Last Call: Illinois Employers Must Provide Sexual Harassment Training by Year End

Fifteen months seems like a lifetime ago. And for many of us, at least a few action items that were important at the time have since slipped to the back burner. That doesn’t make us bad people or even procrastinators; we’ve had a few emergent issues to address that have taken priority. But we’re now about five weeks away from a deadline that was instituted for Illinois employers in August 2019, and if you haven’t already done so, now is the time to ensure compliance with the Workplace Transparency Act (WTA).

In August 2019, before the world changed, Illinois passed the WTA, which, among other things,[1] amended the Illinois Human Rights Act (IHRA) to require employers to provide annual sexual harassment prevention training by December 31, 2020[2] and annually thereafter. For restaurants and bars, the WTA institutes additional mandates to establish and disseminate a written policy on sexual harassment prevention and to provide “supplemental” sexual harassment prevention training to employees.[3]

While employers may implement their own sexual harassment prevention training programs to meet the WTA’s requirements, the Illinois Department of Human Rights (IDHR) has since released a model training. Whether following the IDHR model or a customized program, all employer sexual harassment training programs must comply with the following minimum training requirements (775 ILCS 5/2-109):

1. An IHRA-consistent explanation of sexual harassment. The IHRA defines sexual harassment as “any unwelcome sexual advances, requests for sexual favors, or any conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.” Harassment based upon an individual’s actual or perceived gender identity or sexual orientation is also prohibited.
2. Examples of conduct that constitute unlawful sexual harassment. Typical examples of unlawful sexual harassment include pressuring for sexual favors or romantic involvement, deliberate touching, or cornering. Unlawful sexual harassment may occur outside of the workplace, including at social outings and on online platforms.
3. A summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment. Employer-provided trainings must present all relevant reporting options to employees, including contact information for the IDHR, the Equal Employment Opportunity Commission, and the Illinois Sexual Harassment and Discrimination Helpline.[4]
4. A summary of employers’ responsibilities in preventing, investigating, and correcting alleged sexual harassment. Employer trainings should explain the differences in liability between (1) harassment by a supervisor and (2) harassment by coworkers and nonemployees. While employers are strictly liable for harassment by supervisors, employer liability for harassment by coworkers and nonemployees depends on management’s awareness of the alleged conduct and its subsequent failure to act appropriately under the circumstances.

Under the WTA, all employees, regardless of their status – short-term, part-time, or intern – must be trained.[5] Employees who work or will work in Illinois must be trained, regardless of whether the employer itself is based in Illinois. If an employee is based elsewhere but regularly interacts with Illinois employees, the employee should be trained. The training must be provided in a manner that is accessible to its staff. If employees have disabilities or speak languages other than English, the training must be provided in a manner that is accessible to them. Employers who require employees to take the training outside of their regular working hours must pay their employees for the time spent completing the training. As the amended IHRA makes employers liable for the harassment of nonemployees performing services for the employer, employers should consider providing sexual harassment prevention training to contractors and consultants who work on their facilities.

While the IDHR does not require employers affirmatively to certify compliance with the WTA’s sexual harassment prevention training requirements, employers are required to maintain internal paper or electronic records of compliance that can be made available to the IDHR upon request. Employers may include one of the following records to document compliance:

1. Certificate of participation
2. Signed copy employee acknowledgement
3. Training sign-in sheet

The following information must be included in an employer’s training records:

1. Name of employee
2. Date of training
3. Any of the above issued records of compliance
4. A copy of all written or recorded materials that include the training and training provider

There is no private right of action based on an employer’s failure to conduct the required training. However, the IDHR is authorized to issue a notice to show cause to employers who fail to comply with the mandatory training obligations. The notice to show cause serves as a final warning and provides the employer with 30 days to come into compliance. If the employer fails to comply within 30 days (or such later date as may be set by the IDHR), the Illinois Human Rights Commission is authorized to assess civil penalties based on the employer’s size and history of offenses. Employers with fewer than four employees may face penalties of up to $500 for a first offense, up to $1,000 for a second offense, and up to $3,000 for three or more offenses. For employers with at least four employees, the maximum penalties increase to $1,000, $3,000, and $5,000, respectively.

[1] For more information on other changes enacted by the Workplace Transparency Act, please refer to Schiff Hardin’s briefing.

[2] The IDHR has definitively stated that despite the COVID-19 pandemic, employers must provide the requisite training by December 31, 2020.

[3] Illinois restaurants and bars must either offer the model training provided by the IDHR to all employees or develop their own supplemental training on sexual harassment prevention, which at a minimum, and in addition to the training requirements described below, must include:  (1) specific conduct, activities, or videos related to the restaurant or bar industry; (2) an explanation of manager liability and responsibility; and (3) options for training in English and Spanish. The IDHR defines a “restaurant” as any business that is primarily engaged in the sale of ready-to-eat food for immediate consumption, including, but not limited to, restaurants, coffee shops, cafeterias, and sandwich stands that give or offer for sale food to the public, guests, or employees, and kitchen or catering facilities in which food is prepared on the premises for serving elsewhere. A “bar” is defined as an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and that derives no more than 10% of its gross revenue from the sale of food consumed on the premises, including, but not limited to, taverns, nightclubs, cocktail lounges, adult entertainment facilities, and cabarets.

[4] While the IDHR’s model anti-harassment training program also provides the potential damages and other relief that may be awarded to a prevailing plaintiff in a harassment claim against an employer, including potential lost wages, emotional distress damages, and attorneys’ fees, such information is not required to be presented in a compliant sexual harassment training.

[5] The IDHR encourages employees to retrain new employees, regardless of whether the employee received the required training at a prior place of employment. This is recommended, as employers must independently retain their own records to show that all employees received the required sexual harassment prevention training. While employers may ask employees to provide documentation that they completed the training elsewhere, they are responsible for ensuring that training received elsewhere is compliant with the IHRA.  If the employer is unable to obtain the proper documentation, employers must have the employee retrained.