The Journal of The DuPage County Bar Association

Back Issues > Vol. 29 (2016-17)

Court Affirms that “Disability Harassment” Constitutes Unlawful Discrimination: A Confirmation that Certain Truths are Self-Evident
By Glenn R. Gaffney and Jolianne S. Walters

The foundation of all law and order within the United States of America rests upon the unwavering decree that certain truths are held to be self-evident – that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and that among these are life, liberty, and the pursuit of happiness. The Illinois Second District Appellate Court in Rozsavolgyi v. City of Aurora, 2016 IL App (2nd) 150493, at *¶ 2, held steadfast to this basic founding principle by affirming that “disability harassment” constitutes unlawful discrimination in violation of the constitutionally derived Illinois Human Rights Act, 775 ILCS 5/1-101, et. seq.

The Illinois Human Rights Act’s, 775 ILCS 5/1-101, et. seq., constitutionally derived1 statutory scheme is intended to secure and guarantee the rights established by Sections 17, 18, and 19 of Article I of the Illinois Constitution of 1970.2 In so doing, the Act is intended to secure for all individuals within Illinois the freedom from discrimination against any individual because of his or her race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations.3 In order to protect these unalienable rights to secure for all individuals in Illinois equality based on these protected classifications, courts have routinely held that the Act is a remedial statute to be liberally construed.4 Despite the Illinois Supreme Court’s declaration that the Act is to be liberally construed,5 the Defendant employer, City of Aurora, in Rozsavolgyi v. City of Aurora, 2016 IL App (2nd) 150493, sought the Court’s declaration that 775 ILCS 5/2-102(A) did not create a cause of action for “disability harassment” in the employment context.6

The Facts. Plaintiff, Patricia Rozsavolgyi, alleged that she worked for the City from 1992 to July 13, 2012, with her last position held being a Property Maintenance Compliance Officer.7 She further alleged that she had a medical history of unipolar depression, anxiety, panic attacks, and partial hearing loss, which together constituted a “disability” under § 1-103(I) of the Illinois Human Rights Act.8 Plaintiff alleged that although her conditions did not prevent her from performing her job duties, when she was provoked, she was particularly likely to react strongly, though never in a physical manner.9 Plaintiff alleged that her coworkers engaged in an intentional pattern and practice to agitate, embarrass, humiliate, degrade, harass, discriminate, and provoke her by calling her names such as “cuckoo, Shutter’s Island, prostitute, bitch, ignorant, nuts, crazy, weird, and whacko,” and leaving her nasty mailbox notes, spitting on her car window, and creating false rumors about her.10 Plaintiff also claimed that certain staff and coworkers falsely claimed that she was a physical threat, even though she was not and had never been violent.11 She alleged that this created a hostile and offensive working environment, for which she notified the City of and requested a reasonable accommodation to make the harassment stop.12 Plaintiff alleged that the City “failed and refused to take action.”13 She further alleged that as a result of the City’s failures, she was caused to suffer emotional distress, which included depression, fatigue, sadness, helplessness, irritability, restlessness, anxiety, sleep disorders, and body aches.14 Plaintiff also alleged that things came to a head on July 3, 2012, when she made a statement to a coworker using the word “idiots.”15 As a result, Plaintiff alleged that the City unlawfully terminated her employment based on her disability, even though other employees, who had used far worse words, had not been disciplined.16 Based on these occurrences, Plaintiff filed a four-count Complaint against the City alleging, in part, violations of § 2-102(A) of the Illinois Human Rights Act, for hostile work environment on the basis of disability discrimination in the terms, privileges, and conditions of employment.17

Interlocutory Orders. At the trial court level, the City called into question the cognizability of Plaintiff’s Count IV § 2-102(A) claim for hostile work environment on the basis of disability discrimination in the terms, privileges, and conditions of employment.18 The trial court initially agreed with the City that Plaintiff’s Count IV claim was not cognizable under the Illinois Human Rights Act and dismissed her claim finding that “disability harassment (as opposed to disability discrimination) was not a civil rights violation under the Illinois Human Rights Act.19 The Plaintiff moved to reconsider that decision, which the trial court did and reinstated, inter alia, Plaintiff’s Count IV claim.20 Following these conflicting orders, the City moved to appeal pursuant to Illinois Supreme Court Rule 308(a), which the trial court granted and certified three questions upon which there was a substantial ground for difference of opinion warranting an immediate appeal.

