LawpulseSexual harassment and the chain of commandUnder state law, employers are liable for sexual harassment by supervisors whether or not the employer knew about it and even though the employee-victim doesn't work under the supervisor. The article by Kevin Bennardo in this issue underscores the strict deadlines federal employment-discrimination claimants must meet. But as a recent opinion of the Illinois Supreme Court confirms, Illinois law is more plaintiff-friendly than federal law when it comes to claims of sexual harassment. The case is Sangamon County Sheriff's Department v Illinois Human Rights Commission, 2009 WL 1011986 (Ill Sup Ct). The factsSection 2-102(D) of the Illinois Human Rights Act, 775 ILCS 5/2-102(D), makes it a civil rights violation for any employer, employee, agent of any employer, employment agency, or labor organization to engage in sexual harassment. Employers are responsible for the sexual harassment of their employees by nonemployees or other employees who are nonmanagerial and nonsupervisory, however, only if they become aware of the conduct and fail to take reasonable corrective measures. Donna Feleccia, a records clerk with the Sangamon County sheriff's department, filed a charge under section 2-102(D) with the Illinois Department of Human Rights alleging sexual harassment and retaliation. She named the sheriff's department and Ron Yanor, a sergeant, as respondents. Though Yanor was a supervisor in the sheriff's department, he was outside of Feleccia's chain of command. After investigating, the Human Rights department filed a complaint against the sheriff's department and Yanor with the Illinois Human Rights Commission. Yanor and Feleccia then reached a settle ment, and the matter proceeded to a public administrative hearing against the sheriff's department as sole respondent. Feleccia alleged, and presented testimony before the Illinois Human Rights Commission, that Yanor had subjected her to several instances of sexually harassing behavior. The episodes included grabbing her arm and asking for a kiss, coming to her home unexpectedly, asking her to go to a motel for the night, and forging a letter from the Illinois Department of Public Health (IDPH), delivered to her in office mail, purporting to inform her that she had been exposed to a sexually transmitted disease. Feleccia reported the last of these occurrences to her supervisor, Lt. Sandra Hinsey. Hinsey assisted Feleccia in confirming with IDPH that the letter was a forgery and referred the matter to her own supervisor, who ordered an internal investigation. Yanor then admitted that he had typed the letter on department premises, using department equipment, saying he'd intended it as a practical joke. Ultimately, Sheriff Neil Williamson suspended Yanor for four days without pay and with a warning. Williamson subsequently told Feleccia, in response to her inquiry, that he "gave [Yanor] as many days as he could without the merit board finding out" and that she should not file sexual harassment charges, go to the media, or go near Yanor. Feleccia testified that she felt degraded because her employer did nothing more about Yanor's behavior. She had already been seeing a psychiatrist for stress and anxiety. After the incident with the forged letter, she increased the frequency of her visits, had her medication dosage doubled, lost sleep, and missed work days. The Human Rights Commission dis missed Feleccia's charge of retaliation but found that she had proven sexual harassment. It found the sheriff's department liable for Yanor's harassment because he was a supervisor, even though not Feleccia's supervisor, and awarded Feleccia $10,000 in damages and approximately $13,400 in fees and costs. The sheriff's department appealed. The Illinois appellate court found that the sheriff's department could not be strictly liable for Yanor's conduct toward Feleccia because he was not in her chain of command. The supreme court granted Feleccia's and the Commission's petitions for leave to appeal. "Not bound by...the federal courts"Focusing on the statute, the court said it was irrelevant under the plain language of section 2-102(D) that Yanor didn't supervise Feleccia and had no authority over the terms and conditions of her employment. Unless a harasser is a "nonemployee" or "nonmanagerial or nonsupervisory employee," in which case an employer is liable only if it's aware of sexually harassing conduct and fails to take reasonable corrective measures, the statute makes employers unconditionally liable when their employees are sexually harassed, the court observed. Yanor, the court continued, was neither a "nonemployee" nor a "nonmanagerial or nonsupervisory employee." Therefore, the sheriff's department was strictly liable for his sexual harassment of Feleccia, regardless of whether it was aware of the harassment or took any measures to correct the harassment. The court gave short shrift to the sheriff's department's argument that it should apply federal case law interpreting Title VII of the Civil Rights Act of 1964, 42 USC section 2000e et seq, saying it found federal case law "unhelpful" in interpreting section 2-102(D). "[W]e are bound by the language in the [state Human Rights] Act, not by decisions of the federal courts," remarked