On August 7, 2019, the Illinois Appellate Court, Third District, affirmed the circuit court's grant of summary judgment in favor of the defendant in a retaliation claim under the Illinois Human Rights Act ("IHRA"). Zoepfel-Thuline v. Black Hawk College, 2019 IL App (3d) 180524 (Third Dist. August 7, 2019). The plaintiff, a teacher, alleged that the defendant delayed offering her employment contracts in retaliation for reporting sexual harassment, then later terminated her employment in retaliation for the employment discrimination lawsuit that she filed against the defendant. In order to prevail on a retaliation claim under the IHRA, a plaintiff must establish that he or she engaged in protected activity under the IHRA. The IHRA provides two ways in which a person's civil rights may be violated through retaliation.
On July 26, 2019, the 7th Circuit affirmed the district court's order granting summary judgment on a Title VII sexual harassment hostile work environment claim. Hunt v. Wal-Mart Stores, Inc., No. 18-3403 (7th Cir. 7/26/2019). The plaintiff filed a complaint in federal court alleging that a supervisor sexually harassed her by creating a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII). A Title VII hostile work environment sexual harassment claim requires a plaintiff to show: (1) the work environment was objectively and subjectively offensive; (2) the harassment complained of was based on gender; (3) the conduct was either severe or pervasive; and (4) there is a basis for employer liability.
On May 17, 2019, the Illinois Appellate Court, Third District, held that a corporate employer may be liable under the Illinois Gender Violence Act ("IGVA") (740 ILCS 82/10 (West 2016)) arising from gender-related violence perpetrated by the employer's corporate employees (which would include 'physical' workplace sexual harassment). Gasic v. Marquette Management, Inc., 2019 IL App (3d) 170756 (3d Dist. May 17, 2019). The Gasic decision expands the liability of Illinois employers for gender-based workplace violence, workplace sexual assault, and physical sexual harassment committed by their employees. In this case, the plaintiff, an alleged victim of sexual violence, filed a complaint against the employer of the alleged perpetrator, alleging a statutory cause of action against the defendant employer under section 10 of the IGVA, based on the alleged acts of the employer's employee. The trial court dismissed the claim on the basis that the IGVA does not apply to corporate conduct. The following question was certified for appeal: "[C]an an entity be considered a 'person' committing acts 'personally' for purposes of liability under the Gender Violence Act?" The Illinois Appellate Court answered the question in the affirmative, and reversed the trial court's dismissal of the plaintiff's statutory claim under the IGVA.
On December 26, 2018, the 7th Circuit affirmed an order of summary judgment for the defendant-employer in a sexual harassment lawsuit in which the plaintiff-former employee alleged that she was subjected to unlawful sexual harassment, sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Swyear v. Fare Foods Corporation, No. 18-2108 (7th Cir. 12/26/2018). The sexual harassment claim was based on offensive nicknames used by employees for co-workers and customers, but not for the plaintiff, and a business trip incident with a co-worker involving inappropriate behavior by the co-worker. The plaintiff reported the incident to management and subsequently was given two negative performance reviews and fired. In its decision, the 7th Circuit discussed the elements and legal standards for sexual harassment claims.
On September 11, 2018, the 7th Circuit issued an opinion in which it explained the joint employer doctrine and reversed the district court's decision on summary judgment that an employer management services company was not a joint employer of the plaintiff-employee in her sexual harassment, retaliation, and pregnancy discrimination lawsuit against multiple separate companies. Frey v. Hotel Coleman, et al., No.17-2267 (7th Cir. 9/11/2018). This case presented issues regarding the employer-employee relationship that arise in the increasingly common scenario in which one employer hires another entity to manage the day-to-day operations of an enterprise. One entity provides the paycheck but another entity manages the tasks typically associated with an employer, such as hiring, firing, training, supervising, and evaluating employees. In this case, a hotel hired a management company to handle its daily operations. Under the hotel management agreement, the management company was responsible for hiring, supervising, directing, and discharging employees, and determining the compensation, benefits, and terms and conditions of their employment. The hotel agreed that it would not give direct instructions to any employee of the hotel or the management company that may interfere, undermine, conflict with or affect the authority and chain of command established by the management company. The plaintiff and other staff members who worked at the hotel were on the hotel's payroll, and the management agreement stated that all personnel are in the employ of the hotel.
