case in a broader perspective in one nine hundred seventy the voters of the state of illinois i doubted its constitution that constitution was unique in that the bill of rights contained three provisions to prohibit discrimination not only did it prohibit discrimination by governmental bodies it also extended that protection to private employers that was unique the citizens of the state of illinois said they wanted to eliminate discrimination in nine hundred seventy nine the owner a human rights act was adopted to implement and enforce those constitutional provisions one of the stated purposes of the act was to free citizens of the state of illinois from discrimination this case involves the longstanding position of the human rights commission that when sexual harassment is committed by a supervisor the employer is automatically li that interpretation not only is consistent with the wording the statute it is also consistent with the constitutional provisions and consistent with the stated purpose of the act i would also like to point out that the appellate court decisions affirming human rights commission position it back but the statute has never been an amended the act is been amended several times it's amended in one nine hundred ninety one to further protect citizens from sexual harassment when the legislature reduced the number of employees that had to be employed to stay the course of action from fifteen to one two years ago three years ago and again amended the act but in the has never amended the act she refused the consistent i think misuse can address that the appellate courts have been very clear in their statements that it is any supervisor and it would be i position that that is consistent with the act the purpose of the act and with harassing the employer is liable and it's proactive your honor and the purpose of the human rights act was to be proactive so employers would take steps to see that the student happened and the words to eradicate discrimination in the morning your honour's my name is jim he was assistant attorney general for the want of human rights commission on the legislature has declared that it's a public policy of the state to prevent sexual harassment in the workplace because of that the has there been any reported case from any jurisdiction that is imposed strict liability in this situation because that's what we're dealing with there are strict liability and boarded up lawyer that is the issue right so have there has there been any only case that i could find that up directly with the facts that we have here was a administrative decision from the state of california and that's my brief and if you recall i believe that it was in the appellate court decision that the appellate court was was very concerned about being the first case more or less in the country to her old this way and they asked us to research the issue of other jurisdictions and the parties didn't submit supplemental briefs and i believe that the appellate court has mentioned that and and i know that both counsel for the happily and  that is correct b and just so we understand yes the victim is not without recourse for the employer i mean the situation is that there is recourse for the victim from the time that the employer the country i mean you can take one store but i mean that they're all over the country and you know one supervisor would make the employer who certainly wouldn't have to have knowledge under a strict liable standard but would bet be just in light of it all especially when there is no recourse for the particular victim of the sexual harassment a b and b not strictly li e it would not be unjust to impose strict liability on a large employer first of all let's face the reality of the case which is these fact patterns just don't arise very often obviously there hasn't been another case in the history of illinois or in other states that we could find that deal with that so they were going to kind of a parade of horrors in the  and it's just not going to happen and second of all another reality i believe is that sexual harassment and especially a hostile work environment case  can only happen when there is some connection between these two employees and so again i think that that's just the reality of the case that there has to be some  so that the employers so that the supervisor can in fact create an end simulating a hostile work environment and so the fact that a wal mart for example may have employees all over the state and supervisors all of the state over the count generally sexual harassment is going to come down to a supervisor harassing someone that he supervises or a supervisor like in this case who is in the same building as the employee that's being supervised so so let's just not be afraid of this is there any significance to the fact that there is a certain nexus between the supervisor and the employee company authority over that particular person versus a supervisor from one department that has no company real company authority over a supervisor whom another department or another area is there any significance to problem with that reasoning is that the human rights act talks about harassment where conditions in terms of employment can be affected adversely by the harasser and that would be in the typical situation of the victim supervisor harassing her but that decision and your question i believe ignores that there is a third possibility under the human rights act of the type of restaurant and that is correct making a hostile work environment case and so there is no significance and we don't need in a hostile work environment case was changed work increased promotions denied and that sort of thing that is is bad but it's equally bad when an employee must work in an intimidating environment just for the sake of that that alone i think if you want to look at it that way working in an intimidating hostile environment day after day and trying to cheat to be a good employee is much and adverse aspect on the terms and conditions of employment as as those very moved the examples that we can think of quite easily denying a promotion that kind of thing but the human rights act and i don't believe that the air