The Illinois Department of Human Rights (IDHR) recently released its model Sexual Harassment Prevention Training program for Illinois employers in compliance with the Workplace Transparency Act (WTA).
Background
On August 9, 2019, Illinois Governor JB Pritzker signed the WTA into law. The act strengthens protections for employees and responsibilities for Illinois employers, with an additional focus on restaurants and bars. Among other protections, Illinois employers will be required to train employees on sexual harassment prevention, effective January 1, 2020.
The act also requires employers to report to the Illinois Department of Human Rights (IDHR) the number of adverse judgments or administrative rulings involving sexual harassment and unlawful discrimination on a yearly basis, beginning July 1, 2020.
New Training Requirements
The WTA requires Illinois employers to annually train their employees on the prevention of sexual harassment in the workplace by December 31, 2020, and on an annual basis thereafter. The IDHR has been asked if the deadline date will be delayed due to the coronavirus pandemic and has stated that it will not extend this year’s training deadline past December 31, 2020.
The WTA also requires the IDHR to create a free supplemental training to be available specifically for the restaurant and bar industry and tipped employees. The IDHR has indicated this specific supplemental training program will be forthcoming. In addition, restaurants and bars are required to provide a written sexual harassment policy to new employees within the first week of employment.
The IDHR previously released guidance for Illinois employers in the form of FAQs and minimum training standards:
- FAQ for Sexual Harassment Prevention Training
- Minimum Sexual Harassment Prevention Training Standards for All Employers
- Minimum Sexual Harassment Prevention Training Standards for Restaurants and Bars
- Minimum Standards for Policy on Sexual Harassment Prevention for Restaurants and Bars
Key Takeaway for Illinois Employers on Sexual Harassment Training
Employers with one or more employees must provide annual sexual harassment prevention training. Employers must train all employees who work in the state of Illinois, including part-time employees, temps, and interns, as well as employees based outside the state who may occasionally work in Illinois. While not required to train independent contractors, it is highly recommended. The IDHR states that employers should also train employees outside of Illinois who regularly interact with employees in Illinois.
At a minimum, the training must provide an explanation of what constitutes harassment under Illinois state law, provide examples of harassment, summarize state and federal laws (and remedies for) sexual harassment, and summarize the responsibilities of employers in recognizing, investigating, preventing, and taking corrective measures to prevent harassment.
Employers are obligated to maintain records related to compliance with these training requirements, such as: sign-in sheets, copies of written or recorded materials, names of employees who attended the training, and certificates of completion or signed employee acknowledgements.
Employers must either develop their own sexual harassment prevention training program that equals or exceeds the minimum standards for sexual harassment prevention training, utilize a third party such as MRA’s harassment prevention training that can be delivered virtually, or use the model training provided by the IDHR.
Nondisclosure, Nondisparagement, and Arbitration Clauses
Effective January 1, 2020, Illinois employers are no longer be able to require employees to sign a nondisclosure or arbitration agreement related to harassment or discrimination unless mutually agreed to. Specifically, the WTA prevents employers from including nondisclosure or nondisparagement clauses in employment contracts or entering forced arbitration which cover claims of workplace harassment or discrimination, including sexual harassment or retaliation for reporting, resisting, opposing, or assisting in the investigation of workplace harassment or discrimination. The act still permits the use of nondisclosure and nondisparagement clauses within settlement agreements, with certain limitations.
Key Takeaway for Illinois Employers
Employers should work directly with their employment counsel to review and possibly amend their current employment contracts and settlement agreements.
Other Additional Protections for Illinois Employees:
Hotel and Casino Employees
Effective July 1, 2020, hotels and casinos will be required to equip certain employees with notification devices where they can alert security or a manager if they feel they are being harassed, or if they need help. Hotels and casinos must provide employees who work in isolated spaces with panic buttons to use if they are being harassed or assaulted. Moreover, hotels and casinos must develop and follow a written anti-sexual harassment policy to protect employees against sexual harassment and sexual assault by guests.
Expanded Definitions of Discrimination and Harassment
The WTA expands the definition of “unlawful discrimination and harassment” under the Illinois Human Rights Act (IHRA) to include discrimination or harassment against a person because of his or her “actual or perceived” protected characteristic including: race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service.
“Perceived” discrimination allegations are typically centered on alleged harassing or discriminating behavior because of the perception or belief that a person has a disability or is a member of a particular racial, national origin, or religious group whether or not that perception is correct.
Contractors Covered
The IHRA now prohibits harassment (including sexual harassment) by an employer against non-employees, including contractors, consultants, and anyone else “directly performing services for the employer pursuant to a contract with that employer.”
Amendment to Victims’ Economic Security and Safety Act (VESSA)
The Victims’ Economic Security and Safety Act (VESSA) first became law in Illinois in August 2003 and allows (among other things) up to 12 weeks of unpaid leave to covered employees who are victims of domestic or sexual violence. The WTA added a category of protection under VESSA and now includes victims of “gender violence,” in addition to the existing categories for victims of domestic violence, sexual assault, and stalking. “Gender violence” is an act of violence because of a person’s actual or perceived sex or gender.
Need help with training? MRA’s harassment prevention training is compliant with Illinois requirements and can be delivered virtually. Have questions? Our 24/7 HR Hotline Advisors can answer your questions at 866-HR-HOTLINE (866.474.6854) or email [email protected].
