Defending Against Sexual Harassment: The Employer’s Perspective
By Brian M. Dougherty
It is impossible not to recognize the flurry of sexual harassment allegations that recently have emanated from not only the private sector, but the public as well. The landscape has forever changed, and employers need to get with the program. While effective policies are one step in prevention, once an aggrieved employee takes legal action, the litigation floodgates are open and juries may be more prone to side with victims in sexual harassment cases.1 This article explores strategies in defending sexual harassment and retaliation claims.
The first step is understanding the law. Claims against Illinois employers principally2 fall under two laws: the Illinois Human Rights Act3 (“IHRA”) and Title VII of the Civil Rights Act of 1964.4 Under the IHRA and Title VII, a prima facie case of hostile environment sexual harassment5 exists when: (1) a person was subjected to unwelcome sexual harassment; (2) the harassment was based on sex; (3) the sexual harassment had the effect of unreasonably interfering with the plaintiff’s work performance in creating an intimidating, hostile or offensive working environment that affected seriously the psychological well-being of the plaintiff; and (4) there is a basis for employer liability.6 These elements have been around for quite a while.
This does not mean non-consensual. Sexual banter between harasser and victim may occur, but the victim may feel apt to do it to maintain good relations. If the victim objects in some way, shape or form, or did not invite or solicit the conduct,7 then that is unwelcome.
Based on Sex
Was the harassment actually based on sex or was a co-employee being generally verbally abusive to the victim? If the latter, such abuse would not be because of sex. “Because of sex” does not mean sexual attraction to the victim either. Same-sex harassment is actionable under both the IHRA8 and Title VII.9 Sexual orientation discrimination is expressly prohibited by the IHRA,10 while Title VII has been interpreted to prohibit that as well.11, 12
Unreasonably Interfering with Work
This is two-pronged and the most contentious in litigation: the harassment was subjective and objectively hostile.13 When assessing hostile work environment claims, the Seventh Circuit has advised that courts should look to 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.14 Courts have noted that distinguishing actionable versus non-actionable conduct is not a simple task:
Drawing the line is not always easy. On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.15
It is difficult to tell a victim what they subjectively believed was wrong and likewise convincing a court may be difficult too. One avenue of attack is if the employee never complained about the harassment, this would show that it was not severe or pervasive.
Basis for Employer Liability
Title VII distinguishes between co-employees and “supervisors”; the latter is one that is empowered to take tangible employment actions (e.g. termination, suspension without pay) against the victim.16
If the harasser is a supervisor and there is no tangible employment action, the employer can assert an affirmative defense: (i) the employer must establish that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (ii) that the “employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”17 If the harasser is a co-employee and not a supervisor, the employer is liable if it was negligent in discovering or remedying the harassment.18 If the employee is a supervisor and tangible action is taken, then the employer is vicariously liable.19
But the IHRA is different than Title VII in two major respects. First, if the offending employee is either a “nonemployee” or “nonmanagerial or nonsupervisory employee,” an employer is responsible for the harassment only if it was aware of the conduct and failed to take reasonable corrective measures.20 In other words, harassment by managerial or supervisory employees results in an employer being strictly liable for the harassment.21 And it does not matter that the “supervisor” is not the employee’s immediate supervisor as all that is required is having supervisory or managerial powers. Second, the IHRA imposes personal liability on the harasser.22 Thus, employers need to be mindful of these distinctions when analyzing their potential exposure and framing a litigation game plan.
Newsworthy sexual harassment incidents have dug up allegations of harassment that can reach back decades. Are these still actionable or is there a limitations period? Under Title VII, a discrimination charge must be filed within 300 days, at the latest, since Illinois is a dual-filing state (meaning the IDHR also has jurisdiction to investigate sexual harassment).23 If the harassment occurs outside the 300 day window, it can still be considered part of the same unlawful employment practice as long as some of the harassment occurred within 300 days.24 Large gaps between incidents or different harassers may prevent the harassment from being part of a single unlawful practice (as opposed to isolated incidents), so employees are required to be very detailed about the exact nature of the harassment.25 If the court finds that acts outside of 300 days do not form part of the same unlawful practice, then the court will only consider those acts within the 300 day period in determining a hostile work environment, making defense of the case more manageable for employers.26
Takeaway: Illinois employers may want to review the powers granted to supervisory employees so as to reduce the risk of vicarious liability.
