Posted On: August 31, 2008

Federal-Court Injunction Regarding the Illinois Department of Human Rights

Since 2001 the Illinois Department of Human Rights ("IDHR")has been under a federal-court injunction that among other things orders the IDHR to "cease permanently from relying on credibility determinations made without affording the rights of confrontation and cross-examination."

Previously, the IDHR would make a finding of lack of substantial evidence based on its' investigation which would include interviewing witnesses during the fact finding conference or interviewing witnesses via telephone. The complainant and their attorney were not allowed to cross examine the witnesses during the fact finding conference and were not even allowed to participate when the investigator interviewed witnesses on the telephone.

In 2001 the United States District Court for the Northern District of Illinois in Cooper v. Salazar, addressed the issue of lack of the ability of complainant to cross examine witnesses and ordered the IDHR to not make credibility of witness determinations. In short, if there is conflicting evidence, the investigator for the IDHR must find substaintial evidence and allow the case to move forward to the Human Rights Commission for trial or with the local circuit court for trial.

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Posted On: August 30, 2008

Vicarious Liability Harassment

Vicarious liability harassment takes place when:

  • An employee gives in to unwelcome sexual advances by a supervisor; or
  • There are requests for sex or sexual conduct such as physical touching, or sexual innuendo which are made by a supervisor and they constitute either an explicit or implicit term or condition of the employees employment.

AND

  • The supervisors harassment results in a tangible, adverse employment action.

T

here are many different types of actions which are considered adverse employment actions. Some adverse actions are: being fired, demotion, lack of promotion, re-assignment, poor performance review and stripping of job responsibilities.

They key to the adverse employment action is that the employee must suffer something new in the way of her job.

For example if the employee were already getting a two on her performance review out of a 5 with a 5 being the highest and the supervisor says go out with me and she refuses and the employee gets another two on her review, the burden would be on the employee to show the two was a result of not going out with the supervisor and not just a continuation of her previous job performance. On the other hand if the employee received a four on the previous review and then received a two after not going out with the supervisor, an adverse employment action would be easy to prove.

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Posted On: August 29, 2008

Illinois Sexual Harassment Victims:Tips For Gathering Evidence Against The Harasser

In Illinois as in other states people who sexually harass are not stupid enough to commit the harassment in front of others. In most instances, the harassment is done one-on-one in a private setting--this is why having an experienced Illinois sexual harassment lawyer involved in your case early is very important. Perhaps it is a telephone call--yes you can subpoena the telephone company and get proof a call was made but the subject on the telephone call will be in dispute. Because the burden of proof lies with the person making the complaint of sexual harassment, the mere fact that a telephone call was made will not help. It may be used as circumstantial evidence and if there are many late night or weekend calls perhaps to show inappropriate behavior. A better method is to send an email to the harasser memorializing the telephone call, or perhaps to let the phone ring and go to voice mail so the harasser will leave a message.

In the case where you memorialize the telephone call in an email the key to emailing the harasser is to not make it look like you are gathering evidence but rather that you are just trying to make sure you fully understand what the harasser said on the phone. For example if the harasser said on the phone " I would like to get together with you at a hotel, I think we would have great chemistry"--you can email stating, your phone call the other night took me by surprise and my brain locked up, do you really want to get together with me at a hotel because you think we will be hot in bed? I want to make sure I was not dreaming when I recalled your telephone call. Wait for the reply and print it out-if he calls, don't answer and let it go to voice mail.

This same technique can be utilized if the harasser speaks to you in private one-on-one. Your email to him/her can state you are shy and not able to speak to him/her face to face and therefore you are emailing.

Remember, memorializing a telephone or face to face conversation is powerful evidence that will be hard to deny and will probably increase a settlement or award for your case.

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Posted On: August 28, 2008

EEOC Sexual Harassment Facts and Trends From 1997-2007.

EEOC filings by men have increased in the last ten years. From 1997 until 2007, the number increased from 11.6% to 16% of all EEOC filings--which represents an increase of roughly 38% over the ten year period. Put into number in 1997 there were 1843 filings by men, in 2007 the number increased to 2001. During that same period filings of both men and women decreased from 15,889 to 12,510.

I believe the decrease in total filings is due to more proactive human resource departments and better education of the work force regarding sexual harassment. I suspect the increase in male complaints is due to the number of women in supervisory and management positions and just an increase in general of women in the work place. Here is a link to the ">EEOC chart which tracks such data.

Another interesting fact from the EEOC chart are the numbers of settlements of charges for both men and women which increased from 6.8% in 1997 to 13.6% in 2007--a 100% increase over the ten year period.

Administrative closures decreased from 39.9% in 1997 to 24.2% in 2007. When the settlement and administrative closure numbers are taken together, it indicates the quality of charges filed has increased during the ten year period. Companies are more willing to settle a quality charge and the EEOC would have a more difficult time closing a case that has merit.


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Posted On: August 27, 2008

Sexual Harassment in Illinois: The Current Law

Sexual Harassment in Illinois is brought by filing a charge or claim under the Human Rights Act. The charge or claim is brought by filing with the Illinois Department of Human Rights in either Chicago or Springfield. The Illinois Department of Human Rights then conducts a client interview, fact-finding conference and makes a determination as to whether the charge or claim should proceed to be heard before the Human Rights Commission ("HRC"). A sexual harassment claim can also be brought before the United States Equal Employment Opportunity Commission ("EEOC"). You may also bring a claim before both the EEOC and HRC.

As of January 1, 2008, a new law was enacted allowing for also filing a claim of sexual harassment in state court after first filing with the Illinois Department of Human Rights. A video of the new changes can be viewed at lasorsalaw.com

New Law after Changes
As of January 1, 2008, complainants will have the added option of pursuing a civil action in the circuit court in the county where the alleged violation occurred, rather than proceeding before the IDHR. The key components of the new law are:1. If the Director of the IDHR files a dismissal order based on a lack of substantial evidence determination of a violation, the complainant will have the right to either seek review of the dismissal order with the IDHR or file a civil action in circuit court.

If the complainant decides to seek review with the IDHR, a request must be filed within 30 days after receipt of the IDHR Director's notice of dismissal and the complainant is barred from later filing a civil action.b. if the complainant decides to file a civil action, it must be filed within 90 days after the receipt of the IDHR's Director's notice of dismissal.2. If substantial evidence of a violation is determined by the IDHR Director, the complainant has the right to file a civil action in circuit court or request that the IHRC file a complaint with the IDHR.a.

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