Frequently Asked Employment Law Questions
The Americans with Disabilities Act, also known as the ADA, is a federal law that prohibits discrimination against an individual because of his or her disability. The protections under the ADA do not apply to every person or every situation. A person must be a qualified individual with a disability, as defined by the ADA, in order to be eligible for an employment ADA claim.
The ADA defines a disability as a physical or mental impairment that substantially interferes with one or more major life functions. Under the ADA, examples of major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, as well as the operation of a major bodily function. Persons who are perceived as having such impairment or have a record of such impairment are also protected by the ADA.
A qualified individual is a person who is able to perform the essential functions of his or her job with or without reasonable accommodation. Thus, employees who have disabilities and are unable to perform their essential job functions (with or without reasonable accommodation) cannot have viable ADA employment claims.
The ADA prohibits discrimination on the basis of disability against a qualified individual with a disability. Prohibited adverse employment actions include employment termination, discrimination in job application procedures, failure to hire, failure to promote, as well as discrimination in job training, employee compensation, and other terms and conditions of employment.
Under the ADA, an employer is also obligated to provide reasonable accommodations to employees and job applicants for their known physical or mental limitations. A reasonable accommodation is essentially a job modification that enables a qualified individual with a disability to perform his or her job.
Examples of reasonable accommodation under the ADA include building and facility accessibility, job restructuring, modified work schedules, reassignment to vacant positions, equipment modification, new equipment, and a host of other options.
However, an employer is not obligated to change the essential functions of a job as a reasonable accommodation, or to provide a reasonable accommodation to an employee who is not a qualified individual.
Every accommodation situation is unique and must be evaluated based upon its own specific circumstances. When an employee requests a workplace accommodation from an employer, the employer is required to engage in an interactive process with the employee, in order to explore reasonable accommodation options. Communication is the key for both the employee and the employer when it comes to reasonable accommodation.
The duty to accommodate does not apply to an employer who can demonstrate that the accommodation would impose an undue hardship on the operation of its business. Undue hardship is defined by the ADA as an action requiring significant difficulty or expense, in view of its nature and cost, the financial resources of the employer, the size of the business, number of employees, type of operation and facility, and a variety of other factors. Undue hardship analysis is also circumstance specific.
The ADA also protects an employee who has a relationship with a person who has a disability. It is unlawful for an employer to terminate an employee because he or she has, for instance, a parent or spouse with a disability. However, in a relational disability situation, the ADA does not require the employer to provide reasonable accommodation to the employee to take time off to care for the other person. Of course, in this type of scenario, the employer must be cognizant of its obligations under other employment laws (such as the FMLA).
Merely because an employee is a qualified individual with a disability doesn’t mean that he or she has a claim for disability discrimination. Those are just the preliminary ADA hurdles for the employee.
In order to establish a valid claim for ADA employment discrimination, the employee must also prove that he or she was terminated or subjected to other tangible adverse job action by the employer because of his or her disability. The elements, burden of proof, and burden-shifting analysis are akin to those in other types of employment discrimination claims. Proof of intentional discrimination is essential.
Additionally, a qualified individual with a known disability may have a separate ADA claim for an employer’s refusal to provide reasonable accommodation.
An employee who prevails in an ADA disability discrimination claim may recover back pay, front pay, lost benefits, compensatory damages for emotion distress and punitive damages, as well as attorneys’ fees and litigation costs. Equitable relief such as reasonable accommodation and reinstatement of employment are also available under the ADA.
Employment “at will” is the employment law doctrine that an employer may terminate an employee at any time, for any reason or no reason, with or without cause, with or without notice. Employment “at will” is the law in Illinois. Under Illinois employment law, employment relationships are presumed to be “at will.”
No, the employment “at will” doctrine is not a defense to an employment discrimination claim. An employer is still prohibited from terminating an employee for an illegal reason.
Employment discrimination occurs when an employer intentionally terminates or takes other adverse job action against an employee because of the employee’s protected classification or traits, such as age, race, gender, etc.
Title VII of the Civil Rights Act of 1964 protects employees and job applicants from employment discrimination based on a broad range of protected classifications. Under Title VII, as amended, it is unlawful for an employer to take adverse employment action against an employee or job applicant because of his or her sex, pregnancy, race, color, national origin, religion, genetic information, sexual orientation, or gender identity. Title VII also prohibits retaliation and sexual harassment in employment.