The Issue Presented on Appeal. Following the grant of the Rule 308(a) interlocutory appeal based on three certified questions, the Illinois Second District Appellate Court considered and answered, inter alia, the following question:

Does § 2-102(A) of the Human Rights Act prohibit “disability harassment” as a civil rights violation? Alternatively, do Counts I (reasonable accommodation claim based on disability discrimination) and IV (hostile work environment claim based on disability discrimination) of the plaintiff’s complaint state cognizable civil rights violations under that section?21

The Law. Section 2-102(A) of the Illinois Human Rights Act provides that it is a civil rights violation for any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination or citizenship status.22 “Unlawful discrimination” is defined as “discrimination against a person because of his or her race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service as those terms are defined in this Section.”23

The term “harassment” explicitly appears in the Human Rights Act in the employment context only with respect to “sexual harassment,” which is defined 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.”24 (Emphasis added). Similarly, the term “hostile or offensive working environment” explicitly appears only in this context.25 The Human Rights Act explicitly prohibits sexual harassment.26 It provides that it is a civil rights violation “[f]or any employer, employee, agent of any employer, employment agency or labor organization to engage in sexual harassment; provided, 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.”27

The Court’s Analysis. The City argued that Plaintiff’s § 2-102(A) Count IV claim for hostile work environment based on disability discrimination in the terms, privileges, and conditions of employment, otherwise termed as Plaintiff’s “disability harassment” claim, was not cognizable because had the Illinois General Assembly intended to prohibit a hostile work environment based on disability, (i.e. disability harassment), it would have done so by making disability harassment a separate civil rights violation, just as it did for sexual harassment.28 Alternatively, the City argued that Plaintiff’s claims for disability harassment are not cognizable because the General Assembly could have amended § 2-102(A) to expressly clarify that unlawful discrimination includes harassment/hostile work environment, but it did not do so.29 Plaintiff countered by arguing that a claim for “disability harassment” is cognizable as a civil rights violation under the “terms, privileges, or conditions of employment” prong of § 2-102(A) of the Illinois Human Rights Act.30

In so arguing, Plaintiff cited to Fifth District case, Old Ben Coal Co. v. Human Rights Com’n, 150 Ill.App.3d 304, 309 (5th Dist. 1987), which held that even before the 1983 amendment that added § 2-102(D) to the Human Rights Act, the statute prohibited sexual harassment as a form of sex discrimination. 31 The Old Ben Coal court noted that although a statutory amendment creates a presumption that the legislature intended to change the law, the presumption may be rebutted by demonstrating that the amendment reflects the legislature’s intent to clarify the law as it previously existed.32 The Old Ben
Coal court determined that § 2-102(A) was ambiguous and subject to different interpretations because: (1) the legislative history reflected that both proponents and opponents of the amendment considered sexual harassment to be a form of sex discrimination and that an amendment was necessary to clarify the prohibition; (2) federal decisions interpreting Title VII support the rationale that “terms, conditions, or privileges of employment” is an expansive concept that includes sexual harassment; (3) the Illinois Human Rights Commission’s interpretation of the statute under which it considered sexual harassment allegations prior to the amendment should be accordance significant weight; and (4) the interpretation of sexual harassment as a form of sex discrimination with respect to the “terms, privileges, or conditions of employment” was consistent with the Human Rights Act’s purpose to secure freedom from sex discrimination in connection with employment.33

Based on the existing authority and Plaintiff’s arguments, the Court rejected the City’s contentions that “disability harassment” was not cognizable under § 2-102(A) of the Act.34 The Court held true to the nation’s founding principles that the Illinois Human Rights Act is intended to guarantee for all individuals within the State of Illinois those constitutionally protected rights to equality and freedom from discrimination.35 The Court also reasoned that a liberal construction of § 2-102(A)’s inclusion of the phrase “terms, privileges, or conditions of employment” to include a prohibition on the creation of hostile work environments based on disability is clearly consistent with the statute’s purpose to effectuate the right of every disabled person to be free from workplace discrimination.36 Thus, the Court ultimately held that § 2-102(A) prohibits disability harassment.37

Conclusion. Despite the Court’s analysis and findings, the City has moved to appeal to the Illinois Supreme Court on the issue, which is currently pending.38 Whether the Illinois Supreme Court will affirm the Second District’s findings as self-evident truths is yet to be determined. Until then, however, the current state of the law stands for a victory to employees and individuals of the State of Illinois that the right to be free from unlawful discrimination is broad, all-encompassing, and a truth upon which we all can stand on as being self-evident.

