Patron Sexual Harassment Claim Survives Summary Judgment

In Wong v. Midwest Gaming & Entertainment LLC, 2023 IL App (1st) 220309 (Ill.App. 1 Dist. March 31, 2023), the court denied defendant’s motion for summary judgment on plaintiff’s “third party” sexual harassment claim arising from alleged harassment by defendant’s patrons.

From the decision:

The undisputed facts in the record demonstrate that the patrons subjected Wong to unwelcome sexual conduct because of her sex. The record shows that a male customer walked around the beer tub, hugged her, and kissed her on the cheek. Another customer walked by and pinched her waist while she was standing next to the beer tub.

Wong argues that the cumulation of customer sexual harassment was severe and pervasive enough to create a hostile work environment because Rivers did not take reasonable corrective measures. She also asserts the trial court erred when it substituted its judgment for that of a jury. In response, Rivers contends that Wong cannot establish a prima facie case because the conduct complained of is neither severe nor pervasive enough to create a hostile work environment, and they did take reasonable corrective measures.

Wong is not alleging severe or pervasive conduct by Rivers or its agents, but instead by the customers who visited the casino. Under the Act, “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.” 775 ILCS 5/2-102(D) (West 2018). Because Wong alleges third-party sexual harassment and not harassment by Rivers or its agents, we need only examine whether Rivers took reasonable corrective measures to address the harassment.

Wong alleged five separate incidents of sexual harassment that occurred over the course of eight days. Three of those incidents involve some form of physical contact, including a hug, a kiss on the cheek, and Wong’s waist being pinched. Each incident that Wong alleged involved different male customers. Rivers responded by placing a garbage can around the beer tub to block off customers, and Rivers set permanent stanchions around all the beer tubs after the July 13th incident. Rivers also evicted the customer that Wong accused of kissing her on the cheek. Wong attested that initially, the measures Rivers took were effective. Wong now argues that the measures were ineffective because the evicted customer returned before the one-year suspension ended.

Whether one acted reasonably is a question of fact to be decided by the trier of fact, but when the facts are undisputed and reasonable minds cannot disagree, the issue may be determined as a matter of law.” Lindquist v. Chicago & Nw. Transp. Co., 309 Ill. App. 3d 275, 283 (2d Dist. 1999). It is undisputed that Rivers placed garbage cans around Wong’s beer tub after reported harassment, placed stanchions next to the beer tub as a permanent solution, and evicted the customer that kissed Wong after he was identified. However, reasonable minds may disagree on whether the actions taken by Rivers were reasonably corrective measures. Wong initially asked that stanchions be placed around the tub. Instead, Rivers placed garbage cans to block off customers. Due to the simplicity of placing stanchions around the beer tub and the fact that garbage cans are not intended to serve as barriers, a reasonable jury could conclude that Rivers’ actions were not reasonable.

In light of this, the court, viewing the evidence in the light most favorable to plaintiff, held “that the reasonableness of the efforts to correct the sexual harassment is a factual issue precluding summary judgment.”

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