Claims of Harassment

Recent decisions appear to note, however, that the definition of 'supervisor' may not be as limited as one might think. Many employers are under the impression that strict liability will attach only when the highest-level supervisors are responsible for the behavior. Indeed, the United States Supreme Court has stated that supervisors are individuals with the power to 'hire and fire, and to set work schedules and pay rates.' Faragher v. City of Boca Raton, 524 U.S. at 803 (1998). Some recent court decisions have strictly followed this standard, holding that supervisors are employees that have been given the ability to demote or fire an employee, are not just employees who merely assign tasks to other employees. Weyers v. Lear Operations Corp. (8^th Cir. 2004) 359 F.3d 1049.

However, other recent court decisions have noted that the definition may not be so narrow. For example, in Doe v. Oberweis Dairy, 456 F.3d 704 (7^th Cir. 2006), the Seventh Circuit found that a senior coworker who oversaw daily work assignments was a 'supervisor' under Title VII. Here, the plaintiff was a high-school student who was hired as a part-time ice cream 'scooper' at the defendant's store. She later sued, alleging that she had been sexually harassed by her male shift supervisor at the store. The Seventh Circuit noted that the shift supervisor seemed to be either an 'elevated coworker' or a 'diminished supervisor,' as he had the ability to direct the work of scoopers and was authorized to issue disciplinary write-ups; however, he did not have the ability to actually fire employees. Despite the lack of power to terminate employees, the court determined that the employee in question was indeed a supervisor, and that, therefore, strict liability to the employer would attach. The court noted that the shift supervisor was often the only supervisor in the ice cream parlor, and that when he told his boss that one of the 'scooper girls was not doing a good job and should be fired … his boss likely would have taken his word for it rather than conduct an investigation.' Employers should be alert that even if an employee is not expressly designated as a 'supervisor,' the employer may nevertheless be held strictly liable for that employee's actions.

Harassment by Non-Employees

In addition to being aware of the expanding definition of 'supervisor,' employers should also be attentive to the fact that courts continue to hold that employers may be liable for harassing conduct that occurs in the workplace by non-employees. In Freitag v. Ayers, 468 F.3d 528 (9^th Cir. 2006), for example, a female corrections officer brought suit against the state department of corrections, alleging harassment by the male prisoners she was assigned to guard. In her complaint, the plaintiff stated that several of the male prisoners had exposed themselves to her; one had openly masturbated in front of her, and, on one occasion, ejaculated into a meal tray she was clearing. The plaintiff filed numerous reports regarding the prisoners' harassing behavior, and also complained to her immediate supervisors. When her complaints were largely ignored, she proceeded to file her lawsuit. In finding for the plaintiff, the Ninth Circuit noted that employers are liable for harassing conduct by non-employees 'where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.' The court declined to find that prisons are an 'inherently hostile environment' and immune from harassment lawsuits, as the defendants urged. Instead, the court found that 'even in an inherently dangerous working environment, the focus remains on whether the employer took reasonable measures to make the workplace as safe as possible.' Id. at 539. But see Vajdl v. Mesabi Academy of Kidspeace, Inc. (8^th Cir. 2007) (holding that a non-profit organization licensed by the Minnesota Department of Corrections was not liable for the harassing conduct of young, violent criminal offenders. 'By choosing to work in a prison, corrections personnel have acknowledged and accepted the probability that they will face inappropriate and socially deviant behavior.')

Outside the Workplace

Employers will not only be held liable for the acts of non-employees if they fail to take corrective actions, but Doe v. Oberweis also reinforced the notion that employers may be liable for conduct that occurs outside of the workplace, if it 'arises from the workplace.' In Doe, it was uncontested that the plaintiff's shift supervisor had invited the plaintiff over to his apartment, and that while there, the two had engaged in consensual sex. It was also uncontested that this occurred when the plaintiff was 16 years old, and the defendant was 25. The Seventh Circuit disagreed with the district judge who had found that the plaintiff was not harassed because she welcomed her supervisor's advances. Instead, the court found that because the sex amounted to statutory rape in the state of Illinois, based on the individuals' ages, the defendant could not escape liability.

