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Businesses could face yet more lawsuits if defined as 'person' under IL Gender Violence law, attorney says


By John Breslin | Jun 18, 2019

Third district appellate ottawa illinois
Illinois Third District Appellate Courthouse, Ottawa | IvoShandor [CC BY-SA 3.0 (]

An Illinois appeals court decision could open another avenue for companies to be sued, as appellate justices said it remained an open question as to whether they could be held accountable for their workers' sexual misconduct under a state law to combat gender violence, a defense attorney said.

In a case that turned on whether a company could be regarded as a "person," as defined in the Illinois Gender Violence Act, the appeals court, in a split decision, found that this may be the case, in certain circumstances.

The three-justice panel of the Illinois Third District Appellate Court in Ottawa, in a decision authored by Justice Vicki Wright, sent the case back to Will County Circuit Court, overturning the decision of Will County Judge John C. Anderson, who dismissed the action filed against apartment management compant, Marquette Management.

Adam Young | Seyfarth Shaw

Cynthia Gasic, a renter, sued maintenance worker, Jose Canales Jr., and Marquette. She alleged Canales entered her apartment and “engaged in unwanted and inappropriate sexual contact.”

Her action against Marquette argued the company was a "person" under the Gender Violence Act, and therefore liable for "personally encouraging or assisting the violence."

The court did not rule on the merits of the case, or detail the circumstances under which a plaintiff may win, said Adam Young, an attorney in the Chicago office of the law firm of Seyfarth Shaw.

Young said the appeals court is only saying that a company is potentially liable. He said the term "person" is not defined clearly under this particular state law.

"It is another avenue for liability under the Gender Violence Act," said Young, adding that employers already face potential suits under workplace safety regulations and where there are allegations of violence or intimidation.

But under the Gender Violence Act, the plaintiff must prove an intentional act by employer, that they knew or should have known about the violence based on gender, Young said. 

The idea of a corporation regarded as a person dates back more than a century and a half, particularly under federal law. Most recently, the Citizens United U.S. Supreme Court decision eased restrictions on corporations, unions and other associations from making political donations. While it did not mention personhood, the high court implicitly found that they are covered by the First Amendment provisions on free speech typically granted to persons under the U.S. Constitution.

In her decision, Justice Wright noted corporations are regarded as "persons" under the Constitution, including when it comes to due process and trial by jury. Wright added that there is  doubt over whether an entity can "personally" commit an assault, and noted that the use of the phrase "personally encouraging or assisting....serves to muddy the waters and leaves this court unable to answer this certified question with a simple 'no.'"

In a dissent, Justice Daniel Schmidt said the Gender Violence Act, through its language and context, suggests the word  "person" does not include "artificial entities."

"Artificial entities lack the capacity to intend and the literal ability to 'personally' perpetrate violence, gender-related or otherwise," Schmidt wrote in his dissent.

He said the plaintiff in this case had other recourses at her disposal, including suing Marquette for negligence, but should not be able to sue the company under the Gender Violence Act.

Gasic has been represented by Deutschman & Associates, of Chicago.

Marquette has been defended by the Chicago firm of Walker Wilcox Matousek.

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Illinois' Third District Appellate CourtWill County Judicial CourtSeyfarth Shaw, LLP

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