Sexual Harassment in the Workplace: Pre-Litigation Strategies from a Plaintiff’s Perspective
By Jolianne S. Walters
From political figureheads like Donald Trump to the quintessential TV dad, Bill Cosby, sexual harassment accusations against numerous high-profile figures have recently been making sensational media headlines. With such a heightened awareness of these taboos suddenly going viral, it is easy to get carried away in to thinking that each bat of the eye or friendly gesture is a viable claim. Before rushing to the courthouse with that 16-page complaint backed by a sympathetic plaintiff, however, plaintiffs’ attorneys must remain diligent in employing proper pre-litigation strategies to guard against the filing of frivolous suits.1
Pre-Litigation Strategy Number One - Know The Law
Pre-litigation strategy step one begins with familiarizing oneself with the applicable law. In Illinois, the legal bases for workplace sexual harassment claims are codified by the Illinois Human Rights Act, (“IHRA”), 775 ILCS 5/2-101, et. seq., and corresponding federal law under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq., (“Title VII”).
The IHRA bans, as a civil rights violation, any employer, employee, agent of any employer, employment agency, or labor agency from engaging in sexual harassment.2 Sexual harassment under the IHRA is defined as:
[A]ny 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.3
Title VII similarly provides that it is an unlawful employment practice for an employer to “discriminate against any individual with respect to his [or her] terms, conditions, or privileges of employment because of such individual’s sex.”4 The U.S. Supreme Court in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986), cited with approval, the Equal Employment Opportunity Commission, (“EEOC”), Guidelines, which provide that harassment on the basis of sex is a violation of Title VII.5 Under those Guidelines, and similar to the IHRA’s definition, sexual harassment is defined as:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment 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 unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.6
Both the IHRA and Title VII recognize two forms of sexual harassment as giving rise to liability: the quid pro quo variety and the hostile work environment variety. Quid pro quo sexual harassment occurs when a supervisor conditions tangible job consequences on an employee’s submission to sexual demands or advances.7 Hostile work environment sexual harassment claims, on the other hand, typically arise when the harassment is sufficiently severe or pervasive enough to alter the conditions of the employee’s employment and create an abusive working environment.8
Given the similar language employed by these two statutes, Illinois courts often look to federal law to analyze sexual harassment claims brought under the IHRA.9 However, as will soon be explained, there are certain circumstances when Illinois courts will depart from federal precedence.10
Pre-Litigation Strategy Number Two - Identify A Survivable Claim
After gaining an understanding of the basic law applicable to workplace sexual harassment claims, step two, and likely the most important step, requires a savvy plaintiffs’ attorney to identify a survivable claim. A survivable claim is one that can potentially be supported by sufficient evidence to establish a prima facie case and withstand a dismissal attack from a
motion to dismiss, and/or a motion for summary judgment. While at the outset it may be difficult to fully ascertain the survivability of a claim, asking the potential client questions which are aimed at spotting whether the claim can potentially meet the requisite elements of proof, often makes the difference between a meritorious claim and a frivolous claim.
Generally, in order to establish a prima facie case for the more commonly asserted hostile work environment sexual harassment claim, the potential claim must lend itself to the development of sufficient evidence to support the following elements: (1) that the potential client was subjected to unwelcome harassment; (2) the harassment was based on their sex; (3) the harassment was severe and pervasive enough to alter the conditions of their environment and create a hostile and abusive working environment; and (4) there is a basis for employer liability.11, 12
As it concerns the first element, unwelcome harassment, courts have generally held that an employee must show, by his or her conduct, that an employer’s conduct is unwelcome.13 Therefore, asking the potential client whether he or she complained to their employer to stop the harassment, or otherwise acted in a way to show their displeasure with the alleged harasser’s conduct will often be dispositive of the issue.
