Local Governments Must Amend Sexual Harassment Policies to Cover Claims Between Elected Officials

Highlights

  • Illinois Public Act 101-0221 (Public Act) creates extensive and significant new protections for employees and imposes new obligations on all Illinois employers.
  • By Feb. 10, 2020, local government employers must pass an ordinance or resolution updating sexual harassment policies to address claims made by an elected official against another elected official.
  • As of Jan. 1, 2020, all Illinois employers (including public sector employers) must conduct annual sexual harassment training, and existing sexual harassment training for local governments must expand to also cover harassment and unlawful discrimination.
  • As of Jan. 1, 2020, all employers (including public sector employers) must provide annual reports concerning harassment claims to the Illinois Department of Human Rights (IDHR), which will provide an annual report to the General Assembly by Dec. 31 each year.

Illinois Public Act 101-0221 (Public Act) creates extensive and significant new protections for employees and imposes new obligations on all Illinois employers. This Holland & Knight alert identifies unique requirements applicable to local governments, including required amendments to sexual harassment policies, annual harassment and discrimination training requirements, and claim reporting requirements. A future alert will discuss the Public Act’s broader impact on all Illinois employers.

Overview of the Public Act

The Public Act creates three new pieces of legislation: Workplace Transparency Act, which generally prohibits unilateral restrictions on employee reporting of allegations of unlawful employment practices; Sexual Harassment Victim Representation Act, which precludes union representatives from representing both a victim and alleged harasser belonging to the same union; and Hotel and Casino Employee Safety Act, which establishes specific safety and sexual harassment-related requirements for the hotel and casino industry.

The Public Act also amends numerous existing laws, including the Illinois Human Rights Act (IHRA), Freedom of Information Act (FOIA), Civil Administrative Code, Uniform Arbitration Act, Victims’ Economic Security and Safety Act (VESSA), Illinois Governmental Ethics Act, State Officials and Employees Ethics Act, and Lobbyist Registration Act. These revisions provide additional protections to employees from sexual harassment, other forms of unlawful harassment and unlawful discrimination.

Local Governments Must Amend Sexual Harassment Policies

The Public Act requires units of local government to adopt an ordinance or resolution amending sexual harassment policies to provide reporting protocols and independent review of allegations of sexual harassment made against an elected official of the governmental unit by another elected official of the governmental unit. Some local governments may have existing policy language covering these claims, but those that do not should adopt an ordinance or resolution amending their policy to cover claims between elected officials.

While the Public Act’s requirements generally take effect on Jan. 1, 2020 (with some delayed until July 1, 2020), local governments must adopt relevant amendments to their harassment policy within six months of the Public Act becoming law. The most conservative reading of this requirement is that the six-month period elapses on February 10, 2020 – six months after adoption of the Public Act on Aug. 9, 2019.

It is recommended that local governments amend their sexual harassment policies to comply with the Public Act by providing a mechanism for reporting and independent review of allegations of sexual harassment made by one elected official against another elected official on or before Feb. 10, 2020.

New Harassment and Discrimination Training Requirements

While public employers have been subject to anti-sexual harassment training requirements already, the Public Act requires all Illinois employers to provide annual anti-sexual harassment training to all employees beginning in 2020. The Public Act amends the existing training requirements to expand the scope of training to include not only sexual harassment, but harassment and unlawful discrimination as defined under the Illinois Human Rights Act.

The Illinois Department of Human Rights (IDHR) will develop a free online training module, or employers may use their own training programs that equal or exceed the Public Act’s training standards, which include providing an explanation of sexual harassment, examples of conduct constituting unlawful sexual harassment, a summary of relevant federal and state laws concerning sexual harassment (including remedies available to victims), and a summary of employer responsibilities in preventing, investigating and correcting sexual harassment.

While the Public Act does not explicitly state that elected and appointed local government officials must attend the required training, it is recommended that both elected and appointed officials be included in the required training. When IDHR’s online training module goes live, that option may be the most convenient resource for elected and appointed officials to complete the training requirement.

New Reporting Requirements Concerning Sexual Harassment Claims

As of July 1, 2020, the Public Act requires employers who had an adverse judgment or administrative ruling concerning harassment or sexual harassment in the previous year to annually report data to IDHR, including:

  • the total number of adverse decisions in the preceding year
  • whether any equitable relief was ordered against the employer, and
  • itemized reporting on the number of adverse decisions that concerned sexual harassment, discrimination or harassment on the basis of sex, race/color/national origin, religion, age, disability, military status/unfavorable discharge status, sexual orientation/gender identity or any other protected characteristic

IDHR may require employers responding to a charge to report additional information, including the total number of settled workplace sexual harassment or unlawful discrimination claims against an employee or executive in the preceding five years, itemized by type of claim.

Public employers should note that the reported information is confidential, and employers are prohibited from identifying victims by name, and that the reported information is exempt from disclosure under FOIA pursuant to a new FOIA exemption that the Public Act creates.

Employers who fail to provide training or make required reports to IDHR after notice may be subject to newly established civil penalties depending on the employer’s size. For employers with four or fewer employees, the civil penalties may be up to $500 for a first offense, $1,000 for a second offense and $3,000 for three or more offenses. For employers with more than four employees, civil penalties range from up to $1,000 for a first offense, up to $3,000 for a second offense and up to $5,000 for three or more offenses. Considerations in assessing the penalty will include size of employer charged, good faith efforts made to comply and gravity of the violation.