policing has question that there is no request for cross relief in the appellate court in fact in this case recognize that strict liability exists and all of those course  courts have recognized that strict liability exists because of the wording of the statute the plain language of the statute which says that again an employer would be responsible for his sexual harassment by no employees nine managers and none supervisors if the employer becomes aware of the conduct and fails to take reasonable corrective action so the plain language comes about when you're looking at more or less the opposite of that if someone is a non employee the fed ex delivery person that comes to the to the job or if someone is a manager or supervisor then the employer is strictly liable and illinois courts have been clear about that the guys court case which came from this court the apple the i believe suggests well that was dick in this court should i with the supervisor so that's right and again that goes back to the fact that that this is a unique i think interesting unusual case and that wasn't the case there but nonetheless a guy  hiring suit and the court had to reach whether or not that was kindness fall in the circuit court and it found that because the human rights act would  would be the place for that complaint to be lodged so so the court did have to reach the issue in order to resolve the case misuse your section you or the language you refer to that you quote or paraphrase it's the two dash one or two paragraphs he correctly and again is just as burke said there's no reference to strict liability i mean i read it is liability but don't you still doesn't don't you still have to prove to proms one the employer no knowledge of the harris mit and secondly failed to take corrective actions i mean it and then liabilities and i don't know your honor now under the plain language of the act it says if the harasser is a non employee non manager or non supervisor then there is that burden of proof because of that language then we look at a nonce a supervisor or manager the complainant does not have the burden of proof and that's where courts have said that there are strict liability but this case is about is saying the strict liability also applies when the supervisor or manager harass is someone that he does not supervise and again courts in illinois have been very clear and correct i believe that strict liability is established under the statute i don't believe that the case before this court  asks whether the statute does impose strict liability i believe that that settled so the way you read terms of the phrase about and non supervisory this individual who is not the direct supervisor because of that relationship you're not saying he falls under the non supervisory that's right your honor and that's based on the fact that the statute talks about the relationship between the employer and the harasser the supervisor and does not talk about the relationship between the harasser and the victim and the appellate court i believe when it felt the need to look at the dictionary definition of supervisor under strain from what that plain language is the appellate court said well a supervisor hires and fires and those sorts of things well it was undisputed in this case that the sergeant manner w supervisor that was never in dispute but what the appellate court then went one step further and said given those attributes of supervisor sergeant now no i did not have those visa vi the victim in this case miss felicia but i we believe that that is imposing in the human rights act a condition that the legislature did not intend i'm certainly if that's how they wanted supervisor to possess the authority to directly affect the terms and conditions of the victim's life you simply disagree with that statement or do you read that statement consistently with your position on we believe that the  legislature disagreed with that statement the legislature did not put any such limitation in the act and certainly this court and others have recognized that title seven and federal courts interpretation of title seven is different and the federal law is not in lockstep with illinois law and what this court needs to do is look at the illinois law it does not need to consider what the federal law says because the statutes are simply different to what the commission thought i was talking about strict liability or disagreed i'm sorry i'm just talking about whether the supervisor has to have a certain level of control over this line again we say we say no and that would go back to the language of the act that and hostile work environment case we don't have to have a supervisor threatening an employee with a denial of a promotion or more work or fewer hours or less pay that kind of thing what we need under the act is looking at the relationship between the employer and the harasser and if the harasser is a supervisor or manager the stric liability will apply if that person is creating a hostile work environment for the victim so it would be a disagreement with those cases based on the different statutes involved thank you get to the right of the very heart of the issue here the key inquiry here is the relationship of the supervisor to the employee and that relationship the exercise of the authority given by the employer to the supervisor that allows the supervisor to in essence perpetrate the sexual harassment change the conditions of employment or intimidate the employee that's what causes the imposition of liability that's what the title seven cases have said for years and years yours in now i understand that we have these illinois court decisions and we have the guy's decision which i think i think is dicta but it is abundantly clear that no court in this country has gone as far as the commission wants this court to go in this particular case and when i read the plain language of the statute like you justice burke i do not see the word strict liability in there the as we point out in our brief and i think as the as one of the  amicus pointed out it's only by a negative inference that the court the courts have said that there are strict liability and i think that one of the reasons that