In addition, the court noted that the sexual act need not be committed in the workplace for liability under Title VII to attach. Instead, at the very least, the 'harassment must … be an episode in a relationship that began and grew in the workplace.' Because the plaintiff's consent to have sex with her supervisor was, as a matter of law, ineffectual, this was a case of a worker 'subjected to nonconsensual sex by a supervisor or at least quasi-supervisor … during, as well as arising from, the employment relation.'

Interestingly, the court in Doe also clearly held that employers of underage workers have a greater duty to protect their employees from harassing behavior. Although noting that the shift supervisor would be considered a supervisor and that the employer would, therefore, be strictly liable, the court further commented that the employer could also be liable under a negligence standard. The court noted that the supervisor was not only often the only supervisor in the ice cream parlor, but that he was also supervising, for the most part, 'inexperienced teenagers working part time.' This created a 'risk of harassment [ ] that required his employer to take greater care …'

'Greater Care'

This 'greater care' owed to underage workers, particularly in terms of sexual harassment, has been echoed in numerous cases since Doe. For example, in EEOC v. V & J Foods, Inc. 2006 WL 3203713 (E.D.Wis. 2006) the plaintiff, a 16-year-old, alleged she was harassed by her 35-year-old supervisor. The court noted that the relative ages of the individuals involved was of 'great significance' in finding that the plaintiff had an actionable claim of harassment. It is also clear that failure to protect these vulnerable workers from harassment can lead to large penalties for an employer. This past March, an Arizona company that operates McDonald's restaurants agreed to pay eight young women $550,000 (not including attorneys' fees in an amount yet to be determined, but not to exceed $400,000) to resolve claims of harassment by a male manager. In announcing the settlement, the EEOC noted that employers must be especially vigilant in protecting vulnerable teen workers from workplace harassment. EEOC v. GLC Rests. Inc. d/b/a McDonald's Rest., D. Ariz., No. CIV 05-618 PCT DGC, consent decree approved 3/20/07.

Being particularly mindful of a group of employees (e.g., teenagers), and the context in which they work, is becoming of greater importance to employers, as well. What in one context would not be enough to put the employer on notice of harassing behavior or behavior that may lead to harassment, may, in another context, be enough for liability to attach. For instance, in Erickson v. Wisconsin Department of Corrections, 469 F.3d 600 (7^th Cir. 2006), the plaintiff was a payroll and benefits specialist with the Wisconsin Correctional Center System ('WCCS'). The Oregon Correctional Center ('OCC'), an all-male minimum security prison, is housed in the same building as WCCS, and WCCS uses inmates from the OCC to clean its offices. One night when she was working late, the plaintiff was surprised to discover a male inmate, John Spicer, in the office with her. Spicer was allowed to be in the offices to clean them, but was typically in the offices mid-morning, and had no reason to be in the office that late. The plaintiff noticed that the inmate was looking at her, and 'fiddling with a vacuum' in a way that made her very uncomfortable. The plaintiff, feeling completely unnerved by the encounter, immediately reported the incident to her supervisor, who apologized and assured her that it would never happen again. Sadly, just over one week later, the inmate once again went to the office after hours, and the plaintiff was again alone. This time the inmate brutally attacked and raped the plaintiff and escaped from the OCC in the plaintiff's car. The Seventh Circuit, in upholding the jury's verdict in favor of the plaintiff, found that the Wisconsin Department of Corrections had negligently failed to respond to the plaintiff's complaint regarding her first encounter with the inmate. The court noted that there was an implicit threat of sexual harassment, and that the employer had failed to respond to that threat.

Warning Signs

Clearly, employers, especially those in delicate environments, must be very aware of complaints that may not claim harassing behavior itself, but are instead warnings of potentially harassing behavior yet to come. In addition, even if an employee reports just a single uncomfortable encounter, employers must act swiftly and decisively to address the employee's concerns.