Besides harassment claims, some employees may claim they were terminated because they complained of harassment. This is known as retaliation, which is also prohibited by the IHRA and Title VII.27 Retaliation claims have become prevalent throughout the years. What can make a retaliation case difficult to defend is that the victim, in a sex-based harassment case, does not have to prove that the underlying harassment rose to the level of prohibited sexual harassment under the law. Rather, the victim only needs to prove that (i) she engaged in a protected activity, such as complaining of harassment; (ii) she suffered adverse action, such as being terminated; and (iii) there is a causal connection between the protected activity and adverse action.28 As to the first element, the victim only needs to show that she had a reasonable good faith belief that she was subjected to harassment and that belief was objectively reasonable under the circumstances.29
Protected activity falls into two areas: participation and opposition. Under the IHRA and Title VII, participation is defined by those respective statutes quite narrowly and typically involves filing discrimination charges or testifying in an administrative proceeding.30 “Participation” retaliation is not as prevalent as “opposition” retaliation, which protects employees who object to discrimination against the harasser and those who make internal workplace complaints about discrimination. The opposition clause is much broader in its protections and is the one about which employers should be most concerned.31
While assessing retaliation claims, employers need to look meticulously at all of the features comprising it, including but not limited to: (i) is the employee claiming participation or opposition and if so, is that conduct actually protected under the applicable statute;32 (ii) whether any sex-based harassment was based on a reasonable good-faith belief (e.g. was it actually because of sex);33 (ii) was the belief objectively reasonable (e.g. an isolated, second-hand comment versus persistent touching);34 (iii) did the employee suffer an adverse action that would dissuade one from opposing the unlawful practice;35 (iv) if the employee was disciplined, was there legitimate grounds therefor;36 (v) if the termination was disciplinary-based, did others engage in comparable misconduct and were not terminated;37 (vi) were proper procedures followed in terminating the employee; and (vii) was the harasser involved in the decision-making process.38
Takeaway: An employee who complains of sexual
harassment and is terminated will have two claims: one for sexual harassment, and one for retaliation. If the case is before the IHRA, the individual harasser can be named as a respondent.
With an understanding of the law, one can know what to look for when faced with harassment charges. When an employer learns of a discrimination charge, it should take the following steps: 1) start preserving all electronic data39 and any other tangible evidence so that it does not result in spoliation or destruction. This is commonly known as a “litigation hold.” 2) Speak with any employees that are specifically named in the discrimination charge to document their story. This should also include speaking with H.R. and reviewing the offending employees’ personnel files to see if there were any prior complaints against those employees and whether remedial action was previously taken. 3) Speak with the victim’s co-workers and supervisory personnel to see if they can substantiate the victim’s allegations.
Illinois Department of Human Rights (IDHR”) and Equal Employment Opportunity Commission (“EEOC”)
Discrimination charges must be pending in one of these two agencies before a litigant can go to court. Employers should be prepared to initially answer the discrimination charge and will be required later on to supply information to the IDHR or EEOC as part of the investigatory process. This is why it is important early on to conduct your fact-gathering. Employers will also be asked to prepare a written position statement. This is the employer’s opportunity to tell its side of the story, by referencing exhibits and citing case law showing why the allegations do not rise to actionable harassment or retaliation.
Administrative or Judicial Forum
The Illinois Human Rights Commission (“IHRC”) handles litigating complaints that reach its level. Alternatively, the employee can file suit in circuit court. In cases before the EEOC, it will issue a right-to-sue letter whereby the employee can proceed in federal court.
Once the IDHR and EEOC have completed their investigations, employers have the right to obtain those agencies’ investigatory files. In the author’s experience, these files can have relevant information, such as admissions from the victim or more details about the exact nature of the harassment. This source of information should not be overlooked.
Circuit Court Discrimination Cases
Employees are filing discrimination cases in state court and for good reason. Federal discrimination cases usually get disposed of on summary judgment, pursuant to rigorous motion practice standards.40 Cases pending in the circuit court usually do not have stringent summary judgment rules, and courts may not be that familiar with how discrimination cases are analyzed under the well-developed body of federal law, giving plaintiffs a preliminary advantage in the litigation. Nonetheless, there is a major hurdle with filing harassment cases of any kind in state court and that is fact pleading.
