Blog

A wide variety of employment-related statutory changes went into effect in Illinois this year. These include important amendments to the Illinois Human Rights Act (IHRA), such as P.A. 101-0430, which, effective July 1, 2020, expanded the definition of an employer to cover any person employing at least one (not fifteen) employee(s). Additionally, P.A. 101-0221—which enacted the Workplace Transparency Act, the Sexual Harassment Victim Representation Act, and the Hotel and Casino Employee Safety Act and which amended the IHRA, the Victims’ Economic Security and Safety Act (VESSA), and the Uniform Arbitration Act— imposed new sexual-harassment training requirements.

With the advent of the global coronavirus pandemic, it would not be surprising if employers have put addressing these amendments, to the extent possible, on the backburner while battling unforeseen circumstances and learning how to navigate new issues relating to the epidemic. However, it is important that Illinois employers review their policies and implement the new training obligations discussed here.

Expanded Definitions and Terms of Liability

Employers should consider reviewing their handbooks and policies to ensure that they are consistent with the statutory amendments. Some statutory amendments to consider include:

• The IHRA now prohibits harassment in general—not just sexual harassment.

Harassment is defined as: “any unwelcome conduct on the basis of” a protected characteristic (“an individual's actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, unfavorable discharge from military service, or citizenship status”) “that has the purpose or effect of substantially interfering with the individual's work performance or creating an intimidating, hostile, or offensive working environment.”[1]

• As indicated above, under the amended IHRA, unlawful discrimination extends to perceived protected characteristics, not just actual ones.
• The amended IHRA specifies that neither harassment, in general, nor sexual harassment, in specific, is limited to a physical location to which an employee is assigned.
• The amended IHRA indicates that employers can be liable for the harassment (whether sexual or non-sexual in nature) of a nonemployee, such as a contractor or consultant.
• VESSA now extends to gender violence, in addition to domestic and sexual violence.

Gender violence includes:

• act(s) of violence or aggression satisfying the elements of any criminal offense committed, at least in part, on the basis of a person's actual or perceived sex or gender (regardless of whether or not it resulted in criminal charges, prosecution, or conviction);
• a physical intrusion or invasion of a sexual nature under coercive conditions satisfying the elements of any criminal offense; or
• a threat of one of the aforementioned acts that causes a realistic apprehension that the threat will be carried out by the party making the threat.

New Training Requirements

Employers must now implement sexual harassment prevention training in accordance with the amended IHRA. The IHRA amendment directed the Illinois Department of Human Rights (IDHR) to create a model training program that can be used by employers to satisfy the new training requirement. After some delay, IDHR has published a training program, which is accessible on its website.

Employers can use the IDHR model training program, or they can develop their own training program, which must include, under the terms of the amended IHRA:

1. an explanation of sexual harassment consistent with the IHRA’s

2. examples of conduct that constitutes unlawful sexual harassment

3. a summary of relevant federal and State statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment

4. a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.[2]

As indicated in guidance provided on IDHR’s website, employers may also use third-party vendors to supply sexual harassment prevention training, but “[e]mployers should review any third-party training to ensure it meets or exceeds the minimum standards” specified by the IHRA.[3] Regardless of which option is selected, per the IDHR, the training must be accessible to employees with disabilities and those with limited English proficiency.

According to the IDHR, employers must not only train all employees (including part-time and temporary staff) by December 31, 2020, and annually thereafter, but they must also keep a record of all trainings.[4] IDHR has specified that:

1. Employers should keep an internal record of training compliance—for IDHR inspection, if requested.

2. Records that reflect compliance may include a certificate of participation, a signed employee acknowledgement, or training sign-in sheets.

3. The record of training should include names of employees trained, date of training, sign-in worksheets, copies of certificates of participation issued, a copy of all written or recorded materials that comprise the training, and the name of the trainer, if applicable.[5]

Recordkeeping also applies to employees who have been trained elsewhere (e.g., new employees trained with a prior employer or employees with multiple employers). Although employers may ask employees to provide documentation that they completed the training elsewhere, IDHR recommends that employers “retrain … employees, regardless of whether the employee received the required training at [another] place of employment.”[6] If retraining is not provided, the employer, according to the IDHR, must “ensur[e] [that] the training received elsewhere is compliant with the IHRA.  If the employer is unable to obtain the proper documentation,” it “must have the employee retrained.”[7] Ultimately, in the IDHR’s view, the burden is on the employer to “demonstrate[e] [that] all employees completed the annual training.”[8]

The IHRA amendment also sets out additional training requirements specific to bars and restaurants. For example, it requires that within the first calendar week of employment, all bar and restaurant employees be provided a written policy that addresses sexual harassment as specified in the Act. Also, at least annually, bars and restaurants must provide supplemental training developed by the IDHR or which otherwise meets Section 2-110’s requirements. Businesses that serve alcoholic beverages or are engaged in the sale of ready-to-eat food for immediate consumption should review the Act and contact legal counsel to discuss whether the additional requirements apply to their businesses and, if so, how to comply.

The new Hotel and Casino Employee Safety Act (which was scheduled to become effective July 1, 2020, but has now been pushed back to March 1, 2021) —will also impose industry-specific requirements for hotels and casinos. Namely, it will require hotels and casinos to equip employees assigned to work in a guest room, restroom, or casino floor when no other employees are present with a safety or notification device that can be quickly and easily activated to summon help in the event of a crime, sexual harassment, sexual assault, or other emergency. Hotels and casinos will also be required to develop, maintain, and comply with a written anti-sexual harassment policy designed to protect employees from sexual harassment/assault by guests as outlined by the Act.

This article does not constitute legal advice and is provided for informational purposes only. It does not provide a comprehensive analysis of all statutory changes. Additional amendments may need to be considered (e.g., new disclosure requirements under the IHRA for employers who have had an adverse judgment or administrative ruling in the preceding calendar year). Please contact legal counsel for additional information.

[1] 775 ILCS 5/2-101(E-1), 2-103(Q) (emphasis added).

[2] 775 ILCS 5/2-109(B).

[3] Ill. Dep’t of Human Rights, FAQ for Sexual Harassment Prevention Training

[4] Id.

[5] Ill. Dep’t of Human Rights, State of Illinois Model Sexual Harassment Prevention Training Program

[6] Ill. Dep’t of Human Rights, FAQ for Sexual Harassment Prevention Training

[7] Id.

[8] Id.