Although not all environments are as potentially threatening and worrisome as a prison, employers of predominately male workplaces should be aware that they may be subject to a heightened level of responsibility toward their female workers. In Valentine v. City of Chicago, 452 F.3d 670 (7^th Cir. 2006), the plaintiff, a female motor truck driver for the City of Chicago's Department of Transportation, complained to her supervisor that a male co-worker was 'aggravating [her], that he was being rude, [and] that he had put his hands on her.' Id. at 680. The court, in finding that there was a material question of fact as to whether the supervisor was put on notice of harassment, noted that a jury could find that the 'put his hands on her' statement was sufficient to show notice. Importantly, the court also added that '[t]his is especially true in the context of this case, where [the plaintiff] was one of only a handful of women working in a traditionally male workplace.' Id. In both Valentine and Erickson, the courts clearly stressed the importance of context when assessing claims of harassment. It is hoped that courts in the future will recognize that employees should be expected to state a harassment complaint clearly. In the meantime, employers with a portion of an employee population that may seem, in the particular context of that workplace, to be vulnerable, should alert their supervisors that they should take even the slightest report of harassment very seriously.

Finally, a recent decision by the Ninth Circuit serves as an important reminder to employers and lawyers that boorish behavior, even if it is not sex- or gender-specific, can still be deemed harassment under Title VII. In EEOC v. National Education Association, Alaska, 422 F.3d 840 (9^th Cir. 2005), the EEOC brought an action against NEA-Alaska on behalf of three female employees, alleging a sex-based hostile work environment. The record revealed that the Executive Director of NEA-Alaska was loud and hostile to female employees and that he frequently shouted at the employees for little or no reason, in a profane and public manner. Id. at 843. The director's verbal conduct also had a hostile physical accompaniment, which involved actions such as lunging across a table and shaking his fist at employees, and coming up behind employees and grabbing them on the shoulders. The court found that this behavior 'clearly intimidated female employees' and a male co-worker testified, without prompting, to the 'general fear of the women at our office.' Id. at 844. The employer, however, moved for summary judgment and argued that there were insufficient facts for a jury to infer that there was a hostile work environment, or that any alleged harassment was because of sex. The employer argued, essentially, that the director was not harassing women because they were women, but that he merely was an obnoxious person in general, and, therefore, his actions were not Title VII violations. The district court agreed with the employer and granted summary judgment. On appeal, however, the Ninth Circuit disagreed, and reversed.

In its ruling, the court noted that 'there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes or sexual overtures.' Instead, the court held, plaintiffs can establish a case for discriminatory harassment based on how an alleged harasser treats members of both sexes. The court went on to further state that 'whatever the motive, the ultimate question… is whether [the director's] behavior affected women more adversely than it affected men.' Id. at 845. The court further held that courts must compare, qualitatively and quantitatively, the way women were treated versus how men were treated, and the subjective effects of this treatment. Therefore, employers must be aware that obnoxious behavior that is not overtly gender-specific, at least in the eyes of the Ninth Circuit, may still be deemed a violation of Title VII if the behavior is more often directed at women, is worse when it comes to women, or women are subjectively more adversely affected by the behavior than men.

Conclusion

These recent court decisions clearly reinforce the necessity for employers to create and implement anti-harassment policies carefully. Employers should also examine the composition of their workplace, and take proactive steps to protect what a court may deem to be a 'vulnerable' population. Finally, employers should carefully and quickly respond to any and all harassment complaints, to avoid potential claims.

Ralph A. Morris, a member of this newsletter's Board of Editors, is a partner in the Chicago office of Schiff Hardin LLP. He advises and represents employers in employment matters. He also acts as an Employment Mediator and independent investigator on harassment claims. Dorothy A. Paler is a member of Chicago's Neal Gerber Eisenberg's Employee Benefits & Executive Compensation Practice Group.

Recent court decisions highlight the importance of continuing to be vigilant in monitoring and preventing harassment in the workplace. For example, most employers and labor and employment lawyers are aware that harassing conduct by supervisors will result in strict liability being attached to the employer. It appears clear, however, that courts are increasingly willing to impose strict liability for harassing conduct carried out not only by the highest supervisors, but by lower-level managers as well. In addition, recent court decisions highlight the importance of employers training their employees to report not just employee-on-employee harassment, but harassment by non-employees of employees. Employers of teenagers, and their counsel, should especially be aware of the need to train and protect underage employees appropriately to prevent harassing behavior. Recently published decisions prove that courts are increasingly critical of employers who ignore harassing behavior against what is seen to be a vulnerable group of employees. Finally, employers should be aware that harassment that is not overtly sex- or gender-specific in content may still be discriminatory harassment, if it disproportionately affects a gender group (e.g., women).