The Americans with Disabilities Act protects employees and job applicants from employment discrimination based on physical or mental disability. Under the ADA, it is unlawful for a covered employer to take adverse employment action against a qualified individual with a physical or mental disability because of his or her disability.
The Age Discrimination in Employment Act protects older workers in the protected age class, age 40 or older, from age discrimination in employment. Under the ADEA, it is unlawful for a covered employer to take adverse employment action against an employee or job applicant because of his or her age.
Prohibited Employment Actions
Under federal law, the prohibited adverse employment actions include not only employment termination, but many other tangible job actions, such as demotions, failure to promote, failure to hire, pay cuts, unequal terms and conditions of employment, unequal pay, unequal benefits, pay discrimination, workplace harassment, and retaliation.
Under the Illinois Human Rights Act, as amended, it is illegal for an employer to take adverse employment action against an employee because of his or her sex, pregnancy, race, color, national origin, ancestry, citizenship status, religion, age, physical or mental disability, marital status, order of protection status, military status, sexual orientation, or gender-related identity. The Illinois Human Rights Act also prohibits retaliation, as well as sexual harassment in employment and higher education.
Number of Employees Required for Coverage
The Illinois Human Rights Act, as amended, now applies to all Illinois employers who employ 1 or more employees in Illinois.
Prohibited Employment Actions
Under Illinois law, the prohibited adverse employment actions include not only employment termination, but many other tangible job actions, such as demotions, failure to promote, failure to hire, pay cuts, unequal terms and conditions of employment, unequal pay, unequal benefits, pay discrimination, workplace harassment, and retaliation.
Remedies for Employment Discrimination under Illinois Employment Law
Under the Illinois Human Rights Act, an employee who prevails in an employment discrimination action may recover back pay, front pay, lost benefits, uncapped compensatory damages for emotional distress, attorneys’ fees and litigation costs, but not punitive damages.
Prima Facie Case
An employment discrimination claim may be established through direct or indirect evidence. Under the “burden shifting” method of proof, an employee is initially required to establish: (1) that he or she is a member of a protected class; (2) that he or she was satisfactorily performing his or her job duties; (3) that adverse job action was taken against him or her; and (4) that similarly situated employees who are not members of the employee’s protected class were treated differently or more favorably than the employee under similar circumstances.
Employer’s Proffered Reason
If an employee establishes a prima facie case of employment discrimination, the employer may come forward and proffer a legitimate, non-discriminatory reason for the adverse job action.
If the employer comes forward with a proffered reason for the challenged job action, the employee must prove that the employer’s proffered reason is really pretext to mask intentional employment discrimination. Pretext may be established by showing that the proffered reason is untrue, not the real reason, contrived, suspicious, or unworthy of belief, etc.
Employee’s Ultimate Burden of Proof
Ultimately, the employee must prove that the adverse job action resulted from intentional discrimination. Proving discriminatory intent usually involves a discriminatory animus on the part of the employment decision-maker.
If an employer terminates an employee due to a mistake or bad business judgment, the employee does not have legal recourse against the employer. In an employment discrimination case, an employer who terminates an employee because of poor business judgment, as opposed to intention discrimination, is not liable.
If an employer terminates an employee for unfair reasons or under circumstances that are totally unfair, the employee does not have legal recourse against the employer, as long as there was no illegal reason. Unfairness alone is not illegal under employment law (remember employment “at will”).
Gender discrimination occurs when an employer treats an employee differently because of their gender. Gender discrimination is also known as sex discrimination. Gender discrimination is prohibited under federal law (Title VII of the Civil Rights Act of 1964) and Illinois law (the Illinois Human Rights Act).
Examples of Gender Discrimination
One example of gender discrimination is when an employer terminates an employee on account of their gender. There are many other common examples of gender discrimination, often involving discrimination against women in the workplace. These include: (1) the failure to hire women for certain positions that are often misperceived as “male positions,” (2) the promotion of men and the failure to promote women to managerial positions or positions of power or leadership within an organization (commonly referred to as the “glass ceiling),” (3) unequal pay or benefits for the same work, and (4) employment decisions based upon gender stereotypes. Gender discrimination frequently involves the application of different standards to women and men based upon misconceived notions of traditional roles for women and men at home and in the workplace.
