New Sexual Harassment Legislation in Illinois

On August 9, 2019, Governor Pritzker signed into law a new sexual harassment law (Senate Bill 75), entitled the Workplace Transparency Act (“Act”). The new statewide sexual harassment law creates new requirements for Illinois employers.  The Act is effective January 1, 2020, so employers are encouraged to start reviewing their current sexual harassment policies and procedures to ensure compliance once the law is in effect.

Here are some of the highlights from the new law and what that will mean for employers: 

Expands the Definition of Sexual Harassment

The new law broadens the scope of sexual harassment claims brought against employers to extend beyond the physical location that an employee is assigned to perform his or her duties. This means that an employer may be subject to liability for actions that occur outside the physical workplace that create an “intimidating, hostile or offensive working environment.” It further expands the definition of “unlawful discrimination” to include discrimination against a person because of his or her “actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy,  unfavorable discharge from military service, or citizenship status that has the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

Additionally, the new law clarifies that an employer is also responsible for sexual harassment of nonemployees committed by employees in non-managerial and non-supervisory positions if the employer becomes aware of the harassment and fails to take “reasonable corrective measures.”

Requires Annual Employer Disclosures to the Illinois Department of Human Rights

Starting on July 1, 2020 and subsequently required annually by July 1st, employers will be required to disclose the total number of adverse judgments or administrative rulings of sexual harassment or unlawful discrimination against the employer to the Illinois Department of Human Rights (“IDHR” or “Department”).  As part of this requirement, employers will be required to disclose whether any equitable relief was ordered against them.  

Additionally, if the Department is investigating a charge filed pursuant to the Illinois Human Rights Act relating to sexual harassment or unlawful discrimination, the Department may also require employers to provide the total number of settlements entered into during the preceding five years that related to any alleged act of sexual harassment or unlawful discrimination.

Annual Sexual Harassment Prevention Training

Every employer with 15 or more employees working in Illinois will be required to provide annual sexual harassment prevention training to its employees. Employers may use the Department’s to-be-developed Model Sexual Harassment Prevention Training Program or establish its own program that equals or exceeds the Department’s minimum standards.

Requires All Restaurants and Bars Operating in Illinois to have a Sexual Harassment Policy

Under the Act, every restaurant and bar operating in Illinois must have a written sexual harassment policy that is provided to all employees within one calendar week of the employee’s employment.  According to the Act, this policy must be made available in English and Spanish and must include:

• 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 IDHR and the U.S. 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.

In addition to the required annual Sexual Harassment Prevention Training, restaurants and bars must also provide a supplemental training program that is specific to the restaurant and bar industry. This supplemental program must be provided to all employees, regardless of employment classification, at least once a year.  Restaurants and bars may use the Department’s Model Supplemental Training Program (also to be developed) or may create their own program so long as it complies with the Act’s requirements.

Penalties

Failure to report the required disclosures to the Department and/or failure to train employees may result in a civil penalty based upon the size of the employer charged, the good faith efforts made by the employer to comply, and the gravity of the violation. For employers with less than 4 employees: a penalty is not to exceed $500 for a first offense; not to exceed $1,000 for a second offense; and not to exceed $3,000 for a third or subsequent offense. For employers with more than 4 employees: a penalty is a not to exceed $1,000 for a first offense; not to exceed $3,000 for a second offense; and not to exceed $5,000 for a third or subsequent offense.

Expands Entitlement To Unpaid Leave Due to Gender Violence

The proposed law also entitles employees who are victims of gender-based violence to take unpaid leave from work if the employee, employee’s family or household member is experiencing an incident of gender-based violence.

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HMBR can provide services to assist employers review and update their sexual harassment policies and procedures, provide on-site training on the new sexual harassment laws, update existing sexual harassment training, and answer any questions or concerns about the implications of the proposed law. Please do not hesitate to contact us by email or at 312-946-1800.