How to Define 'Supervisor'

The definition of 'supervisor' under Title VII continues to be of growing concern for employers. As most employers will recall, according to the Supreme Court's decisions in Burlington Industries, Inc. v. Ellerth , 524 U.S. 742 (1998) and Faragher v. City of Boca Raton , 524 U.S. 775 (1998), an employer will be vicariously, or strictly, liable when a supervisor with immediate authority over an employee engages in harassing conduct. In contrast, if an alleged harasser is merely a coworker, the employer will only be liable if it failed to have and enforce a reasonable policy for preventing harassment, or if it was negligent in protecting employees from harassing coworkers. (See 'Sexual Harassment 'Victims' Must Satisfy Their 'Half' of the 'Reasonableness' Equation or Suffer the Consequences Later,' by Debra M. Leder, The Employment Law Strategist, July 2007; www.lawjournalnewsletters.com/issues/ljn_emplaw/15_3/news/148929-1.html.)

Recent decisions appear to note, however, that the definition of 'supervisor' may not be as limited as one might think. Many employers are under the impression that strict liability will attach only when the highest-level supervisors are responsible for the behavior. Indeed, the United States Supreme Court has stated that supervisors are individuals with the power to 'hire and fire, and to set work schedules and pay rates.' Faragher v. City of Boca Raton , 524 U.S. at 803 (1998). Some recent court decisions have strictly followed this standard, holding that supervisors are employees that have been given the ability to demote or fire an employee, are not just employees who merely assign tasks to other employees. Weyers v. Lear Operations Corp. (8^th Cir. 2004) 359 F.3d 1049.

However, other recent court decisions have noted that the definition may not be so narrow. For example, in Doe v. Oberweis Dairy , 456 F.3d 704 (7 th Cir. 2006), the Seventh Circuit found that a senior coworker who oversaw daily work assignments was a 'supervisor' under Title VII. Here, the plaintiff was a high-school student who was hired as a part-time ice cream 'scooper' at the defendant's store. She later sued, alleging that she had been sexually harassed by her male shift supervisor at the store. The Seventh Circuit noted that the shift supervisor seemed to be either an 'elevated coworker' or a 'diminished supervisor,' as he had the ability to direct the work of scoopers and was authorized to issue disciplinary write-ups; however, he did not have the ability to actually fire employees. Despite the lack of power to terminate employees, the court determined that the employee in question was indeed a supervisor, and that, therefore, strict liability to the employer would attach. The court noted that the shift supervisor was often the only supervisor in the ice cream parlor, and that when he told his boss that one of the 'scooper girls was not doing a good job and should be fired … his boss likely would have taken his word for it rather than conduct an investigation.' Employers should be alert that even if an employee is not expressly designated as a 'supervisor,' the employer may nevertheless be held strictly liable for that employee's actions.

Harassment by Non-Employees

In addition to being aware of the expanding definition of 'supervisor,' employers should also be attentive to the fact that courts continue to hold that employers may be liable for harassing conduct that occurs in the workplace by non-employees. In Freitag v. Ayers , 468 F.3d 528 (9 th Cir. 2006), for example, a female corrections officer brought suit against the state department of corrections, alleging harassment by the male prisoners she was assigned to guard. In her complaint, the plaintiff stated that several of the male prisoners had exposed themselves to her; one had openly masturbated in front of her, and, on one occasion, ejaculated into a meal tray she was clearing. The plaintiff filed numerous reports regarding the prisoners' harassing behavior, and also complained to her immediate supervisors. When her complaints were largely ignored, she proceeded to file her lawsuit. In finding for the plaintiff, the Ninth Circuit noted that employers are liable for harassing conduct by non-employees 'where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.' The court declined to find that prisons are an 'inherently hostile environment' and immune from harassment lawsuits, as the defendants urged. Instead, the court found that 'even in an inherently dangerous working environment, the focus remains on whether the employer took reasonable measures to make the workplace as safe as possible.' Id. at 539. But see Vajdl v. Mesabi Academy of Kidspeace, Inc. (8^th Cir. 2007) (holding that a non-profit organization licensed by the Minnesota Department of Corrections was not liable for the harassing conduct of young, violent criminal offenders. 'By choosing to work in a prison, corrections personnel have acknowledged and accepted the probability that they will face inappropriate and socially deviant behavior.')

