Bill Text: IL SB3566 | 2009-2010 | 96th General Assembly | Engrossed

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Bill Title: Creates the Abusive Work Environment Act. Provides findings and purposes of the Act; definitions; unlawful employment practices, including abusive work environment and retaliation; employer liability and affirmative defense; employee liability and affirmative defense; relief; procedures and limitations; effect of the Act on other legal relationships; and other matters.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Engrossed - Dead) 2010-04-23 - Rule 19(a) / Re-referred to Rules Committee [SB3566 Detail]

Download: Illinois-2009-SB3566-Engrossed.html

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AN ACT concerning employment.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Abusive Work Environment Act.
Section 5. Findings and purpose.
(a) Findings. The General Assembly finds that:
(1) The social and economic well-being of the State is
dependent upon healthy and productive employees.
(2) Between 37% and 59% of employees directly
experience health-endangering workplace bullying, abuse,
and harassment, and this mistreatment is approximately 4
times more prevalent than sexual harassment alone.
(3) Workplace bullying, mobbing, and harassment can
inflict serious harm upon targeted employees, including
feelings of shame and humiliation, severe anxiety,
depression, suicidal tendencies, an impaired immune
system, hypertension, an increased risk of cardiovascular
disease, and symptoms consistent with post-traumatic
stress disorder.
(4) Abusive work environments can have serious
consequences for employers, including reduced employee
productivity and morale, higher turnover and absenteeism

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rates, and increases in medical and workers' compensation
claims.
(5) If mistreated employees who have been subjected to
abusive treatment at work cannot establish that the
behavior was motivated by race, color, sex, sexual
orientation, national origin, or age, they are unlikely to
be protected by the law against such mistreatment.
(6) Legal protection from abusive work environments
should not be limited to behavior grounded in protected
class status as that provided for under employment
discrimination statutes.
(7) Existing workers' compensation plans and
common-law tort actions are inadequate to discourage this
behavior or to provide adequate relief to employees who
have been harmed by abusive work environments.
(b) Purposes. The purposes of this Act are:
(1) to provide legal relief for employees who have been
harmed, psychologically, physically, or economically, by
being deliberately subjected to abusive work environments;
and
(2) to provide legal incentive for employers to prevent
and respond to abusive mistreatment of employees at work.
Section 10. Definitions. As used in this Act:
(a) "Abusive work environment" means an environment that
exists when the defendant, acting with malice, subjects an

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employee to abusive conduct so severe that it causes tangible
harm to the employee.
(1) "Abusive conduct" means conduct, including acts,
omissions, or both, that a reasonable person would find
hostile, based on the severity, nature, and frequency of
the defendant's conduct. Abusive conduct may include, but
is not limited to: repeated infliction of verbal abuse such
as the use of derogatory remarks, insults, and epithets;
verbal or physical conduct of a threatening, intimidating,
or humiliating nature; the sabotage or undermining of an
employee's work performance; or attempts to exploit an
employee's known psychological or physical vulnerability.
A single act normally will not constitute abusive conduct,
but an especially severe and egregious act may meet this
standard.
(2) "Malice" means the desire to cause pain, injury, or
distress to another.
(b) "Tangible harm" means psychological harm or physical
harm.
(1) "Psychological harm" means the material impairment
of a person's mental health, as established by competent
evidence.
(2) "Physical harm" means the material impairment of a
person's physical health or bodily integrity, as
established by competent evidence.
(c) "Adverse employment action" means an action that

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includes, but is not limited to, a termination, demotion,
unfavorable reassignment, failure to promote, disciplinary
action, or reduction in compensation.
(d) "Constructive discharge" exists where: (1) the
employee reasonably believed he or she was subjected to abusive
conduct; (2) the employee resigned because of that abusive
conduct; and (3) prior to resigning, the employee brought to
the employer's attention the existence of the abusive conduct
and the employer failed to take reasonable steps to correct the
situation. A constructive discharge shall be considered a
termination, and, therefore, an adverse employment action
within the meaning of this Act.
(e) "Employer" includes the State or any subdivision
thereof, any county, municipality, unit of local government,
school district, community college district, municipal or
public corporation, or State university.
Section 15. Unlawful employment practices.
(a) Abusive work environment. It shall be an unlawful
employment practice under this Act to subject an employee to an
abusive work environment as defined by this Act. For purposes
of this Act, expression protected by the First Amendment of the
Constitution of the United States and Article I of the Illinois
Constitution including the exercise of free speech, free
expression, and free exercise of religion or expression of
religiously based views shall not be considered "abusive

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conduct" unless the intent is to intimidate or harass.
(b) Retaliation. It shall be an unlawful employment
practice under this Act to retaliate in any manner against an
employee who has opposed any unlawful employment practice under
this Act, or who has made a charge, testified, assisted, or
participated in any manner in an investigation or proceeding
under this Act, including, but not limited to, internal
complaints and proceedings, arbitration and mediation
proceedings, and legal actions.
Section 20. Employer liability and defense.
(a) Employer liability. An employer shall be vicariously
liable for an unlawful employment practice, as defined by this
Act, committed by its employee.
(b) Employer's affirmative defense. Where the alleged
unlawful employment practice does not include an adverse
employment action, it shall be an affirmative defense for an
employer only that:
(1) the employer exercised reasonable care to prevent
and correct promptly any actionable behavior; and
(2) the complainant employee unreasonably failed to
take advantage of appropriate preventive or corrective
opportunities provided by the employer.
Section 25. Employee liability and defense.
(a) Employee liability. An employee may be individually

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liable for an unlawful employment practice as defined by this
Act.
(b) Employee affirmative defense. It shall be an
affirmative defense for an employee only that the employee
committed an unlawful employment practice, as defined in this
Act, at the direction of the employer, under threat of an
adverse employment action.
Section 30. Affirmative defenses. It shall be an
affirmative defense that:
(1) the complaint is based on an adverse employment action
reasonably made for poor performance, misconduct, or economic
necessity;
(2) the complaint is based on a reasonable performance
evaluation; or
(3) the complaint is based on an employer's reasonable
investigation about potentially illegal or unethical activity.
Section 35. Relief.
(a) Relief generally. Where a defendant has been found to
have committed an unlawful employment practice under this Act,
the court may enjoin the defendant from engaging in the
unlawful employment practice and may order any other relief
that is deemed appropriate, including, but not limited to,
reinstatement, removal of the offending party from the
complainant's work environment, back pay, front pay, medical

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expenses, compensation for emotional distress, punitive
damages, and attorney's fees.
(b) Employer liability. Where an employer has been found to
have committed an unlawful employment practice under this Act
that did not culminate in an adverse employment action, its
liability for damages for emotional distress shall not exceed
$25,000, and it shall not be subject to punitive damages. This
provision does not apply to an individually named employee
defendant.
Section 40. Procedures.
(a) Private right of action. This Act shall be enforced
solely by a private right of action.
(b) Time limitations. An action under this Act must be
commenced no later than one year after the last act that
constitutes the alleged unlawful employment practice.
Section 45. Effect on other legal relationships. The
remedies provided for in this Act shall be in addition to any
remedies provided under any other law, and nothing in this Act
shall relieve any person from any liability, duty, penalty or
punishment provided by any other law, except that if an
employee receives workers' compensation for medical costs for
the same injury or illness pursuant to both this Act and the
Workers' Compensation Act, or compensation under both this Act
and that Act in cash payments for the same period of time not

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working as a result of the compensable injury or illness or the
unlawful employment practice, the payments of workers'
compensation shall be reimbursed from compensation paid under
this Act.