The elements of a prima facie case of sex discrimination are essentially the same as with other protected class discrimination. The employee must demonstrate that she: (1) is a member of a protected class, (2) satisfactorily performed her job, (3) was subjected to adverse job action, and (4) was the victim of disparate treatment, i.e., that similarly situated male employee were treated differently or more favorably by the employer under similar circumstances.
If the employer proffers a legitimate, non-discriminatory reason for the adverse job action, the employee must prove that the proffered reason is really pretext to hide intentional discrimination based on the employee’s sex. The employee must prove that a gender-based discriminatory intent motivated the job action in question. Discriminatory intent often involves a gender-based animus that is pervasive in the workplace and shared by the employment decision-maker.
Yes. Adverse employment action against a male employee because of his gender is also unlawful, and provides the basis for a gender/reverse gender discrimination claim.
Pregnancy discrimination is a form of gender discrimination that is unlawful under federal law (the Pregnancy Discrimination Act) and Illinois law (the Illinois Human Rights Act). Pregnancy discrimination occurs when an employer terminates or takes other adverse job action against an employee because of her gender/pregnancy. Pregnancy discrimination also includes refusing to hire or retain pregnant women, or requiring pregnant women to take forced leaves of absence when they are willing and able to work. Pregnancy discrimination may also occur when an employer terminates a non-pregnant employee because of her known intention to become pregnant in the future, or because she is trying to become pregnant.
New Protections for Pregnant Employees
Effective January 1, 2015, Public Act 98-1050 amended the Illinois Human Rights Act to establish pregnancy as an independent protected class and create new protections for pregnant employees.
The new Illinois Pregnancy Rights in the Workplace Law applies to Illinois employers employing 1 or more employees, and covers employees who are pregnant, have recently given birth, or who have a medical or common condition related to their pregnancy or childbirth.
Pregnancy Discrimination Prohibited
The new law makes it unlawful for an employer to discriminate against an employee or job applicant on the basis of pregnancy, in terms of hiring, promotion, training, discharge, discipline, benefits, and privileges or conditions of employment.
Reasonable Accommodation and Maternity Leave
In addition, the new law requires Illinois employers to provide reasonable accommodation to pregnant employees, unless the accommodation would impose an undue hardship on business operations. A reasonable accommodation is defined as a reasonable modification or adjustment to the job application process or work environment, or to the manner or circumstances under which the position desired or held is customarily performed, that enable an applicant or employee affected by pregnancy to be considered for the position or to perform the essential functions of that position. The amendment lists many examples of reasonable accommodations, including, significantly, time off to recover from pregnancy, and leave necessitated by pregnancy. This effectively creates a statutory duty for an Illinois employer to provide a pregnant employee with maternity leave.
The employer is also required to reinstate the employee to her original job or an equivalent position upon her return from maternity leave, unless reinstatement would impose an undue hardship on the ordinary operations of the employer.
Retaliation against an employee because the employee requested or was provided any reasonable accommodation is prohibited.
Under the Family and Medical Leave Act, an employer with 50 or more employees is required to provide an eligible employee with up to 12 weeks of unpaid maternity leave. Additionally, under the Illinois Human Rights Act, an Illinois employer with 1 or more employees is required to provide a pregnant employee with time off to recover from and leave necessitated by a pregnancy, as a reasonable accommodation.
Age discrimination is a form of employment discrimination that is unlawful under federal law (the Age Discrimination in Employment Act) and Illinois law (the Illinois Human Rights Act). Age discrimination occurs when an employer terminates or takes other adverse job action against an employee because of his or her age. Employees who are in the protected age class, which is age 40 and up, are protected by the age discrimination laws. However, an employer is not required to retain an employee simply because he or she is in the protected age class.
Examples of Age Discrimination
Senior executives are often victims of age discrimination. An organization may terminate a senior executive, despite decades of valuable contributions to the organization, because he or she is perceived as too old for the organization’s image. In these instances, the discrimination may be discrete. Position elimination is a commonly used subterfuge for the termination of an older employee. Instead of directly replacing the employee, an employer may divide up the duties of the employee’s position and give them to several different younger employees, typically in newly created positions, as part of a company restructuring or reorganization.
Prima Facie Case of Age Discrimination
In order to prove an age discrimination case, an employee must establish that: (1) he or she is in the protected age class; (2) his or her job performance was satisfactory; (3) adverse job action was taken against him or her; and (4) similarly situated substantially younger employees were treated more favorably.