Outside the Workplace

Employers will not only be held liable for the acts of non-employees if they fail to take corrective actions, but Doe v. Oberweis also reinforced the notion that employers may be liable for conduct that occurs outside of the workplace, if it 'arises from the workplace.' In Doe, it was uncontested that the plaintiff's shift supervisor had invited the plaintiff over to his apartment, and that while there, the two had engaged in consensual sex. It was also uncontested that this occurred when the plaintiff was 16 years old, and the defendant was 25. The Seventh Circuit disagreed with the district judge who had found that the plaintiff was not harassed because she welcomed her supervisor's advances. Instead, the court found that because the sex amounted to statutory rape in the state of Illinois, based on the individuals' ages, the defendant could not escape liability.

In addition, the court noted that the sexual act need not be committed in the workplace for liability under Title VII to attach. Instead, at the very least, the 'harassment must … be an episode in a relationship that began and grew in the workplace.' Because the plaintiff's consent to have sex with her supervisor was, as a matter of law, ineffectual, this was a case of a worker 'subjected to nonconsensual sex by a supervisor or at least quasi-supervisor … during, as well as arising from, the employment relation.'

Interestingly, the court in Doe also clearly held that employers of underage workers have a greater duty to protect their employees from harassing behavior. Although noting that the shift supervisor would be considered a supervisor and that the employer would, therefore, be strictly liable, the court further commented that the employer could also be liable under a negligence standard. The court noted that the supervisor was not only often the only supervisor in the ice cream parlor, but that he was also supervising, for the most part, 'inexperienced teenagers working part time.' This created a 'risk of harassment [ ] that required his employer to take greater care …'

'Greater Care'

This 'greater care' owed to underage workers, particularly in terms of sexual harassment, has been echoed in numerous cases since Doe. For example, in EEOC v. V & J Foods, Inc. 2006 WL 3203713 (E.D.Wis. 2006) the plaintiff, a 16-year-old, alleged she was harassed by her 35-year-old supervisor. The court noted that the relative ages of the individuals involved was of 'great significance' in finding that the plaintiff had an actionable claim of harassment. It is also clear that failure to protect these vulnerable workers from harassment can lead to large penalties for an employer. This past March, an Arizona company that operates McDonald's restaurants agreed to pay eight young women $550,000 (not including attorneys' fees in an amount yet to be determined, but not to exceed $400,000) to resolve claims of harassment by a male manager. In announcing the settlement, the EEOC noted that employers must be especially vigilant in protecting vulnerable teen workers from workplace harassment. EEOC v. GLC Rests. Inc. d/b/a McDonald's Rest., D. Ariz., No. CIV 05-618 PCT DGC, consent decree approved 3/20/07.

Being particularly mindful of a group of employees (e.g., teenagers), and the context in which they work, is becoming of greater importance to employers, as well. What in one context would not be enough to put the employer on notice of harassing behavior or behavior that may lead to harassment, may, in another context, be enough for liability to attach. For instance, in Erickson v. Wisconsin Department of Corrections , 469 F.3d 600 (7 th Cir. 2006), the plaintiff was a payroll and benefits specialist with the Wisconsin Correctional Center System ('WCCS'). The Oregon Correctional Center ('OCC'), an all-male minimum security prison, is housed in the same building as WCCS, and WCCS uses inmates from the OCC to clean its offices. One night when she was working late, the plaintiff was surprised to discover a male inmate, John Spicer, in the office with her. Spicer was allowed to be in the offices to clean them, but was typically in the offices mid-morning, and had no reason to be in the office that late. The plaintiff noticed that the inmate was looking at her, and 'fiddling with a vacuum' in a way that made her very uncomfortable. The plaintiff, feeling completely unnerved by the encounter, immediately reported the incident to her supervisor, who apologized and assured her that it would never happen again. Sadly, just over one week later, the inmate once again went to the office after hours, and the plaintiff was again alone. This time the inmate brutally attacked and raped the plaintiff and escaped from the OCC in the plaintiff's car. The Seventh Circuit, in upholding the jury's verdict in favor of the plaintiff, found that the Wisconsin Department of Corrections had negligently failed to respond to the plaintiff's complaint regarding her first encounter with the inmate. The court noted that there was an implicit threat of sexual harassment, and that the employer had failed to respond to that threat.