the court has applied strict liability or vicarious liability in the case of a supervisor who actually sexually harass as he says a an employee under his or her control is because of the agency principles that are discussed in all these federal cases these cases which have developed into this rule that you have to have a direct supervisor or you have to have a supervisor with successively higher supervisory authority they have to be able to affect the terms and conditions of the employment now was leahy said here today this morning that well if mr yeager had given her an order she would have had to follow it your honor there is no evidence whatsoever on the record t support that the commission made a specific factual finding in this case that mr gainer not only did not have any supervisory authority over the complainant he did not have the ability to effect the terms or conditions of  employment and the harassment that we're talking about here the alleged harassment we're talking about here had nothing to do with that we're not talking about and we can you know we talk about quid pro quo versus hostile work environment either way a supervisor is aided by the agency relationship when that supervisor imposes that some kind of asked for sexual favors or whatever on a subordinate employee and that's what these cases have been talking about when i view this language and i want to read it because i think it's very important and it's also very important that the court consider if the court's going to adopt the argument that this negative inference should be read to mean that in cases of involving all supervisors regardless of the level of control over the employee there are strict liability if that's going to be the reading it's the only way to to read the statute is by and negative inference and that is in essence an aide to statutory interpretation just like the commissions view it if the commission says in this case well we view this we think that there should be strict liability in all cases involving supervisors this is really the only case that's come before the commission that's on point on someone who had absolutely no supervisory control you know i mean there are other cases where supervisors were aware of things and so on and so forth but this here's what the statute says it is a civil rights violation for any employer employee agent of any employer employment agency or labor organization to engage in sexual harassment legislative history relating to that is very interesting which i'll get to in a moment and it goes on provided that employer shall be responsible for sexual harassment of the employers employees by not employees or non managerial and non supervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective action first it says nothing about strict liability it says nothing about holding employers strictly liable when a supervisor sexually harass employee says nothing about who is considered a supervisor and you look at the legislative history and i think also the appellate court appropriately applied the common ordinary understanding of these terms i mean a supervisor has to have the ability to control the person's work environment in order to be a supervisor but when you consider that in context with federal law and the cases that have been developing for decades in the cases that were in fact in existence in hundred eighty three when the general assembly adopted the amendment that we're talking about here it's clear that there has to be that the supervisor has to be aided by his supervisory relationship there has to be some causal link there if there isn't some causal link there's no legal basis for imposing the liability it's an essence and a question of agency liability but getting to the specific legislative intent here  there's a point that i have to make about the the reply brief and it gets right to this issue and in the in the commission's reply brief on page seventeen they make an argument they say in response to our legislative history argument the commission says in fact representative currie who sponsored house bill two thirty five said that the bill track regulations of the federal employment opportunities commission he'll see at that time the e e o c guidelines provided that employers were strictly liable for acts of their supervisor or him personnel site that they've been the commission cites the merit of versus events in case which we cited and another case from the seven strict liability regulation in effect at the time is consistent with the commission reading of section two dash one zero two d as providing for strict liability well it's not that state that argument on that page is is if you're talking about a supervisor who has direct control over the person being harassed it's accurate but in the context of this case it's not accurate at all when you look at corrective action measures that's what i was discussing with ms hughes that there is still liability that in this case it could be directed against the employer but they have to know about the action so doesn't this case really h john what this court believes the definition of supervisor is now and if the if if the supervisor relates to a supervisor that is merely appointed a supervisor by the company for example that's one thing but if supervisor means supervisor over their particular victim that's another right it is exactly wrong and if if if we feel that it's supervisor over the victim isn't it is wouldn't that be enough for you to prevail yes i believe so and that in essence what that's in essence what the federal courts have said for years there is a factual finding in this case that he had no supervisory authority and the evidence is undisputed on that it's also one disputed under  but in a case in which it is a supervisor over the victim you know directly over the victim that this statute would not provide for strict liability in that situation well again that's not i know you don't need issue before the court right out but i think based on my understanding of the legislative history of this and the statute and the federal law the general assembly really intended when you look at the legislative history to put us not lock stock step