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Illinois is one of the few states in the country who protect unpaid interns from sexual harassment. According to Joseph Olivares, Commission Spokesperson for the U.S. Equal Opportunities Commission, unpaid interns are not protected under federal law since they are not considered employees. Therefore, they are not afforded the protections provided by the Civil Rights Act of 1964.

A number of national media cases have called attention to this injustice. Many federal cases of young interns who were the alleged target of relatively egregious sexual misconduct by supervisors have had their cases thrown out because they were simply not protected by federal or state law due to their intern status.
In January, Illinois decided to protect interns from sexual harassment by broadening workplace sexual harassment protections and redefining what it means to be an “employee” in the state’s Human Rights Act (HRA) as it relates to sexual harassment.

So what constitutes an intern? The HRA defines an “unpaid intern as a person who (1) performs work for an employer when the employer is not committed to hiring the person at the conclusion of the internship; and (2) both intern and employer agree that the intern is not entitled to wages for work performed. Additionally, (1) the work performed must supplement the intern’s education in a way that enhances the intern’s employability; (2) the work must provide experience for the benefit of the intern; (3) the intern cannot displace regular employees; (4) the work must be performed under close supervision by staff; and (5) the work cannot provide any immediate advantage to the employer and may, in fact, at times impede operations.”

What Employers Need to Know

In Illinois, it is important for an employer to know that their level of responsibility for the sexual harassment varies depending on whether the sexual misconduct was the action of a supervisory employee or a non-supervisory employee.

If the harassment took place by a non-supervisory employee, an employer is liable for the sexual harassment only if they had been made aware of the sexual misconduct and then failed to take corrective measures. For supervisory employees, an employer is held strictly liable for the sexual misconduct of its managers and supervisors. In other words, regardless of whether the employer knows about the sexual misconduct, the employer is always held liable.

Illinois case law has defined a “supervisory employee” as “an individual having [who has the] authority to hire, transfer, suspend, lay off, recall, promote, discharge, discipline, and handle grievances of other employees, by exercising independent judgment.” The law extends strict liability to all supervisory employees, regardless of whether the supervisor has the ability to exercise control over a subordinate employee or not.

While an employer should always be vigilant in facilitating a safe and secure work environment, it’s important to know the level of knowledge the law will impose when imputing sexual harassment to employers.

If you have questions regarding your responsibilities regarding interns and sexual harassment, please call Gardi, Haught, Fischer & Bhosale LTD at 847.944.9400. We can help.
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775 ILCS 5/2-101(A)).
Id.
Bd. of Directors, Green Hills Country Club v. Illinois Human Rights Comm’n, 162 Ill. App. 3d 216, 219, 514 N.E.2d 1227, 1229 (1987)
Id.
. Sangamon Cnty. Sheriff’s Dep’t v. State Human Rights Comm’n, 375 Ill. App. 3d 834, 847, 875 N.E.2d 10, 20 (2007) rev’d sub nom. Sangamon Cnty. Sheriff’s Dep’t v. Illinois Human Rights Comm’n, 233 Ill. 2d 125, 908 N.E.2d 39 (2009)
Sangamon Cnty. Sheriff’s Dep’t v. Illinois Human Rights Comm’n, 233 Ill. 2d 125, 144, 908 N.E.2d 39, 49 (2009)

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