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Employer Liability for Sexual Harassment FAQ

When Is An Employer Liable For Quid Pro Quo or Hostile Work Environment Sexual Harassment by its Employee, Manager or Executive.

Whether an employer is liable to a victim of sexual harassment depends on various factors. The most important are as follows: the law under which the case is brought; the position of the harasser in the company; and the appropriateness of the company’s response to any complaint of sexual harassment.

Employer Liability - Sexual Harassment Laws

The law under which a sexual harassment case is brought is a significant determining factor as to employer liability. Under some laws, an employer is held strictly liable for the conduct of supervisory and managerial employees and harassment by nonsupervisory employees is treated differently. A different statute, forum or administrative agency may afford an employer a defense even in the case of supervisor sexual harassment. However, an employer is held strictly liable in cases of Quid Pro Quo sexual harassment under most laws if the victim loses a tangible job benefit.

The different laws and statutes provide for damages that differ which likely affects a company’s evaluation of the case. For example, some laws only permit recovery of actual and out-of pocket damages while others permit recovery of punitive damages, compensatory damages and attorney’s fees. A jury is also not provided by all of the different laws and statutes. Whether the case is tried to a judge or a jury significantly impacts an employer’s evaluation of the case.

The total number of employees that an employer has often determines what laws apply to them at all. Similarly, where damages are capped, the number of employees typically determines the total amount of damages that a particular employer would be exposed to in the event of a verdict on behalf of the victim.

To understand an employer’s possible financial exposure requires a thorough analysis of the forum where the charge of discrimination is filed as well as the court or administrative agency where the case is pending.

Employer Liability for Sexual Harassment - Harasser’s Job Position

Generally, the higher the position of the alleged harasser, the more likely it is that the employer will be held liable for his or her conduct. The reasoning is that since a company is not an individual but a corporate being, it can only act through its managers, officers and executives. As such, the higher the position of the actor is in the corporate chain, the more likely it is that his conduct will be attributed directly to the company.

Thus, while the conduct of a first-line supervisor could potentially be attributed to the company, the conduct of the President/Chief Executive Officer is most likely to be attributed to the company who will be required to pay damages for such.

The most important consideration on this issue rests on whether the victim of sexual harassment has an effective avenue to complain over the alleged harasser. Where a harasser holds so high a position that complaining to higher-ups is rendered or perceived as ineffective, the company is more likely to be held liable because the victim has no reasonable complaint avenue that will ensure appropriate disciplinary action against the harasser. In other words, the company is typically liable when the harasser has no real "boss."

Employees are also more likely not to complain for fear of retaliation where the harasser holds a high position in the organization. For instance, assume the only VP in an organization is sexually harassing a receptionist whose immediate supervisor is several levels below the VP in the reporting chain. A sexual harassment policy that requires the receptionist to complain to her immediate supervisor may not be viewed as effective. The receptionist may fail to complain for fear of retaliation because of the harasser’s dominant position in the chain of command that she is required to follow.

In this regard, it is important for an employer to craft and disseminate a policy that provides a meaningful complaint avenue with an effective mechanism that avoids harassers that occupy a high position in the reporting chain.

Sexual harassment by non-supervisory employees poses a lesser problem for employers in most instances. Most laws require that in such situations, the victim must prove that he or she reported the sexual harassment to management and management responded negligently. A swift and reasonable response accompanied by appropriate discipline will likely provide a good defense for the employer in such cases.

Sexual Harassment - Employer Liability Due To Negligent Investigation

Perhaps the most important factor in evaluating employer liability rests on its response to the sexual harassment complaint. Here, the most important decision for an employer is the decision who to entrust with the duty to investigate. Often, those that are selected to conduct the investigation are so personally vested in the work situation with complex inter-personal relationships and office politics that they are simply unable to conduct a fair investigation.

Friendships, long-standing loyalties, possible previous biases against the victim, as well as fear of possible blame for having permitted the situation to fester, frequently cause otherwise well-meaning investigators to slant the investigation against the victim in favor of this harasser. In some instances, the victim and her witnesses are retaliated against and possibly terminated while the harasser goes unpunished. Sometimes, the victim is transferred to an inferior position, location or shift while the harasser is viewed as more important to the organization and left untouched.

Such evidence can be devastating to an employer’s defense in court or an administrative agency. Depending on the nature and severity of the conduct, a jury might consider an award of punitive damages in the case. As a result, an employer who otherwise would not have been found guilty of sexual harassment at all may end up with significant financial liability, not resulting from the acts of sexual harassment, but the conduct of its officers charged with investigation and remedial actions.

