Posted by Post Authored By: Kasim Carbide, Esq.
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 (Title VII), and has been the basis of federal workplace discrimination suits.[i] In 2019, the Illinois Department of Human Rights (the “IDHR”) passed the Illinois Workplace Transparency Act (“WTA”) requiring employers to provide sexual harassment prevention training by December 31, 2020, and annually thereafter.[ii] The prevention training applies to all employees, officers, and contractors alike, regardless of whether such employees are and should be used to educate employees on what constitutes sexual harassment, ways to prevent the same, and how to report it in the event it occurs. Any employers that fail to comply with IDHR’s standards are subject to IDHR issuing a notice to show cause, as well as civil penalties up to as much as $5,000 for employers with mor than four employees.
While the prevention training applies to all employers, it is worth noting that restaurants and bars must comply with a higher standard and supplemental requirements such as maintaining and providing a written policy to all employees.[iii]
Under the WTA, sexual harassment is defined as “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.”[iv] This behavior can be summed up into one of two categories, namely: (1) quid pro quo harassment, and (2) hostile work environments.
Quid pro quo literally translates from Latin as “this for that” and applies where a supervisor or employee seeks sexual favors in exchange for a job benefit with the threat of a job detriment. On the other hand, a hostile work environment is exactly as it sounds – unwelcome sexual advances that create a work environment, for example, where a supervisor continuously asks an employee out on a date and the employee becomes uncomfortable working with the employer.
While these concepts may be explained with more detail and examples during the annual prevention training, a good rule of thumb is – if you wouldn’t do it to your daughter, then don’t do it at work. While these traditional forms of sexual harassment are self-explanatory, sexual harassment includes belittling expressions such as “honey”, “doll”, and “sweetheart”. Attorneys have been well versed with such expressions, and their resulting consequences, as the American Bar Association amended its professional code of conduct to bar lawyers from addressing women with sexist remarks such as “honey” or “darling” in the courtroom – stemming from a situation where a lawyer was fined for attempting to fluster opposing counsel with sexist remarks; a similar sentiment is mandated for employers and their employees.[v]
The IDHR provides free materials for employers at the following link: https://www.ilga.gov/commission/lrb/Discrimination%20and%20Sexual%20Harassment%20Prevention%20Training.pdf. Employers are encouraged to keep records of the training by either providing a sign-in sheet, or a certificate of participation for all employees.
Ultimately, employers should ensure their compliance with the WTA and IDHR no later than December 31, 2021, and continue to check the WTA for amendments and updates to ensure continuing compliance.
*Note: The Chicago Bar Association offers a State of Illinois Sexual Harassment Prevention Training which includes a live event on December 14 at 2pm, which is also available on demand thereafter. Click here to register.
[i] Civil Rights Act of 1964 §7, 42 U.S.C. §2000 et seq (1964).
[ii] 820 ILCS 96.
[iii] 720 ILCS 5/2-110.
[iv] 720 ILCS 5/2-101.
[v] Maria Carter, Lawyers Who Call Women “Honey” and “Sweetie” Will Now Be Fined, Says Bar Association, Woman’s Day (August 10, 2016), https://www.womansday.com/life/work-money/a55924/lawyers-face-fines-for-sexist-remarks/.
About the Author:
Kasim Carbide concentrates his practice in Corporate Law, Bank Secrecy Act/Anti-Money Laundering Compliance, and counseling FinTech startups. When he is not reading or billing, Kasim enjoys cooking, watching the Office, and playing Catan with family and friends.