New Year’s Reminder: Mandatory Sexual Harassment Training and Related #MeToo Protections to Take Effect in Illinois

The new law requires employers to:

• Provide employees with annual sexual harassment prevention training
• Refrain from entering into mandatory arbitration agreements or non-disclosure or non-disparagement provisions that cover harassment or discrimination claims, unless certain conditions are met
• Disclose settlements and adverse judgments or rulings in which there was an allegation of sexual harassment or unlawful discrimination to the Department of Human Rights annually, beginning July 1, 2020

Illinois employers who fail to comply with these requirements may be subject to civil penalties.[2]

The new law also amends the Illinois Human Rights Act (IHRA) by: (i) expanding the definition of “employee” to include so-called “non-employees” such as contractors and consultants, (ii) allowing claims of discrimination and harassment based on an employer’s perception that an employee belongs to a protected category, and (iii) re-defining “working environment” to clarify that an employee’s working environment is not limited to any physical location where an individual is assigned to perform his or her duties.

The WTA also amends the Victims’ Economic Security and Safety Act (VESSA) by requiring employers to provide leave to employees who are victims of gender violence or have families or household members who are victims of gender violence.

Mandatory Sexual Harassment Prevention Training

Pursuant to the WTA, Illinois employers are required to provide employees with annual sexual harassment prevention training that, at minimum, covers the following topics:

• Explaining what constitutes sexual harassment, as defined by the WTA
• Providing examples of conduct that constitutes unlawful sexual harassment
• Summarizing state and federal laws concerning sexual harassment, including remedies available to victims of sexual harassment
• Explaining employer duties and responsibilities pertaining to the prevention and investigation of sexual harassment, including corrective measures that must be taken by employers in the event such harassment is found to have occurred

Sexual harassment prevention training must be provided to all employees by December 31, 2020.

The model sexual harassment prevention training prescribed by the WTA has yet to be completed by the Illinois Department of Human Rights (IDHR) and is unlikely to be released prior to spring 2020. In the interim, employers looking to get ahead of the curve may utilize other sexual harassment training programs that cover the minimum requirements. Employers will be permitted to utilize such training programs even after the department releases its model training.

Mandatory Arbitration, Confidentiality, and Non-Disparagement Provisions

The WTA prohibits employers from entering into contracts (excluding collective bargaining agreements) that prevent former, current or prospective employees and non-employees from reporting allegations of unlawful conduct to federal, state, or local officials. This prohibition applies to all contracts entered into, modified, or extended on or after January 1, 2020. If a provision is found to violate this prohibition it will be voided and, if applicable, severed from any other enforceable contractual provisions.

Under the WTA, employers are prohibited from entering into contracts with mandatory arbitration agreements or confidentiality or non-disparagement clauses that cover potential claims of harassment or discrimination, unless actual and sufficient consideration has been exchanged for the provisions, and a written agreement is in place that expressly states an employee’s right to:

• Report to relevant government authorities the employee’s good faith belief that an unlawful employment practice has occurred
• Participate in governmental proceedings
• Make truthful statements or disclosures as required by law, regulation, or legal process
• Request or receive legal advice

Any provision that fails to satisfy these criteria is subject to a rebuttable presumption that it is void as against public policy.

When a mandatory arbitration agreement or confidentiality or non-disparagement provision is included in a settlement or separation agreement, the following additional criteria must be satisfied:

1. The provision must not cover claims of unlawful employment practices that accrue after the execution of the contract or settlement.
2. The employee must be given 21 days to review the contract prior to execution.
3. The employee must be given seven days after execution to revoke the agreement.[3]

If these criteria are not met, the agreement (or relevant provision) will be voided and, if applicable, severed from any other enforceable contractual provisions.

Employer Disclosure Requirements

Beginning July 1, 2020, and by July 1 of every year thereafter, the WTA requires Illinois employers to disclose the following information annually to the IDHR:

• The total number of adverse judgments or administrative rulings against the employer during the preceding year in any discrimination case under federal or state law
• Whether any equitable relief was ordered against the employer in any adverse judgment or administrative ruling
• The number of adverse judgments or administrative rulings, broken down by protected category

Further, the WTA permits an IDHR investigator to require an employer to produce the total number of settlements entered over a five-year period involving any alleged act of sexual harassment or unlawful discrimination.

Amendments to the Illinois Human Rights Act

The WTA amends the IHRA to broaden the definitions of employee, harassment and discrimination, and working environment, effective January 1, 2020.

As amended, the definition of employee under the IHRA includes non-employees such as contractors or consultants. Accordingly, a contractor or consultant will now be able to bring a harassment claim against the entity that contracted with him or her based on alleged harassment or discrimination.

The amendment also allow employees (and non-employees) to bring harassment and discrimination claims under the IHRA based on an employer’s “perception” that an individual belongs to a protected category. Previously such “regarded as” claims were limited to allegations of disability discrimination.

Lastly, the amendment clarifies that the IHRA’s definition of “working environment” is not limited to the physical location where an individual is assigned to perform his or her duties. With this clarification, Illinois employers are put on notice that an intimidating, hostile, or offensive working environment can occur as a result of conduct that occurs outside of the physical location where an employee or non-employee is assigned to work.

Protected Leave for Victims of Gender Violence

The WTA also amends VESSA to add a category of protection for victims of gender violence or employees who have families or household members who are victims of gender violence. “Gender violence” is defined as an act of violence that occurs, even in part, on the basis of a person’s actual or perceived sex or gender, and physical intrusions or invasions of a sexual nature under coercive conditions, or credible threats of the same. As amended, affected employees will receive the same job-protected leave as other victims of domestic or sexual violence previously covered by VESSA (the amount of leave depends on the size of the employer).

[1] The definition of employer under the IHRA was amended earlier this year to cover “any person employing one or employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation.”

[2] Bars, restaurants, hotels, and casinos are subject to additional policy, training, and reporting requirements.

[3] The WTA’s review and revocations periods parallel those found in the Older Workers Benefit Protection Act (OWBPA), which provides limitations on waivers of age discrimination claims under the federal Age Discrimination in Employment Act (ADEA). As with the OWBPA, the 21-day review period can be itself waived if the current or former employee (or non-employee) elects to execute the contract prior to the expiration of the review period.