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Sexual Harassment

Sexual Harassment includes the following:

Are you subjected to sexual jokes, touching, groping, or unwanted sexual attention at work?
Have you been pressured or forced to have sex with a supervisor or other person of power at work to keep your job?
Are you taken overnight on “work related” trips—even though you are not needed?
Were you exposed to racy pictures or pornography at work?
Did your company subject you to retaliation for complaining about sexual harassment or for refusing to go on overnight “work trips”?
Has all of this sent you into therapy?
Keeping you awake at night?

If you answered yes

If you answer yes to any of those questions you may be the victim of sexual harassment. Because people are spending so much time at work, feelings may develop and inappropriate behavior may take place. It is very important to stop this behavior immediately and to report this type of conduct. Many companies have sexual harassment policies and it is important to make yourself aware of the policy and to follow it. I can help to ensure your rights are protected in the workplace.

Additionaly Questions to ask

Is a co-worker or your boss sending you sexy text messages?
Made you act different with your family?
Does the boss call you at home or late at night?
Does the boss try to get you alone so there are no witnesses?
Did you give evidence at work in the way of a truthful statement about another sexual harassment case and now you are being singled out?
Does your boss comments about your body or cloths in a more sexual than professional manner?
Does your boss seem to be taking an interest in your personal life?
Does human resources seem disinterested in your case once your report it?
Is the boss dangling a promotion or better work hours over your head in an attempt to have you meet him for drinks?

Time Limit for Filing

Many times people call my office and complain of sexual harassment but the harassment has taken place long ago and there is nothing I can do to help. It is very important to contact my office at once and discuss your case to ensure you don’t miss out on important statute of limitation dates. In Illinois you must file with the Illinois Department of Human Rights (“IDHR”) within 300 days or with the Equal Employment Opportunity Commission (“EEOC””) within 300 days.

Fearing Retaliation

The bad economy is hitting employees especially hard and many are too afraid to report inappropriate conduct for fear of losing their job. Even though you may be afraid, there are remedies available to you if you report sexual harassment or other discriminatory conduct. If an employer takes a negative job action against you for reporting sexual harassment you may have an additional claim for retaliation. These claims can be filed at the IDHR, EEOC, state court or federal court or a combination of these venues.

An experienced employment lawyer can help you determine what the best course of action is. You can even file with the Chicago Commission on Human Relations (“CCHR“), if you live in Chicago or Cook County.

Here is some additional information about the law regarding sexual harassment in Illinois.

Disparate Treatment vs. Disparate Impact.

There are two theories of liability regarding sexual harassment claims. One is disparate treatment and the other is disparate impact.

Disparate Treatment

Disparate Treatment bases the claim on whether the claimant was treated different than other employees who are similarly situated. In International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1997), the United States Supreme Court held that disparate treatment occured. Their reasoning was when “the employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin.”

Disparate Impact

Disparate Impact bases the claim on whether a facially neutral company policy or other customary practice of the company has a discriminatory impact. They key is if the impact is on a protected class of employees to which the claimant belongs.

Statutory Caps Under Title VII

. Under the Civil Rights Act of 1991, 42 U.S.C. § 1981a. statutory caps on damages are imposed for both compensatory and punitive damages. The combined damage caps are based on the number of employees an employer has working for it. The breakdown is as follows:

For employers who have 15 to 100 workers: $50,000;
For employers who have 101 to 200 workers: $100,000;
For employers who have 201 to 500 workers: $200,000;
For employers who have in excess of 500 workers: $300,000.

Constructive Discharge–when has an employee been constructively discharged?

The United States Supreme Court ruled in Pennsylvania State Police v. Suders, 542 U. S. 129 (2004) that in a constructive discharge case, the plaintiff’s resignation is an appropriate response to intolerable working conditions. An employee may be constructively discharged if she resigns because of intolerable working conditions caused by sexual harassment. In order to prove constructive discharge the plaintiff must prove:

Defendant’s intention to make the plaintiff’s working conditions intolerable;
Defendant subjected plaintiff to sexual harassment; and
The Plaintiff was forced to quit because the Defendant’s sexual harassment. This includes lack of stopping the sexual harassment created the intolerable working conditions.

Federal Court Injunction Regarding the Illinois Department of Human Rights

Since 2001 the Illinois Department of Human Rights (“IDHR”) has been under a federal-court injunction that among other things orders the IDHR to “cease permanently from relying on credibility determinations made without affording the rights of confrontation and cross-examination.”

Previously, the IDHR would make a finding of lack of substantial evidence based on its’ investigation which would include interviewing witnesses during the fact finding conference or interviewing witnesses via telephone. The Complainant and her attorney were not allowed to cross examine the witnesses during the fact finding conference and were not even allowed to participate when the investigator interviewed witnesses on the telephone.

Cooper v. Salazar

In 2001 the United States District Court for the Northern District of Illinois in Cooper v. Salazar, addressed the issue of lack of the ability of complainant to cross examine witnesses. The Court ordered the IDHR to not make credibility determinations. In short, if there is conflicting evidence, the investigator for the IDHR must find substaintial evidence and allow the case to move forward to the Human Rights Commission for trial or with the local circuit court for trial.

Conflicting evidence exists when:

Statements of a person with material first hand knowledge contradicted by statements of a different person with material first hand knowledge;
Business records contradicted by oral statements of a person with material first hand knowledge;
Business records of one person contradicted by business records of another person.

