The opinion
PRESIDING JUSTICE GOLDENHERSH, concurring in part and dissenting in part:
I respectfully dissent from the majority’s holding reversing the circuit court’s dismissal of this action against the coemployee pursuant to section 5(a) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a)).
The essential question in this appeal is whether this case is controlled by the recent case of Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455 , 564 N.E.2d 1222 , or the earlier case of Rodriguez v. Industrial Comm’n (1983), 95 Ill. 2d 166 , 447 N.E.2d 186 , both discussed in the majority opinion. It is my position that the facts of this case fit under Rodriguez and, therefore, the cause of action by plaintiff, Cathy Fitzgerald, is barred pursuant to section 5(a).
Initially, we must categorize the act of sexual harassment alleged in plaintiff’s complaint in relation to the complained-of actions in both Meerbrey and Rodriguez. Meerbrey involved actions by a coemployee based on knowledge of prior employer action taken against Meerbrey, and essentially the nature of the acts by the plaintiff’s coemployee was that of a security person, the coemployee’s position. In Rodriguez, the act of assault by the coemployee was not the type normally taken as part of the job of the aggressor coemployee. The Rodriguez court noted that it was an act motivated by prejudice against an ethnic group, and as such, reflected a pervasive societal problem from which the workplace is not immune.
In the case at bar, the alleged sexual harassment is part of a pernicious societal attitude toward women. It is as unreasoning and unjustifiable as the prejudice toward an ethnic group which motivated the actor in Rodriguez and as unrelated to any legitimate job function as the actor’s aggression in Rodriguez. This stands in contrast to the actions taken by the coemployee in Meerbrey. An analysis of the nature of the acts alleged against the coemployee leads me to conclude that the act alleged in plaintiff’s complaint is a Rodriguez type of act.
This categorization as a Rodriguez act leads to certain consequences in the case at bar. The court in Rodriguez deemed the aggressive act by the coemployee as “neutral” and concluded thereby that the victim-employee was covered under the Act. The Rodriguez court held the assault to be a neutral and compensable risk and explained its holding as follows:
“We believe that assaults by co-employees in the workplace that are motivated by general racial or ethnic prejudice are best treated as compensable ‘neutral’ risks arising out of the employment. Prejudice of this sort does not usually result in physical attacks in the world at large: it would be incorrect to say that people run the everyday risk of assault on the street or in public places because of their Mexican heritage. However, when an assault by a co-employee rooted solely in ethnic prejudice occurs in the workplace, as here, it is presumably the result of an irrational human impulse toward violence which is as much a part of the victim’s work environment as a defective tool would be. The victim may be unaware of the danger, but encounter it he must if the work to which he is assigned is to be completed. It is legitimately a hazard presented by the work. This is particularly true in our polyglot society in which employers are now required by Federal law to hire qualified racial minorities. (42 U.S.C. sec. 2000e — 2(a) (1976); see United Steelworkers of America v. Weber (1979), 443 U.S. 193 , 61 L. Ed. 2d 480 , 99 S. Ct. 2721 .) With more minorities in the workplace, the potential for ethnic or racial friction is likely to increase. It would be anomalous for the law to address the problems of bigotry and lack of opportunity in society by requiring employers to hire qualified members of minority groups while not also requiring them to make the workplace as safe for minorities so hired as for other workers. (See Ill. Rev. Stat. 1977, ch. 48, par. 851 (declaration of public policy referring to the need to utilize the productive capacities of all individuals to the fullest extent possible regardless of ancestry and to insure that workers have resources sufficient to maintain a reasonable standard of living without resort to public charity).) We believe that, in the absence of anything that would personalize the incident, a bigoted and violence-prone co-worker is as much a risk inherent in employment in an integrated or ethnically mixed workplace as a defective machine or ceiling might be.” ( 95 Ill. 2d at 174-75 , 447 N.E.2d at 190 .)
One may reasonably hold that the reasoning of the court in Rodriguez concerning violence against an ethnic group is just as applicable to acts of sexual harassment.
This categorization, however, carries the consequence of rendering the compensation remedy the exclusive remedy, according to the test of Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229 , 408 N.E.2d 198 . The components of that test are stated in the majority opinion and it is readily apparent that plaintiff in this cause fails at least two factors necessary to escape exclusivity under section 5(a). In this instance, the employee-plaintiff is not able to claim that the injury was not accidental, given the Rodriguez definition, and certainly that the injury was not compensable under the Act given the quotation from Rodriguez noted above. I thus conclude that, given the characterization of the alleged sexual harassment and our supreme court’s direction in Rodriguez, the exclusivity provisions of section 5(a) preclude plaintiff from proceeding on this action.
I would therefore hold pursuant to our supreme court’s rulings in Rodriguez and Collier that workers’ compensation is the exclusive remedy against the coemployee pursuant to section 5(a) of the Act and would affirm the circuit court on this issue.