If the employee establishes a prima facie case of age discrimination, the employer may come forward with a legitimate, non-discriminatory reason for the challenged job action.
Pretext for Age Discrimination
If the employer proffers a reason for the employment decision in question, the employee must establish that the proffered reason is just pretext for age discrimination; and that intentional age discrimination was the real reason for the employment decision.
Similarly Situated Substantially Younger Employees
The younger comparable employee does not have to be under age 40; he or she may also be in the protected age class. The comparable, however, must be substantially younger that the employee who is alleging age discrimination. For instance, a 70-year-old employee who is replaced by a 50-year-old employee may have an age discrimination claim. On the other hand, a 41-year-old employee who is replaced by a 39-year-old employee would have difficulty establishing an age discrimination claim, even though the comparable employee is not in the protected age class.
An employer who eliminates an employee through a reduction-in-force is not insulated from liability for age discrimination or other employment discrimination. The employer’s process of selecting which employees to lay off and which employees to retain may be subject to statistical scrutiny. An employee may still have a viable employment discrimination claim if he or she was laid off in a rif due to a protected characteristic, such as the employee’s age, while similarly situated employees without that characteristic were retained. In a reduction-in-force age discrimination case, an employee is not required to prove that he or she was directly replaced by a substantially younger employee, only that substantially younger employees were treated more favorably than the employee in the reduction-in-force.
An executive employment contract is a written employment agreement, usually made between a highly compensated executive and an employer, that contains more expansive terms and conditions than an ordinary employment agreement.
Executive Employment Contracts from the Executive’s Perspective
From the executive’s perspective, some key terms of an executive employment agreement include:
(1) A guaranteed minimum term of employment;
(2) A guaranteed minimum base salary and criteria for increases;
(3) Other compensation, such as specified bonus and incentive compensation that is not discretionary;
(4) Benefits and expense reimbursement;
(5) Mandatory severance for a predetermined amount;
(6) Termination for cause only (vs. “at will” employment);
(7) D&O insurance and indemnification;
(8) A change in control provision;
(9) Resignation for good cause without jeopardizing severance; and
(10) Options for renewal of the employment agreement.
Executive Employment Contracts from the Employer’s Perspective
From the employer’s perspective, some key terms of an executive employment agreement include:
(1) A statement of the executive’s title, duties, responsibilities, time-commitment, and fiduciary obligations to the employer;
(2) Restrictive covenants, such as a non-compete clause, a non-solicitation clause, and a non-disparagement clause;
(3) A confidentiality and non-disclosure clause protecting confidential and proprietary company and client information;
(4) A remedies provision with an attorneys’ fees clause;
(5) An arbitration clause;
(6) A clause that makes any severance conditional on the executive entering into a release and cooperating with the employer post-termination;
(7) A claw-back provision requiring the executive to re-pay the severance to the employer if the executive breaches the employment agreement or release agreement;
(8) A mitigation provision reducing the amount of severance if the executive becomes reemployed during the severance period;
(9) A provision relieving the employer of any severance obligations in the event of breach by the executive; and
(10) A termination provision that gives the employer the right to terminate the executive with or without cause or, if not “at will,” for an expansive set of “for cause” and other reasons that include performance.
The Family and Medical Leave Act is a federal law that provides eligible employees with the right to take up to 12 weeks of unpaid, job protected leave of absence for the following reasons: (1) for a serious health condition that makes the employee unable to perform his or her job; (2) to care for the employee’s spouse, child, or parent who has a serious health condition; (3) to care for the employee’s child after birth, or to place the child up for adoption or foster care; and (4) for incapacity due to pregnancy, prenatal medical care or child birth. The FMLA also provides for family military leave for eligible employees who have a spouse, son, daughter or parent on covered active military duty, in order to address certain qualifying exigencies.
An employee is eligible for FMLA leave if he or she worked for a covered employer for at least 12 months, had at least 1,250 hours of service in the previous 12 months, and if at least 50 employees are employed by the employer within 75 miles.
Under the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a health care facility, or continuing treatment from a heath care provider, where the condition either prevents the employee from performing his or her job functions, or prevents the qualified family member from participating in school or other daily activities.