Regarding the second element, gender based harassment, since the U.S. Supreme Court, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), reaffirmed that a sexual harassment claim under Title VII cannot stand without proof of disparate treatment between the sexes,14 federal courts have routinely held that the equal opportunity harasser escapes the purview of Title VII liability.15 Therefore, it is important to ask the potential client whether the alleged harasser harassed women, men, or both, indiscriminately. All things considered, however, if an employee can show that s/he was subjected to harassment that was “far more severe and prevalent” than the conduct directed at opposite-sex coworkers, such evidence may be sufficient to create a genuine issue of material fact as to whether the alleged harassment was because of the employee’s sex.16
For the third element, creation of a hostile work environment, in order to be sufficiently “severe and pervasive,” an employee must show both subjective and objective hostility.17 This means that the employee must subjectively believe that the harassment was sufficiently severe or pervasive to have altered their working environment and that the harassment was also sufficiently severe or pervasive from the standpoint of a reasonable person to create a hostile work environment.18 Courts will look to several factors to determine whether the alleged harassment was objectively offensive, including the frequency of the conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with the alleged victim’s work performance.19 While severe and pervasive conduct tends to be analyzed on a case-by-case basis, the case law is replete with precedence establishing that physical touching of intimate body parts, as opposed to verbal behavior, increases the severity of the situation.20
The fourth element regarding a basis for employer liability under federal law concerns the relationship between the victim and the harasser. More specifically, it distinguishes between situations in which the harasser was a coworker or a supervisor, whether the employer took actions in response to the harassment, and whether a tangible employment action accompanied the harassment.21 Under federal law, if the alleged harasser is the employee’s supervisor and the employee was terminated, demoted, subjected to an undesirable reassignment, or otherwise subjected to some other tangible employment action, the employer – unable to assert any affirmative defenses in this situation – will be liable if the employee establishes the first three prima facie elements and also establishes that the supervisor caused the adverse employment action.22
Under federal law, if the employee was subjected to supervisory harassment, but not subjected to a tangible employment action, the employer is not automatically liable and can assert the Faragher-Ellerth affirmative defense, which allows the employer to provide that it exercised reasonable care to prevent and correct the harassing conduct and that the employee unreasonably failed to take advantage of opportunities provided by the employer to prevent or correct the harassment, or to otherwise avoid harm.23 Under the IHRA, unlike under Title VII, however, an employer is strictly liable when an employee is sexually harassed by supervisory personnel, regardless of whether the employee suffered a tangible employment action or not.24
In the final scenario, under both federal and state law, if the employee was subjected to harassment by a co-employee or a third party, in addition to the first three elements of the claim, the plaintiff must also establish that the employer knew or should have known about the conduct and that the employer did not take reasonable steps to correct the situation or prevent the harassment from recurring.25
Pre-Litigation Strategy Number 3 - Build A Successful Case
Having identified a survivable claim and before running off to the administrative building with a Charge of Discrimination in hand, step three is to begin building a successful case. Building a successful case pre-litigation can involve maximizing the types of claims available to the potential client, gathering evidence, and strengthening existing claims.
Maximizing the Types of Claims
A potential client may have walked through the door believing that they were only sexually harassed. It may be the case, however, that their claim is far broader than a sexual harassment claim. It is possible that their fact pattern lends to other claims, such as retaliation, other forms of discrimination, statutory whistle-blowing, or even to common law intentional torts, like intentional infliction of emotional distress, or assault and battery, to the extent not preempted. Quickly identifying the types of claims a potential client has will guide a savvy plaintiff’s attorney in all litigation efforts going forward.
In addition to claim-spotting, a plaintiff’s attorney can also strategize the client’s position to develop new claims not yet ripened or incurred. For example, if the potential client is being threatened with termination, a plaintiff’s attorney may choose to send the employer a letter communicating that the employee expressly opposes unlawful sexual harassment. Thus, if the employee is terminated thereafter, the client now has a good-faith basis to assert a retaliatory termination claim, which would have otherwise not existed had the attorney not engaged in protected activity on the client’s behalf.26 Another strategy often considered by plaintiffs’ attorneys to maximize claims is choosing where to file their client’s claims—whether in the Equal Employment Opportunity Commission, (“EEOC”), or in the Illinois Human Rights Department, (“IDHR”). The EEOC has jurisdiction over an employee’s federal claims under Title VII and the IDHR has jurisdiction over the employee’s state law claims under the IHRA. What this means is that an employee who wishes to ultimately file suit in state court under the IHRA, will need to administratively exhaust their claims with the IDHR. On the other hand, if the employee wishes to ultimately file suit in federal court under Title VII, the employee will have to administratively exhaust the claims with the EEOC. Therefore, depending on the facts of the case, plaintiffs’ attorneys who wish to preserve all routes to success, will often file their client’s claims with the IDHR, who will then automatically cross-file those same claims with the EEOC. The reason most plaintiffs’ attorneys file with the IDHR first is because the time to file state law claims is most limited, at 180-days, whereas the EEOC’s filing deadline is 300-days. Therefore, by filing with the IDHR first, a plaintiff’s attorney preserves all claims available to the client arising under both state and federal law. This strategy is also beneficial when taking into consideration an ultimate trial on the merits before a jury. It may likely be the case that a sexual harassment suit based on a particular set of facts may fare better in state court, rather than federal court, which is notorious for routinely granting summary judgment motions. A plaintiff’s attorney who has left all options available can choose what venue would be best suited for their client.