the court. Sangamon County at *6. Springfield attorney Mary Lee Leahy, who represented Feleccia, said, "The supreme court looked very, very carefully at the statute itself and reversed the appellate court based upon the plain language of the statute." Leahy also noted that employees have no duty to report a supervisor's sexual harassment in order for employer liability to attach. Q Victory for defendants in asbestos caseThe Illinois Supreme Court allows defendants in asbestos cases to introduce evidence that someone else's negligence was the sole proximate cause of a plaintiff's injuries. Arecent opinion of the Illinois Supreme Court highlights how Illinois courts have wrestled to balance the rights of mesothelioma plaintiffs and defendants - for plaintiffs, the right to prove that an individual defendant's products proximately caused their injuries; for defendants, the right not to be presumed liable without sufficient evidence. In Nolan v Weil-McLain, 2009 WL 1012147 (Ill Sup Ct), the court overruled a line of cases from the Illinois Appellate Court that had effectively eliminated any opportunity for asbestos defendants to point to the negligence of others as the sole proximate cause of plaintiffs' injuries. The court held that a defendant in an asbestos case, as in a medical malpractice or any other tort case, may introduce evidence to establish that the sole proximate cause of a plaintiff's injuries was a factor other than its conduct. The factsClarence Nolan developed mesothelioma after working for 38 years as a millwright, plumber, pipefitter, and boiler installer and repairman, beginning in 1952. In 2001, he and his wife, Sally, filed a complaint against 12 corporations alleging that his mesothelioma had developed after being negligently exposed to the defendants' asbestos-containing products. Eleven of the 12 defendants settled or were dismissed prior to trial. As to the remaining defendant, Weil-McLain, the Nolans alleged that Clarence had been exposed to asbestos when he installed, repaired, or removed boilers manufactured by that company. Clarence died of his mesothelioma before the matter proceeded to trial. The parties agreed that before 1974, various components that contained asbestos, including cement and rope manufactured by other entities, were supplied with Weil-McLain's boilers. The plaintiff sought to prove that the exposure to the defendant's asbestos-containing products was a substantial factor in causing Clarence's mesothelioma. In opposition, Weil-McLain sought to present evidence that the sole proximate cause of Clarence's death was his exposure to asbestos-containing products of other entities. The parties filed cross motions in limine on the issue of whether Weil-McLain should be allowed to introduce evidence of Clarence's exposure to asbestos-containing products of other entities. The plaintiff argued that such evidence was irrelevant under Lipke v Celotex Corp, 153 Ill App 3d 498, 505 NE2d 1213 (1st D 1987) and would be highly prejudicial, as well as confusing to the jury. Based on Lipke and later appellate cases construing it, the trial court ruled in the plaintiff's favor. At trial, the jury heard Clarence's videotaped evidence deposition in which he estimated that he worked on Weil-McLain's boilers 20 or 25 times, routinely using the asbestos rope and asbestos cement that Weil-McLain provided. He claimed that both products created dust in his immediate work area. Clarence also testified that dust was present when he cleaned up after a boiler installation. He testified that he never saw an asbestos warning on Weil-McLain's boilers or any other product. In an offer of proof, Weil-McLain presented the unedited transcript of Nolan's full evidence deposition to the court. The transcript showed that Nolan additionally testified that he had been exposed to many asbestos-containing products that Weil-McLain had neither made nor supplied. The jury rendered a verdict in the plaintiff's favor. A majority of an appellate court panel affirmed, holding that in an asbestos case, once a plaintiff satisfies the frequency, regularity, and proximity test of Thacker v UNR Industries, Inc, 151 Ill 2d 343, 603 NE2d 449 (1992), the defendant is presumed to have been a proximate cause of a decedent's injury. The panel agreed with the trial court's reasoning in support of its refusal to allow Weil-McLain to introduce evidence of other asbestos exposure. The panel rejected the defendant's reliance on Leonardi v Loyola University of Chicago, 168 Ill 2d 83, 658 NE2d 450 (1995), that defendants have the right to present evidence that the conduct of a nonparty is the sole proximate cause of a plaintiff's injuries, distinguishing that case because it involved medical malpractice, not asbestos exposure. The supreme court granted Weil-McLain's petition for leave to appeal. Proving causation is the plaintiff's burdenReturning to basic principles of civil law, the supreme court emphasized that plaintiffs in any civil action bear the burden of proving that a given defendant proximately caused their injuries and that this burden never shifts to the defendant. Lipke, the court said, neither suggested nor held that any defendant pursuing a sole proximate cause defense should be barred from introducing