January 2012

By: Jennifer A. Murphy, Esq.

The Illinois Gender Violence Act (“GVA”) §§740 ILCS 82/1 et seq., became effective in January, 2004. There were few published cases decided under the GVA until last year when the U.S. District Court for the Northern District of Illinois (“Northern District”) had several occasions to review various aspects of this law.

The title of the GVA does not immediately suggest application to the workplace. In fact, however, this relatively recent vintage statute does have workplace application. Perhaps even more surprising, the GVA may, under certain circumstances, give rise not only to liability on the part of the harasser, but the employer as well. Moreover, the statute of limitations on this Act is much longer than the 180/300 day limitations for employment discrimination claims filed with, respectively, the Illinois Department of Human Rights or Equal Employment Opportunity Commission. The limitation period for claims involving physical conduct under the GVA is seven years. Additionally, the GVA may apply to any employer, regardless of size. Damages under the GVA are not capped and provide for attorney fees and punitive damages.

The GVA provides for a private civil action for “damages, injunctive relief, or other appropriate relief against a person or persons perpetrating . . . gender-related violence.” “Gender-related violence” is defined in the GVA as:

• 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.
• 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.
• 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.

While the use of the word “battery” may seem to restrict the GVA to very severe conduct, this is not so. Under Illinois law a “battery” is simply the unauthorized touching of another person. Luss v. Village of Forest Park, 377 Ill. App. 3d 318, 878 N.E.2d 1193 (1 ^st Dist. 2007); §720 ILCS 5/12-3. In other words, pretty much any type of sexual harassment involving physical contact is a battery.

The language of the GVA that has been found to give rise to employer liability is under §10 of the GVA which provides for a private cause of action, “against a person or person perpetrating that gender-related violence.” “Perpetrating” is then defined under the GVA as either “committing” the gender-related violence or “personally encouraging or assisting the act or acts of gender-related violence.” §740 ILCS 82/10. There is no Illinois state court case addressing the question of employer liability under the “encouraging or assisting” language. However, decisions of the Northern District have found that this section of the GVA can be used to impose liability on a supervisor who “turns a blind-eye” to repeated acts of gender violence, S tanfield v. Cook County,2011 U.S. Dist. LEXIS 98452 (N.D. IL Sept. 1, 2011), and upon an employer who failed to take action to address complaints of sexual harassment. Cruz v. Primary Staffing, Inc., 2011 U.S. Dist. LEXIS 29237 (N.D. IL March 3, 2011).

In effect, at least as interpreted by the Northern District, the GVA provides additional liability for sexual harassment through this separate statute. It is not, therefore, surprising that arguments have been made by employers that the GVA is preempted by the Illinois Human Rights Act (“IHRA”) or the Illinois Workers Compensation statute. The Northern District has, however, thus far rejected these preemption efforts. The workers compensation preemption argument has failed because the allegations of harassment assert intentional, not accidental, conduct. See Cruz v. Primary Staffing, 2011 U. S. Dist. LEXIS 29237 (March 22, 2011). On the other hand, the IHRA preemption claims have failed due to the fact that the Northern District has found that claims under the GVA are based upon legal duties separate from those created under the IHRA. See Stanfield v. Dart, 2011 U.S. Dist. LEXIS 40668 (N.D. IL, April 14, 2011) and Vince v. Ill. Central School Bus, LLC, 2011 U.S. Dist. LEXIS 12858 (N.D. IL, Feb. 9, 2011).

In sum, while the decisions of the Northern District federal courts are not the last word with regard to issues of GVA preemption or scope, at this point, the 2011 decisions of the Northern District have given sharp teeth to the GVA. Until an Illinois court rules otherwise, employers should recognize that the improper handling of sexual harassment may give rise to additional liability for Illinois employers, without caps and with significantly longer periods of exposure due to the GVA’s longer limitation period.

Questions? Call Attorney Jennifer Adams Murphy of Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at jemurphy@wesselssherman.com.

Jennifer Adams Murphy has 25 years of experience in employment and commercial litigation. Ms. Murphy represents management-side clients in matters involving employment discipline, termination and discrimination litigation and offers counsel regarding employment and severance agreements, pre-litigation issues and training.