- 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.
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 or lack of stopping the sexual harassment created the intolerable working conditions.
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.
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 and 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 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.
- The supervisors harassment results in a tangible, adverse employment action.
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. 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").
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.
New Law after Changes
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 are:
- If the Director of the IDHR files a dismissal order based on lack of substantial evidence determination of a violation, 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.
b. If the complainant decides to file a civil action, it must be filed within 90 days after receipt of the IDHR's Director's notice of dismissal.
2. If substantial evidence of a violation is determined by the IDHR Director, the complainant has the right to file a civil action in circuit court or request that the Illinois Human Rights Commission file a complaint with the Illinois Department of Human Rights.
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.
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.
In 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.
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.