By Marjorie Johnson, J.D.
The court was persuaded that corporations could not be sued under the Illinois law since it allowed actions against “person[s]” who “personally commit” or “personally encourage” gender-related violence, and legal entities are not typically understood to “personally” perform actions.
A female employee who claimed that she was subjected to sexual harassment by a male coworker that escalated after she complained and he got promoted, prompting her to eventually quit to escape the abuse, plausibly alleged a claim of sex discrimination that was separate from her HWE claim, a federal district court ruled in denying in part the employer’s motion to dismiss. However, she failed to advance her claim of gender violence under the Illinois Gender Violence Act (IGVA) since the statute only allowed civil claims against natural persons (human beings) and not against corporations (Robinson v. FedEx Ground Package System, Inc., February 6, 2020, Lee, J.).
Sexual harassment by coworker. The employee began working for FedEx in the fall of 2017, where her job entailed sorting boxes, performing quality control, and assisting her peers. She claimed that much of her time was spent enduring sexual harassment by a male coworker who, among other things, called her inappropriate names, touched her waist and back without permission, and falsely told others that she was sleeping with him.
He’s promoted, abuse gets worse. After she reported his abuse to HR, the company engaged in an investigation that purportedly corroborated her claims. However, no action was taken and he instead received a promotion. His conduct then grew even more egregious after he learned about her complaint. He purportedly called her a “whore” and spread rumors about her sleeping with coworkers. His conduct also prompted others to “physically and verbally attack” her at work.
Eventually quits. Management also turned against her. First, HR began to write her up for minor infractions. Then, her supervisor assigned her to lift packages of up to 100 pounds, even though he knew she had sustained serious injuries in a car accident. After HR also stopped her from using her accrued PTO, she found herself unable to tolerate the abuse any further and quit.
Adverse acts separate from harassment. The court first rejected the employer’s contention that the employee’s discrimination claim must be dismissed since it was duplicative of her sexual harassment claim. Ruling that she alleged a plausible sex discrimination claim that was distinct from her harassment claim, the court explained that the parties had erroneously invoked the McDonnell-Douglas test, which applies at the summary judgment stage and not to motions to dismiss.
Rather, at this early stage, the employee needed only to allege that she suffered an adverse employment action on the basis of her sex, beyond the harassment underlying her HWE claim. She did so here as she identified numerous other adverse employment actions, including that the company refused to let her use her accrued PTO and burdened her with enough extra work to endanger her safety. Therefore, her discrimination claim was not wholly dependent on her allegations of sexual harassment.
Cannot sue under the IGVA. However, the court agreed with FedEx that she could not pursue her IGVA claim since the statute does not authorize suit against corporations. The statute allows a person who has been subjected to certain gender-related violence to bring a civil action against “a person or persons perpetrating that gender-related violence.” And “perpetrating” is defined as “either personally committing the gender-related violence or personally encouraging or assisting the act or acts of gender-related violence.”
Noting that “every court to squarely address this issue has decided that the IGVA does not apply to corporations,” the court was “persuaded that corporations cannot be sued under the IGVA.” In Illinois, the general rule is that “absent a statutory definition that expands the meaning of ‘person,’” that term refers to an individual and not a legal entity. Here, nothing in the text of the IGVA suggested an intent to deviate from that presumption. To the contrary, the statute referred to “person[s]” who “personally commit” or “personally encourage” gender-related violence. Because one does not typically understand legal entities to “personally” perform actions, this language reinforced the conclusion that the IGVA only governed natural persons.
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