On September 10, 2018, the 7th Circuit affirmed a jury verdict in favor of a former employee of a big box company, who alleged and testified that she was harassed by a store customer. Equal Employment Opportunity Commission v. Costco Wholesale Corporation, Nos. 17-2432 & 17-2454 (7th Cir. 9/10/2018). The employee testified at trial that she was stalked by a store customer for over a year. Things got so bad at the end that she secured a no-contact order from an Illinois state court. She took unpaid medical leave due to emotional trauma from the experience, and when she did not return to work from medical leave, the company terminated her employment. The Equal Employment Opportunity Commission ("EEOC") filed a lawsuit against the company on behalf of the employee, alleging that the company had subjected her to a hostile work environment by tolerating the customer's harassment. The 7th Circuit held that a reasonable jury could conclude that the customer's conduct was severe or pervasive enough to render the employee's work environment hostile.
On August 2, 2018, the 7th Circuit affirmed a jury verdict in favor of an employee and against an employer in a same-sex sexual harassment and employment discrimination lawsuit. Smith v. Rosebud Farm, Inc., No. 17-2626 (7th Cir. 8/2/2018). The plaintiff worked as a butcher in a local grocery store on the south side of Chicago. After enduring several years of ongoing sexual and racial harassment from his male coworkers and supervisor, he filed a lawsuit against his employer for violations of Title VII of the Civil Rights of 1964, as amended ("Title VII"), Section 1981, and the Illinois Gender Violence Act. The jury returned a verdict in favor of the employee. On appeal, the 7th Circuit held that the evidence supported the inference that the plaintiff's coworkers harassed him because he was male (only male and not female employees were harassed at the grocery store) and, therefore, because male employees were treated differently from female employees, a reasonable jury could conclude that the plaintiff was harassed because of his sex (which is an essential element of a Title VII sexual harassment claim).
On April 30, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in a federal lawsuit in which the plaintiff alleged that the defendant retaliated against him for exercising his rights under the Family and Medical Leave Act ("FMLA") and the Americans with Disabilities Act ("ADA"). Freelain v. Village of Oak Park et al., No. 16-4074 (7th Cir. 4/30/2018). The plaintiff, an Oak Park police officer, made an internal complaint of sexual harassment, alleging that another officer made unwelcome sexual advances toward him. After he reported the alleged sexual harassment, he began to experience migraine headaches and other medical conditions that he attributed to stress related to the alleged sexual harassment, for which he took time off work. He alleged that as a result of his medical condition and use of leave time, the defendant retaliated against him, in violation of the FMLA and ADA, by classifying his sick leave as unpaid, requiring him to undergo a psychological evaluation before returning to duty, and waiting three months before approving his request to engage in outside employment. The 7th Circuit held that the subject employment actions did not constitute protected activity and that therefore, the plaintiff's FMLA and ADA retaliation claims failed as a matter of law.
Section 13307 of the 2017 Tax Act (H.R. 1) ("the new tax law"), signed into law on December 22, 2017, significantly impacts settlements of sexual harassment claims by denying tax deductions for settlements subject to nondisclosure agreements paid in connection with sexual harassment or sexual abuse. Section 13307 eliminates the ability of an employer to take a tax deduction for its payment of a sexual harassment settlement, if the settlement is subject to a nondisclosure agreement. It also eliminates the ability of employers and employees to deduct their attorneys' fees in connection with confidential settlements of sexual harassment claims. Section 13307 of the new tax law states that: "...No deduction shall be allowed...for--(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney's fees related to such a settlement or payment." Employers and human resources professionals should familiarize themselves with Section 13307 and its effect on sexual harassment settlements.
On October 2, 2017, the 7th Circuit affirmed an order of summary judgment on a former employee's sexual harassment, retaliation and FMLA claims. King v. Ford Motor Company, No. 16-3391 (7th Cir. 10/2/2017). The plaintiff, who was an assembly line worker, claimed that she was sexually harassed by a supervisor. She was discharged after missing several weeks of work for medical reasons that her former employer claims she failed to properly document. In her federal lawsuit, she filed claims for sexual harassment, FMLA interference, and retaliation based on her complaints of sexual harassment and for taking FMLA leave. Since she failed to file suit within 90 days of receipt of her notice of right-to-sue letter from the EEOC, her Title VII sexual harassment claim was time-barred. Her FMLA interference and retaliation claims failed too, for substantive reasons.