Individual Liability Under the Illinois Whistleblower Act

by Jordan E. Wilkow

Bello v. Village of Skokie, No. 14 C 1718, 2014 WL 4344391, at *8-9 (N.D.Ill. Sept. 2, 2014) and 2015 WL 9582986, at *12 (N.D.Ill. Dec. 31, 2015) are the latest decisions out of the Northern District of Illinois to weigh in on an open question over individual liability under the Illinois Whistleblower Act (“IWA”), 740 ILCS 174/5.  Specifically, the Bello court held that agents and other employees of a whistleblower’s employer could be individually liable under the IWA, despite the fact that they are not themselves the whistleblower’s employers. 

In 2008, the definition of “employer” under the IWA was amended to include “any person acting within the scope of his or her authority express or implied on behalf of [previously described] entities in dealing with its employees.”  The IWA already allowed for the possibility that employers could be individuals.  But the amended language has led litigants and courts to assert that an individual who was not the plaintiff’s employer, but was rather an agent or employee of the plaintiff’s employer, can nevertheless be sued individually as the plaintiff’s “employer” as defined by the statute.

That is how the Bello Court saw it.  In Bello, the plaintiff was a police officer employed by the Village of Skokie.  He brought an IWA claim against a number of his supervisors in addition to the Village.  Concluding that the definition of “employer” under the IWA was “clear on its face,” the Court rejected the individual defendants’ argument that they were not the plaintiff’s “employers” under the IWA.  Rather, “individuals acting on behalf of an entity that one might colloquially understand to be a person’s ‘employer’ may likewise be considered ‘employers’ potentially liable for violating the statute.”

Other courts have disagreed.  In Hernandez v. Dart, No. 13 C 7949, 2014 WL 1339686, at *3 (N.D.Ill. April 3, 2014), for example, the Court was not persuaded that the IWA intended to permit individuals “who are not themselves employers in the first instance” to be held individually liable as employers “in addition to the employer on whose behalf they were acting.”

Another court in the Northern District reached the same conclusion as Hernandez by comparing the IWA to federal discrimination statutes like the ADA and Title VII.  Parker v. Illinois Human Rights Commission, No. 12 C 8275, 2013 WL 5799125, at *9 (N.D.Ill. Oct. 25, 2013).  In those statutes, the definition of employer similarly includes the employer’s agents, but, according to the court, “that is simply a statutory expression of traditional respondeat superior liability and imposes no individual liability on agents.”  Id. (citing Williams v. Banning, 72 F.2d 552, 553 (7th Cir. 1995)).  As language in the IWA “appears to be patterned on the federal statutes,” the Parker Court reasoned that the Illinois legislature similarly did not intend to impose individual liability on an employer’s agents, aiming “merely to express that the agents’ acts are attributable to the employer.” 

Other district courts have also concluded that the IWA does not intend to provide for this sort of individual liability, but, as Parker cautioned, they did not address the amended statute that more broadly defines “employer.”  Id. (citing Martorana v. Village of Elmwood Park, No. 12 C 6051, 2013 WL 1686869, at *4 (N.D.Ill. Apr. 18, 2013); Banks v. Chi. Bd. of Educ., No. 11 C 7101, 2013 WL 9511111, at *12 (N.D.Ill. Mar. 12, 2013)).

Bello is set for trial this summer, and Hernandez is in the midst of discovery.  Briefing on the defendants’ motion for summary judgment in Parker closed last June, so one would expect an opinion in the near future.  Should the defendants prevail on summary judgment, Parker would likely be the first case to present the issue to the Seventh Circuit.