Re-Visiting The Tort Of Retaliatory Discharge, with a Focus on the “Citizen Crime-Fighter” Cause of Action

Post Authored by Max Barack

The lone common law exception to Illinois’ at-will employment doctrine is the tort of retaliatory discharge. The tort encompasses two main causes of action: workers who are fired in retaliation for filing workers’ compensation claims, and workers whose firing, in some way, violates public policy (more on that public policy cause of action in a moment). This article discusses the behavior covered by the tort and one particular cause of action it provides: the “citizen crime-fighter” cause of action. This cause of action falls into that public policy category.

Between the common law tort of retaliatory discharge and the statutory cause of action provided by the Illinois Whistleblower Act 740 ILCS 174 et seq., there are  numerous causes of action to discuss about the tort. Though it is the lone exception, the tort of retaliatory discharge is actually quite expansive and protects employees from being illegally fired for a wide variety of protected behaviors.

The tort of retaliatory discharge was first recognized by the Illinois Supreme Court in Kelsay v. Motorola, Inc., 74 Ill.2d 172 (Ill. 1978). The Court there held that a cause of action existed for retaliatory discharge where the employee was fired for filing a workers’ compensation claim. The Court further held that allowing employers to discharge employees in retaliation for filing workers’ compensation claims while hiding behind the exclusive remedy provision of the Workers’ Compensation Act as the sole remedy for workplace injuries, violated public policy and the intentions of the Act. Kelsay v. Motorola, Inc., 384 N.E.2d 353, 357 (Ill. 1978) (internal citation omitted).

The Illinois Supreme Court has since expanded upon this cause of action. For example, in Palmateer v. International Harvester Co., 85 Ill.2d 124, 421 N.E.2d 876 (1981), the Illinois Supreme Court expanded the tort to cover “whistleblowers” who were discharged for cooperating in a criminal investigation, holding that Illinois’ public policy clearly favors the investigation and prosecution of crime and, accordingly, protects “citizen crime-fighters.” The Court stated, “There is no public policy more basic, nothing more implicit in the concept of ordered liberty” than the enforcement of a state’s criminal code. Palmateer, 85 Ill.2d at 132, 421 N.E.2d 876. The Court emphasized the importance of this policy, stating: “Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy.’” Id. at 132-133, at 876 (quoting Joiner v. Benton Community Bank, 82 Ill. 2d 40, 44 (Ill. 1980). The Palmateer Court explained that public policy is “to be found in the State’s constitution and statutes, and, where they are silent, in its judicial decisions,” and it “concerns what is right and just and what affects the citizens of the State collectively…. [A] matter must strike at the heart of a citizen’s social rights, duties and responsibilities before the tort [of retaliatory discharge] will be allowed.” Id. at 878-879.

The Palmeteer decision was not unique. Illinois and related federal courts have continued to recognize protections for workers who report crimes or participate in criminal investigations. In Belline v. K-Mart Corp., 940 F.2d 184, 187 (7th Cir. 1991), the Seventh Circuit recognized the plaintiff’s retaliatory discharge claim where the worker reported concerns about a manager potentially engaging in illegal activity to K-Mart management, not the police. That court held that the worker who reported the unauthorized removal of merchandise from the store was reporting a matter of public concern, not a merely private matter. In reaching its conclusion, the Belline court wrote:

Although no law compels an individual to step forward and communicate his suspicions regarding criminal activity, public policy clearly favors the exposure of crime. A society’s fundamental concern for the lives and property of its citizens is embodied in the criminal code. But the risk of discharge may deter employees who reasonably believe that crimes have been committed from acting on the information. To encourage citizen crime-fighters, Illinois law thus shields employees who volunteer such information from retaliatory dischargeBelline, 940 F.2d at 187 (emphasis added).

One limitation to the tort is that personal and/or private grievances are not covered. That is, a public policy a matter must “strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed.” Thomas v. Zamberletti, 480 N.E. 2d 869, 871-72 (Ill. App. 1985). Termination for reporting “personal” matters, such as workplace injuries, do not raise to the level of public policy concerns supporting retaliatory discharge claims. See Howell v. BNSF Ry. Co., 2015 WL 3528237 (N.D. Ill. 2015).

Crucially, “personal or private” does not mean that workers cannot report crimes perpetrated against them personally. In other words, the crime being reported does not have to be perpetrated against a different victim or impact the public at large. The very act of reporting the crime to law enforcement is, itself, a public policy issue. Other decisions involving plaintiffs discharged after reporting crimes or violence against perpetrated against them personally highlight the distinction between private or personal matters and matters of public concern in the context of citizen crime fighter causes of action.

For example, in Daoust v. Abbott Laboratories, 2007 WL 118414 (N.D. Ill. 2007) (unreported), the district court held that the plaintiff stated a cause of action for retaliatory discharge where he alleged he was discharged in response to complaints about physically threatening behavior by a subordinate employee. Daoust, 2007 WL 118414, at *1. In reaching its conclusion, the Daoust court reviewed various statutes enacted to address violence in the workplace to demonstrate that, “Illinois’ overall concern for the safety of its citizens extends into the workplace. The Illinois General Assembly has enacted laws that combat under-reported workplace violence and that attempt to protect victims of violence from experiencing discrimination in the workplace.” Id. at *2-3. The Daoust court denied the defendant’s motion to dismiss, holding that a discharge in retaliation for reporting workplace violence would violate clearly mandated public policy under Illinois law.

Likewise, in Vance v. Dispatch Mgt. Serv., 122 F. Supp. 2d 910 (N.D. Ill. 2000), the district court denied the defendant’s motion to dismiss the plaintiff’s claim for retaliatory discharge where the plaintiff alleged she was discharged in retaliation for filing for an emergency protective order against a coworker who allegedly threw her against a wall. Vance, 122 F. Supp. 2d at 910-911. Analogizing the case to Palmateer, the Vance court held that, “Firing her for filing for the order would be firing her for reporting a co-worker’s criminal or improper conduct. That would violate Illinois public policy as determined by the Illinois Supreme Court.” Id. at 912.

As long as Illinois remains an at-will state, workers can be subject to firing for nearly any reason, subject to limited exceptions. However, the “citizen crime fighter” cause of action ensures that workers should continue to act as whistleblowers when they witness illegal activity in the workplace. This remains true even when the crime or other illegal activity they witness is perpetrated against the reporting employee.

About the Author:


Max is a plaintiff-side civil rights employment lawyer. He has worked at Favaro & Gorman, Ltd. since January 2017. He represents victims of sexual, racial, national origin, age, and disability harassment, discrimination, retaliation, wage theft, unpaid wages, and whistleblowers. Max has given presentations on the difficulties and best practices for handling social media and other forms of electronic discovery in litigation, Illinois employees’ workplace privacy rights, and the tort of retaliatory discharge. He has extensive experience with electronic discovery in the context of civil rights cases. He has performed in-depth research on and helped write an article on the rights of public employees. He is a member of the Board of Directors for the National Employment Lawyers Association (NELA) Illinois Chapter, and a member of the Illinois State Bar Association, the Chicago Bar Association, and the Decalogue Society. Max speaks Spanish and represents Spanish-speaking plaintiffs in a variety of employment-related cases.

Max grew up in the Chicago area. He graduated from Chicago-Kent College of Law in 2013, where he was a member of the Moot Court Honor Society and served on student government. Previously, he attended the University of Michigan and graduated with honors and a bachelor’s degree in history. He still lives in Chicago.

Click here for Max’s full bio.



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