lock stock and barrel in line with federal law but at least in terms of this issue i think when you look at representative curry's comments and the other comments and you look at the law that was in existence at the time i think that the law should be the same as in federal court but if you have a supervisor who takes a tangible employment action against an employee he will then there are strict liability vicarious liability there's no  is in essence the the actions of the supervisor in that in essence merge with the employer when the supervisor is using the supervisory authority given by the employer to effect the in this case the same building who could provide a terrible work environment for them for the woman under all kinds of circumstances and the and he would get off and so the lawyer would  supervising the employer would not get off your honor i mean you still have the question if the if the employee the nurse or to to the super to to his or her supervisor and then that action is not and then remedial action is not of that's a separate issue your honor i guess is my point what what she just what mr leahy is saying in her brief is look if you find that mr hardy is right on the issue of strict liability you should take a look at this issue of reasonable corrective action which i'd be happy to respond to questions about if you have questions about the court you know the fact the matter is the only thing that was reported to the sheriff's department was this letter you know she was asked about anything else and she said well no there were no other problems and you know this point finding out about the letter they launched this extensive investigation so on and so forth so they took reasonable corrective action but getting back to the strict liability argument in this legislative history i don't want to get away from this point because when you when you look at this this regulation the commission is referring to first c e o c regulation sixteen zero four eleven c wasn't even in the bill at the time representative corey made those statements the language representative curry was referring to in our comments on march twenty third was the definition of sexual harassment which is contained in twenty nine c f r sixteen zero four eleven  language in there relating to section c about supervisors when she made those comments the bill all it said was it is a civil rights  employer employee agent of any employer employment agency or labor organization to engage in sexual harassment the second part of the statute was added by the senate and the legislative history makes it clear that the reason for that the reason for adding that language was because the only chamber of commerce had a concern about harassment among coworkers and they wanted to make sure that if you have harassment among coworkers it's not a violation if the employer doesn't have knowledge and doesn't have the opportunity to take action and i would urge you to look carefully at the entire sixteen zero four point eleven see as it existed at the time because really what they did was they took portions of d and e which deals with  not employees and coworkers they really didn't put anything in there about c c at the time did talk about how applying general title seven principals and employers responsible for the acts of its agents and supervisory employees etc etc but then at the end of that and this is in the vents in case this is a key language it says the commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity so even the federal regulations which the only general somebody didn't adopt that portion of it even at that time the e e o c was saying look you've got to look at whether the person was acting within his capacity as a super supervisor at the time and you know that vinson court when they looked at that they  that that very section for the proposition that vicarious liability is inappropriate where supervisory has no supervisor has no authority over an employee because the work because they work in wholly different parts supervisor that results in vicarious liability it's the as the court put it in vinson it's because the supervisors making were threatening to make decisions which affect the employment status and later in the court and in the vincent case the court cited the the restatement second of agency which has been discussed in many titles seven cases and made it very clear that what we're talking about here is agency law you know for years these federal courts have been struggling with this they've been struggling with these agency principal some courts have you know said for a while th supervisor is basically acting within this the scope of his employment when he commits harassment or or discrimination because the supervisor's activities are purpose even if misguided is in some way in part to further the employer's business in the one case for example the court said well we think that the the employer was acting within the scope of that the supervisor was acting within the scope of his employment  as long as the tort complained of was caused by the exercise of the supervisory authority it's always been that link that creates the vicarious liability or the strict liability if you will that's so i guess what i'm saying is look there has to be some legal basis for finding strict liability and i don't see it in the statute it's not there in the legislative history doesn't support it the legislative history in fact says exactly the opposite  only case where the court addressed the issue in a case involving a direct supervisor in that case the court said the first section five best one of two d wasn't even in effect at the  time but they said it doesn't matter because the law already was that there are strict liability under these circumstances now the only basis for concluding that would be based on the developing case law in many jurisdictions  which apply general agency principles to find the employer vicariously liable you know what the the key here i think is when we're talking about supervisor liability is not the second part of the section two that's one of two d it's the first part of the question is whether there is vicarious liability because of the