Class 8: Statutory Protections – Employment Discrimination (Part 2)

Summary of Core Topics: Class 8 continues our deep dive into employment discrimination law, focusing on specific issues and advanced topics. A major portion is dedicated to workplace harassment, particularly sexual harassment as a form of sex discrimination under Title VII. We distinguish between quid pro quo harassment (tangible job detriment in exchange for sexual favors) and hostile work environment harassment (severe or pervasive unwelcome conduct based on a protected class that creates an abusive environment). 

We also discuss employer liability for harassment: the Supreme Court’s Faragher/Ellerth framework (1998) which holds employers vicariously liable for supervisor harassment that causes tangible job action, and provides an affirmative defense (reasonable care to prevent/correct harassment and employee’s unreasonable failure to complain) for other supervisor harassment cases. Beyond sex, we consider harassment on other bases (racial slurs, etc.) and note Illinois law’s stance (Illinois Human Rights Act explicitly prohibits harassment on all protected grounds, and Illinois even mandates annual sexual harassment training for employers). Another topic is retaliation – protections for employees who report or oppose discrimination. 

This class also examines systemic discrimination: when a policy or pattern affects a group (class actions or EEOC systemic investigations) – e.g., a company-wide practice that excludes women or minorities. We touch on disparate impact more deeply. Illinois law’s differences are highlighted (e.g., Illinois allows discrimination claims in state court after IDHR process, and does not cap damages). 

Additionally, we may cover emerging issues like the use of Artificial Intelligence in hiring – algorithms that might inadvertently cause disparate impact. By the end of Class 8, students should have a robust understanding of how discrimination claims are proven and defended, and be familiar with both individual claims and broader systemic enforcement.

Hypothetical 1: XYZ Inc. has a 30-employee office in Illinois. Emily, one of two female sales reps, endures daily crude jokes and occasional groping by her supervisor. She fears reporting him. Eventually, she refuses his advances and he demotes her. After demotion, she files an internal complaint and an EEOC charge for sexual harassment.

Model Answer: Emily’s situation presents a potential hostile environment sexual harassment scenario. Her supervisor’s conduct (groping, crude sexual jokes) is unwelcome and pervasive – enough to create a hostile work environment that any reasonable person would find hostile or abusive (although there certainly would be arguments to the contrary). Because the harasser is her supervisor and he took tangible employment action (demotion) when she rebuffed him, XYZ Inc. is liable under Title VII – the Faragher/Ellerth affirmative defense is not available when a supervisor’s harassment culminates in a tangible job detriment.  She should prevail if evidence proves the conduct and the link between her refusal and the demotion. XYZ Inc.’s best move would be to settle or show that the demotion was for unrelated, legitimate reasons – but given the facts, that seems unlikely. Under Illinois law, Emily could also sue under the IHRA which likewise holds employers liable for supervisory harassment. Notably, Illinois law (since 2020) requires even an employer of this size to have a harassment policy and training; failure to prevent this behavior could also mean the company violated state-mandated standards. Emily can recover compensatory damages (for emotional distress) and possibly punitive damages under Title VII (capped because 30 employees is under 100, cap $50k) and similar or additional damages under IHRA (no caps). Because she also filed internally, XYZ’s lack of prompt corrective action will hurt its defense. In sum, Emily’s case exemplifies textbook sexual harassment, and the law is on her side.

Real-Life Example in Practice: A notable real-life example is the 2018 EEOC case against a national restaurant chain where female employees were routinely subjected to groping and lewd comments by a manager. Despite complaints to HR, the company took no action. The EEOC sued and ultimately the case settled with a substantial monetary payment and a consent decree requiring training and monitoring. This highlights how inaction by management can lead to liability – had the company promptly disciplined the harasser, it might have avoided the lawsuit or at least the punitive aspect. 

Practical Tips and Takeaways:

• Harassment Prevention: Take advantage of training. Illinois requires annual harassment training – rather than treat it as a check-the-box, engage with it and ask questions. For employers, customize training with real examples from your workplace and ensure high-level executives attend too (sets the tone).
• Report Early: Don’t wait for harassment to become “severe or pervasive.” Early reporting can often stop the behavior before it worsens. Employers should provide multiple avenues (beyond a direct supervisor) in case the supervisor is the harasser.
• No Retaliation Tolerance: Employers should have a strong anti-retaliation statement in policies and enforce it. Employees, if you fear retaliation, you can request HR or management to protect you (and if retaliation happens, that becomes a separate violation to pursue). Keep a timeline of events – e.g., “I complained on Jan 5, and on Jan 20 I was reassigned to a lesser role” – as this can be compelling evidence of causal link.
• Litigation vs. Resolution: Not every complaint needs to become a lawsuit. Employers: consider mediation or settlement when a claim has merit – it can save cost and reputational harm. Employees: know that agencies like the EEOC often offer free mediation; this can be a faster way to get relief (e.g., compensation, a neutral reference, policy changes) without a protracted fight. Always weigh the options – sometimes a quiet resolution is better for all, other times holding a firm accountable publicly is important. Either way, the goal of these laws is to remedy and deter – so use them to ensure fair and respectful workplaces.