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Thursday, April 2, 2020

Disability harassment no different than other forms of harassment, appeals panel says

By Dan Churney | May 2, 2016

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Illinois’ second largest city could face an action brought by a fired worker under the Illinois Human Rights Act, after an at-times divided appellate panel ruled the law’s prohibition on workplace harassment also specifically extends to protect those with disabilities.

The clarification was delivered April 27 by a three-justice panel of the Illinois Second District Appellate Court in Elgin. The court’s opinion was delivered by Justice Ann Jorgensen, with concurrence from Justice Kathryn Zenoff. Justice Robert McLaren partially dissented.

The questions addressed by the court stemmed from a lawsuit lodged in 2014 in Kane County Circuit Court by plaintiff Patricia Rozsavolgyi against the city of Aurora. The city had filed a so-called interlocutory appeal to clear up uncertainty regarding the Illinois Human Rights Act and the Illinois Tort Immunity Act.

Rozsavolgyi had worked 20 years as a property maintenance compliance officer with the city. She alleged her fellow workers harassed and abused her, because she suffered from depression, anxiety and panic attacks, as well as partial hearing loss. She said the alleged harassment and abuse worsened her mental condition. Rozsavolgyi said she complained to two supervisors and her union representative, but to no avail.

Then, in July 2014, she was fired, purportedly because she used the word “idiots” in a remark to a coworker. Appellate court documents do not indicate whom she called idiots. The city had previously expressed concern to the union that Rozsavolgyi could become violent, according to court documents.

Rozsavolgyi then sued, saying the city violated the Illinois Human Rights Act by failing to make accommodations for her mental condition, treating her differently than other employees, firing her in retaliation and allowing for a hostile work environment. After Kane County Judge Thomas Mueller struck down four of the city’s six affirmative defenses, the city filed its appeal, seeking clarity on the legal question.

The appellate court found the Human Rights Act applies to claims of disability harassment, as alleged by Rozsavolgyi, even though the Act’s wording only refers to sexual harassment. Justice Jorgensen asserted harassment is a form of discrimination.

“There is no logical reason why the (Human Rights) Act should tolerate workplace harassment based on a handicap when it does not tolerate harassment based on any other protected classification,” Jorgensen said, quoting a statement promulgated by the federal Equal Employment Opportunity Commission. Jorgensen noted she gave a significant degree of weight to EEOC pronouncements.

In her own words, Jorgensen pointed out, “For over three decades, employers have been on notice of their obligations with respect to disabled employees.”

Justice McLaren disagreed, pointing out the Human Rights Act lays out various forms of discrimination, but only specifies one type of harassment – sexual harassment. McLaren said if the intent of lawmakers was to include disability harassment, they would have spelled it out.

Another question the city wanted answered, was whether the city could claim immunity under the Tort Immunity Act. Jorgensen ruled the city can assert immunity for damages, but not for the equitable relief sought by Rozsavolgyi. In taking this position, Jorgensen said the Second District had held otherwise in previous cases, but the Illinois Supreme Court has rejected those holdings. As consequence, Jorgensen said she would not “stick” to those holdings.

McLaren also dissented on this issue, countering the state high court neither rejected the Second District’s reasoning on the reach of tort immunity nor overruled any cases. Rather, the high court simply “declined to adopt or approve” the district’s rulings on the subject.

With the majority view prevailing, the case was remanded to circuit court for further proceedings.

Rozsavolgyi is represented by Gaffney & Gaffney, of Glendale Heights. Aurora is defended by the Chicago firm of Rosenthal, Murphey, Coblentz & Donahue.

City of Aurora is located at 44 E. Downer Place, Aurora.

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Gaffney & Gaffney PCIllinois Supreme CourtIllinois Second District Appellate CourtRosenthal Murphey Coblentz & DonahueCity of AuroraGaffney & Gaffney PCIllinois Supreme CourtIllinois Second District Appellate CourtRosenthal Murphey Coblentz & DonahueCity of Aurora