Post Authored by Max Barack
The #metoo movement has been a powerful force in highlighting the plight of victims of sexual harassment and assault in all areas of life, including the workplace. The movement has given these victims the courage and support to come forward and discuss the sexual harassment and/or assault that they suffered. In some cases, the #metoo movement has also allowed the victims of workplace sexual misconduct to pursue justice in the courts.
Unfortunately, some victims have come forward only to find that too much time has passed for them to seek justice in court against their abusers. Consider the worker whose supervisor repeatedly groped them, but who did not feel comfortable coming forward until over a year after the incident. All too often, employment lawyers encounter this situation. They meet with potential clients who have suffered horrific treatment at work, only to find that too much time has passed to help them. This is often the case for victims of workplace sexual violence and harassment. There are many reasons why victims of workplace sexual violence and harassment do not come forward immediately. They are often too traumatized to act right away and do not report incidents until it is too late. While there are laws that prohibit this behavior, they have short statutes of limitations.
However, an Illinois statute offers relief for a limited group of victims whose claims would otherwise be time-barred. The Illinois Gender Violence Act, 740 ILCS 82/1 et seq. (“GVA”), protects victims of sexual violence by creating a private cause of action for them against the perpetrators of sexual violence, with a long statute of limitations. For those impacted by physical, gender-motived violence, it offers a way to hold abusers accountable. However, until recently, it was unclear whether employers could be held liable for their employees’ sexual violence. A recent Illinois Appellate Court decision, Gasic v. Marquette Mgt., Inc., clarified this issue and held that employers can be held liable for their employees’ actions under the GVA. 2019 IL App (3d) 170756 (May 17, 2019).
For Some, Too Little, Too Late
Think back to those workers who visit an attorney more than a year after their boss groped them. The state and federal civil rights statutes in place to address such malfeasance are, unfortunately, poorly equipped to handle this sort of situation. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., (“Title VII”), prohibits, relevantly, workplace sexual harassment. This includes quid pro quo harassment (such as demanding sex in exchange for a promotion) and hostile work environment sexual harassment (severe or pervasive harassing behavior that has altered the terms or conditions, based on someone’s sex). The Illinois Human Rights Act, 775 ILCS 5 et seq., (the “IHRA”) prohibits similar conduct under state law. Both of these statutes only have a statute of limitations of 300 days.
The Gender Violence Act Provides an Alternative Form of Protection
The GVA provides a lesser-known alternative option of relief for victims, a private cause of action:
Any person who has been subjected to gender-related violence as defined in Section 5 may bring a civil action for damages, injunctive relief, or other appropriate relief against a person or persons perpetrating that gender-related violence. For purposes of this Section, “perpetrating” means either personally committing the gender-related violence or personally encouraging or assisting the act or acts of gender-related violence.
740 ILCS 82/10 (2004). The GVA defines “gender-related violence” as:
(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 those acts have resulted in criminal charges, prosecution, or conviction.
(2) A physical intrusion or physical invasion of a sexual nature under 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.
(3) A threat of an act described in item (1) or (2) causing a realistic apprehension that the originator of the threat will commit the act.
740 Ill. Comp. Stat. Ann. 82/5 (2004). Courts have interpreted the term battery, as described in the statute, to mean conduct where an individual (a) acts intending to cause harm or offensive contact with another person or an imminent apprehension of such contact, and (b) a harmful contact with the other person directly or indirectly results. Flores v. Santiago, 986 N.E.2d 1216, 1219 (Ill. App. 1st Dist. 2013).
Examples of conduct found to be actionable or sufficient to support a claim under the GVA include: a maintenance employee entering a tenant’s apartment and “engag[ing] in unwanted and inappropriate sexual contact with plaintiff that amounted [to] assault and battery,” Gasic, 2019 IL App (3d) 170756 at ¶ 3; a doctor drugging a plaintiff and having sex with her while she was under the influence of such substances; (Flores, 986 N.E.2d at 1220); coworkers repeatedly slapping the plaintiff’s butt and grabbing his genitals. Smith v. Rosebud Farm, Inc., 898 F.3d 747 (7th Cir. 2018). Victims can bring claims even when perpetrators are not criminally prosecuted.