In cases of this sort, it is important to carefully consider the decision to appoint an internal vs. an unbiased external investigator, the discipline to be given to the offender and the situation that the victim is left in after the complaint. A response that ultimately leaves the victim worse off after the complaint is generally viewed as negligent and insufficient.

Frequently Asked Questions About Sexual Harassment [link]

Administrative Agency Investigation Representation, EEOC, IDHR, CCHR, CCCHR, CCHHR

See Administrative Agency Chart for more info on specific agencies

Our Services Overview
Our attorneys represent clients during the course of investigations of discrimination, sexual harassment and retaliation charges by the following agencies:

United States Equal Employment Opportunity Commission (EEOC);
Illinois Department of Human Rights (IDHR);
Cook County Commission on Human Relations (CCCHR);
City of Chicago Commission on Human Relations (CCHR);
United States Department of Housing and Urban Development (HUD);
United States Department of Education (DOE);
United States Occupational Safety and Health Administration (OSHA).

Investigation of Discrimination, Harassment and Retaliation Charges

A charge of discrimination, sexual/racial harassment and retaliation is typically filed by an employee against his employer. Employees are referred to as Complainants and employers as Respondents at the various administrative agencies. Each agency accepts particular kinds of charges with specific investigation steps toward possible resolution or conclusion. The nature of charges accepted as well as the investigation process often differ from agency to agency.

Overall however, the process generally follows this sequence:

Filing of a discrimination, harassment or retaliation charge by an employee-complainant;
Service of the charge on the respondent-employer with a deadline for a response;
Agency’s mediation conference with both sides present;
Submission by the respondent-employer of a written statement describing its side of the story;
Agency request for specific information from the employer about similarly-situated employees as well as disciplinary records, employment records and such;
Agency’s fact-finding conference with both sides present;
Agency’s written summary of determination whether or not a violation is established;
Agency conciliation conference with the parties to attempt resolution if violation is established;
Litigation if the case is not resolved, conciliated or dismissed by agency in federal court, Illinois state court, or the administrative agency where the complaint was filed.

Charge Filing and Service on Employer

The process usually starts with a complainant-employee completing a discrimination questionnaire with the administrative agency which provides significant detail about the employee’s allegations. The agency then summarizes it into a short, typed charge of discrimination on grounds such as race, national origin, color, sex, age, disability, retaliation or other form of discrimination. The charge is signed by the employee-complainant. Some agencies accept charges within 180 days of the claimed violation. EEOC however permits charges to be filed within 300 days of the alleged violation.

It is important to note that the size of the employer often determines which agency and laws that apply. In general, employers with less than 15 employees are protected from certain kinds of charges and exempt from certain laws also. Some other laws only apply to employers with 25 or more employees. As such, small employers should be careful to first determine whether they are subject to the law or agency where the charge is filed. If not, the employer may not need to response to the charge except to prove its total number of employees with payroll records. The scope of the charge is important because employee lawsuits are limited to the issues identified in the charge.

Retaliation Is Prohibited

Employers should also be aware that they are strictly prohibited from retaliating against an employee who files a charge. Employees who believe that they are being retaliated against may file a new charge of retaliation which could become more problematic for the employer than the original charge of discrimination. More on Sexual Harassment Retaliation...

Answer to Charge, Position Statement, Request for Records, Questionnaires

Within a few days of filing a charge, the employer is served with a copy of the charge by certified or registered mail. The employer is given a deadline to submit a written response to each allegation on the charge. The employer is also expected to submit a position statement summarizing its defenses and side of the story in its own words. The position statement typically cites some past case law that should assist the investigator in determining whether there is a violation of the law.

Some agencies also send a questionnaire along with a request for documents. The questionnaire typically asks for information about employment policies, work performance of other employees in the same position to determine whether the employer’s treatment of the Complainant was in line with the treatment of others not in the same protected category. Employers are also asked to provide documents such as personnel files, time records, discipline records to assist the investigator determine whether the complaining employee was treated differently from the norm.

An employer’s response to the charge and submissions to the agencies play a vital role in the determination whether the complaining employee has a viable claim. If the documentation submitted establishes that the employer treated the complainant according to its policies and in line with other employees not in the protected class, the investigator is more likely to conclude that no violation occurred. If on the other hand, the submissions are incomplete, sloppy, inaccurate or poorly supported, a finding of a violation is more likely.

Before submitting a response to a charge, position statement or response to a questionnaire, an employer should be careful to conduct a thorough internal investigation of the facts of the charge or complaint so that the responses are thorough and entirely accurate. Inaccurate, unsupported or poorly documented statements can harm an employer’s case significantly during the investigation and later during litigation as they are portrayed as false and misleading. More on Internal Harassment Investigations... and Investigating Sexual Harassment Complaints...

