interpreter for the interview, McDonald’s mysteriously lost all interest in hiring the applicant. However, the franchise continued to interview other employees, and eventually hired someone else for the position.

Not interviewing an applicant because he is deaf is a textbook example of disability discrimination and failure to reasonable accommodate. When McDonald’s learned the individual was deaf, it had a legal duty to take affirmative steps to accommodate the applicant’s hearing difficulties. It cannot simply throw the application in the trash and move on to the next applicant. The EEOC filed a lawsuit against the company in December 2015, claiming disability discrimination. This month, the parties entered into a consent decree, where McDonald’s agreed to pay the applicant $56,500 in monetary damages, among other forms of relief.

Keep in mind, there is a question whether the company obtaining an interpreter and employing a deaf employee would impose an undue hardship on the company. In making this determining, you take into account the employer’s size, financial resources, and the structure of the organization. Thus, if the two-employee mom and pop burger joint does not hire a deaf employee, it may have an argument that doing so would be an undue hardship due to all of the tasks that require fully-functional hearing. However, a company the size of McDonald’s, which has an abundant amount of employees in each store performing different tasks, would have no such argument.

If you think that you have been discriminated against based on a disability, contact an employment attorney as soon as possible.

 

Governor Rauner Signs Domestic Workers Bill of Rights into Law

I previously posted that Illinois was on the verge of passing HB1288, the Domestic Workers Bill of Rights. Thankfully Governor Rauner has now signed the bill, making Illinois the seventh state to adopt the type of law. The Act provides much-needed workplace protections and entitlements to housekeepers, nannies, and caregivers, among other types of domestic jobs.

Signature

The statute amends different Illinois employment-related laws to provide domestic workers numerous workplace protections. Starting January 1, 2017, domestic workers will be protected from illegal discrimination under the Illinois Human Rights Act, 820 ILCS 5/1-101, entitled to minimum wage and overtime under the Illinois Minimum Wage Law, 820 ILCS 105/1, and entitled to certain rest breaks under 820 ILCS 140/1, among other protections and entitlements.

It is disappointing Illinois did not provide these basic workplace protections to domestic workers in the past. However, at least the legislature and governor took the necessary steps to finally provide these employment protections to domestic workers that most other Illinois employees already enjoy.

“Fact of an Arrest” to Terminate an Employee

When companies decide whether to hire or fire an employee, they are sometimes tempted to use arrest and conviction records to assist their determination.  However, some federal and state laws limit what arrest records can be used in making employment decisions.

Sirens

The Illinois Human Rights Act (IHRA) generally prohibits employers “to inquire into or to use the fact of an arrest or criminal history record information ordered expunged, sealed or impounded …” to take any adverse employment action against the employee. 775 ILCS 5/2-103(A).  Although companies are not allowed to consider an employee or applicant’s fact of arrest in making an employment decision, employers are still permitted to obtain and use “other information which indicates that a person actually engaged in the conduct for which he or she was arrested.” 775 ILCS 5/2-103(B).

If an employer is found to have violated the IHRA, the employee is entitled to damages, including actual damages (to compensate the injury or loss actually suffered by the Plaintiff), reinstatement, costs in bringing the action, and reasonable attorney fees.

Murillo v. City of Chicago

The City of Chicago recently learned the hard way that it is impermissible to use a fact of an arrest as grounds to fire an employee.  In Murillo v. City of Chicago, the Plaintiff was arrested in the late 1990s for allegedly possessing cocaine.  However, the trial judge in the case promptly dismissed the charges against Plaintiff for lack of probable cause.  Nearly ten years later, the Plaintiff obtained a job as a janitor for the City of Chicago.  The City eventually obtained the arrest report from the 90s, revoked the Plaintiff’s security clearance, and terminated his employment.  Plaintiff sued because the City used the fact of his arrest as the sole basis of his termination.

