According to data from the Equal Employment Opportunity Commission ("EEOC"), in 2018, 6.9% of all sexual harassment charges submitted to the EEOC were filed in Illinois, representing the third highest concentration for any state, behind Texas (9.7%) and Florida (9.6%). Notably, that number has increased each year since 2014.
Enter the Illinois legislature, which, earlier this year, passed an extensive new law designed to weed out discrimination and harassment in the workplace. The law, dubbed the Workplace Transparency Act ("WTA"), combats unlawful employment practices through a variety of methods, including limits on non-disclosure agreements, mandatory reporting of certain claims, and expansion of legal protections to non-employees. It also seeks to spread awareness of illegal practices by obligating every employer in the state to provide their employees with annual sexual harassment prevention training.
"This State has a compelling and substantial interest in securing individuals’ freedom from unlawful discrimination and harassment in the workplace," reads the WTA.
The law tasks the Illinois Department of Human Rights (“IDHR”) with producing a model sexual harassment prevention training program aimed at stopping sexual harassment in the workplace, which will be made available to employers and the public online at no cost. The IDHR model program must include:
- An explanation of sexual harassment
- Examples of conduct that constitutes unlawful sexual harassment
- A summary of federal and state statutes concerning sexual harassment, including remedies available to victims
- A summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment
The WTA requires all private employers, regardless of size, to use the model program to provide training to all employees on an annual basis. Employers may alternatively establish their own training program that meets the same minimum standards as the IDHR’s model program.
There are more stringent training requirements for bars and restaurants, which will also be required to provide supplemental yearly training, specifically aimed at the prevention of sexual harassment in the restaurant and bar industry. The IDHR will also be charged with producing a model supplemental program, which must contain:
- Specific conduct, activities, or videos related to the restaurant or bar industry
- An explanation of manager liability and responsibility under the law
- English and Spanish language options
If an employer fails to provide the mandatory training or supplemental training, the IDHR will issue a notice to show cause, giving the employer 30 days to comply. Failure to adhere to the notice will result in the IDHR petitioning the Human Rights Commission for entry of an order imposing a civil penalty against the employer. The civil penalties will be paid into the IDHR’s Training and Development Fund. For employers with at least four employees, the statute authorizes penalties up to $1,000, $3,000, and $5,000 for first, second and subsequent offenses.
Despite the new year being right around the corner, the IDHR has not yet released the model programs and has indicated that it might not have them ready until February 2020. While the format of the model program remains a mystery (will it be a video? A bullet-point list? A slide show?), employers may be wise to enlist the assistance of counsel to facilitate the training.
Moving forward, employers should keep the mandatory training on their radar and schedule it as early in the year as possible, to leave additional time for any employees who might be absent during the initial training. Although the IDHR’s model program likely won’t be released for a few months, employers have until the end of 2020 to complete the required training for the first time. Employers need not deliver the training to new employees who are hired in the same calendar year after the initial training, so long as the training is issued each calendar year.
Additionally, employers should be prepared to have all employees sign acknowledgments, indicating that they participated in the training, and those acknowledgments should be placed in the employees’ personnel files.
Saul Ewing Arnstein & Lehr, LLP has a variety of training programs available for employers and can provide your company with the sexual harassment training required by the WTA. For more information, please contact your regular Saul Ewing Arnstein & Lehr, LLP attorney.