The Journal of The DuPage County Bar Association

Back Issues > Vol. 22 (2009-10)

Textual Harassment Trends Particularly Troubling for Illinois Employers
By Jonathon D. Hoag

The popularity of communicating through text messages is on the rise. Much like when email emerged in the early 1990s, this new method of communication is increasing efficiencies in the workplace while at the same time exposing employers to potential liability when employees use the technology to send improper messages. Unfortunately, reports of such incidents started coming in at a rate significant enough for this type of conduct to get its own label – "textual harassment".1

Like harassing conduct transmitted through email, sending harassing text messages creates a clear record of the harassment. In most jurisdictions, employer liability for employees’ sexually harassing text messages attaches if the conduct results in a tangible employment action (or threatened tangible employment action) or if the conduct creates a "hostile working environment".2 For the latter type of harassment, employers are afforded the opportunity to avoid liability by showing they took reasonable care to prevent and properly correct the sexually harassing conduct.3 This is true – in most jurisdictions – even when the hostile environment is created by a supervisory employee.4 Thus, employers in most jurisdictions can avoid liability associated with this new form of harassment by simply updating their policies to include improper text messages in the list of prohibited communications; training the workforce about the emergence of "textual harassment" and the consequences associated with such conduct; and by specifically training managers as to the proper corrective steps to take in response to learning of an incident of "textual harassment".

Illinois employers must do more. The Illinois Supreme Court issued a ruling last year, which makes it clear that under Illinois law, employers are strictly liable for harassment by its supervisory employees.5 That is, when a supervisor of an Illinois company engages in "textual harassment", the employer is liable for the conduct even when the employer was unaware of the conduct. Consequently, Illinois employers must respond to this trend of "textual harassment" by looking for ways to wholly prevent incidents of "textual harassment".

The purpose of this paper is to provide an overview of employer liability for harassment claims, revisit the Illinois Supreme Court decision regarding strict liability for supervisory harassment, and to set forth tips on ways Illinois employers can limit exposure to this emerging trend of textual harassment.

Overview of Employer Liability for Sexual Harassment

Federal Law

In 1998, the United States Supreme Court decided twin cases that set forth the standard for employer liability for supervisory harassment.6 The Court explained that an employer is liable for the harassment by its supervisors with immediate or successively higher authority over the victimized employee. If the supervisor’s harassment involves a tangible employment action (i.e. quid pro quo harassment), the employer is strictly liable for the supervisor’s conduct. On the other hand, when the conduct does not involve a tangible employment action and simply amounts to what is referred to as "hostile working environment" harassment, the employer may assert an affirmative defense to avoid liability. The employer must show that it exercised reasonable care to prevent and properly correct any sexually harassing conduct, and that the victim unreasonably failed to take advantage of preventative measures (i.e. a complaint procedure) offered by the employer, or otherwise avoid the alleged harm.

Illinois Law

Illinois law tracks with the federal standard by prohibiting quid pro quo harassment, as well as harassment that creates a hostile working environment.7 The Illinois Human Rights Act defines quid pro quo harassment as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.8 Hostile working environment harassment is defined as conduct of a sexual nature when 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.9

However, Illinois law differs from its federal counterpart when it comes to employer liability for harassment by supervisory employees. The Illinois Human Rights Act states 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.10 Illinois courts have long interpreted this section to mean that employers are strictly liable for the harassment of an employee by another employee having direct supervisory authority over the victim employee.11 That is, Illinois employers are on the hook for sexual harassment by their supervisors even when the employer is completely and unintentionally in the dark about the supervisor’s conduct.12 Furthermore, the standard for liability is the same irrespective of whether the alleged harassment is quid pro quo sexual harassment, or hostile work environment harassment.13

Last year the issue of employer liability for supervisory harassment under the Illinois Human Rights Act was back before the Illinois Supreme Court, in the case of Sangamon County Sheriff’s Department v. Illinois Human Rights Commission.14 The Court accepted the appeal in Sangamon County to resolve a question of first impression. Specifically, the issue presented to the Court was whether "an employer is strictly liable under section 2-102(D) for the ‘hostile environment’ sexual harassment of its supervisory employee, where that supervisor had no authority to affect the terms and conditions of the complainant’s employment."15 In a somewhat shocking decision, the Illinois Supreme Court answered in the affirmative and established liability for Illinois employers that is unmatched by any other jurisdiction in the United States.

Sangamon County Sheriff’s Department v. Illinois Human Rights Commission – The Full Scope of Strict Employer Liability for Sexual Harassment under Illinois Law

In Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, the Illinois Supreme Court confirmed that an Illinois employer is strictly liable for sexual harassment committed by any supervisory or management employee. Illinois courts have reached this conclusion in the past, but the cases involved scenarios where the victim was directly supervised by the person committing the offense. In this case, the supervisor that engaged in the alleged harassment did not supervise the victim, nor did he have any authority whatsoever over the victim employee’s terms and conditions of employment.