Mediation Conferences and Fact-finding Conferences

The administrative agencies all make an effort to resolve or settle the case. If a charge is settled, it is no longer necessary to continue or complete the investigation. A mediation conference is a face-to-face meeting between the employer and the employee in an attempt to resolve the case with the assistance of an agency investigator or mediator. Some agencies pursue non-binding mediation as the first step before investigation. Others defer or skip mediation entirely. Both parties must agree to mediation before a mediation conference is set up. More on Mediation Conferences...

The fact-finding conference is different. It focuses on gathering information from the employer and employee to assist the investigator in determining whether a violation is likely to be established. Mediations focus on possible out-of court settlement or resolution. A fact-finding conference is attended by the Complainant as well as the employer. Some agencies permit the parties to bring witnesses. It is thus important to discuss with the investigator whether witnesses are permitted. Parties may always submit written witness statements and affidavits whether or not witness attendance is permitted.

During the fact-finding conference, the employee states his/her own side of the story and the employer responds with his/her own side of the story. The parties also answer questions posed by the investigator to the hearing of all. Some agencies permit questions from the employer to the employee and vice versa. Others do not. There is no judge or jury at these conference which are also not recorded or under oath. As such, parties have to rely on their notes to remember statements made at the conferences. Read more about Fact-finding Conferences

Written Investigation Summary and Conclusion

After the collection of papers, witness interviews, and fact-finding conference, the investigator prepares a written summary of the agency’s findings and conclusions. The summary recites the facts gathered from the documents, fact-finding conference, witness interviews, witness statements and affidavits. It then states whether a violation has been established and the facts supporting that conclusion. If a violation appears to exist, the case is advanced to an administrative law judge at the respective agency where the charge was filed, the U.S. district court (federal court) or Illinois state court, starting in 2009. Where the investigator concludes that a violation does not exist, the employee complainant is typically still able to file a lawsuit in federal court on his own by receiving a right-to-sue letter from the EEOC or filing a lawsuit in an Illinois State court.

Administrative agency investigators are not permitted to make credibility determinations. Cases where the investigator is required to determine who is telling the truth between the employer and employee in order to reach a conclusion are typically not dismissed but forwarded to a judge to make the required credibility determinations. This obtains mostly in racial or sexual harassment cases as well as retaliation cases where an employee claims harassment and the employment denies it and there is no way to reconcile the stories without a credibility determination. In retaliation cases, the employee typically claims that sh/she complained to the employer and was punished thereafter. If the employer denies ever receiving a complaint, the investigator typically has to move the case forward to a judge to make credibility determination. Such cases are more likely to end up in litigation than others.

Conciliation of Discrimination Charge

At the conclusion of the investigation and before a lawsuit is filed, the administrative agency makes a last attempt to resolve the case short of a lawsuit. The conciliation conference is much like the mediation conference. Sometimes, the conciliation is conducted by phone and letters instead of in-person. If conciliation efforts fail, the parties then proceed with a lawsuit in court or at an administrative agency in front of an Administrative Law Judge (ALJ).

Discrimination Complaint Filing and Litigation
After the investigation and after all attempts to settle the case fail, the employee typically brings a lawsuit to litigate the case. Employment discrimination, sexual harassment and retaliation lawsuits are typically filed in district court (federal court) or Illinois state courts. Alternatively, cases are heard by administrative law judges at the Illinois Human Rights Commission for charges filed with the Illinois Department of Human Rights (IDHR).

The following administrative agencies have established a process of litigation and have administrative law judges that hear charges that are filed with its agencies: Cook County Commission on Human Relations (CCCHR); and City of Chicago Commission on Human Relations (CCHR).

Workers Compensation FAQ

Workers Compensation - Frequently Asked Questions For Employees

I was employed less than a week before I was injured. May I recover?

Yes. Employees are covered under the Illinois Workers’ Compensation Act from the very moment they begin their employment. So, even if you are injured within a few minutes of commencing your employment, you may be able to recover for your work related injuries.

I was injured at a social event (e.g. softball game, party, charity work) sponsored by my employer. May I recover?

It depends. Recovery is not allowed if attendance to the employer sponsored event was voluntary. However, if your employer made attendance mandatory, you may recover for your injuries.

Do I have any legal rights if I am fired for filing a claim with the Illinois Workers' Compensation Commission?