The trial court agreed with the Plaintiff, finding the City violated the IHRA by using the fact of his arrest in firing him.  The jury found Plaintiff was entitled to damages for lost wages, pension benefits, and emotion distress in the sum of $87,227.75.  The trial court also granted Plaintiff’s motion for attorneys’ fees, but only granted $183.796.83 of the requested $300.497.50.

The Illinois Court of Appeals upheld the trial court’s decision that the City of Chicago violated the IHRA by using Plaintiff’s fact of arrest in terminating his employment.  However, the Court remanded the case back to the trial court to provide a reason why the attorneys’ fee award was slashed in half for no apparent reason.

Lessons from Murillo

This case shows employers should take the IHRA’s prohibition of using the fact of an arrest in employment decisions seriously.  Here, the City of Chicago is looking at damages of close to half-a-million dollars for not following the law.  Moreover, it remains unclear why the City of Chicago deemed an arrest ten years ago relevant as to whether the gentlemen could successfully perform his job duties today.  Unfortunately, while most would agree the arrest itself is not helpful in evaluating an employee, the IHRA protects employees from the companies that do. 

Discrimination Based on Sexual Orientation

Imagine this situation. You are a model employee at your company. You arrive to work early, stay late, and work hard. One day, your boss pulls you into his office with some unfortunate news. Your boss admits that you are a great worker. However, he says that he recently learned that you are gay, and for that reason alone, you’re fired. Did your boss break the law by firing you based on your sexual orientation? Although it might surprise you, under federal law, most courts have found this type of termination is perfectly legal.

Federal Law – Title VII

Title VII of the Civil Rights Act of 1964 is a federal law which prohibits many employers from discriminating against employees. Title VII makes it an “unlawful employment practice for an employer to fail or refuse to Rainbow Flaghire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. Thus, the question is whether discrimination based on sexual orientation is considered discrimination because of an individual’s sex. The Equal Employment Opportunity Commission takes the position that Title VII prohibits sexual orientation discrimination. In fact, earlier this year the EEOC filed two lawsuits on behalf of employees claiming they were discriminate against based on their sexual orientation. One of these lawsuits has already settled.

Despite the EEOC’s position on sexual orientation discrimination under Title VII, most courts around the Country have found Title VII does not prohibit sexual orientation discrimination. Last week, the Seventh Circuit Court of Appeals, which covers Illinois, also found Title VII does not cover sexual orientation discrimination. The Court relied heavily on Seventh Circuit precedent finding sexual orientation is not a Title VII protected characteristic. See Hamner v. St. Vincent Hosp. Health Care Ctr.., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000). In essence, the Court held Title VII prohibits discrimination based on a person’s gender, not a person’s sexual orientation. See Muhammad v. Caterpillar, Inc., 767 F.3d 694, 697 (7th Cir. 2014). The Supreme Court has not ruled on the critical rift between the EEOC and most Circuit Courts.

Congress has attempted to change Title VII to include sexual orientation as a protected characteristic. Since 1994, every Congress except the 109th has proposed the Employment Non-Discrimination Act. The Act would amend Title VII to prohibit sexual orientation and gender identity discrimination. Until Congress passes any legislation or the Supreme Court rules on the issue, we are likely stuck with the current state-of-affairs regarding sexual orientation discrimination at the federal level.

State and Local Laws

Even though most courts have found federal law does not prohibit sexual orientation discrimination, some states have enacted legislation prohibiting the discrimination. For example, the Illinois Human Rights Act prohibits discrimination “against any individual because of his or her … sexual orientation … ” 775 ILCS 5/1-102(A). Some municipalities also prohibit discrimination within the city or county.  For example, Cook County prohibits sexual orientation discrimination in employment decisions. To see which states prohibit which types of discrimination, see this website created by the Human Rights Campaign. Under the “select and issue” tab, select “statewide employment laws & policies.”

Also keep in mind that even some employers are not subject to any anti-discrimination laws as to sexual orientation, they are free to implement their own policies that prohibit this type of discrimination. Although not legally required (at least no yet), it would still be the right thing to do.