Under the FMLA, an employer is required to restore most employees to their original position or an equivalent position with equivalent pay, benefits and other terms of employment. In addition, during an employee’s FMLA leave period, an employer is required to maintain the employee’s health insurance coverage under any group health plan on the same terms as if the employee had continued to work. FMLA leave cannot result in the loss of an employment benefit that accrued prior to the start of the leave.
An employee does not have to take his or her FMLA leave in one block. An employee may take his or her FMLA leave intermittently or on a reduced leave schedule when medically necessary.
Under the FMLA, an employee is required to provide the employer with at least 30 days advance notice of the need to take FMLA leave when the need is foreseeable. If it is not possible to provide 30 days’ notice, the employee must provide notice as soon as practicable and generally must comply with the employer’s call-in procedures. In addition, the employee must provide the employer with sufficient information for the employer to determine whether the requested leave qualifies for FMLA protection, and the anticipated timing and duration of the leave. Employees may be required to furnish the employer with medical certification of the need for the FMLA leave, and periodic re-certification.
Covered employers are required to inform the employee who is requesting FMLA leave whether he or she is eligible under the FMLA. If the employee is eligible, the employer must inform the employee of his or her rights and responsibilities. If the employee is not eligible, the employer is required to provide the employee with a reason for the ineligibility. In addition, covered employers are required to inform the employee whether the leave will be designated as FMLA-protected leave, and the amount of leave counted against their FMLA entitlement. If an employer determines that a leave is not FMLA-protected, the employer must notify the employee.
Under the FMLA, employers are prohibited from discharging or discriminating against an employee in retaliation for opposing any practice made unlawful under the FMLA, or for any involvement in a proceeding under or relating to the FMLA. Employers are also prohibited from interfering with, restraining, or denying an employee’s exercise of his or her FMLA rights. It is unlawful for an employer to terminate an employee in retaliation for taking FMLA leave or attempting to exercise his or her FMLA rights.
FMLA Interference Claims
In order to establish a claim for FMLA interference, an employee must prove that: (1) he or she is an eligible employee; (2) the employer is a covered employer; (3) he or she was entitled to take FMLA leave; (4) notice of the employee’s intention to take the FMLA leave was given to the employer; and (5) the employee was denied a benefit to which he or she was entitled under the FMLA.
FMLA Retaliation Claims
In order to establish a claim for FMLA retaliation, an employee must prove that: (1) he or she engaged in statutorily protected activity; (2) adverse job action was taken against him or her; and (3) there is a causal connection between the activity and the adverse job action.
In a lawsuit for FMLA retaliation or interference, an employee may seek lost wages, salary, employment benefits, and other lost compensation, liquidated “double” damages, attorneys’ fees and litigation costs, as well as reinstatement of employment.
Non-competition agreements, or covenants to not compete, are components of employment contracts, or entire agreements, that restrict an employee from working for a competitor of his or her employer, or otherwise competing against the employer, during and for a certain time period after their employment.
Non-solicitation agreements, or covenants to not solicit, are components of employment contracts, or entire agreements, that restrict an employee from soliciting the customers, clients, or employees of his or her employer for a certain time period after their employment.
Non-competition and non-solicitation agreements are often interchangeably referred to as “restrictive covenants.”
Whether a non-competition or non-solicitation agreement is valid and enforceable under Illinois law depends upon the specific terms of the agreement, as well as the unique facts and circumstances surrounding the agreement, employment, separation of employment, and post-employment employee conduct.
Adequate Consideration: The first question is whether adequate consideration exists to support a restrictive covenant. Consideration is something of value given in exchange for an agreement. Continued employment may constitute adequate consideration, but Illinois appellate courts have held that employment for fewer than two years is insufficient. Federal courts are not required to follow the “two-year rule.” Other types of consideration do not depend on the length of employment, such as special bonuses, payments, or employee benefits to which an employee would otherwise not be entitled.
Three-Prong Test: Illinois courts apply a three-prong test to determine whether a non-competition or non-solicitation agreement is enforceable. A restrictive covenant, assuming it is ancillary to a valid employment relationship, is reasonable and enforceable only if the covenant:
- is necessary, but no greater than required, for the protection of a legitimate business interest of an employer;
- does not impose an undue hardship on the employee; and
- does not injure the public.
Protectable Business Interests: These include, but are not limited to, customer relationships, confidential information, and trade secrets. Courts consider a variety of factors, such as the near-permanence of customer relationships, whether the employee acquired confidential information through his or her employment, as well as time and place restrictions. No single factor is determinative or carries more weight than another. Whether a legitimate business interest exists is based on the totality of the facts and circumstances of each individual case.
