In Illinois an employee who believes she has been sexually Harassed must file a charge with the Illinois Department of Human Rights. After the charge is investigated and substantiated the employee can then have a trial with the Human Rights Commission ("HRC"). A sexual harassment claim can also be brought before the United States Equal Employment Opportunity Commission ("EEOC").New Law after Changes
As of January 1, 2008, individuals can pursue a civil action in the circuit court in the county where the alleged violation occurred, rather than proceeding before the HRC. Under this new law if the Director of the IDHR files a dismissal order based on a lack of substantial evidence, the individual may either seek review of the dismissal order with the IDHR or file a civil action in circuit court.
Be aware if you decide to seek review with the IDHR, a request must be filed within 30 days after receipt of the IDHR Director's notice of dismissal and you forfeit your right to later file a civil action.
If substantial evidence of a violation is determined by the IDHR Director you can file a civil action in circuit court or request that the IHRC file a complaint with the HRC. Any court complaint must be filed within 90 days after receipt of the Director's notice.
If the IDHR doesn't issue a determination of whether there is substantial evidence of a civil rights violation within 365 days after the charge is filed, you have 90 days to either file a complaint with the HRC or commence a civil action in circuit court.
These claims are complicated and should not be hastily drafted or filed. Please consult attorney Peter LaSorsa before filing.
In the last ten years there has been a significant increase in the number of EEOC filings by men. From 1997 until 2007, the number increased from 11.6% to 16% of all EEOC filings--which represents an increase of roughly 38% over the ten year period. Put into number in 1997 there were 1843 filings by men, in 2007 the number increased to 2001. During that same period filings of both men and women decreased from 15,889 to 12,510.
I believe the decrease in total filings is due to more proactive human resource departments and better education of the workforce regarding sexual harassment. I suspect the increase in male complaints is due to the number of women in supervisory and management positions and just an increase in general of women in the workplace. Here is a link to the EEOC chart which tracks such data.
Another interesting fact from the EEOC chart are the numbers of settlements of charges for both men and women which increased from 6.8% in 1997 to 13.6% in 2007--a 100% increase over the ten year period.
Administrative closures decreased from 39.9% in 1997 to 24.2% in 2007. When the settlement and administrative closure numbers are taken together, it indicates the quality of charges filed has increased during the ten year period. Companies are more willing to settle a quality charge and the EEOC would have a more difficult time closing a case that has merit.
Lastly, to further support my contention that EEOC filings with merit have increased in the last ten years, the number of EEOC "merit resolutions" have increased from 18.8% in 1997 to 30.3% in 2007. A merit resolution is defined as a favorable outcome for the charging party--i.e. the employee filing the charge.Vicarious Liability may exist regarding sexual 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.
- The supervisors harassment results in a tangible, adverse employment action.
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.
They 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 5 with a 5 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. 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.Statutory Caps Under Title VII
Under the Civil Rights Act of 1991, 42 U.S.C. § 1981a. statutory caps on damages due to sexual harassment claims 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.
You can visit my Blog on sexual harassment for interesting comments and information.
You can visit my YouTube website to watch more videos on sexual harassment.
United States Supreme Court cases involving sexual harassment and issues relating to sexual harassment.
Meritor Savings Bank v. Vinson (1986)
The Court held that a hostile environment does exist from sexual harassment and it is a form of discrimination which can be filed under Title VII of the Civil Rights Act of 1964.
Oncale v. Sundowner Offshore Serv., Inc. (1987)
The Court held that same sex sexual harassment can form the basis for sex discrimination and an employee can file a claim under Title VII of the Civil Rights Act of 1964.
My office is seeing an increase in the number of sexual harassment related cases from employees who are part of a sexual harassment investigation. What happens is someone at work complains of sexual harassment and then an investigation takes place. An employee is interviewed as part of the investigation and confirms the discrimination and sexual harassment. The company then takes a negative job action against that person. For example he is demoted, fired and has his hours cut. This type of discrimination is actionable and the employee can file a claim of retaliation based on the initial complaint of sexual harassment and the ensuing investigation.
I offer free consultations and never charge upfront for discussing your claim. Please call my office at 312-505-5038 or 312-505-5038 day or night to discuss your claim. You may also email me at firstname.lastname@example.org.