agency relationship and that's where the federal cases are very clear and where it's very important that this court consider those cases that's the public policy i mean it makes a lot of sense to find an employer liable when the employer gives the ability to sexually harass an employee to a supervisor and that supervisor then exercises that authority to extract sexual favors behaviors it makes no sense to applied in a case like this where you have someone from a totally separate the part who has no supervisory control whatsoever and is not in any capacity acting as a supervisor when he does the things that he did now i'd like to address your question just as burke on the issue of what i would make is that the we address our reply brief to subjects that to a large extent but all the arguments that are raised by ms leahy you know the gossip rumors those things are not even a part of this case that aspect of the case was dismissed but we're talking about here is the letter that's the only thing the department knew about there's no question about that the part about laci investigation they did everything that they did and you know i don't know how you can say that that's not reasonable corrective action so we would ask your honour's that the appellate court's decision before thank you your honour's most of what mr hardy was talking about i think i'm not quite sure but it sounds like he doesn't like strict liability at all it seems like it goes back and forth a little bit and i was somewhat confused in his brief too but i want to remind the court that the appellate court like other courts found that they act in general and put aside for the moment the facts of this case does a stamp which strict liability again there was no requests for cross relief on that issue certainly this court on its own could revisit the guy's case but there's no need to that plain language of the statute provides for strict liability based on the fact that it is only when a known manager known supervisor and not an employee he harasses do we need to impose a burden on the complainant to show what the employer knew and what actions the employer took so strict liability at least in the commission's briefs went on the basis that strict liability is the law in illinois these simple question or a narrow question in this case obviously is a supervisor who harass is someone he does not supervise the strict liability apply to him too and there is  no basis to question the strict liability in that case the plain language of the stature which we heard very little about illinois law and mr hundreds argument this is not a federal case sure not being asked to look at title side one or two disagree or agree with the federal cases this case is only about the illinois human rights act and the in reading of the act given by the commission federal cases don't always agree with one cases illinois cases don't agree with federal cases illinois cases have have said more than once that federal law is different and it should be  different from the legislature in illinois has established the human rights act and it is irrelevant as courts have held notably the webb case and this case some guys also made the distinction between annoyed law so please don't base this case on what federal courts have said because those cases are interpreting federal law well that that's true of course but the federal cases are the ones that have addressed specifically the word supervisor in this context and it's whether it's a supervisor generally or supervisor over the victim and they have interpreted it as to be a supervisor only over the victim for agency principles which i think mr hardee did indicate that he believes there is strict liability in the supervisor over the victim area basically agency prin the federal court you know i just don't see that you need to look to federal law to determine what was a good case or any other case any other jurisdiction illinois case that said that strict liability does attach in the supervisor over the victim i don't believe that it's applied to that that it's made that statement in relation to specific facts of the case  think of it if it had our burden in our supplemental briefing and the appellate court would have been much easier i think that if the federal law has said that and it has said that for hostile work environment cases there is no strict liability but some whenever that is not the case in illinois but if the federal courts had examined effect situation like ours again i think we both would have been discussing that case at l brief so federal cases have said that strict liability does not apply in hostile work environment cases and federal cases if they have gone on to say that possesses the authority to directly affect the condition of the victims and i would not disagree with that but i don't think that they have said it i don't think that they have examined facts as you would be doing in this case and that's what i think makes this case certainly unique but i think an overemphasis on federal law is simply inappropriate we know what the statute says in illinois and  and just to make a comment about the parts of our brief stilling with the representative curry's statements and i researched out when i responded to the argument and what she said was that it was illinois law be consistent with equal opportunity point missions regulations and the regulations i still believe at that time said they out there in strict liability federal courts rejected those regulations in the vents in case notably but again there are certainly policies and there are annoying that would support applying the strict liability to this fact situation human rights act is there for very good reason it's true prevent sexual discrimination and sexual harassment in the workplace the commission reasonably read the statute to apply to th situation and in doing so not only gave heart to the plain language of the structure but to the policies behind the statute as well and if you have no other questions we would ask this court to carefully read the commission's decisions and consider our arguments and reverse the appellate courts and appoint the commission's decisions thank you thank you