Writer E. Jean Carroll recently got her day in court to address her allegations of sexual assault decades after the alleged attack occurred. "Today, the world finally knows the truth,” Ms. Carroll said. “This victory is not just for me but for every woman who has suffered because she was not believed."
Ms. Carroll alleged that Donald Trump sexually assaulted her about thirty years ago—in the mid-1990s. When she undertook litigation, it was too late for Ms. Carroll to initiate a criminal case, and would normally be too late to initiate a civil case, but the State of New York temporarily suspended the statute of limitations on civil claims of sexual assault. It was within this window that Ms. Carroll filed her civil suit.
The jury found that Mr. Trump sexually abused and defamed Ms. Carroll, and awarded a combined $5 million dollars in compensation.
As a plaintiff’s employment attorney, Ms. Carroll’s success in the courtroom has me thinking about several misconceptions I hear about sexual assault in the workplace. I would like to respond to questions I frequently hear, especially from individuals living and working in Illinois.
- Do I have to go to the police to be able to allege sexual misconduct or sexual assault?
No. To bring a criminal charge, police must be involved. But, you can allege sexual assault in a civil claim seeking money damages. A civil case does not require a complaint to the police or their cooperation.
- I've heard that I only have 300 days to report sexual harassment under workplace civil rights laws. But am I able to complain about an assault that happened more than 300 days ago?
Yes. The 300-day deadline is for reporting sexual harassment in the workplace. For workplace sexual harassment claims, you would be well advised to report the misconduct to the appropriate agency within that time frame, be it to the federal Equal Employment Opportunity Commission (EEOC) or its state equivalent, the Illinois Department of Human Rights (IDHR).
But, that 300-day deadline does not apply to allegations of sexual assault under the Illinois Gender Violence Act. You have seven years after an alleged sexual assault (i.e., there is a seven-year statute of limitations) to file a lawsuit, and two years after a threatened sexual assault to file a lawsuit. That means you have far more time to bring a civil suit for sexual assault in the workplace.
- I want to stand up for myself but I was not raped. Could I still have a cause of action?
Likely yes. You may have a cause of action for “gender-related violence” under the Illinois Gender Violence Act if the aggressor engaged in an “act of violence or physical aggression satisfying the elements of battery” that was on the basis of your sex. Under Illinois law, battery means that someone intentionally and without legal justification caused bodily harm to another person, or makes physical contact with someone else in an insulting or provoking way.
Or, you can bring a claim under the Illinois Gender Violence Act if there was a “physical intrusion or physical invasion of a sexual nature under coercive conditions that satisfy the elements of battery.” In fact, even a realistic threat of one of these two bases for a claim can itself lead to a claim.
Penetration is not required for a claim under the Illinois Gender Violence Act. Any harmful or offensive contact to your body could qualify as battery. I have brought allegations under this act for everything ranging from anal rape to offensive physical contact over one’s clothing.
- What if I was assaulted in the workplace? Do I have a cause of action against the employer or the person who hurt me?
Potentially both. You can utilize civil rights laws under Chicago, state, or federal law to bring claims for sex harassment or discrimination against the employer. More local laws—those of Chicago and the State of Illinois—allow an accuser to hold individuals personally liable for assault. Under these laws, such as the Illinois Human Rights Act, you can bring claims against both the employer and the individual.
Further, the Illinois Gender Violence Act provides a cause of action against individual offenders. In May of this year, both chambers of the Illinois legislature passed an amendment to the Act that would codify employer liability under the Act. The amendment now awaits Governor Pritzker’s signature.
- What if my boss assaulted me but it was not at work—do I have a cause of action?
Under the Illinois Gender Violence Act, you can absolutely have a cause of action against the individual, as long as it meets the law’s test explained in question #3. You may also have a cause of action against the employer, but you would want to discuss this with an attorney.
- Are employers responsible for a customer assaulting or harassing me?
Under some circumstances, yes. In a case I won at a jury trial, EEOC v. Costco, the Seventh Circuit held that employers can be liable for harassment by a third party, such as customers or vendors. To establish liability, however, the employer must have known about the party’s conduct but failed to take appropriate action to correct the harassment and prevent it from occurring.
If you are interested in exploring whether your claims of sexual assault, or harmful or offensive contact in the workplace, could constitute a legal claim, feel free to reach out to our firm here.