The New Liability Language under the Human Rights Act
By Daniel W. Myerson
Addition of Non-Sexual Harassment. Prior to 2020, the Human Rights Act (“IHRA”) did not specifically prohibit non-sexual harassment. Sexual harassment was barred under 775 ILCS 5/2-102(D), but harassment based on other classes was not mentioned. This is not to say such claims were never recognized; the Appellate Court had interpreted 2-102(A) to prohibit non-sexual harassment in parallel to federal claims. Vill. of Bellwood Bd. of Fire & Police Comm’rs v. Human Rights Comm’n, 184 Ill. App. 3d 339, 350 (3rd Dist. 1989).
The amendments in Public Act 101-221 officially add harassment to the IHRA as a prohibition. 775 ILCS 5/2-202(A). However, they do more than this. They also extend the liability standard for sexual harassment. “An employer is responsible for harassment by the employer’s nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.” Id. This language may be interpreted to expand a key difference between the IHRA and federal law for harassment by supervisors.
Under federal law, harassment by supervisors is subject to a defense: if an employer has an anti-harassment policy, and the employee fails to use it to report harassment, the employer is not liable. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Not so under the IHRA. The IHRA imposes strict liability on an employer for sexual harassment by a supervisor, even if the employer can show it did not know about the offending conduct, and even if the employee never reported it. Sangamon Cty. Sheriff’s Dep’t v. Illinois Human Rights Comm’n, 233 Ill. 2d 125, 136 (2009). With the expansion of this same language to non-sexual harassment, employers face the prospect of a new wave of strict liability harassment claims.
Addition of non-employee harassment. This threat of strict liability harassment extends now even beyond harassment of employees, to contractors as well. In another expansion of the IHRA, Public Act 101-221 has added prohibitions on harassment and sexual harassment of persons who are contractors or other persons “directly performing services for the employer pursuant to a contract with that employer,” even if they are not employees. 775 ILCS 5/2-102(A-10). This also accompanies the same language suggesting strict liability for harassment by supervisors. Thus, an employer must now strictly police behavior of its supervisors in Illinois, monitoring treatment of both employees and contractors, or face potential strict liability litigation.
Addition of perceived status. In another change, the IHRA has also been amended to allow for claims based on “actual or perceived” status. 775 ILCS 5/1-103. This concept is most familiar from disability claims under the Americans with Disabilities Act, which allows suit based on actual or perceived disability. 42 U.S.C. § 12102. The IHRA language goes beyond disability, however, to cover all protected classes, thereby allowing plaintiffs even outside a protected class to bring charges on the theory that some agent of an employer perceived them as such.
Should you have any questions regarding these issues, are facing claims under the IHRA, or require assistance updating your employment policies, please contact Colette Kopon at [email protected] or Daniel Myerson at [email protected].