Executive Summary: Illinois employers should be aware that they will likely be subject to liability under amendments to the Illinois Gender Violence Act (GVA) proposed by recent legislation. HB1363 is one of a number of bills that recently passed both houses of the Illinois Legislature and should soon be sent to the governor for signature. We will be publishing an Alert discussing the other bills and their potential impact on Illinois employers, but this Alert focuses on HB1363, which will make the GVA specifically applicable to employers.
The GVA allows a person who has been the victim of gender-related violence to sue the person who committed the act of violence and seek various damages. HB1363 amends the GVA to now specifically apply it to employers under certain (broad) circumstances. HB1363 went through multiple iterations, including amendments that could not be grammatically parsed to determine exactly when the amendments would possibly apply. Importantly, the amendments provide a huge new door for dilatory plaintiffs to walk right through to raise certain claims of sexual harassment long after well-established federal and state deadlines.
The GVA amendment provides the following, which we are quoting exactly because there is no other way to parse the language:
Section 11. (a) An employer is only liable for gender-related violence committed in the workplace by an employee or agent of the employer when the interaction giving rise to the gender-related violence arises out of and in the course of employment with the employer. Liability only extends to gender-related violence that occurs: (i) while the employee was directly performing the employee’s job duties and the gender related violence was the proximate cause of the injury; or (ii) while the agent of the employer was directly involved in the performance of the contracted work and the gender related violence was the proximate cause of the injury. Proximate cause exists when the actions of the employee or the agent of the employer were a substantial factor in causing the injury.
An employer is liable if the employer has acted in a manner inconsistent with how a reasonable person would act under similar circumstances.
(b) An employer is liable for gender-related violence if the employer:
(1) failed to supervise, train, or monitor the employee who engaged in the gender-related violence. An employer providing training pursuant to Section 2-109 of the Illinois Human Rights Act shall have an affirmative defense that adequate training was provided to the employee; or
(2) failed to investigate complaints or reports directly provided to a supervisor, manager, owner, or another person designated by the employer of similar conduct by an employee or agent of the employer and the employer failed to take remedial measures in response to the complaints or reports.
Based on the definition, it would appear that this law is written to apply when the victim of the gender-related violence was performing his or her job duties at the time of the conduct, perhaps to contrast it with being outside of the work environment in a purely social environment with a co-worker, or even while on a meal break from work. It is difficult to imagine, however, what it means for the interaction giving rise to the gender-related violence to “arise[ ] out of and in the course of employment,” since we can conceive of no job in which gender-related violence is an expected aspect of employment, i.e. a job in which gender-related violence “arises out of” the employment. The Legislature, however, could have simply stated that an employer may be liable if the gender-related violence occurs while the employee is at work and performing his or her job duties and left it there, if that is what it meant. Employers should probably assume this to be how the law will be interpreted, but be aware that a potential argument can be made in the future regarding the strict interpretation of the language in the law.
“Gender-related violence” is defined as a “form of sex discrimination” and includes: 1) one or more acts of violence or physical aggression satisfying the elements of battery under the laws of Illinois that are committed, at least in part, on the basis of a person’s sex, whether or not the acts have resulted in criminal charges, prosecution, or conviction; 2) a physical intrusion or physical invasion of a sexual nature under the coercive conditions satisfying the elements of battery under the laws of Illinois, whether or not the act or acts resulted in criminal charges, prosecution, or conviction; and 3) a threat of an act described in (1) or (2) above, causing a realistic apprehension that the originator of the threat will commit the act.
Thus, based on this definition of “gender-related-violence,” an employer can potentially be held liable for any sexual harassment that in any manner involves touching, or even the threat of touching. Based on the definition of what it means to perpetrate an act of gender-related violence, an employer may also be exposed to liability for the conduct of any employee or agent who personally encourages or assists in the act of gender-related violence, such as helping cover up an incident, or a group of employees standing around laughing and encouraging the conduct. (Some states refer to this concept as “aiding and abetting” sexual harassment.)
Importantly, the statute of limitations for an alleged victim of gender-related violence to sue the employer under the GVA is four (4) years (or two (2) years after a victim turns 18 if the victim is a minor at the time). (The original version would have given employees a seven (7) year statute of limitations.) Still, this is a major addition to sexual harassment laws under which employees may raise claims, and a lengthy expansion to statutes of limitations that employers have been subject to for decades. Currently, claims under Title VII and the Illinois Human Rights Act (IHRA) must be raised within 300 days. Claims under Illinois common law for negligence (hiring, retention, supervision), or assault and battery, must be brought within two (2) years. This GVA amendment will give employees who miss those deadlines four (4) years, which will have a potentially unfair effect on employers. Much can happen in four years, including employees (i.e. witnesses) leaving, memories fading, evidence (such as surveillance or electronic information) being destroyed or written over, documents being destroyed through usual document retention processes, and companies going out of business or changing hands. All of this can occur with the employer having had no knowledge of any of the allegations and being deprived of the ability to investigate and/or defend itself.