1. Rozsavolgyi v. City of Aurora, 2016 IL App (2nd) 150493, at *¶ 111 (“we first conclude that claims under the Human Rights Act are constitutionally grounded and/or derived”).
2. 775 ILCS 5/1-102(F); Rozsavolgyi, 2016 IL App (2nd) 150493, at *¶ 26.
3. 775 ILCS 5/1-102(A).
4. Arlington Park Race Track Corp. v. Human Rights Com’n, 199 Ill.App.3d 698, 703 (1st Dist. 1990) (as a remedial statute, the Illinois Human Rights Act should be liberally construed to effectuate its purpose); Castaneda v. Ill. Human Rights Com’n, 132 Ill.2d 304, 318 (1989) (in analyzing the Illinois Human Rights Act, a court should look to the evil that the legislature sought to remedy or the object it sought to attain in enacting the legislation).
5. Castaneda, supra n.4 at 318.
6. Rozsavolgyi, 2016 IL App (2nd) 150493, at *¶ 35.
7. Id. at *¶ 5.
8. Id. citing 775 ILCS 5/1-103(I).
9. Id.
10. Id. at *¶ 6.
11. Id.
12. Id.
13. Id. at *¶¶ 6-7.
14. Id. at *¶ 7.
15. Id. at *¶ 9.
16. Id.
17. Id. at *¶¶ 10, 33, 42.
18. Id. at *¶ 16.
19. Id.
20. Id.
21. Rozsavolgyi, 2016 IL App (2nd) 150493, at *¶ 31.
22. 775 ILCS 5/2-102(A); Rozsavolgyi, 2016 IL App (2nd) 150493, at *¶ 27.
23. Rozsavolgyi, 2016 IL App (2nd) 150493, at *¶ 28, citing 775 ILCS 5/1-103(Q).
24. Id. at *¶ 29, citing 775 ILCS 5/2-101(E).
25. Id.
26. Id.
27. Id., citing 775 ILCS 5/2-102(D); See also, Sangamon Cty Sheriff’s Dep’t v. Human Rights Com’n, 233 Ill.2d 125, 138-41 (2009) (employers are strictly liable for sexual harassment by supervisory employees, even where the supervisory worker has no authority to affect the terms and conditions of the complaining employee’s employment and regardless of whether the employer was aware of the harassment or took measures to correct it).
28. Rozsavolgyi, supra at *¶ 35; See also Pub. Act 83-89 (eff. Jan. 1, 1984).
29. Id. at *¶ 35.
30. Id. at *¶ 37.
31. Id. at *¶ 38.
32. Id., citing Old Ben Coal, 150 Ill.App.3d at 306.
33. Id. at *¶¶ 38-39, citing Old Ben Coal, 150 Ill.App.3d at 308-309; See also, Bd. of Directors, Green Hills County Club v. Human Rights Com’n, 162 Ill.App.3d 216, 221 (5th Dist. 1987) (relying on Old Ben Coal, further held that prior to effective date of § 2-102(D), employers were strictly liable for sexual harassment by supervisory personnel regardless of whether they knew of such conduct); Vill. of Bellwood Bd. of Fire & Police Comm’rs v. Human Rights Com’n, 184 Ill.App.3d 339, 351 (1st Dist. 1989) (upholding Commission’s determination that a racially charged atmosphere in a police department amounted to racial harassment, and thus, constituted discrimination based on race within the meaning of the Human Rights Act); ISS International Serv. Sys., Inc. v. Human Rights Com’n, 272 Ill.App.3d 969, 975 (1st Dist. 1995) (assessing national origin harassment allegations as discrimination claim under § 2-102(A)).
34. Rozsavolgyi, supra at *¶ 42.
35. Id. at *¶ 44.
36. Id. at *¶¶ 45-46, citing Arlington Park Race Track, 199 Ill.App.3d at 703; Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-66 (1986) (the creation of a hostile work environment through harassment is a form of proscribed discrimination under Title VII and the phrase “terms, conditions, or privileges of employment” reflects a legislative intent to encompass the full spectrum of discriminatory treatment in employment).
37. Rozsavolgyi, supra, at *¶ 50.
38. Ill. Sup. Ct. Case No. 121048.

Glenn Gaffney has been Chair of the DCBA Labor and Employment Section and has been a member and Chair of the ISBA Labor and Employment Section Council. Mr. Gaffney was President of the DCBA for the term 2006-2007 and is currently Vice Chair of its Professional Responsibility Section.

Jolianne S. Walters is currently an associate with Gaffney & Gaffney, P.C. Ms. Walters has represented clients in a wide variety of labor and employment-related matters. She practiced at various corporate firms, where she performed risk management audits, human resources development, and litigation services and has experience in workers’ compensation litigation, personal injury actions, foreclosures, and construction claims.

DCBA Brief