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10/19/87 Board of Directors, Green v. the Human Rights

October 19, 1987





514 N.E.2d 1227, 162 Ill. App. 3d 216, 113 Ill. Dec. 216 1987.IL.1556

Petition for review of order of Human Rights Commission.


PRESIDING JUSTICE KARNS delivered the opinion of the court. WELCH and HARRISON, JJ., concur.


The Illinois Department of Human Rights filed two complaints with the Illinois Human Rights Commission as a result of charges filed with the DHR by respondents Deborah Borah and Debbie Leffler against petitioner, Board of Directors of Green Hills Country Club (Green Hills). Both complaints alleged sexual harassment, retaliation and constructive discharge, in violation of the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1-101 et seq.). Specifically, both allege that they were continually subjected to lewd and derogatory language, as well as unwelcome sexual advances and propositions by the club manager, Dane Werk, and that the work environment became so intolerable that they were forced to resign. Both cases were consolidated for purposes of hearing and decision on a motion by Green Hills.

After a hearing before the administrative law Judge on March 21 and 22, 1985, the Commission adopted the findings and recommendations of the ALJ and ruled that both Ms. Borah and Ms. Leffler had been subjected to sexual harassment and constructive discharge, but had failed to establish a prima facie case of retaliation. The Commission found further that both complainants had mitigated their damages. The HRC ordered that Green Hills reinstate Ms. Borah and Ms. Leffler and pay them an amount equal to any loss in wages incurred as a result of their civil rights violations. The matter is now before us on administrative review as provided by section 8-111 of the Human Rights Act. Ill. Rev. Stat. 1985, ch. 68, par. 8-111.

On appeal, Green Hills does not contest the HRC's determination that Werk's conduct constituted sexual harassment, it argues only that neither the board of directors nor the president of the club were aware of the harassment being perpetrated by Mr. Werk and, absent any knowledge on their part, Green Hills cannot be held liable for Mr. Werk's conduct. Green Hills also argues the evidence did not support the respondents' claims of constructive discharge, that is, Werk's conduct was not the cause of the employees' quitting their employment, and that the HRC erred in finding that the respondents mitigated their damages.

Respondent Deborah Borah was hired as a waitress by Green Hills Country Club in March of 1981. Ms. Borah was later promoted to assistant manager and was then made acting manager, with the understanding that this was only temporary and someone else would be hired for the position of manager.

On November 27, 1982, Dane Werk was hired as manager by Wayne Krehbiel, the president of Green Hills Country Club. As manager, Mr. Werk was given complete control of the club's day-to-day operation and neither Mr. Krehbiel nor any of the stockholders or directors participated in the management of the club. From November 1982 until January 27, 1983, Ms. Borah continued in her role as acting manager and was responsible for familiarizing Mr. Werk with the club's operating procedures. A number of witnesses testified that there was obvious friction between Ms. Borah and Mr. Werk from the outset.

On January 27, 1983, after having become familiar with the operation of the club, Mr. Werk relieved Ms. Borah of her position as assistant manager, changed her from a salaried to an hourly employee, and reduced her hours of employment. After that day, Ms. Borah discussed the situation with Mr. Krehbiel, advising him that working conditions had become intolerable. Mr. Krehbiel informed her that he did not wish to interfere with Mr. Werk's management of the club and that Werk's decisions on the day-to-day operation of the club were final. Ms. Borah thereafter quit her job at Green Hills.

Respondent Debbie Leffler was hired as a waitress on March 17, 1983. Shortly after Ms. Borah quit, David Byram was hired as assistant manager. On or about June 1, 1983, Ms. Leffler and Mr. Byram had a heated argument concerning some empty boxes cluttering the kitchen area through which the waitresses traveled. During the course of the argument, Mr. Byram either called Ms. Leffler a "bitch" or said that she was always "bitching." When Ms. Leffler complained about Mr. Byram's language to Mr. Werk, she was told that Byram could talk to her any way he wanted. Ms. Leffler clocked out at the end of the day and did not return.

The record indicates that during his tenure as manager, Mr. Werk used obscene, derogatory and generally offensive language towards all the club's employees, particularly the females, calling them "bitches" and "whores" on numerous occasions. Mr. Werk also asked Ms. Leffler if she would like to sleep with Mr. Krehbiel and while he considered this suggestion a joke, Ms. Leffler and the other waitresses present did not and found the proposition offensive. Mr. Werk made a similar suggestion to Ms. Borah and another female employee, Kim Rice. Furthermore, Mr. Werk propositioned two other female employees, Shelly Walker and Kathy Bailey, and admitted that he made sexually suggestive physical contact with Ms. Bailey on several occasions.

When first hired, Mr. Werk had called a meeting of all the employees at which he informed them that if any of them attempted to circumvent his authority by going to the president or any of the members of the board of directors, they would be fired. Despite Mr. Werk's admonition not to go over his head, Ms. Borah and Ms. Leffler informed both Mr. Krehbiel and Marguerite Piper, wife of a stockholder, of Werk's use of derogatory language towards his female employees. Ms. Borah complained to Mr. Krehbiel on three separate occasions and Ms. Piper also spoke with him about Werk's behavior. Mr. Krehbiel was not, however, told of the ...

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