Another strategy to building a successful case is to immediately gather evidence. The strength of a plaintiff’s case usually rests on what documentary evidence exists to prove that the employer committed unlawful sexual harassment. Early investigation, such as requesting personnel file records, sleuthing social media and online resources, and interviewing relevant witnesses, such as current and former coworkers, are all great methods by which to preliminarily obtain relevant evidence. Often, a potential client will have ready a slew of witnesses at their disposal who they insist will support their position at a trial. These are important people to question early in the process.
Another benefit to doing an early investigation is that by gathering evidence, a plaintiff’s attorney can later submit the evidence to the administrative investigator, who will then have to consider it as part of their ultimate administrative finding.27 The more evidence an investigator has to work with, the more likely they will issue a favorable finding; and thus, in turn, open the doors to other litigation opportunities that would have otherwise not been available. For example, in Illinois, if the Illinois Department of Human Rights makes a finding of substantial evidence at the conclusion of its investigation, the complainant has the opportunity to have the Department file a complaint on their behalf directly in the Illinois Human Rights Commission28 – which tends to be a more sympathetic venue to plaintiffs. Such an avenue would not have been available if the Department made a finding of dismissal. Therefore, the more diligent the effort to prove the claim, the better the chances for overall success down the road.
Another evidence-gathering strategy employed by plaintiffs’ attorneys is to set forth an early settlement demand. The aim of this strategy is two-fold. First, it forces a plaintiff’s attorney to properly evaluate the case for its true value. It also forces that attorney to develop case strategy and ascertain whether the case will be worth taking to trial or settling quickly. Second, it affords the employer the opportunity to provide an informal response. Often, this will be at a point where the employer is most amenable to settling quickly. Thus, not only will it likely be the case that the employer responds setting forth its anticipated defenses, but it may also make an offer just to make the case go away quickly. This may be beneficial to a client seeking a quick resolution. This is also very beneficial because the employer’s response usually reveals key information regarding the weaknesses of the employee’s position. A plaintiff’s attorney can use this knowledge to gauge the course of discovery to close the gaps in their case.
Strengthening Existing Claims
To strengthen existing claims, a plaintiff’s attorney may seek to lump as many related sexually-harassing incidents as possible into one very egregious claim.29 The more sexual harassment acts that occurred, the stronger and more aggravated the client’s claim becomes. In other words, filing a Charge of Discrimination asserting 20 sexually harassing incidents is far stronger than asserting one occurrence. Therefore, so long as, at minimum, one of those numerous acts is timely filed, all those acts related to the timely allegation can form the basis of a sexual harassment claim.30 Another strategy to strengthen a client’s claim is to build up their damages. Often an employee subjected to sexual harassment has suffered some form of emotional distress, or other physical or mental injury. It may be the case that the employee has not yet visited a physician or otherwise sought medical treatment. A forward-thinking plaintiff’s attorney will likely suggest to their client that they be evaluated by a medical professional, so that they can be diagnosed and treated, if necessary. Not only will this likely help the well-being of the client, but it will also create evidence in support of a claim for emotional distress and other compensatory damages, as well as yield an unbiased expert witness.
Another claim-strengthening strategy for plaintiffs’ attorneys is to counsel their client to mitigate their damages. If the employee is still employed by the employer, the employee still has an obligation to perform their job to their employer’s legitimate expectations. An employee who fails to perform hurts their ultimate position for success on their harassment or other claims. If the employee has been terminated, the employee should be counseled to make efforts to diligently seek new employment elsewhere so as to mitigate their damages and avoid the possibility of their damages being cut-off by a failure to mitigate damages affirmative defense.
