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.
The plaintiff alleged that the alleged perpetrator, who was employed by the defendant corporation as a maintenance engineer, entered the plaintiff's apartment, where he allegedly "engaged in unwanted and inappropriate sexual contact with plaintiff that amounted [to] assault and battery." The IGVA empowers victims of "gender-related violence" to file civil actions against "a person or persons perpetrating that gender-related violence." The IGVA defines "perpetrating" as "either personally committing the gender-related violence or personally encouraging or assisting the act or acts of gender-related violence." The plaintiff alleged that the employer "perpetrated gender-related violence by encouraging or assisting [its employee] by its failure to supervise and monitor [its employee]. The plaintiff also alleged that the employer had a legal duty to "protect the plaintiff from the risk of assault by its employees with known sexual deviant propensities" and that the employer "knew or should have known that [its employee] was the subject of many complaints for sexual harassment, unwanted touching of the residents and obnoxious behavior during work hours." The employer also knew or should have known that its employee "had sexual harassment propensities and posed a risk of bodily harm." Nonetheless, the employer continued to employ the alleged perpetrator, "despite the knowledge that his behavior was ongoing and a disturbance to the tenants."
Section 10 of the IGVA creates a civil cause of action for victims of gender-related violence. Section 10 of the IGVA states: "Cause of action. Any person who has been subjected to gender-related violence***may bring a civil action for damages, injunctive relief, or other appropriate relief against a person or persons perpetrating that gender-related violence. For purposes of this Section, 'perpetrating' means either personally committing the gender-related violence or personally encouraging or assisting the act or acts of gender-related violence." 740 ILCS 82/10 (West 2016). Section 5 of the IGVA defines "gender-related violence" as an assault or battery "committed, at least in part, on the basis of a person's sex." Section 15 grants the courts the discretion to award victims damages, including compensatory damages for emotional distress, punitive damages, as well as attorneys' fees and costs. The IGVA does not provide a definition of "person" or "personally." Extrapolating from analogous legal precedent (that cloaked corporations with personhood), the appellate court concluded that "[u]nder some circumstances, a legal entity, such as a corporation, can act "personally" for purposes of giving rise to civil liability under the [IGVA]."
"Violence" under the IGVA includes any "battery" under Illinois law. A "battery" under Illinois law is the unauthorized touching of another person. Consequently, any workplace sexual harassment involving the unauthorized touching or sexual assault of an employee could create employer liability under the IGVA. In the wake of Gasic, Illinois employers may now be liable for the acts of their employees under the IGVA if their managers knew or should have known of sexually deviant or violent propensities of their employees, and failed to take action to protect their employees from harm. While employer liability for workplace sexual harassment already exists under the Illinois Human Rights Act ("IHRA"), a plaintiff employee may recover punitive damages against an employer under the IGVA, which are not available under the IHRA. Employer liability is also more expansive under the IGVA as compared to the IHRA, because liability under the IGVA extends more generally to workplace violence, as long as it is motivated at least in part by the victim's sex. Thus, employer liability under the IGVA may arise from workplace conduct that would not constitute actionable sexual harassment under the IHRA. Illinois employers should familiarize themselves with the IGVA and the potential pitfalls thereunder, and modify their employee handbooks and workplace violence policies accordingly.