Factual Background

Donna Feleccia worked as a records clerk with the Sangamon County Sheriff’s Department. In 1998 and 1999, she worked the first shift entering warrants and orders of protection, and she took orders of protection to the squad room to be served by the deputies. She occasionally interacted with Ron Yanor who worked second shift as a patrol division sergeant.

In November and December 1998, Feleccia began to experience the first incidents of harassment by Yanor. The incidents included: a request by Yanor to accompany him to a bar to meet others from Department that had just attended an annual dinner, when in fact only one other person from the dinner was at the bar; Yanor forced Feleccia to kiss him after driving her home from the bar; an uninvited appearance by Yanor at Feleccia’s home to deliver a Christmas cup of candies; and Yanor approached Feleccia on a day that she was working alone in the records office after 5:00 p.m. and asked her to go with him to a motel room for the night. Feleccia rebuffed Yanor’s advances, but did not report the incidents to the Sheriff’s Department.

On February 5, 1999, Feleccia received correspondence through office mail that appeared to be from the Illinois Department of Public Health. The letter read, in part:16

Dear Ms. Feleccia:

This is to inform you that you may have recently been exposed to a communicable or sexually transmitted disease. A confidential source who has tested positive has brought this matter to our attention.

To insure privacy, your file has been assigned a control number of #A23759. Please refer to this in future correspondence.

It is important that you schedule a screening within the next 7 days. Please contact your local public health office for an appointment. This service is provided at no cost to you.

Yours truly,

Julie A. Chelani,

MSW Patient Advocate

After reading the letter, Feleccia became extremely upset and went to her supervisor to discuss the matter. Feleccia was crying uncontrollably and unable to speak. Feleccia’s supervisor accompanied Feleccia to the Illinois Department of Public Health to present the letter. The Department of Public Health confirmed the letter was a forgery. At this point, the Sheriff’s Department arranged for internal affairs to investigate the matter.

The investigation revealed that Yanor’s fingerprints were on the letter and Yanor ultimately admitted that he drafted the letter as a practical joke. Yanor was instructed to cease all contact with Feleccia and he received a 4-day suspension without pay. Feleccia learned of the discipline imposed on Yanor and was disappointed because she felt more should have been done. A few days later, Feleccia filed charges of sexual harassment with the Illinois Department of Human Rights.

The Court’s Analysis

The law is well established that under the Illinois Human Rights Act, employers are strictly liable for sexual harassment of employees by supervisors or managers, regardless of whether the employer was aware of the conduct. In Sangamon County, the Court, for the first time, had to address whether this standard of strict liability applies when the person committing the offense is a supervisor, but is not the victim’s supervisor and has no authority to affect the terms and conditions of the victim’s employment.

The Sheriff’s Department urged the Court to follow federal law interpreting Title VII of the Civil Rights Act of 1964 because of the similarities between Title VII and the Illinois Human Rights Act. Illinois courts have frequently turned to federal decisions to aid in construing the Illinois Human Rights Act.17 Had the Sheriff’s Department convinced the Court to apply federal law, it would have avoided strict liability for Yanor’s conduct. That is, under federal law, an employer’s liability for "hostile environment" sexual harassment is determined by the harasser’s status relative to the victim. To impute liability to the employer, the supervisor must have immediate (or successively higher) authority over the employee and possess the authority to directly affect the terms and conditions of a victim’s employment.18

The Court focused on the plain meaning of the language of the statute, which states 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." The Court concluded that the language was unambiguous and there was no need to turn to federal case law to help interpret the statute.

In addition, the Court rejected the Sheriff’s Department’s public policy arguments, which relied on the notion that the "plain meaning" of the statute would result in bizarre and unjust results. Specifically, the Sheriff’s Department argued that large employers would be strictly liable for the actions of their low-level supervisors notwithstanding the inherent difficulty of monitoring the conduct of every line supervisor in the organization. The Court responded by pointing out that supervisors are selected by the organization to act on its behalf. In other words, employers have broad discretion as to which employees are selected to fill supervisory positions and should only choose those it reasonably believes will conduct themselves properly. Employers also have the ability to train supervisors about proper conduct within the workplace and take corrective action if a supervisor strays.

What Are Illinois Employers To Do?