Reasonableness of Time, Place, and Activity Restrictions: In addition, to be enforceable, a restrictive covenant must be reasonable in temporal, geographic, and type of activity scope. There are no bright-line rules to determine reasonableness. Whether a restrictive covenant is reasonable in scope depends on the extent of the restrictions as well as the surrounding circumstances.
Illinois law on the enforceability of restrictive covenants is fluid and, like most employment laws, ever-changing. New legislation that would radically change and codify Illinois non-competition law is pending in the Illinois General Assembly. House Bill 789, if enacted, would:
- provide that non-competition and non-solicitation agreements are invalid and unenforceable for any employee (i) whose annual income is below a certain level, or (ii) who is terminated because of COVID-19-related circumstances;
- require employers to advise employees to consult with their own legal counsel before signing restrictive covenant agreements; and
- make employers liable for attorneys’ fees incurred by employees who prevail in restrictive covenant enforcement litigation.
If House Bill 789 becomes law, Illinois employers should review and revise their restrictive covenant policies and agreements.
It is also unlawful under federal and Illinois law for an employer to terminate an employee in retaliation for other types of protected activity, such as opposing an unlawful employment practice or policy, objecting to, complaining about, or reporting discrimination, filing a charge of discrimination or harassment with the EEOC, or filing a lawsuit for employment discrimination or harassment.
Under federal law, there are many types of tangible adverse employment actions that count as unlawful retaliation, even when the employee is not terminated.
An employee does not have a claim for retaliatory discharge merely because he or she engaged in protected activity and was terminated. It is the employee’s burden of proof to establish a causal connection between the protected activity and the adverse employment action.
A separation agreement is a written contract that sets out the terms of an employee’s separation of employment. A separation agreement will usually include a release of claims against the company by the separated employee in exchange for the payment of money to the employee by the employer. This payment is commonly referred to as separation pay, severance, or a settlement payment. There are many important non-monetary terms and conditions commonly contained in a separation agreement.
Separation Agreements from the Employer’s Perspective
From the employer’s perspective, some key provisions of a separation agreement include:
(1) A release and waiver by the employee of all claims against the employer;
(2) The withdrawal of all pending claims, charges or lawsuits against the employer by the employee;
(3) An agreement for the employee to not sue or bring any claims against the employer;
(4) A confidentiality provision requiring the employee to not disclose the terms or fact of the separation agreement;
(5) An affirmation of the employee’s obligation to not disclose confidential or proprietary company information;
(6) A non-disparagement clause, in which the employee agrees to not make any disparaging statements against the company;
(7) A clause setting out the employer’s remedies in the event the employee breaches the separation agreement, such as the recovery of the employer’s attorneys’ fees and litigation costs from the employee in the event of litigation; and
(8) An agreement that the employee will not seek reemployment with the employer.
Separation Agreements from the Employee’s Perspective
From the employee’s perspective, some key provisions of a separation agreement include:
(1) The payment of the separation, severance, or settlement amount;
(2) The payment of all outstanding compensation and benefits due;
(3) A neutral reference clause, in which the employer agrees to only release dates of employment and positions held to prospective employers, and to not release any other information about the employee’s employment or separation of employment;
(4) A non-disparagement clause, in which the employer agrees to not make any disparaging statements about the employee;
(5) An agreement from the employer to not oppose any claim by the employee for unemployment insurance benefits;
(6) A release by the employer of all claims against the employee;
(7) An agreement by the employer to not sue or bring any claims against the employee; and
(8) A pre-written, pre-signed positive letter of reference on the employer’s stationary, attached to the separation agreement.
A severance package is a combination of money and benefits that an employer pays to a separated employee. A severance agreement is very similar to a separation agreement, but the amount of severance pay and benefits is usually determined by a specific employment contract, severance policy, or severance plan. A severance package often contains several different components, such as a base severance pay amount, payment of accrued bonuses and incentive compensation, other compensation and benefits, and expense reimbursement.
No. An employer has no legal obligation to pay an employee severance, unless there is a contract, severance policy, or severance plan that creates a contractual entitlement to severance pay. Some severance plans provide that severance is within the sole discretion of the employer to pay or not pay. Severance plans may also disqualify an employee from any entitlement to severance for various reasons, most commonly termination for cause or voluntary resignation.