The GVA is not a panacea, because it does not provide a cause of action for all workplace sexual misconduct. Most actionable conduct under Title VII and the IHRA, such as quid pro quo harassment, is not actionable under the GVA. Unless the workplace sexual harassment involves conduct covered in Sec. 10 of the GVA, the GVA does not apply.
Critically, the statute of limitations under the GVA is much longer than Title VII and the IHRA. For claims brought under the GVA, it is 7 years from the date the violence occurred. 740 ILCS 82/20 (2004). If the victim was a minor when the violence took place, then the statute of limitations is 7 years after the victim turns 18. For claims based on threats as defined in paragraph (3) of Sec. 5, then the statute of limitations is 2 years from the date of the threat, and 2 years after the victim turns 18 if they were a minor at the time of the threat. Id.
An Important Development for the GVA
The GVA is an important law for victims of sexual violence. It authorizes, among other forms of relief, monetary damages, including damages for emotional distress, punitive damages, and attorneys’ fees and costs. 740 ILCS 82/15 (2004). Since it allows a cause of action against the “person or persons” perpetrating gender violence, victims of wealthy perpetrators are well served by the GVA. But, until recently, it was uncertain whether employers could be held liable for the actions of their employees under the GVA. It was also unclear whether victims of low-income perpetrators would be able to recover damages–a jury verdict is great, but if you cannot collect from the perpetrator, it is an empty victory. Prior to the Gasic decision, courts that addressed the law were split on deciding whether employers could be held liable for their employees’ GVA violations. But, the Gasic decision gave employment lawyers the ability to hold employers liable for permitting workplace sexual violence.
In Gasic, the Illinois Appellate Court finally addressed whether corporate defendants can be considered a “person or persons” under the GVA, and be held liable for their employees’ gender violence. The plaintiff alleged that the perpetrator, a maintenance employee at her apartment complex, entered her apartment and made inappropriate sexual contact with her. Gasic, 2019 IL App (3d) 170756, ¶ 3. Further, she asserted that the perpetrator’s employer “perpetrated” gender-related violence “by encouraging or assisting [him] [through] its failure to supervise and monitor [him].” Id. at ¶ 5. Another one of her allegations was that the employer knew or should have known that the perpetrator had been the subject of several complaints of unwanted touching. Id. The defendant argued that corporate defendants could not be held liable under the GVA. Id. at ¶ 6. In its decision, the Appellate Court reviewed the evolution of corporate personhood in Illinois case law, and concluded that “under some circumstances, a legal entity, such as a corporation, can act ‘personally’ for purposes of giving rise to civil liability under the Act.” Id. at ¶ 16. Therefore, under certain circumstances, a corporate entity, such as a business that knowingly employs someone with a history of sexual violence, can be held liable under the GVA.
The implications of the Gasic decision are significant for victims of workplace and other sexual violence. Particularly, this decision affects those who have had the courage to come forward in light of the #metoo movement, but filed a complaint more than 300 days after being abused. Now, victims of workplace sexual violence who were abused 3 or 4 years ago have another tool to pursue justice against their abuser and ensure the employer can be held responsible for allowing the abuse to occur.
About the Author:
Max is a plaintiff-side civil rights employment lawyer. He has worked at Favaro & Gorman, Ltd. since January 2017. He represents victims of sexual, racial, national origin, age, and disability harassment, discrimination, retaliation, wage theft, unpaid wages, and whistleblowers. Max has given presentations on the difficulties and best practices for handling social media and other forms of electronic discovery in litigation, Illinois employees’ workplace privacy rights, and the tort of retaliatory discharge. He has extensive experience with electronic discovery in the context of civil rights cases. He has performed in-depth research on and helped write an article on the rights of public employees. He is a member of the Board of Directors for the National Employment Lawyers Association (NELA) Illinois Chapter, a member of the Board of Managers for the Decalogue Society, and a member of the Illinois State Bar Association and the Chicago Bar Association. Max speaks Spanish and represents Spanish-speaking plaintiffs in a variety of employment-related cases.
Max grew up in the Chicago area. He graduated from Chicago-Kent College of Law in 2013, where he was a member of the Moot Court Honor Society and served on student government. Previously, he attended the University of Michigan and graduated with honors and a bachelor’s degree in history. He still lives in Chicago.