Employers face a variety of liability hotspots in relation to sexual harassment and assault. In order to avoid this liability, the most efficient course of action an employer can take is to work to prevent any sexual harassment or assault from being perpetrated by employees. Gasic v. Marquette Management, Inc., a recent Illinois case demonstrates that an employer can be held liable as a “person” under the Gender Violence Act.
Cynthia Gasic sued Marquette Management, Inc. based on the actions of Jose Canales Jr., an employee. In March 2017, Canales was employed by Marquette as a maintenance engineer. Gasic alleged that Canales used his position to gain access to her apartment, which was maintained by Marquette Management. Once inside, Canales engaged in unwanted sexual contact with Gasic.
The Gender Violence Act (GVA) provides protection against acts of physical violence committed on the basis of a victim’s sex, or a realistic belief that such an act would occur. Any unwanted sexual touching constitutes battery under the GVA. Both the physical aggressor and anyone who “perpetrated” the act would be liable under the wording of the GVA. Someone “perpetrates” an act when they either commit the act themselves or “personally assist” the aggressor.
Illinois SB 75, the Workplace Transparency Act, now requires all employers all employers to train their employees annually on preventing sexual harassment. The Act also extends the protections granted by the GVA to victims of sexual harassment and assault; likewise, some employer duties to protect their employees and third parties are also extended. One such provision is that employers can be held responsible for the sexual harassment of a nonemployee if an employer becomes aware of the conduct and does take reasonable measures to investigate and correct the reported issue.
Gasic alleged that Marquette Management’s liability stemmed from its legal duty to protect building residents from sexual harassment. Canales was the subject of multiple complaints of sexual harassment, including inappropriately touching the residents and behaving “obnoxious[ly].” Despite its knowledge of Canales’s propensity for sexual harassment, Marquette Management continued to employ him in a position that gave him intimate access to residents’ homes and ample opportunity to commit sexual harassment.
The plaintiff brought suit against Marquette Management as a “person” under the GVA. The trial court dismissed Gasic’s claim for failure to state a cause of action. On appeal, the court reconsidered whether a corporation could be considered to have committed an act “personally” for the purpose of civil liability for sexual harassment.
The trial court found that corporations cannot act personally, and so cannot be held liable for “personal” acts. The appellate court reversed this, holding instead that a legal entity may not be able to assault or batter someone, it can act “personally” when the perpetration alleged is “encouraging or assisting,” such as in giving a known sexual harasser access to a resident’s home. The case has been remanded for further proceedings.
Justice Schmidt dissented, finding that a “person” cannot be an artificial entity because a person must be able to commit physical violence. Therefore, only Canales or individual supervisors could be held liable, not Marquette Management.
Employers in Illinois must provide sexual harassment prevention training at least once a year, starting in 2020. As part of sexual harassment training illinois, employers can include an overview of how supervisors can handle sexual harassment complaints appropriately.