Illinois Enacts Sweeping Anti-Harassment Law
On August 9, 2019, Illinois enacted the Workplace Transparency Act (Senate Bill 75) amending the Illinois Human Rights Act in several ways but importantly, it requires that employers provide annual sexual harassment training for all employees working in the state.
New Training Mandate
Effective January 1, 2020, employers must provide annual sexual harassment training for all employees working in the state. Training must contain all of the following to be compliant:
- An explanation of sexual harassment consistent with the act;
- Examples of conduct that constitute unlawful sexual harassment;
- A summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
- A summary of employer responsibilities in the prevention, investigation, and corrective measures of sexual harassment.
The new law also requires the Illinois Department of Human Rights (IDHR) develop and publicly provide a model training program.
Restaurants and Bars
Every restaurant and bar operating in Illinois must also have a sexual harassment policy in place, available in both English and Spanish, that includes all the following:
- A prohibition on sexual harassment;
- The definition of sexual harassment under the Illinois Human Rights Act and Title VII of the Civil Rights Act of 1964;
- Details on how an individual can report an allegation of sexual harassment internally, including options for making a confidential report to a manager, owner, corporate headquarters, human resources department, or other internal reporting mechanism that may be available;
- An explanation of the internal complaint process available to employees;
- How to contact and file a charge with the Illinois Department of Human Rights and federal Equal Employment Opportunity Commission;
- A prohibition on retaliation for reporting sexual harassment allegations; and
- A requirement that all employees participate in sexual harassment prevention training.
Restaurants and bars must provide employees with the mandatory sexual harassment prevention training annually and it must include:
- Specific conduct, activities, or videos related to the restaurant or bar industry;
- An explanation of manager liability and responsibility under the law; and
- English and Spanish language options.
The new law also amends the Illinois Human Relations Act to include protections from harassment for nonemployees. Specifically, employers are responsible for the harassment or sexual harassment of nonemployees by the employer’s nonmanagerial and nonsupervisory employees, but only if the employer becomes aware of the conduct and fails to take reasonable corrective measures. A nonemployee is a person who is not otherwise an employee of the employer and who is directly performing services for the employer pursuant to a contract with it, including contractors and consultants.
In addition to the training and policy mandates, the new law imposes mandatory disclosure requirements for employers. Specifically, employers with one or more employees within the state must disclose to the IDHR all the following:
- The total number of adverse judgments or administrative rulings during the preceding year;
- Whether any equitable relief was ordered against the employer in any adverse judgment or administrative ruling;
- How many adverse judgments or administrative rulings are in each of the following categories:
- Sexual harassment;
- Discrimination or harassment based on sex;
- Discrimination or harassment based on race, color, or national origin;
- Discrimination or harassment based on religion;
- Discrimination or harassment based on age;
- Discrimination or harassment based on disability;
- Discrimination or harassment based on military status or unfavorable discharge from military status;
- Discrimination or harassment based on sexual orientation or gender identity; and
- Discrimination or harassment based on any other characteristic protected under the act.
The disclosures must occur by July 1, 2020 and each July 1 thereafter. Employers must also disclose private settlements for matters involving harassment or discrimination.
Hotel and Casino Employee Safety Act
SB 75 also creates the Hotel and Casino Employee Safety Act, which requires all hotels and casinos, regardless of size and broadly defined, adopt a harassment prevention policy and make panic buttons available to employees who work in isolated environments. These mandates take effect July 1, 2020. The harassment prevention policy must have specific language and provisions directing employees to internal complaint procedures and external resources.
Other provisions of SB 75 include:
- Clarification that unlawful discrimination is discrimination against a person because of their actual or perceived membership in a protected class;
- Employees are protected when reporting allegations of sexual harassment, discrimination, or retaliation to federal, state, or local officials;
- Harassment against contract employees is illegal;
- Employers are prohibited from releasing a victim’s name (of alleged sexual harassment or unlawful discrimination) in any of its disclosures.
- The Sexual Harassment Victim Representation Act, which ensures a victim and accused perpetrator are not represented by the same union representative in proceedings.
- Expansion of the Victims Economic Security & Safety Act (VESSA) to allow victims of gender violence to take unpaid leave from work to seek medical help, legal assistance, counseling, safety planning, and other assistance.
- Modifications to the state’s Uniform Arbitration Act to include that a written agreement to submit any existing controversy to arbitraiton is revocable if grounds exist that the employer failed to comply with the terms of the Workplace Transparency Act (710 ILCS 5/1).
- Any agreement, clause, covenant, or waiver that is a unilateral condition of employment or continued employment that prevents and employee or applicant from making truthful statements or disclosures about alleged unlawful employment practices is generally void.
Employers in Illinois are now subject to a slew of new mandates in order to be compliant with this new state law. Employers should:
- Review their employment contracts, arbitration agreements, employment agreements, severance, and settlement agreements;
- Ensure their handbooks and policies are up-to-date and include the required content.
- Identify a scalable method for implementing annual training with required content.