dissenting:
I agree with the majority that the Commission properly considered acts by Yanor which occurred prior to sending the forged letter. I also support its conclusion that the Commission’s finding regarding the existence of a hostile work environment was not against the manifest weight of the evidence. Where I part company with my colleagues is on the question of whether the Sheriff’s Department should be held vicariously hable for Yanor’s misconduct.
Contrary to the majority, I believe that the appellate court was correct when it concluded that vicarious liability cannot be imposed here because, with respect to Feleccia, Yanor was merely a coemployee. He was not a manager or supervisor within the meaning of section 2 — 102(D) of the Illinois Human Rights Act (775 ILCS 5/2 — 102(D) (West 1998)). The Sheriff’s Department could therefore only be held liable for Yanor’s harassment of Feleccia if it knew or should have known about the harassment and failed to take reasonable corrective measures. Such was not the case. The evidence established that upon learning of Yanor’s harassment of Feleccia, the Sheriffs Department launched an investigation into who wrote the fictitious Department of Public Health letter. When it discovered that the author was Yanor, it suspended him for four days without pay and issued him a letter of reprimand. See Sangamon County Sheriff’s Department v. Illinois Human Rights Comm’n, 375 Ill. App. 3d 834, 848 (2007).
In construing section 2 — 102(D) of the Illinois Human Rights Act to impose strict liability under the facts before us, the majority makes some entirely valid points as to why supervisory status should be defined broadly enough to include employees such as Yanor who have no actual authority to affect the terms and conditions of their victim’s employment. The problem with the majority’s analysis, in my view, is that it fails to acknowledge an important factor. Sexual harassment of an employee by a supervisor triggers vicarious liability on the part of an employer not simply because the employer is assumed to have greater knowledge of and control over a supervisor’s behavior, but also because such harassment is qualitatively worse than such harassment by nonsupervisory employees. The reason it is qualitatively worse is that harassment by supervisors involves an abuse of power. The potential for such abuse is not present when, as here, the parties involved have no authority over one another.
Federal law acknowledges this distinction by conditioning an employer’s vicarious liability on, among other things, a determination that an offending supervisor had the authority to directly affect the terms and conditions of a victim’s employment. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 141 L. Ed. 2d 633, 655, 118 S. Ct. 2257, 2270 (1998). When analyzing claims of discrimination under the Act, Illinois courts have looked to the standards applicable to analogous federal claims. See Wanless v. Human Rights Comm’n, 296 Ill. App. 3d 401, 404 (1998). Unlike the majority, I believe we should do so here as well. There is no indication that the General Assembly intended to make Illinois law more expansive than its federal counterpart. I note, moreover, that by adopting the construction it does, the majority not only goes beyond the principles governing sexual harassment claims under federal law, it imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.
For the foregoing reasons, I respectfully dissent.
JUSTICE GARMAN joins in this dissent.