Almost all employment contracts and severance plans require the employee to sign a release and waiver of all claims against the employer as a condition of entitlement to the severance. On rare occasion, some employment contracts or severance plans provide for unconditional severance.
No. While most severance plans contain a formula to determine the amount of the severance payment (often based upon years of service), the formula does not create a cap on the amount of severance pay that may be obtained through severance negotiations. A severance package may be renegotiated in order to increase the amount of severance pay and benefits.
Sexual harassment is a form of gender discrimination. Sexual harassment is unlawful under federal law (Title VII of the Civil Rights Act of 1964) and Illinois law (the Illinois Human Rights Act).
There are two general types of sexual harassment: (1) hostile work environment, and (2) quid pro quo.
Hostile Work Environment
A hostile work environment may arise from a variety of sexually offensive conduct. Examples of sexually offensive conduct include sexually offensive language in the workplace, indecent gestures, crude language, unwanted sexual advances, unwanted flirtation, physical touching, staring or ogling, lewd, suggestive or obscene remarks, discussing sexual activities, commenting on physical attributes, sexually offensive jokes, displaying sexually suggestive pictures, electronic communications containing sexually explicit images or language (emails, text messages, instant messaging, etc.), or pornography in the workplace.
The sexually offensive conduct must be: (1) unwelcome, (2) based on the employee’s protected status, (3) subjectively offensive to the employee, and (4) objectively severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive.
Whether the conduct is sufficiently pervasive depends on the particular facts and circumstances of each situation. Factors include: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or humiliating; (4) whether the conduct unreasonably interfered with the employee’s work performance; (5) the effect on the employee's psychological well-being; and (6) whether the harasser was a supervisor or manager.
Quid Pro Quo
Quid pro quo sexual harassment occurs when an employment decision is based on an employee's acceptance or rejection of unwelcome sexual advances, sexual propositions, or requests for sexual favors. This type of harassment is usually committed by a manager or supervisor who has power or authority over the victim’s employment. The quid pro quo harasser exploits the implied or explicit threat of adverse employment decisions, such as termination, demotion, or non-promotion, or the promise of favorable employment decisions, such as promotion, salary increases, or bonuses. Examples of quid pro quo sexual harassment include: (1) terminating a subordinate for rejecting sexual propositions; (2) requiring a subordinate to submit to unwelcome sexual advances as a condition of continued employment; and (3) offering preferential treatment to a subordinate in exchange for sexual favors.
Yes, same-sex sexual harassment is illegal.
Yes, the victim may be a male employee who is sexually harassed by a female employee or manager.
When an employer receives a complaint of alleged sexual harassment from an employee, the employer has a legal obligation to promptly investigate the complaint and take appropriate remedial action. What action is appropriate will depend upon the particular facts and circumstances of each situation.
Under the Illinois Human Rights Act, an individual sexual harasser faces personally liability for sexual harassment. However, under federal law, there is no personal liability for sexual harassment.
Yes. It is in an employer’s best interests to maintain a written sexual harassment policy. By doing so, the employer establishes an orderly process to handle sexual harassment complaints from its employees. An employee who fails to report sexual harassment under an employer’s sexual harassment policy, and later files a charge or lawsuit, hands the employer a valuable legal defense to the sexual harassment claim.
Yes. Reporting sexual harassment triggers the employer’s obligations to investigate and remedy the sexual harassment. By not reporting, the employee misses an opportunity to resolve the situation through the employer’s sexual harassment policy. Non-reporting also creates future obstacles for a sexual harassment claim. The worst thing a sexual harassment victim can do is not object to or report the sexual harassment, especially for a long period of time.
No. It is unlawful for an employer to terminate an employee in retaliation for reporting or opposing sexual harassment. An employer who does so may face a lawsuit for retaliatory discharge.
An employer is not obligated to retain an employee who reports or opposes sexual harassment, and may terminate the employee for legitimate, non-retaliatory reasons. However, the timing of the termination in relation to the protected activity is always a sensitive matter. Close temporal proximity may raise an inference of retaliation.
These questions and answers are provided for general informational purposes only, do not constitute legal advice, and shall not be relied upon for any particular matter. Reading, reviewing, or otherwise using the questions and answers shall not create any attorney-client relationship.