Vicarious Liability Harassment

Vicarious Liability Harassment takes place when:

An employee gives in to unwelcome sexual advances by a supervisor; or
There are requests for sex or sexual conduct such as physical touching, or sexual innuendo which are made by a supervisor and they constitute either an explicit or implicit term or condition of the employees employment.

AND

The supervisors harassment results in a tangible, adverse employment action.

Adverse Actions

There are many different types of actions which are considered adverse employment actions. Some adverse actions are: being fired, demotion, lack of promotion, re-assignment, poor performance review and stripping of job responsibilities. Additionally, is your boss becomes highly critical of everything you do based on rejecting sexual harassment this could rise to discriminatory conduct as well. Many times adverse actions are fact specific and you should not try to guess and go it alone.

The key to the adverse employment action is that the employee must suffer something new in the way of her job. For example if the employee were already getting a two on her performance review out of a five with a five being the highest and the supervisor says go out with me and she refuses and the employee gets another two on her review, the burden would be on the employee to show the two was a result of not going out with the supervisor and not just a continuation of her previous job performance.

Sexual Harassment by a Supervisor

However, because it would be sexual harassment for the supervisor to even ask you out, you would already have a case of sexual harassment. The issue of the negative performance review would only be utilized to show damage. On the other hand if the employee received a four on the previous review and then received a two after not going out with the supervisor, an adverse employment action would be easy to prove and thus higher damages.

Current Law Regarding Sexual Harassment in Illinois

Sexual Harassment in Illinois is brought by filing a charge or claim under the Human Rights Act. The charge or claim is filed with the Illinois Department of Human Rights in either Chicago or Springfield. The Illinois Department of Human Rights then sends a copy of the charge to the employer who has 60 days to file a verified answer. Next, the Department conducts a client interview and fact-finding conference. The Department has one year to conclude its’ investigation and either find substantial evidence or lack thereof. If the Department finds substantial evidence, the case is brought before the Human Rights Commission for a public trial. You may also bring a claim before the Equal Employment Opportunity Commission (“EEOC“).

New Law

As of January 1, 2008 a new law was enacted allowing for also filing a claim of sexual harassment in state court after first filing with the Illinois Department of Human Rights.

After New Law

As of January 1, 2008, complainant will have the added option of pursuing a civil action in the circuit court in the county where the alleged violation of sexual harassment occurred, rather than proceeding before the IDHR. They key components of the new law ar

If the Director of the IDHR files a dismissal order based on lack of substantial evidence, the complainant will have the right to either seek review of the dismissal order with the IDHR or file a civil action in circuit court.

a. The complainant can decide to seek review with the IDHR. The request must be filed within 30 days after receipt of the IDHR Director’s notice of dismissal. Choosing this option bars Complainant from later filing a civil action.
b. If the complainant decides to file a civil action, it must be filed within 90 days after receipt the Director’s notice of dismissal.

2. If substantial evidence of a violation is determined by the IDHR Director two things can take place. First, the complainant has the right to file a civil action in circuit court. Secondly, request that the Illinois Department of Human Rights file a complaint with the Illinois Human Rights Commission.

Circuit Court Option

Any circuit court complaint must be filed within 90 days after receipt of the Director’s notice. If the Illinois Department of Human Rights doesn’t issue a determination of whether there is substantial evidence of a civil rights violation within 365 days after the charge is filed, the complainant has 90 days to either file a complaint with the Illinois Human Rights Commission or commence a civil action in circuit court.

Involvement Early

Additionally if you are the victim of sexual harassment and are unsure how to handle it or prove your case the best course of action is to get me involved early in the process. I have software which will allow me to retrieve text messages even after they have been deleted on your phone. Sometimes that can be the difference in getting a good settlement or a great settlement. There are many other ideas I can give you on how to get evidence of the sexual harassment you are enduring.

EEOC Report

During 2009 the Equal Employment Opportunity Commission (“EEOC“) reported there were almost 13,000 sexual harassment charges filed and they settled for a total of $51.5 million dollars. The Illinois Department of Human Rights (“IDHR“) and Illinois Human Rights Commission do not publish statistics but I believe more people file with the IDHR than with the EEOC in Illinois.

Techniques to help your case

Even though many supervisors or managers engage in sexual harassment in a one-on-one manner there are ways to still prove the sexual harassment. Though years of experience I have developed techniques to help prove your case. There is never a fee to discuss your case and I am available during off hours and weekends to help. Remember the company has people working hard to protect their interests so should you. Don’t let employees, supervisors or the company get away with engaging in sexual harassment or discriminatory behavior.

Watch my other You Tube videos regarding sexual harassment.

Recent update to the Illinois Human Rights Act

Time to File Charge of Discrimination

Effective on June 8, 2018 Illinois employees now have 300 days to file a Charge of Discrimination with the Illinois Department of Human Rights (“IDHR”) for alleged violations of the IHRA. Previously, Illinois employees only had 180 days to file a charge at the IDHR. Under federal law, however, Illinois employees have 300 days to file a charge at the EEOC. So this new change means Illinois now follows federal law regarding the time to file a complaint.
E-mail your question about SEXUAL HARASSMENT.

You may call 24/7:
Peter LaSorsa, Attorney at Law
Representing Victims of Sexual Harassment
Phone: 312-505-5038

– All correspondence strictly confidential –