Well, well, while we were all playing during Memorial Day weekend, an Illinois appellate court was busy making a landmark interpretation to Illinois law.
There exists a statute called the Illinois Gender Violence Act. It allows victims of violence or the threat of violence perpetrated upon them, which was motivated at least in part on the basis of that person's sex, to sue the perpetrator or sue persons encouraging or assisting the act or acts of such gender-related violence.
A long, unanswered question has been whether a corporation can be on the hook under the IGVA for gender-related violence or threats of violence committed against persons. The appellate court said, yes, "under limited circumstances."
Illinois does have sex-based employment anti-discrimination statutes like the Illinois Human Rights Act. But those all cap damages and do not allow for compensation for emotional distress or a punitive award against perpetrators/employers. The IGVA allows claimants to seek a money award not only to compensate them for physical injury, but also emotional distress, together with possible punitive awards, attorney's fees and costs.
Also, the period in which to file a case is much longer — seven years. Claims under the Illinois Department of Human Rights or the Equal Employment Opportunity Commission must be made within 180 and 300 days, respectively.
The Gender Violence Act was passed by the Illinois General Assembly well over a decade ago. It was motivated by concern about violence against women.
"Violence" under the IGVA includes any "battery" under Illinois law. A "battery" in Illinois is the unauthorized touching of another person. Thus, any sexual harassment involving unauthorized touching, or the threat of such, could create liability under the act.
The statute says any "person or persons perpetrating the gender-related violence" can be liable to the victim. "Perpetrating" was defined under the act as also personally committing or encouraging or assisting in the violent act. Argument was made by a company sued under the IGVA that a corporation can't "personally" perpetrate violence or "encourage or assist" in such acts.
But the appellate court said there is much law cloaking corporations with personhood. The court noted that many rulings of the U.S. Supreme Court have corporations vested with many of the constitutional rights afforded human beings: the right to political speech, the right against searches and seizures, the right to privacy, rights against double jeopardy (being prosecuted twice for the same alleged crime), the right against property seizures by the government and the right to trial by jury and assistance of counsel.
Thus, the court concluded, a corporation certainly might assist in the perpetrating a violent act envisioned under the IGVA.
If federal court decisions under federal employment discrimination and harassment suits are any guide, a business now might be liable for acts of its employees under the IGVA if its managers knew or should have known of sexually deviant or violent propensities of the perpetrator, and failed to take action that might have protected the victim from harm.
We shall see if the Illinois Supreme Court will ever accept an appeal on this issue to rebuke or affirm the notion of a corporation's personhood under the IGVA.
Fasten those legal seat belts.
Whatever sex you are.
Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.