Illinois Employers: Start Your Engines, Err, Anti-Harassment Training
Effective January 1, 2020, every employer “with employees working in” Illinois must provide annual anti-harassment training to its employees under the new Workplace Transparency Act. At a minimum, the training must include:
An explanation of sexual harassment;
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; and
A summary of the employer’s responsibilities in the prevention, investigation, and corrective measures of sexual harassment.
But that’s not all. The Workplace Transparency Act made other significant changes to Illinois employment law:
Bar and “restaurant” owners, you’ve got additional requirements to prevent sexual harassment. “Restaurant” includes, but is not limited to, restaurants, coffee shops, cafeterias, sandwich stands, and catering facilities. In addition to the new anti-harassment training, every bar and restaurant must also provide annual supplemental sexual harassment training to all employees, specifically aimed at the prevention of sexual harassment in the restaurant and bar industry. They must also have a written sexual harassment policy containing certain required provisions, and must give a copy to employees within their first week of hire.
So do you, casino and hotel owners. By July 1, 2020, hotels and casinos must give employees who work alone in restrooms, guest rooms, casino floors, or other isolated spaces portable safety or notification devices (at no cost to the employee) that will summon help if the employee reasonably believes an on-going crime, sexual harassment, sexual assault, or other emergency is occurring in the employee’s presence. Hotels and casinos also must have a written anti-sexual harassment policy (with certain requirements specified in the law) to protect employees against sexual harassment and sexual assault by guests, and must give employees a copy of the policy (in English and Spanish) and post it (in English and Spanish) in conspicuous places where employees can reasonably be expected to see it.
Employer disclosures. Beginning July 1, 2020, and by each July 1 thereafter, employers of any size must disclose to the Illinois Department of Human Rights (IDHR) the total number of final adverse administrative or judicial decisions involving sexual harassment or discrimination against them in the previous year anywhere in the U.S. The IDHR may also require employers to disclose information on settlements involving sexual harassment or discrimination claims that were entered into during the previous five years anywhere in the U.S., but only if the IDHR is investigating a charge filed under the Illinois Human Rights Act and requests the information.
Settlement and termination agreements, non-disclosure agreements, and mandatory arbitration agreements are significantly restricted:
Employers can’t prevent employees or prospective employees from making truthful statements or disclosures about alleged unlawful employment practices or criminal activity.
Employers can’t require employees to waive, arbitrate, or diminish an existing or future claim related to an unlawful employment practice. However, employers and employees can bargain for certain waivers if the agreement is in writing and contains various disclaimers.
A settlement or termination agreement can include promises of confidentiality related to alleged unlawful employment practices only if:
Confidentiality is the documented preference of the employee and is mutually beneficial to both parties;
The employee is notified of his or her right to have an attorney review the agreement;
The employee is given 21 days to consider the agreement and a seven-day revocation period;
There is valid, bargained-for consideration in exchange for the confidentiality; and
The agreement does not waive claims of unlawful employment practices that accrue after the date of the agreement’s execution.
New definitions.
Under the Illinois Human Rights Act, “unlawful discrimination” is expanded to include discrimination based on a person’s “actual or perceived” race, color, religion, age, gender, or other protected characteristic.
Similarly, “harassment” is now defined as “unwelcome conduct” on the basis of a person’s “actual or perceived” protected characteristic. The unwelcome conduct must have the “purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” “Working environment” is now expressly “not limited to a physical location an employee is assigned to perform his or her duties,” and can therefore occur outside of the office.
Independent contractors, consultants, and other non-employees “directly performing services for the employer pursuant to a contract with that employer” are now protected from harassment under the Illinois Human Rights Act. It’s no longer just about the employees!
The Victims’ Economic Security and Safety Act (VESSA), which provides unpaid protected leave to employees who are victims of domestic or sexual violence or stalking or have family or household members who are victims, now includes victims of “gender violence.”
Anything else?
In a separate bill awaiting Governor Pritzker’s signature, the definition of “employer” under the Illinois Human Rights Act would change to any person that employs one or more employees within Illinois, expanding from the current requirement of 15 or more employees for most protected categories.
Laura Garofalo Law, LLC can help employers meet their policy, training, and other compliance requirements. Contact us, or visit https://www.fairmeasures.com/employment-law-training/harassment-prevention-training/.