evidence of other potential causes of plaintiffs' injuries, and the court overruled subsequent appellate decisions that had so construed Lipke. The court also said its ruling in Leonardi was applicable to all tort actions. Pleased with the court's holding, Chicago lawyer Rick Godfrey, Weil-McLain's lead appellate counsel, said, "The court's opinion confirmed that the Lipke rule, as crafted and interpreted, was a departure from the supreme court's decisions in Leonardi and Thacker. The court has now reaffirmed the applicability of Leonardi to all negligence claims, not simply those in the medical malpractice arena." Q Social networking 1.0Despite the newfangled options, blogs and e-mail discussion groups are still excellent ways to connect with other lawyers. As this month's lead article underscores, Facebook and Twitter are the current social networking darlings of the media. Yet many question the staying power of these applications as well as whether they can function effectively for business. Two older social networking methods, e-mail discussion groups and blogging, have established both. Listservers: "[M]ore refined than Facebook" Huntley lawyer T.J. Thurston, who concentrates his practice in real estate, wills, and civil litigation, is a frequent and enthusiastic participant in ISBA's online discussion groups. He says that not only has he received many helpful comments and answers to questions or problems he's presented, but the groups have also been a fruitful source of business. "The listserv is very much like a social network, but more refined than Facebook." He observes that most participants are either solo practitioners like himself or in small law firms and, therefore, view the practice of law from the same perspective. "You're dealing with colleagues across the state who understand your business needs," he says. Through discussions of legal issues on ISBA's groups, Thurston says he's developed some excellent relationships with other lawyers on both personal and professional levels. "I'm sharing clients and work with my colleagues across the listserv. It's been phenomenal. Some I've met in person, some I have not, but we've gotten to trust each other so that we can feel confident referring clients back and forth." Speaking glowingly but sadly of Princeton sole practitioner Greg Bowman, who, until his untimely death in a motorcycle accident in 2007, was also an active discussion group participant, Thurston says, "We'd never met each other in person, but we'd shared a lot of e-mails on legal issues as well as social matters." Then, he says, he organized an in-person social event for the discussion group at a restaurant in Oakbrook. Bowman was the first to arrive. "We were sitting and having a beer, and he said 'I really like your contributions to the listserv.'" Thurston thanked him, and the discussion segued into a description of a group of farmer clients of Bowman's with several cases in federal and state court. Their shop talk was fruitful, resulting in Bowman's bringing Thurston into those and other matters. "When he passed, the clients had gotten to know me, so they turned to me to handle their cases." (For more on that litigation, see the ISBA Bar News at http://www.isba.org/pubs/barnews/2008/07/farmers. html.) Blogging: "creating a community"Fellow solo practitioner Peter Olson, who worked as a journalist before becoming a lawyer, has achieved a reputation for incisive blogging about issues of concern to solo practitioners. Like Thurston, Olson has met many other lawyers as a result of his online presence and has found those contacts gratifying, if not necessarily always sources of business. Olson currently maintains two separate blogs, both of which he started in 2005: Solo In Chicago (http://soloinchicago.com), on which he posts essays on issues of concern to solo practitioners, and Closing Chicago Real Estate (http:// closingchicagorealestate.com), which is directed toward the community of real estate professionals. Olson says, "When I started Solo In Chicago, I wanted to share my experience with people going through the same thing. Resources for the business of practicing law aren't as readily available as they should be." And, he continues, opening a solo practice can be lonely. "I hope that I can help others and also benefit myself by meeting some people and creating a community of small firms and solo practitioners. It hasn't been all rosy for the last three years, and I hope to help others avoid some of the mistakes I've made. "For me, the benefit from blogging has been the people I've met as a result." Olson says he regularly meets with other startup attorneys who have called him for advice on starting a solo practice. He's also developed friendships with other lawyers who read and comment on his blog. "When they're local, we get together and develop a friendship." And, though Olson hasn't viewed Solo In Chicago as a marketing tool, it has brought him some referrals. Like other lawyer bloggers, Olson cautions, "You don't know who's reading your blog if they're not posting comments or sending you e-mails." Saying he tries to make most of his posts from personal experience, he notes being surprised on one occasion at an offhanded remark from opposing counsel to the effect