Illinois Supreme Court Rules that Employers Are Strictly Liable for Harassment by Supervisors

The Illinois Supreme Court recently held that employers may be held strictly liable for sexual harassment by a supervisor, even if the supervisor did not have any authority over the alleged victim of the harassment. Sangamon County Sheriff's Dep't v. Illinois Human Rights Commission.

This decision marks a departure from federal cases under Title VII. Federal courts have held that where the alleged harasser does not have supervisory authority over the plaintiff, the employer is liable under Title VII only if it knew of and failed to take reasonable corrective measures. Employers are strictly liable for harassment under Title VII only if the alleged harasser has supervisory authority over the plaintiff. Even then, in Title VII harassment cases that do not involve any tangible employment action against the employee, an employer can avoid liability under the "Faragher / Ellerth" defense, named after two Supreme Court decisions that created it. Under this defense, an employer is not liable if it can prove that it took reasonable measures to prevent or correct any sexually harassing behavior, and that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities.

The Illinois Human Rights Commission and Illinois courts have long rejected the "Faragher / Ellerth" defense, holding that employers are strictly liable for harassment by an employee’s supervisor regardless of any preventive or corrective measures. However, the Illinois Supreme Court's recent decision makes it clear that employers are strictly liable for sexual harassment by any supervisory employee, whether or not the employee has authority over the alleged victim of the harassment.

As a result of this case, it is imperative for Illinois employers to ensure that they have effective anti-harassment policies, procedures, and training programs in place. While the Illinois Supreme Court's decision makes it clear that these measures will not insulate an employer from claims of sexual harassment by a supervisory employee, an effective anti-harassment program is essential to preventing inappropriate behavior from rising to the level of legally actionable harassment.