Yes. Illinois law prohibits employers from taking adverse action (i.e. termination) against employees who exercise their rights under the Illinois Workers’ Compensation Act. An employee who is terminated in retaliation for filing a claim may file a lawsuit in a Illinois state court with jurisdiction over the matter. Such lawsuits are not filed at the Illinois Workers’ Compensation Commission.

A co-worker received substantially more money than that being offered to me for the same injury. Why the huge discrepancy?

A number of factors come into play. The amount of recovery is based in part on how much you earn per week (excluding overtime). Thus, if your co-worker is earning substantially more, his settlement amount would likely be higher. Another factor taken into consideration is the amount of time it took for recovery. Let us assume that both you and your co-worker suffered a work related injury that resulted in a herniated disk in the lumbar spine. It takes you five weeks of treatment to return to work. On the other hand, it takes your co-worker sixteen weeks of treatment to return to work. Such a difference in the period of treatment more than likely reflects that your co-worker’s injuries were more severe than yours. Thus, your co-worker’s settlement value would likely be higher.

My minor child was injured on the job. I have since been made aware that he was employed illegally. Does my child have rights under the Illinois Workers’ Compensation Act or other statutes?

Yes. A workers’ compensation claim may be brought on behalf of the illegally employed minor, and all the benefits afforded under the Act would be available to him. Normally, the Act is the exclusive remedy for employees injured on the job. One exception is when the employer illegally employs minors (i.e. employment violates child labor laws or minor did not have a work permit). In such a scenario, the illegally employed minor may elect to reject his rights and benefits under the Act. In doing so, the illegally employed minor has the right to pursue his common law and/or statutory remedies to recover for his injuries. The injured illegally employed minor must reject his rights and benefits under the Act within six months of the injury or within six months of appointment of legal representation, whichever is later.

My employer had workers’ compensation insurance when my injury occurred. My case has not been resolved and my employer no longer has workers’ compensation insurance. Will I no longer be able to recover a monetary award?

That is not necessarily the case. If your employer made all the required payments to the insurance carrier and decided not to renew the policy, you may still recover a monetary award so long as your injury occurred during the coverage period of the policy.

My employer is contesting my injury as non-compensable under the Illinois Workers’ Compensation Act. Since my employer has not paid my medical bills, my medical treaters are threatening to initiate collection proceedings and report me to the credit report.

Yes. If you notify the medical treater that your injury was a result of a work accident and give them the employer’s contact information, the medical treater must bill the employer directly. At that point, the law would also prohibit the medical treater from attempting to collect payment or from reporting you to the credit agencies until a determination has been made by the Illinois Workers’ Compensation Commission. The medical provider may continue to send you reminders of the balance.

My employer is requiring me to go to its doctor. Can I go to a doctor that I select?

Yes. You may select up to two doctors for treatment. The employer would be required to pay for the medical services rendered by these doctors. It is also important that you continue to make all of the appointments scheduled with the company doctor. If you fail or refuse to go to the company doctor, you risk the employer terminating your benefits and access to the doctors of your choice.

Harassment And Discrimination Lawsuits May be Filed in Illinois State Courts Effective January 1, 20

In the past, employees with charges of discrimination before the EEOC and Illinois Department of Human Rights only had two forums where they could bring a lawsuit – Federal Court or the Illinois Human Rights Commission. Now, individuals who have filed a charge of discrimination at the Illinois Department of Human Rights (IDHR) also have the option of filing a lawsuit in Illinois State Court. This will affect those filing lawsuits of sexual harassment, racial harassment, age discrimination as well as other forms of discrimination and harassment.

Who Can File State Court Lawsuit of Harassment or Discrimination

To be eligible to file an employment discrimination or harassment case in Illinois State Courts, a charge of discrimination or harassment must have been filed with the Illinois Department of Human Rights (IDHR) after January 1, 2008. One can then elect to file a complaint in State Court under the following circumstances:

The Illinois Department of Human Rights issues a finding of substantial evidence and one elects not to have the Department file a complaint with the Human Rights Commission.
The Illinois Department of Human Rights issues a finding of lack of substantial evidence.
The Illinois Department of Human Rights fails to issue a finding within 365 days of the charge being filed (or longer if an extension was signed by both parties).

Differences Between State Courts And Human Rights Commission

Unlike the Illinois Human Rights Commission, State Court allows a case to be heard and decided by a jury of your peers. At the Human Rights Commission it is up to an Administrative Law Judge to determine the outcome of particular case, including, the amount of damages that should be awarded. In State Court, however, this role may be undertaken by a Jury. This creates the possibility of larger awards in State Court than the Human Rights Commission. However, the discovery process is more extensive in State Court and the cost of prosecuting a claim in State Court may be higher than proceeding at the Human Rights Commission.