Additionally, plaintiff’s attorneys often will advise their clients to report their complaints to upper management and/or the company’s Human Resources department so as to avoid any employer-notice issues down the line. It is also beneficial for plaintiffs’ attorneys to advise their client to cooperate and participate in any ensuing internal investigation, so as to avoid any imputation of bad faith or dishonesty on the part of the complaining employee. In addition, it is also useful if the employee is advised to maintain a confidential and detailed chronology of events, occurrences, and conversations, as this tool will not only organize the evidence pre-suit, but can also be made a confidential communication subject to the attorney-client privilege.
Although the publicity of sexual harassment accusations has been steadily percolating in the media, an ethical plaintiff’s attorney will guard the integrity of the legal system and ensure that the client’s claims rest on legal precedence and not on public opinion.30
1. IL Rules of Prof’l Conduct R. 3.1 (2010) (a lawyer shall not bring...a proceeding, or assert...an issue...unless there is a basis in law and fact for doing so that is not frivolous).
2. 775 ILCS 5/2-102(D).
3. 775 ILCS 5/2-101(E).
4. 42 U.S.C. § 2000e-2(a)(1).
5. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986), citing 29 C.F.R. § 1604.11(a).
6. 29 C.F.R. § 1604.11(a).
7. Brill v. Lante Corp, 119 F.3d 1266, 1274 (7th Cir. 1997), citing 29 C.F.R. § 1604.11(a); Trayling v. Board of Fire and Police Com’rs of Vill. of Bensenville, 273 Ill.App.3d 1, 10 (2nd Dist. 1995) (subparts (1) and (2) of Section 2-101(E) define what is called “quid pro quo sexual harassment”).
8. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994); Crittenden v. Cook County Com’n on Human Rights, 2012 IL App (1st) 112437, at 55.
9. Trayling v. Board of Fire and Police Com’rs of Vill. of Bensenville, 273 Ill.App.3d 1, 10 (2nd Dist. 1995) (generally, because the prohibition of sexual harassment found in the IHRA closely parallels that found in Title VII, examination of federal law is appropriate; but it does not need to be applied in lockstep).
11. Sangamon County Sheriff’s Dep’t v. Ill. Human Rights Com’n, 233 Ill.2d 125, 138 (2009) (as to the last federal prong regarding the basis of employer liability, federal case law is unhelpful in interpreting § 2-102(D) of the IHRA, because under Title VII, unlike the IHRA, an employer’s liability for hostile environment sexual harassment depends on the harasser’s status relative to the victim).
12. Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 863 (7th Cir. 2005); Porter v. Erie Foods Intern., Inc., 576 F.3d 629, 634 (7th Cir. 2009); Trayling, 273 Ill.App.3d at 10, citing 775 ILCS 5/2-102(D) (hostile environment sexual harassment exists under the IHRA when: (1) sexual or verbal conduct; (2) unwelcome by individual alleged sexual harassment; (3) has purpose or effect of; (4) either (a) substantially interfering with individual’s work performance, or (b) creating intimidating, hostile, or offensive working environment).
13. Meritor Sav. Bank, 477 U.S. at 68; Reed v. Shepard, 939 F.2d 484, 491-92 (7th Cir. 1991) (employee who voluntarily engaged in sexually explicit jokes, but never complained about her supervisor’s sexually explicit conduct being unwelcome, failed to establish the first element of her claim); cf e.g., Hrobowski v. Worthington Steel Co., 358 F.3d 473, 476 (7th Cir. 2004) (although employee, himself, made racially-oriented jokes, he made a sufficient showing that his coworkers’ racial language was unwelcome by complaining to his managers).
14. The Illinois Supreme Court has not yet ruled on this issue and it is unclear whether the Court would rule in lockstep with federal court precedence.
15. Holman v. State of Indiana, 24 F.Supp.2d 909, 915 (N.D. Ind. 1998) (collecting cases), affirmed by Holman v. Indiana, 211 F.3d 399, 403 (7th Cir. 2000) (Title VII does not cover the “equal opportunity” or “bisexual” harasser, because such a person is not discriminating on the basis of sex; the equal opportunity harasser is not treating one sex better or worse than the other, but is treating both sexes the same, albeit badly).
16. Kampmier v. Emeritus Corp., 472 F.3d 930, 940-41 (7th Cir. 2007).
17. Rizzo v. Sheahan, 266 F.3d 705, 711 (7th Cir. 2001); Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993); Trayling, 273 Ill.App.3d at 11-12, citing Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (finding persuasive the U.S. Supreme Court’s requirement that an environment is severe and pervasive when it is both subjectively perceived by the complainant as being hostile and objectively hostile).