Warning Signs

Clearly, employers, especially those in delicate environments, must be very aware of complaints that may not claim harassing behavior itself, but are instead warnings of potentially harassing behavior yet to come. In addition, even if an employee reports just a single uncomfortable encounter, employers must act swiftly and decisively to address the employee's concerns.

Although not all environments are as potentially threatening and worrisome as a prison, employers of predominately male workplaces should be aware that they may be subject to a heightened level of responsibility toward their female workers. In Valentine v. City of Chicago , 452 F.3d 670 (7 th Cir. 2006), the plaintiff, a female motor truck driver for the City of Chicago's Department of Transportation, complained to her supervisor that a male co-worker was 'aggravating [her], that he was being rude, [and] that he had put his hands on her.' Id. at 680. The court, in finding that there was a material question of fact as to whether the supervisor was put on notice of harassment, noted that a jury could find that the 'put his hands on her' statement was sufficient to show notice. Importantly, the court also added that '[t]his is especially true in the context of this case, where [the plaintiff] was one of only a handful of women working in a traditionally male workplace.' Id. In both Valentine and Erickson, the courts clearly stressed the importance of context when assessing claims of harassment. It is hoped that courts in the future will recognize that employees should be expected to state a harassment complaint clearly. In the meantime, employers with a portion of an employee population that may seem, in the particular context of that workplace, to be vulnerable, should alert their supervisors that they should take even the slightest report of harassment very seriously.

Finally, a recent decision by the Ninth Circuit serves as an important reminder to employers and lawyers that boorish behavior, even if it is not sex- or gender-specific, can still be deemed harassment under Title VII. In EEOC v. National Education Association, Alaska , 422 F.3d 840 (9 th Cir. 2005), the EEOC brought an action against NEA-Alaska on behalf of three female employees, alleging a sex-based hostile work environment. The record revealed that the Executive Director of NEA-Alaska was loud and hostile to female employees and that he frequently shouted at the employees for little or no reason, in a profane and public manner. Id. at 843. The director's verbal conduct also had a hostile physical accompaniment, which involved actions such as lunging across a table and shaking his fist at employees, and coming up behind employees and grabbing them on the shoulders. The court found that this behavior 'clearly intimidated female employees' and a male co-worker testified, without prompting, to the 'general fear of the women at our office.' Id. at 844. The employer, however, moved for summary judgment and argued that there were insufficient facts for a jury to infer that there was a hostile work environment, or that any alleged harassment was because of sex. The employer argued, essentially, that the director was not harassing women because they were women, but that he merely was an obnoxious person in general, and, therefore, his actions were not Title VII violations. The district court agreed with the employer and granted summary judgment. On appeal, however, the Ninth Circuit disagreed, and reversed.

In its ruling, the court noted that 'there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes or sexual overtures.' Instead, the court held, plaintiffs can establish a case for discriminatory harassment based on how an alleged harasser treats members of both sexes. The court went on to further state that 'whatever the motive, the ultimate question… is whether [the director's] behavior affected women more adversely than it affected men.' Id. at 845. The court further held that courts must compare, qualitatively and quantitatively, the way women were treated versus how men were treated, and the subjective effects of this treatment. Therefore, employers must be aware that obnoxious behavior that is not overtly gender-specific, at least in the eyes of the Ninth Circuit, may still be deemed a violation of Title VII if the behavior is more often directed at women, is worse when it comes to women, or women are subjectively more adversely affected by the behavior than men.

Conclusion

These recent court decisions clearly reinforce the necessity for employers to create and implement anti-harassment policies carefully. Employers should also examine the composition of their workplace, and take proactive steps to protect what a court may deem to be a 'vulnerable' population. Finally, employers should carefully and quickly respond to any and all harassment complaints, to avoid potential claims.

Ralph A. Morris, a member of this newsletter's Board of Editors, is a partner in the Chicago office of Schiff Hardin LLP. He advises and represents employers in employment matters. He also acts as an Employment Mediator and independent investigator on harassment claims. Dorothy A. Paler is a member of Chicago's Neal Gerber Eisenberg's Employee Benefits & Executive Compensation Practice Group.