Unlike federal practice which has notice pleading, Illinois follows fact pleading, which requires a plaintiff to plead actual facts of harassment (e.g. who, what, when, where, and how). This means alleging the actual behavior, such as what was said and done and by whom, and most importantly alleging a basis for employer liability. Just because an employee was harassed by a co-worker is not enough. If the harasser was a supervisor that took tangible action against the employee, the employer is vicariously liable. If not, then the employer can be liable if the employee complained about the harassment and the employer failed to take corrective action. Conversely, if either one of those fact patterns is missing, the employer cannot be held liable. Thus, when faced with state-court discrimination complaints, employers should scrutinize the allegations to see if they rise to the level of actionable harassment, and if they do not, then bring a 735 ILCS 5/2-615 motion to dismiss.
Takeaway: Employers stand a better chance at dismissing harassment claims at the pleading stage in circuit court, and a successful challenge can reduce the expense of having to conduct time-consuming discovery.
Employees also like to throw in tort claims, such as intentional infliction of emotional distress or negligent hiring or retention, in harassment cases. But such claims may be preempted by the IHRA41 and even the Illinois Workers’ Compensation Act.42 Be sure to whittle down the causes of action as much as possible to lessen your litigation burden.
When litigating harassment cases, the goal should be viewing the case with any eye toward filing summary judgment. To prevail, the employer has to show the lack of a genuine factual issue on at least one element that the plaintiff bears the burden of proof at trial.43 As the case grinds through discovery, keep reviewing the elements of the plaintiff’s case to see which ones are the most susceptible. The two elements most typically attacked in a harassment case are 1) the harassment was not objectively hostile and 2) there is no basis for employer liability, either because the victim did not suffer any tangible harm by a supervisor or the employee never complained of the harassment.
A famous boxer once said that “everyone has a plan ‘til they get punched in the mouth.”44 While employee handbooks and anti-discrimination policies are a must, they only go so far to quell bad behavior. Once a discrimination claim is off and running, a punch to the proverbial mouth should not dissuade employers from planning their litigation (and hopefully exit) strategy which is a fact and legal research-intensive process. Planning at the various litigation stages, while refining your offensive and defensive strategies under the IHRA and Title VII, is the key to a successful resolution.
1. Some of what is discussed in here is applicable to all types of harassment cases.
2. Employers in Chicago and Cook County also need to be concerned with City and County ordinances that prohibit sexual harassment. Those ordinances have their own administrative procedures and nuances.
3. 775 ILCS 5/1-101 et seq.
4. 42 U.S.C. § 2000e et seq.
5. There is also quid pro quo harassment where an employer conditions the receipt of employment benefits on the submission of sexual favors. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998).
6. In the Matter of Robinson and Greyhound Lines, Inc., 2008 WL 5622595, at *5 (Dec. 30, 2008); Robinson v. Sappington, 351 F.3d 317, 328-29 (7th Cir. 2003).
7. Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
8. 775 ILCS 5/1-103(O-1).
9. Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
10. 775 ILCS 5/1-103(O-1).
11. Hively v. Ivy Tech College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017).
12. On December 11, 2017, the U.S. Supreme Court denied a writ of certiorari from an Eleventh Circuit decision which held that Title VII did not prohibit sexual orientation discrimination, leaving federal circuits split on the issue. https://www.supremecourt.gov/orders/courtorders/121117zor_8nj9.pdf (last visited Dec. 13, 2017).
13. Harris v. Forklift Systems, 510 U.S. 17 (1993).
14. Dey v. Colt Constr. & Dev., 28 F.3d 1446, 1453 (7th Cir. 1994) (quotation marks and citation omitted).
15. Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995) (citations omitted).
16. Vance v. Ball State University, 133 S.Ct. 2434 (2013).
17. EEOC v. Caterpillar Inc., 503 F.Supp.2d 995, 1004 (N.D. Ill. 2007), citing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). “While a victim of sexual harassment may legitimately feel uncomfortable discussing the harassment with an employer, that inevitable unpleasantness cannot excuse the employee from using the company’s complaint mechanisms.” Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir. 1999). “[A]n employee’s subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee’s duty … to alert the employer to the allegedly hostile environment.” Id.