18. Turner v. The Saloon, Ltd., 595 F.3d 679, 685 (7th Cir. 2010).
19. Boumehdi v. PlastagHoldings, LLC, 489 F.3d 781, 788 (7th Cir. 2007); Crittenden v. Cook County Com’n on Human Rights, 2012 IL App (1st) 112437, at 55 (a court considering a claim of sexual harassment must examine all of the circumstances before determining whether an environment is hostile or abusive, including factors such as the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance).
20. Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001); See also, Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807-08 (7th Cir. 2000) (genuine issue existed as to objective severity where a coworker forcibly kissed the plaintiff and nearly removed her brassiere); Patton v. Keystone RV Co., 455 F.3d 812, 814 (7th Cir. 2006) (summary judgment denied where a manager slid his hand up the plaintiff’s shorts, reaching her underwear); cf Baskerville v. Culligan Int’l Co., 50 F.3d 428, 432 (7th Cir. 1995) (rejecting plaintiff’s claim of sexual harassment even though plaintiff alleged that her supervisor called her “pretty girl,” made grunting noises when she wore a skirt, suggested she “run around naked,” called her “Anita Hill,” and pantomimed masturbation in her presence); Pryor v. Seyfarth Shaw, Fairweather, & Geraldson, 212 F.3d 976, 977-78 (7th Cir. 2000) (male attorney showing female secretary pictures of women in bondage and black leather and asking about her wardrobe on several occasions not severe or pervasive); Weiss v. Coca- Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (unwanted shoulder touches and attempts to kiss not objectively hostile).
21. Williams v. City of Chicago, 2017 WL 3169065, at *5 (N.D. Ill. 2017) (under Title VII, different standards of employer liability apply depending on whether the alleged harasser is the victim’s supervisor or a coworker); Sangamon County Sheriff’s Dep’t v. Ill. Human Rights Com’n, 233 Ill.2d 125, 138 (2009) (under Title VII, unlike under the IHRA, an employer’s liability for hostile environment sexual harassment depends on the harasser’s status relative to the victim).
22. 7th Cir. Civ. Patt. Jury Instruction 3.05A.
23. 7th Cir. Civ. Patt. Jury Instruction 3.05B.
24. Benitez v. KFCNat. Management Co., 305 Ill.App.3d 1027, 1036 (2nd Dist. 1999).
25. 7th Cir. Civ. Patt. Jury Instruction 3.04; See also, Erickson v. Wisconsin Dep’t of Corr., 469 F.3d 600, 606 (7th Cir. 2006) (before liability for sexual harassment can arise under Title VII, the employee must give the employer enough information to make a reasonable employer think that there was some probability that she was being sexually harassed); 775 ILCS 5/2-102(D).
26. 775 ILCS 5/6-101(A); 42 U.S.C. § 2000e-3(a).
27. Owens v. Dep’t of Human Rights, 403 Ill.App.3d 899, 916-17 (1st Dist. 2010) (when an employee files a discrimination charge under the IHRA, the Department must conduct a full investigation and provide a written report. After reviewing the investigation report, the Department must determine whether there is substantial evidence that the alleged civil rights violation has been committed. If the Department determined that there is no substantial evidence, the charge is dismissed. If the charge is dismissed, the petitioner may seek review by filing a request for review with the Chief Legal Counsel of the Department).
28. 775 ILCS 5/7A-102(D)(4).
29. Sangamon County Sheriff’s Dep’t v. Ill. Human Rights Com’n, 233 Ill.2d 125, 141 (2009) (a sexual harassment claim based on a hostile work environment generally is made up of a series of events rather than a single event).
30. Jenkins v. Lustig, 354 Ill.App.3d 193, 196 (3rd Dist. 2004); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Gusciara v. Lustig, 346 Ill.App.3d 1012, 1018 (2nd Dist. 2004).
Jolianne S. Walters, as a practicing labor and employment attorney, has represented clients in a wide variety of labor and employment-related matters. She has worked in an in-house setting, and as both a plaintiff’s and defense attorney. She also has experience litigating employment claims at the administrative, trial, and appellate levels, and has argued before the Illinois Supreme Court.