Clearly, Illinois employers have cause for concern upon hearing reports that a new form of unlawful harassment is on the rise – especially considering that this new phenomenon of textual harassment is easier to prove than the traditional "he said she said" claims.19 Given the potential for serious emotional and physical damage and the high costs associated with such damages, Illinois employers must do everything within their powers to prevent conduct from rising to the level that would constitute unlawful harassment.The Court in Sangamon County provided an important reminder that for liability to attach in a hostile environment harassment case (even when liability is strict) the plaintiff must first establish a prima facie case of sexual harassment. That means the "employee must prove that the harasser engaged in ‘unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature,’ which ‘has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.’"20 A hostile environment claim is usually based on a series of events rather than a single event.21 Thus, a vigilant employer has the opportunity to intervene and put a stop to improper conduct before it rises (i.e. accumulates) to the level of creating a prima facie case of sexual harassment.The obvious preventative measure for Illinois employers to take to avoid liability for textual harassment is to update policies and procedures and training programs to explicitly reference this type of harassment. While Illinois law does not afford employers an affirmative defense for taking such preventative steps, mere awareness of the consequences connected with this type of conduct should reduce incidents of supervisor harassment. In the event an employer encounters a recalcitrant supervisor during the training session, it is worth pointing out to that supervisor that he/she can be named individually in a sexual harassment lawsuit.22 Illinois employers can also set the proper tone in the workplace by taking prompt corrective action with incidents that involve a supervisor and to have a zero tolerance approach for supervisors that engage in any type of improper conduct. While it is generally preferable to provide employees with a second chance or progressive discipline, Illinois’ strict liability standard has left employers with no other choice but to strip supervisory responsibilities from any supervisor that shows even the slightest proclivity for engaging in sexual harassment. Another plausible measure for Illinois employers to take to mitigate liability in this area is to closely monitor supervisor conduct. The shortcoming in this area is that employers are prohibited by law from monitoring electronic communications outside of their control (e.g. text messages sent from an employee’s private phone).23 The Sangamon County case did not involve harassment by text messages or harassment through other forms of social media (e.g. Facebook, Twitter, etc.), so this issue was not addressed by the Court. When a textual harassment or Facebook harassment case eventually makes its way to the Illinois Supreme Court, the Court will be forced to reconcile the difficulties created by having a standard of strict liability for conduct over which an employer truly has no control to regulate. In the meantime, employers should consider monitoring supervisor use of company equipment closely, including text messages when the phone and text plan are provided by the company and the employee is informed he/she has no expectation of privacy with respect to the communication equipment issued by the company.


Reports that a new form of sexual harassment through text messaging is on the rise create concerns for employers and employees alike. Most employers throughout the nation can find some comfort in the fact that the efforts the employer puts towards preventative measures will help create an affirmative defense in the event a claim of sexual harassment does arise. Unfortunately, this is not the case in Illinois. Last year the Illinois Supreme Court addressed employer liability for supervisor harassment and broadened the scope of employer liability. That is, Illinois now has a strict standard of liability for supervisor harassment that exceeds that of any other jurisdiction in the United States. Accordingly, Illinois employers must adopt an equally strict standard for preventing any occurrence of supervisor harassment. Simply, Illinois employers must stay vigilant for any signs of supervisor harassment and respond with zero tolerance for any such conduct. Supervisors who engage in even the slightest forms of harassment should be dealt with swiftly and severely. This might seem harsh, but it is no harsher than Illinois’ standard of strict employer liability for supervisor harassment.

1 Tresa Baldas, ‘Textual Harassment’ on the rise: Text messages can prove to be potent evidence in bias suits, The National Law Journal, July 20, 2009.

2 See, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Sangamon County Sheriff’s Department v. The Illinois Human Rights Commission, 233 Ill.2d 125, 145-46 (2009) (Karmeier, J., dissenting).

3 Id.

4 Id.

5 Sangamon County Sheriff’s Department v. The Illinois Human Rights Commission, 233 Ill.2d 125, 144 (2009).

6 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

7 775 ILCS 5/2-101(E).

8 Id.

9 Id.

10 775 ILCS 5/2-102(D).

11 Geise v. Phoenix Co. of Chicago, Inc., 159 Ill.2d 507, 518 (1994).

12 Id.

13 Board of Directors, Green Hills Country Club v. The Human Rights Commission, 162 Ill.App.3d 216, 220-21 (5th Dist. 1987).

14 Sangamon County, 233 Ill.2d at 135.

15 Id. at 137.

16 Id. at 131-32.

17 Wanless v. Human Rights Comm’n, 296 Ill.App.3d 401, 404 (3rd Dist. 1998).

18 Hall v. Bodine Electric Co., 276 F.3d 345, 355 (7th Cir. 2002).

19 Tresa Baldas, ‘Textual Harassment’ on the rise: Text messages can prove to be potent evidence in bias suits, The National Law Journal, July 20, 2009.

20 Sangamon County, 233 Ill.2d at 139.

21 Id. at 141-142.

22 Id. at 131 (explaining that the supervisor, Yanor, settled the individual claims against him).

23 The Stored Communications Act prohibits unauthorized access to certain electronic communications intended for the user of the service. 18 U.S.C. §§ 2701-2711.

Jon D. Hoag is an associate at the law firm of SmithAmundsen LLC and is a member of the firm’s Labor and Employment Practice Group. He concentrates his practice defending employers in a wide variety of labor and employment disputes arising under state and federal laws.

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