Bi-Monthly Recap: New Mandatory Sexual Harassment Training Requirement
Monday, February 17, 2020
On January 21, Walker Lawrence, Associate at Levin Ginsburg, presented a program on recent amendments to the Illinois Human Rights Act and the Illinois Workplace Transparency Act. Below is a summary of his presentation.
Several significant changes in the law are in store for employers as they move forward in 2020. These changes will require employers to review their employment policies, update employment agreements, and develop new training programs. Below is a brief update of those changes and how employers should begin preparing to address them in 2020.
Amendments to the Illinois Human Rights Act
The Illinois Human Rights Act (“IHRA”) was amended to expand its coverage, require mandatory sexual harassment training, and require annual reporting of employment claims.
The amendments to the IHRA expand five key provisions:
- The definition of “Discrimination” was expanded to include “actual or perceived” members of a protected class;
- The definition of “working environment” is no longer limited to the physical location to which an employee is assigned to perform services for an employer;
- The definition of “employer” was expanded to include any entity that employs one or more persons (instead of the previous 15-employee requirement);
- The definition of an “employee” was expanded to include non-employees, including independent contractors, vendors and others performing services for the benefit of the employer; and
- The amendments enacted into law the Illinois Supreme Court holding that employers are responsible for the acts of “nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take corrective measures.”
The amendments to the IHRA require most employers (e.g. at least one employee) in Illinois to implement a sexual harassment prevention training program.
The IHRA provides that:
The Department shall produce a model sexual harassment prevention training program aimed at the prevention of sexual harassment in the workplace. The model program shall be made available to employers and to the public online at no cost. This model program shall include, at a minimum, the following:
- an explanation of sexual harassment consistent with this Act;
- examples of conduct that constitutes 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 responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
To no one’s surprise, the state has not released the “model” training program to help employers comply with the new law. At this point, best practice dictates patience as employers wait for guidance from the State because employers have until December 31, 2020 to comply.
Beginning July 1, 2020 employers will be required to make annual disclosures to the Illinois Department of Human Rights. Those disclosures include the following:
- Total number of settlements involving the employer in the preceding year related to a claim of unlawful discrimination that (a) occurred at the workplace; or (b) involved the acts of an employee whether at work or not;
- Breakdown of the total number of settlements by type of claim: (a) sexual harassment or gender discrimination, (b) race, color or national origin, (c) religion, (d) age, (e) disability, (f) military status, (g) gender discrimination, (h) other;
- Total number of adverse judgment or administrative rulings;
- Equitable relief ordered against the employer with respect to the covered claims;
- Breakdown of the total number of adverse rulings by type of claim (a) sexual harassment or gender discrimination, (b) race, color or national origin, (c) religion, (d) age, (e) disability, (f) military status, (g) gender discrimination, (h) other.
The amendments to the IHRA increase an employer’s potential exposure to litigation involving IHRA claims, require new data to be collected with the State, and develop and implement new sexual harassment training programs.
The Illinois Workplace Transparency Act
Many employers require employees to sign confidentiality agreements when they are hired, terminated or as part of a settlement agreement. The Illinois Workplace Transparency Act (“IWTA”) will require significant changes and updates to many of those agreements and policies. These changes are designed to increase transparency and protect employees reporting harassment and discrimination in the workplace. These changes went into effect January 1, 2020.
Reporting to the Government
Under the IWTA, no contract or document can prohibit a prospective, current or former employee from reporting any “unlawful conduct” to a government entity. This applies to employment agreements, handbooks, policies, NDAs, severance agreements, settlement agreements, and non-compete agreements. Employers also cannot prevent any employee from testifying in a criminal action or unlawful employment lawsuit.
Any policy or agreement that an employee is subject to as a condition of employment that restricts an employee from making any truthful statement about an unlawful employment practice is prohibited. Examples of these policies or agreements would include a confidentiality policy in a handbook or non-disparagement clause in an employment agreement. Each of these clauses would prevent an employee from disclosing potentially harmful truthful statements about an employer.
The IWTA provides a safe harbor if these policies were negotiated, the employee receives a bargained-for benefit, and the employer expressly notifies the employee of the employee’s right to:
- report any good faith allegation of unlawful employment practices to any appropriate federal, State, or local government agency enforcing discrimination laws;
- report any good faith allegation of criminal conduct to any appropriate federal, State, or local official;
- participate in a proceeding with any appropriate federal, State, or local government agency enforcing discrimination laws;
- make any truthful statements or disclosures required by law, regulation, subpoena, or legal process; and
- request or receive confidential legal advice.
Forced arbitration agreements may be void under the law if they are not in compliance with IWTA. They must include “a written exception for claims of harassment or discrimination, as provided under Section 2-102 of the Illinois Human Rights Act”. Agreements to arbitrate will be deemed void and unenforceable if they prevent the public enforcement of harassment claims.
Like the other restrictions, confidentiality provisions in settlement agreements would be void under the IWTA unless:
- confidentiality is negotiated by both Parties and both Parties are bound by it;
- employee is advised to have its own counsel;
- specific consideration is given to the employee for the confidentiality provision;
- prospective claims are not released; and
- the employee is given adequate time to review (e.g., 21-days) and rescind the separation agreement (e.g., 7-days).
The IWTA requires broad sweeping changes that will require employers to update their policies, rewrite agreements, and evaluate their severance procedures.
These are only a few examples of the changes that will impact Illinois employers in 2020. With an employee friendly governor in Springfield, Illinois businesses have to adapt, update and prepare for the legal landscape in 2020. Most of these changes will require employers to change existing policies, update handbooks, increase training, increase hourly rates of pay, modify agreements, and review their hiring practices going forward.
If you have any questions regarding these or any other employment laws, please contact Walker Lawrence at (312) 368-0100 or firstname.lastname@example.org
at Levin Ginsburg.
Associate, Levin Ginsburg