Employers take note: Illinois’ newly enacted Workplace Transparency Act (WTA) imposes significant new requirements for addressing sexual harassment and discrimination issues, including mandatory training, reporting requirements, expanded employee protections, and potential liability. The WTA amends the Illinois Human Rights Act (IHRA) effective January 1, 2020, with new disclosure requirements effective as of July 1, 2020. Here are key takeaways for employer legal compliance and best practices.
Coverage
The word “employer” is a term of art for legal purposes. The IHRA applies generally to “[a]ny person employing 15 or more employees within Illinois.” Consequently, its breadth does not extend to smaller employers. Such terminology applies equally under the WTA.[1] Notably, however, the WTA’s new annual employer disclosure requirements, for settlements related to sexual harassment or unlawful discrimination, apply to all employers. In addition, the WTA’s new unpaid leave requirements likewise apply to all employers, with specific leave amounts based on number of employees.
Mandatory Sexual Harassment Prevention Training
Covered employers must provide annual sexual harassment prevention training to all employees on an annual basis. For employers that may fall below the 15-employee coverage threshold, such training may likewise be advisable for optimal employee protection and risk management. At minimum, such training should:
- Define unlawful sexual harassment;
- Provide examples of prohibited conduct;
- Identify employer responsibilities to prevent, investigate, and address sexual harassment; and
- Summarize federal and state laws addressing sexual harassment, including available remedies.
The Illinois Department of Human Rights has been charged with making model training materials available at no cost. To date, however, such materials are not available.
Our law firm’s attorneys are available to provide such training, upon request. We also recommend Telios Teaches for high quality anti-harassment training.[2] Noncompliance with these new training requirements may result in civil penalties up to $5,000 per offense.
Mandatory Annual Reporting
Beginning July 1, 2020, employers in Illinois are required to make annual disclosures to the Illinois Department of Human Rights (IHDR). Mandatory disclosures include settlements and adverse administrative rulings or court judgments, for both sexual harassment claims and unlawful discrimination claims. Disclosures should be made to the IDHR, which will, in turn, publish a comprehensive report of employer data. The IDHR may also use the information reported to initiate preliminary investigations and to assert charges of civil rights violations. Noncompliance with annual reporting requirements may result in civil penalties up to $5,000 per offense.
Identifying Unlawful Harassment
Although the WTA focuses primarily on sexual harassment issues, it expands the definitions of unlawful harassment to include perceived harassment based on a protected status. Protected categories include race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status (as a victim of domestic violence), disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service. In effect, an employee may allege unlawful harassment based on a protected characteristic if the employer “perceived” him or her to have it, regardless of whether the employee actually has the characteristic.
What is unlawful harassment? In a nutshell, it may consist of “quid pro quo” or “hostile work environment” harassment. The first type of unlawful harassment typically occurs when an employee loses a job, is not promoted, or is demoted in connection with harassment, such as if an employee refuses to engage in sexual activity demanded by a supervisor. The second type can be invidious, consisting of a pattern of harassing behavior or just a few highly offensive incidents. Examples of both types of sexual harassment include the following:
- Unwanted physical contact or conduct of any kind, including sexual flirtations, touching, advances, or propositions;
- Verbal harassment of a sexual nature, such as lewd comments, sexual jokes or references, and offensive personal references;
- Demeaning, insulting, intimidating, or sexually suggestive comments about an individual;
- The display in the workplace of demeaning, insulting, intimidating, or sexually suggestive objects, pictures, or photographs; and
- Demeaning, insulting, intimidating, or sexually suggestive written, recorded, or electronically transmitted messages (such as e-mail, instant messaging, and internet materials).
Harassment based on other protected classifications may consist of demeaning, insulting, or intimidating statements or actions that result in a hostile work environment for an employee or other adverse employment consequences.
Employers should provide anti-harassment training, include such information in employee handbooks, and take all allegations of harassment very seriously. Upon receiving a harassment complaint, an employer should take swift action to investigate such matter thoroughly and to follow up with appropriate corrective measures.
Protecting Against Harassment
The WTA broadens the scope of available legal protection for work-related harassment. More specifically, the WTA provides that unlawful sexual harassment in a “work environment” is “not limited to a physical location an employee is assigned to perform his or her duties.” Instead, the determination of whether an employee was at work depends on whether he or she was engaged in work-like duties. For example, employees meeting at a coffee shop can experience unlawful sexual harassment, even though away from a supervisor’s eye or other work-related protections.
The WTA further broadens available legal protections to non-employees, such as contractors, vendors, and consultants. Employers may now be subject to liability for sexual harassment claims based on protected grounds brought by non-employees. That is quite significant. Such persons now may have not only a tort-type of legal claim (e.g., assault, battery), but also a claim under the IHRA for unlawful harassment. Note, however, that for such liability to arise, the employer must “become[] aware of the [unlawful] conduct and fail[] to take corrective measures.” In other words, if an employer (through its supervisors) knows that its employee is harassing others (whether employee or non-employee), the employer has some legal responsibility to address such wrongful behavior – or face resulting liability.
Unpaid Leave for Treatment following Sexual Harassment
Under the WTA, covered employers must now provide employees with unpaid leave, if they are victims of sexual harassment (as well as for sexual or domestic violence victims). Significantly, such unpaid leave need not have a connection to the workplace employment and may be requested by anyone “experiencing an incident of...sexual harassment,” including employees with a family or household member who has been a victim of sexual harassment.
The extent of unpaid leave depends on the size of the employer. Employers with 50 or more employees must allow for 12 workweeks of leave during a 12-month periods. If employing 15 to 49 employees, employers must provide 8 weeks of leave, and employers must provide 4 weeks if employing less than 15 employees.
Limitations on Employment Agreements
The WTA addresses employment-related arbitration agreements, creating a presumption against “unconscionable” terms, such as restricting venue to a location inconvenient to the employee, waiving the employee’s right to assert claims or seek remedies, or shortening the applicable statute of limitations for any claim the employee could bring against the employer. In addition, the WTA prohibits employment agreements that prospectively address certain matters that could arise in connection with an employment termination, such as nondisclosure and non-disparagement provisions. The WTA also prohibits an employer from enforcing (or attempting to enforce) an arbitration clause that does not exclude claims of unlawful discrimination or harassment.
Next Steps
The WTA makes many significant changes affecting Illinois employers. As a result, employers should follow up with action items including (a) determination of their coverage under the WTA, (b) awareness of new annual reporting requirements for all employers, (c) sexual harassment training, as legally required or otherwise advisable, and (d) related updates warranted for employee handbooks and associated personnel policies. Through such measures, Illinois employers should be well-prepared for legal compliance with the WTA.
[1] A narrow religious exemption exists under the IHRA, and correspondingly the WTA, allowing religious organizations to favor persons of a particular religion with respect to employment matters. For example, Presbyterian churches may legally hire only Presbyterians, and mosques may legally hire only Muslims. Such exemption is not implicated with respect to the WTA.
[2] For more information, see our blog posts on Anti-Harassment Training Resources and Leadership Response to Sexual Harassment Complaints.