that counsel made a practice of reading what Olson has written. Toward enlarging his community of solo colleagues, Olson notes he's created Solo In Chicago groups on Facebook and LinkedIn, easily findable through the search engines on both sites. And, though he can't foresee where his online networking might take him, he hopes the groups will serve as additional resources for their members. For his part, Thurston believes, "Attorneys should use social networks for what they really are - connecting socially with people. Treat them as social tools that might end up ultimately turning around and becoming business tools once people feel comfortable with you socially and know who you are as a person." Q Making evidence meaningfulA veteran lawyer and trial judge tells litigators how to present evidence in a way that engages and wins over jurors. In her article, Making Evidence Meaningful, which appeared in the May 2009 issue of ISBA's Civil Practice and Procedure Section newsletter, Judge Barbara Crowder of Illinois's Third Judicial Circuit supplies lawyers with some helpful suggestions for presenting evidence so both juries and judges can better understand its significance. Look 'em in the eyeOne picture is worth a thousand words, as the saying goes - but "only if someone actually looks at it," Crowder observes. Juries are dying to see photographs, records, diagrams, and other materials that can help them visualize and make sense of witnesses' testimony, she says. But they need to see them when the witnesses are testifying - not days or weeks later when they're deliberating. So, she advises, "ask to immediately publish the photo to the jury once the witness has laid a foundation for it." And if a witness's explanation of where an event occurred is important, have the witness draw a diagram so that the jury can see it. "That's definitely more interesting and less confusing than trying to explain in a narrative where hallways and rooms are in a building where someone was injured," Crowder remarks. Crowder also advises lawyers to get their witnesses to address jurors directly by looking them in the eye. The lawyer can cue a witness who forgets this rule by prefacing a question with, "Tell the jury about...." Lawyers should also take care to address any courtroom acoustical issues by, for example, making sure that the witness is speaking into the microphone if one is present, she says. Jurors should not have to work to hear the witness. Instead of doing so, they may doze off or begin daydreaming, she warns. The jury shouldn't have to work to try to understand what you and the witnesses are saying, either, Crowder says. Save hifalutin vocabulary for other lawyers, if you must, and speak to the jurors in plain English, she recommends. To that end, Crowder would prefer lawyers to speak of bar fights, not "altercations" or "melees," and suggests that juries would prefer hearing about a car accident to a "vehicular collision" any day. She also urges lawyers to provide total number figures to juries instead of simply introducing a stack of bills and having them told that the computation of damages is up to them when they deliberate. Tell a storyUsing simple language will make it easier for the lawyer to follow another of Crowder's recommendations: Tell a story. Who, on hearing the beginning of a story, doesn't want to find out what happens? Get the jurors' attention in your opening statement by describing what happened and what the evidence is going to be, Crowder says, and you'll be on your way to a well-tried case. Be sure to keep their attention, too, she continues, by keeping the case moving. "If the lawyers go back to the table, rummage through folders, look at notes, and generally allow long pauses, even an interested juror's attention may wander," she notes. But, recognizing that at times a long pause may be unavoidable, Crowder offers "just ask for a recess so the jury can walk around and pep up a little rather than sit and stare." Think, too, Crowder urges, about the message you want to send to the jury. The phrasing of that message can be crucial to your client's result, she believes. She provides an example of presenting the same testimony, phrased first negatively, then positively:
Crowder says she's seen each approach used. One may suit a client's message better than the other in one case; the other may work better for a different client in a different matter. To achieve your goal, that is, a verdict in your client's favor, Crowder says, "The jury's attention must be engaged....The jurors must understand that the solution to the problem can be provided by them and them alone only by deciding the case as the attorney suggests." Making the evidence as meaningful as possible will make it more likely for the lawyer to obtain a favorable verdict, she advises. Crowder's suggestions, she notes, can be equally useful in bench trials. "Judges are people, too," she drily observes. "Just think of the judge as a really small jury," she offers, and apply her advice accordingly. Faster resolution urged for custody, SLAPP suitsAt a recent hearing, the supreme court rules committee was asked to speed disposition of child custody proceedings and SLAPP suits. Two proposals to expand the right to interlocutory appeals