By: Adam R. Young and Danielle R. Rabie
Seyfarth Synopsis: New Decision from Illinois Court of Appeals holds that employer can be liable for workplace violence under Illinois Gender Violence Act.
As we have discussed in many prior blogs, employers face numerous hazards of workplace violence, a complex term which can encompass a range of behaviors by employees, customers, and others at the worksite. Federal OSHA has expanded its aggressive use of the General Duty Clause to cite employers for workplace violence against women; its actions were upheld in recent OSHRC decisions like Integra Health Systems.
Federal OSHA has generally expressed that it will enforce workplace violence against employers, but sexual assault is pursued through other remedies. Negligent hiring of a dangerous employee, for example, is a tort claim in most states. Illinois also regulates gender-based violence under the Illinois Gender Violence Act, though liability seemed limited to “persons” who committed the gender violence. In Gasic v. Marquette Management Inc., 2019 IL App (3d) 17075 (Ill. Ct. App. 2019), the Illinois Court of Appeals has held that a corporation can be civilly liable for workplace violence committed against women.
Facts of the Gasic Case
In May 2017, the maintenance engineer for Cynthia Gasic’s apartment complex allegedly broke into her apartment and sexually assaulted her. Marquette Management Inc. owns and manages the apartment complex where Cynthia lives. Gasic then sued the abuser and his employer, Marquette Management Inc., for assault and battery under the Illinois Gender Violence Act (“the Act”). The language of the Act states that any act of violence or physical aggression that amounts to battery is gender-based violence so long as the battery is committed at least in part on the basis of the victim’s sex.
The Court of Appeals Expands Liability to Employers
The language of the Illinois Gender Violence Act also states that any “person” is liable for “perpetrating” gender-related violence. Under the Act, perpetrating includes “personally encouraging or assisting” the act of gender-based violence. Using this language, Marquette Management Inc. moved to dismiss on the basis that a corporation cannot physically perpetrate an assault or battery and is not a natural “person.” The trial court upheld this interpretation. On appeal, the Appellate Court makes it clear that they believe it is possible for a corporation to act “personally” under the Act. Unfortunately, the Court does not clarify which kinds of actions could potentially qualify as encouragement or assistance of gender-based violence. Now that Gasic’s claim has withstood a motion to dismiss, she will have to prove that Marquette Management’s actions amounted to encouragement or assistance of Canales’ assault.
Gasic’s theory of liability rests on the idea that Marquette Management knew or should have known that Canales was a risk to other employees and building tenants. She claims that Canales was the subject of multiple sexual harassment claims from employees and residents and that Marquette Management Inc. was aware of the complaints. Gasic asserts that the corporation “assisted” in perpetrating gender-related violence by negligently continuing to employ Canales withstanding these complaints. So while the Appellate Court has upheld that a corporation can act personally in perpetrating assault for the purposes of the Act, the question of whether the facts in this case are enough to find the corporation liable is still open.
Employers already face numerous labilities for workplace violence. Gasic shows that Illinois Plaintiffs may survive a motion to dismiss on Illinois Gender Violence Act claims, a new source of liability for Illinois employers.
Corporations have a duty to prevent workplace violence – including gender violence – and courts are willing to expand liability to achieve that goal. Employers should continue to:
- Be proactive. Make sure to investigate and document sexual harassment and assault complaints efficiently and effectively
- Create and/or maintain policies that ensure effective oversight
- Be aware of workplace dynamics
For more information on this or any related topic please contact the authors or your Seyfarth attorney.