18. Caterpillar Inc., 503 F.Supp.2d at 1004.
19. Vance, 133 S. Ct. at 2443 (“We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”) (internal quotations marks and citation omitted).
20. Sangamon Cty. Sheriff’s Dep’t v. Illinois Human Rights Comm’n, 233 Ill. 2d 125, 137 (2009).
23. 42 U.S.C. § 2000e-5(e)(1).
24. Milligan-Grimstad v. Morgan Stanley, No. 16-4224, slip op. at 9-12 (7th Cir. Dec. 11, 2017).
26. Id. at 12.
27. 775 ILCS 6/1-101; 42 U.S.C. § 2000e-3(a).
28. Carter Coal Co. v. Human Rights Comm’n, 261 Ill. App. 3d 1, 7 (5th Dist. 1994); University of Texas Southwest Medical Center v. Nassar, 133 S.Ct. 2517, 2534 (2013).
29. Wyatt v. Boston, 35 F.3d 13, 15 (1st Cir. 1994); Mattson v. Caterpillar, Inc., 359 F.3d 885, 891 (7th Cir. 2004).
30. 775 ILCS 5/6-101(A); 42 U.S.C. § 2000e-3(a).
31. Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276-80 (2009).
32. See Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997) (holding that the plaintiff’s general complaint about management style without raising the subject of sexual harassment fails to constitute protected activity); Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 727 (7th Cir. 2003) (affirming the district court’s grant of summary judgment to the employer on the plaintiff’s retaliation claim because the plaintiff’s complaint to his employer “did not invoke any action protected by Title VII”); Miller v. Am. Fam. Mut. Ins., 203 F.3d 997, 1008 (7th Cir. 2000) (holding that the plaintiff did not engage in a protected activity where “[h]er complaints instead concerned a general displeasure with being paid less than her co-workers given her longer tenure and the fact that she had trained some of them ...” and not discrimination related to a protected class).
33. Kelly v. Howard I. Shapiro & Associates Consulting Engineers, P.C., 716 F.3d 10 (2d Cir. 2013) (complaining of sexual favoritism concerning two other employees was not protected activity).
34. Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125, 134-35 (2d Cir. 1999); see also Drumm v. SUNY Geneseo Coll., 486 Fed. Appx. 912, 914 (2d Cir. 2012) (“[P]laintiff’s allegations that her supervisor `berated’ her and made other harsh comments amount only to general allegations of mistreatment, and do not support an inference that plaintiff had a reasonable good faith belief that she was subject to gender discrimination.”).
35. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (Title VII); Hoffelt v. The Illinois Department of Human Rights, 367 Ill. App. 3d 628 (1st Dist. 2006) (IHRA). This is much broader than simply being fired and encompasses work and non-work related retaliatory acts.
36. Milligan-Grimstad v. Morgan Stanley, No. 16-4224, slip op. at 6 (7th Cir. Dec. 11, 2017).
37. Id. at 6-7.
38. Id. at 8.
39. For instance, a company’s email system may have communications between the victim and harasser. This also includes company-issued mobile devices and even personal mobile devices that the employer knowingly permits employees to use for company business.
40. See N.D. Ill. Local Rule 56.1.
41. 775 ILCS 5/8-111(D); Maksimovic v. Tsogalis, 177 Ill.2d 511, 517 (1997).
42. 820 ILCS 305/5(a); Doyle v. Rhodes, 101 Ill. 2d 1, 10 (1984); Rodriguez v. Frankie’s Beef/Pasta & Catering, 2012 IL App (1st) 113155, ¶ 20.
43. Fed.R.Civ.Proc. 56; 735 ILCS 5/2-1005.
44. https://www.brainyquote.com/quotes/mike_tyson_382439(last visited Dec. 8, 2017).
Brian M. Dougherty is a partner in the litigation group at Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd. His practice area includes representing employees and employers in employment disputes arising under state and federal law, commercial landlord-tenant matters and business torts. Brian is a member of the DCBA Editorial Board.