Loyola University Chicago School of Law, JD 2021
By now most people are familiar with the #MeToo movement. The movement began in 2006 by women, specifically Tarana Burke and women of color from low wealth communities, to help survivors of sexual violence. Eleven years after the movement was founded, it exploded during the fall of 2017 when well-known women in the entertainment industry began to use the famous #MeToo hashtag and shared their stories of sexual, discrimination, abuse and harassment. Two and half years later, there has been some change, but not enough. The National Sexual Violence Resource Center, said the biggest impact of #MeToo is that it decreased the stigma associated with sexual abuse and harassment and increased awareness.
Illinois Workplace Transparency Act
On August 9, 2019, Governor J.B. Pritzker signed Public Act 101-0221 into law, which changed the landscape of sexual harassment and discrimination law in Illinois. Public Act 101-0221 prohibits unilateral agreements to arbitrate claims involving discrimination, harassment, and retaliation for complaining about discrimination or harassment. It also changed sexual harassment reporting and training requirements, and it impacted how union representation is handled during the course of proceedings related to claims of sexual harassment. The Public Act 101-0221 created the Workplace Transparency Act (“WTA”). The WTA prohibits any “contract, agreement, clause, covenant, waiver, or other document” from restricting an employee from reporting allegations of unlawful conduct to federal, state, or local officials for investigation. The WTA does not apply to collective bargaining agreements covered by the National Labor Relations Act (“NLRA”). This Act was created so that employers may not unilaterally compel an employee to keep silent about alleged unlawful employment practices in the workplace.
Any contract that requires an employee to waive or arbitrate existing or future claims of unlawful employment practices is “void to the extent that it denies the employee a substantive or procedural right or remedy.” It defines an “unlawful employment practice” to include employment discrimination or harassment based on any protected category, or retaliation for complaining of such discrimination or harassment. Illinois employers were advised to reconsider the language used in their standard arbitration agreements to the extent that such agreements are conditioned upon employment or continued employment.
The Illinois Human Rights Act
Public Act 101-0221 amended the Illinois Human Rights Act (“IHRA”) requiring: 1) Illinois employers to provide annual sexual harassment prevention training by December 31, 2020 and annually thereafter; 2) restaurants and bars to establish and disseminate a written policy on sexual harassment prevention training and provide “supplemental” sexual harassment prevention training; and 3) the Illinois Department of Human Rights (“IDHR”) to develop a model sexual harassment prevention training program for use by employers. In addition, employers may develop their own sexual harassment prevention training program that equals or exceeds the minimum standards for sexual harassment prevention training outlined in Section 2-109(B) and/or Section 2-110(C) of IHRA.
The IDHR outlined the minimum standards for sexual harassment prevention training. The minimum training standards outlined in Section 2-109(B) include:
- an explanation of sexual harassment consistent with the IHRA;
- examples of conduct that constitutes unlawful sexual harassment;
- a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
- a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
Employers are required to train all employees in Illinois, including short-term and part-time employees, and interns. Employers are not required to train independent contractors but are strongly advised to train independent contractors who will work on-site at the employer’s workplace or interact with the employer’s staff. The training must be accessible to employees with disabilities and must be made available in English and Spanish.
The future for Illinois employers
Based on the information provided by the IDHR, multi-state employers must ensure that they are complying with the new IDHR guidelines in order to avoid risk. Employers may ask new employees to provide documentation that they have completed training elsewhere. However, if employers choose to do this they are responsible for ensuring that the training received elsewhere is compliant with the IHRA. Illinois employers should maintain records of all employees trained during the year.