consumed most of the time and attention of the Illinois Supreme Court's Rules Committee at its hearing on April 17, 2009. One proposal aims to expedite child custody proceedings; the other, the disposition of alleged SLAPP suits. Expedited appeals of custody judgmentsProposal 09-02, offered by the Special Supreme Court Committee on Child Custody, would amend SCR 304, governing appeals from final judgments that do not dispose of an entire proceeding, and 306A, which provides for expedited appeals in child custody cases. The proposal would add custody judgments as a sixth category to SCR 304(b), orders that are appealable without a special finding under SCR 304(a). The proposal would also add custody judgments to the first sentence of SCR 306A(a), making it clear that the supreme court intends them to be final and appealable even when other issues in the same case, such as financial matters, remain pending. Retired judge Karen Shields, co-chair of the special committee, and current Cook County circuit judge Edward Jordan testified in support of the proposal. Both spoke of judges' strong desires to carry out the supreme court's intent in enacting the 900 series of supreme court rules by expediting child custody proceedings. They also, however, opined that there is a need for additional direction from the supreme court in light of In re Marriage of Leopando, 96 Ill 2d 114, 449 NE2d 137 (1983), in which the supreme court held that issues raised in a dissolution of marriage case are not separate claims and therefore not appealable under Rule 304(a), and In re Marriage of Sproat, 357 Ill App 3d 880, 830 NE2d 843 (2d D 2005), in which the ap pellate court held that Leopando was applicable to custody orders. As a result of Leopando and Sproat, they said, any custody order a trial court enters before disposing of financial and other issues arising in the divorce is not final and appealable. Nonfinal custody orders, in turn, are not subject to 750 ILCS 5/610's proscription of modification within two years without reason to believe that the child is in danger. And without finality, the judges continued, litigious parents may continue to dispute custody in spite of SCR 922, which provides that all child custody proceedings shall be resolved within eighteen months. The supreme court's adoption of proposal 09-02, they said, would promote stability in children's lives and would make SCR 922 a far more effective tool. Expedited appeals of motions to dismiss SLAPP suitsProposal 08-04, offered by Chicago lawyer Terrence Sheahan and supported by Senate President John Cullerton and the American Civil Liberties Union of Illinois, would amend SCR 307, Interlocu-tory Appeals As Of Right, to allow expedited appeals from denials of motions to dismiss under the Illinois Citizen Participation Act, 735 ILCS 110/1 et seq. (For more on the act, see Sheahan's and Eric Madiar's article, Illinois' New Anti-SLAPP Statute, in the December 2008 IBJ.) In enacting the Citizen Participation Act, the legislature intended to curb the practice of filing civil actions for money damages against citizens and organizations as a result of their valid exercise of their constitutional rights to petition, speak freely, associate freely, and otherwise participate in and communicate with government. Such actions are known as "Strategic Lawsuits Against Public Participation," or "SLAPPs." Section 15 of the statute permits a party to move to dispose of a claim on the grounds that the claim is based on, relates to, or is in response to any act or acts of the moving party in furtherance of the moving party's rights of petition, speech, association, or to otherwise participate in government. Section 25 of the statute provides that courts shall award successful movants their reasonable attorney's fees and costs. Sheahan and Adam Schwartz of the ACLU said SLAPPs frequently occur in the contexts of proposed real estate developments and attempts to change the behavior of public officials or employees. Sheahan and Schwartz testified that immediate appeals are necessary to address the possibility of a trial court's erroneously denying a motion to dismiss under section 15. Because they cannot appeal such orders, litigants who should receive immunity unfairly risk becoming mired in a lawsuit that could last for years and consume tens of thousands of dollars, Sheehan and Schwarz said. Moreover, Schwartz said, "SLAPPs hurt not just the individual rights of the people who are silenced, but also the quality of our democratic decisionmaking," for "people who have pertinent opinions and facts will not share them with government when they feel threatened by the possibility of lawsuits." He said SLAPPs "deprive people of freedom of speech and strike at the integrity of our democratic process. To solve the problem of a SLAPP," as the legislature intended by enacting the Citizen Participation Act, "you need to get the case over fast. That requires interlocu-tory appeal from the denial of a motion to dismiss," he urged. View the proposals and the rules committee's meeting April 17 agenda at http://www.state.il.us/court/Supreme Court/Public_Hearings/default.asp. Helen W. Gunnarsson is an attorney and writer in Highland Park. She can be reached at <helengunnar@gmail.com>. |
