We close the week with two huzzahs for progressive state-level employment law. The Eighth Circuit affirms a jury verdict for a retaliation plaintiff under Missouri state law, which affords a lower burden of causation than federal law. And the Illinois Supreme Court — under that state’s Human Rights Act — sets a standard of strict liability for sex harassment by supervisors, even when they do not exercise direct control over the employment of the victim, improving broadly upon the Faragher and Ellerth standard.
Wallace v. DTG Operations, Inc., No. 08-1474 (8th Cir. Apr. 17, 2009): The plaintiff won before a jury under the Missouri Human Rights Act. Her evidence appears to have been well-mustered at trial: fired fifteen days after making a complaint of sex harassment, employer unable to coherently explain why she was fired, and “one decision maker expressed anger based on Wallace’s mode of reporting the alleged sexual harassment, even though she followed a recommended reporting method.”
The defendant challenged the jury charge, contending that it should have instructed that plaintiff show that retaliation was a “determining factor.” The district court gave a “contributing factor” under state law:
“Wallace argued correctly that, in Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 820 (Mo. 2007) (en banc), the Missouri Supreme Court had applied a ‘contributing factor’ standard to define the causation element of a discrimination claim under the Act. Wallace argued that this same contributing factor standard should apply to her retaliation claim. The Company countered that the holding of Daugherty was limited to discrimination claims because minor differences in statutory language in the sections of the Act addressing discrimination and retaliation justified different causation standards. The district court determined that the contributing-factor standard applied, and the court instructed the jury accordingly.”
The Eighth Circuit made light work of this dispute. After oral argument, the Missouri Supreme Court clarified in another case that “contributing factor” is the correct formula. Hill v. Ford Motor Co., No. SC 88981, ___ S.W.3d ___, 2009 WL 454281 (Mo. Feb. 24, 2009) (en banc).
The panel also affirms the judgment over a sufficiency-of the-evidence challenge, and affirms the $10,000 award of economic losses; $20,000 for pain and suffering, humiliation and the like; and $220,000 in fees. The only hit that the plaintiff took was on punitive damages; the panel carved a half-million dollar award down to $120,000, citing due process concerns (stepping back from a 16:1 punitive-actual ratio to a 4:1 ratio).
Sangamon County Sheriff’s Department v. The Illinois Human Rights Commission, No. 105517 (Ill. S. Ct. Apr. 16, 2009): The court decides 4-2 (one abstention) that the Illinois Human Rights Act (“IHRA”) unambiguously provides for strict liability against employers in harassment cases where the harasser is a supervisor, even where the harasser did not supervise the victim. The act of harassment was particularly horrid, culminating in the use of Department of Public Health letterhead to forge the following letter to the employee:
“Dear Ms. Feleccia: This is to inform you that you may have recently been exposed to a communicable or sexually transmitted disease. A confidential source who has tested positive has brought this matter to our attention. To insure privacy, your file has been assigned a control number of #A23759. Please refer to this in future correspondence.
“It is important that you schedule a screening within the next 7 days. Please contact your local public health office for an appointment. This service is provided at no cost to you.
“Yours truly, Julie A. Chelani, MSW Patient Advocate.”
The offender Ron Yanor, a sergeant, was a supervisor but did not have charge of Feleccia. The county imposed only a four-day suspension on Yanor and implored Feleccia not to complain.
Feleccia eventually filed a charge with the Illinois Department of Human Rights and pursued the complaint through an administrative hearing, where her claim ultimately succeeded. (At the time, the only alternative under Illinois law was proceeding before the Human Rights Commission; recently, the act was amended to provide a private right of action in state court.) But the appellate court, reviewing the decision, held that the agency failed to establish that Yanor was Feleccia’s supervisor and vacated the ruling in her favor.
On leave to appeal to the Supreme Court, the majority reverses. As it summarizes the issue:
“The issue in this case is whether an employer is strictly liable under section 2-102(D) for the ‘hostile environment’ sexual harassment of its supervisory employee, where the supervisor has no authority to affect the terms and conditions of the complainant’s employment. The answer is yes.”
A key difference between Title VII and the IHRA is that the latter expressly proscribes sex harassment, in the following terms (775 ILCS 5/2-102(D)):
“It is a civil rights violation: *** [f]or any employer, employee, agent of any employer, employment agency or labor organization to engage in sexual harassment; provided, that an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”
The majority holds that this language divides the world into supervisors and non-supervisors, setting a “due care” standard for the latter and strict liability for the former. It rejects lockstep with the federal case law spawned by Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998):
“Under Title VII, ’employers are not always automatically liable for sexual harassment by their supervisors where the misconduct has created an intimidating, hostile or offensive work environment,’ and ‘[a]dditional grounds for employer liability may be required.’Geise, 159 Ill. 2d at 518. By contrast, the Act has no such requirement. Geise, 159 Ill. 2d at 518. “Where an employee has been sexually harassed by supervisory personnel, *** the Act imposes strict liability on the employer, regardless of whether the employer knew of the offending conduct.’ Geise, 159 Ill. 2d at 518, citing Green Hills, 162 Ill. App. 3d at 221; Webb, 298 Ill. App. 3d at 705. On the issue of employer liability in a sexual harassment claim, we are bound by the language in the Act, not by decisions of the federal courts.”
The majority also highlighted the essential fairness of this outcome: “it is not unfair to hold employers responsible for sexual harassment by supervisory employees. ‘[A] supervisor’s sexual harassment is imputed to the employer on the basis that a supervisor is empowered to act on the employer’s behalf.’ . . . . Not only are supervisors the ‘public face’ of the employer, but employers are in the best position to train supervisors and make them aware of the law prohibiting sexual harassment.” Finally, the court affirms liability on the merits (joined by the dissenting justices), finding that the behavior amounted to a hostile work environment and that event occurring beyond the 180 day charging period could be considered part of the same claim..