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

Post Authored By: Michael P. Wissa

In August 2019, Governor J.B. Pritzker signed into law Public Act 101-0221, commonly referred to as the Workplace Transparency Act (“WTA”). The WTA, among other things, amended the Illinois Human Rights Act (“IHRA”) to require Illinois employers, including law firms of any size, to provide annual sexual harassment prevention training by December 31, 2020¹ and annually thereafter. The WTA further requires restaurants and bars to establish and disseminate a written policy on sexual harassment prevention and provide “supplemental” sexual harassment prevention training to its employees.

While employers are free to implement their own sexual harassment prevention training programs, the Illinois Department of Human Rights (“IDHR”) has since released a model training. All employer-provided sexual harassment prevention trainings must comply with the following minimum training requirements (775 ILCS 5/2-109):

1. An IHRA-consistent explanation of sexual harassment. The employer’s training program must explain sexual harassment in a manner consistent with the IHRA, which 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.” The training should further make clear that 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. The training should include typical examples of unlawful sexual harassment, such as 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 presenting contact information for the IDHR, the Equal Employment Opportunity Commission, and the Illinois Sexual Harassment and Discrimination Helpline.²
   
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.³ Employees who work or will work in Illinois must be trained, regardless of whether their employer 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 a language other than English, the training must be provided in a manner that is accessible to them. Employers who require their 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 at their facilities.

While the IDHR does not require employers to certify compliance with 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 reflect compliance:

1. Certificate of participation;
2. Signed copy employee acknowledgement; or
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; and
4. A copy of all written or recorded materials.

There is no private right of action available for failure to conduct the required training, however, the IDHR is authorized to issue a notice to show cause to any employer who fails to comply with its training obligations. The notice to show cause serves as a final warning and provides the employer with thirty (30) days to become compliant. If the employer fails to comply within 30 days, or by a later date 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.

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¹ The IDHR has stated that the COVID-19 pandemic does not relieve employers of this mandatory training obligation.

² While the IDHR’s model anti-harassment training program also provides the potential positive financial outcomes for prevailing 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.

³ 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 the training received elsewhere is compliant with the IHRA. If the employer is unable to obtain the proper documentation, employers must have the employee retrained.

Last Call! Illinois Employers Must Provide Sexual Harassment Training by Year End. CBA to offer 12/22 training for attorneys and law firm staff, see details at https://learn.chicagobar.org/products/state-of-il-sexual-harassment-training-122220.

About the Author:

Michael Wissa is an associate who practices labor and employment law at the Chicago office of Schiff Hardin LLP. Michael works with a wide range of corporate clients and employers in all phases of labor and employment law, including representing management in matters pertaining to employee discipline, harassment and discrimination, onboarding and separation of employment, collective bargaining, wage and hour matters, and employment contracts. Michael frequently counsels clients to help them navigate the complex maze of federal and state labor and employment laws.