Illinois Passes Sweeping Legislation Aimed at Addressing #MeToo
By Kelly A. Hayden, JD, Chief Legal Counsel
Published July 9, 2019
On June 10, 2019, the Illinois General Assembly sent Senate Bill 75 (now known as the “Workplace Transparency Act” or “WTA”) to Governor Pritzker’s desk. The purpose of the bill is to take proactive measures against sexual harassment and discrimination in the employment setting. The bill contains several provisions which, if signed by the Governor, will have a significant impact on employers beginning January 1, 2020. The key provisions include the following.
Limitations on Employers’ Use of Non-Disclosure, Non-Disparagement, and Mandatory Arbitration Clauses
The WTA aims to stop employers from preventing employees from talking about discrimination and harassment. Therefore, the bill does not allow employment agreements to contain these types of provisions. With respect to settlement or separation agreements, these clauses may be acceptable, provided that: 1) the harassment or discrimination claims arise before the agreement is signed; (2) the clauses are mutually agreed upon and benefit both parties; (3) the employee/applicant is given 21 days to review the agreement before its execution; and (4) the employee/applicant has seven days after signing the agreement to revoke it, and the agreement is not enforceable until that revocation period ends. (These requirements are similar to those found under the Older Workers’ Benefit Protection Act for employees over the age of 40.)
The restrictions on mandatory arbitrations clauses incorporate excluding discrimination and harassment claims altogether, prohibiting employers from shortening applicable periods for filing claims, and preventing class actions. (It is unclear if this provision would be legal given previous Supreme Court rulings.)
Employer Mandatory Disclosures to the IDHR
Beginning July 1, 2020, ALL employers in Illinois will be required to report, on an annual basis, any settlement, adverse judgement, or ruling against them involving harassment or discrimination. This report will be made to the Illinois Department of Human Rights. Employers must report the total number of settlements and judgements with regard to each protected class. (For example, “We settled a claim with regard to age and race discrimination.”) While the information will not be subject to public disclosure, the IDHR can use the information to begin an investigation or when already conducting an investigation. Failure to report can result in fines ranging from $500 to $5,000 depending on the size of the employer and whether there have been previous violations.
Mandatory Sexual Harassment Training
Pursuant to the WTA, ALL employers in Illinois, regardless of size or type of employer, will be required to provide sexual harassment training to ALL employees on a yearly basis. As soon as the law is signed by Governor Pritzker, the IDHR will work on providing regulations addressing the requirements for the training program, reporting information, and other details.
Unpaid Leave Following a Claim of Sexual Harassment - VESSA Amended
The WTA amends the Victims’ Economic Safety and Security Act (“VESSA”) to include sexual harassment as a reason for leave under the law. The harassment need not have a connection to the workplace in order for the employee to qualify for the leave under VESSA.
“Regarded As” Discrimination Claims
Most employers are familiar with the concept of a “regarded as” claim under the Americans with Disabilities Act (“ADA”). This concept now makes its way to the Illinois Human Rights Act, which, per an amendment under the WTA, will prohibit discrimination based on an employee’s “perceived” protected characteristic. This means that like the ADA, even if the employee isn’t in a protected class, the employee could bring a claim under the IHRA because she was discriminated against or harassed because the employer treated her like she was. (Example: Employees at an office start a rumor that a male employee is gay because they don’t think he exhibits traditionally masculine qualities. He is subjected to comments and remarks on a day-to-day basis and ultimately denied a promotion. The employee isn’t gay, but could bring a claim under this amended section of the IHRA on the basis that his employer “regarded him” as gay and discriminated against him and harassed him based on the protected class of sexual orientation.)
The Workplace Transparency Act is full of many changes for employers. At HR Source, we are preparing to assist employers with these changes and make sure you can comply. Stay tuned for more information and resources concerning this sweeping new employment law.