OOO: While You Were Out, Chicago Called to Tell You About New Anti-Harassment Obligations
Summertime often means summer hours and time out of the office. As such, some employers may have missed that the City of Chicago recently amended its sexual harassment ordinance to expand the definition of “sexual harassment,” to impose new policy and training requirements, to impose additional record keeping requirements, and to increase monetary penalties. These changes took effect on July 1. If you’ve been tasked with making sure your handbook and policies are up to date and compliant in any workplace in Chicago, then this update is for you!
Harassment Definition Gets a Refresh
The Ordinance significantly expanded the definition of harassment to include “sexual misconduct.” Under the new definition, sexual harassment means any: “(i) unwelcome sexual advances or unwelcome conduct of a sexual nature; or ii) requests for sexual favors or 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 or (2) submission to or rejection of such conduct by an individual is used as the basis for any employment decision affecting the 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; or (iii) sexual misconduct, which means any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse or an individual’s employment position.”
Illinois courts already have held that sexual misconduct can constitute a hostile work environment claim, but this change is still significant as it codifies (or puts into law) what courts have held. Employers should anticipate that employees will rely on this expanded definition when filing charges of sexual harassment.
Ensure Your Policies Are Not as Out of Date as Bermudas With Socks
Unless you have already updated your policies, they likely are not compliant with the new requirements imposed by the Ordinance. The City’s Ordinance specifically requires employers to have a written anti-sexual harassment policy that includes: (1) a statement that sexual harassment is illegal in Chicago; (2) the expanded definition of sexual harassment referenced above; (3) a requirement that all employees participate in sexual harassment and bystander training annually (more on this below); (4) examples of prohibited conduct; (5) details on how to report sexual harassment, including instructions on how to report internally and a statement of legal services, including governmental services, available to victims or harassment; and (6) a statement that retaliation for reporting harassment is illegal in Chicago.
Employers are required to provide this policy in an employee’s primary language within the first calendar week of employment. Employers also must hang a poster (one in English and one in Spanish) designed by the City in at least one location where employees commonly place such posters. The City has provided a model policy and a model poster on its website that employers can use or reference to create their own policy and posting.
Illinois employers already are required to provide annual anti-harassment training, thanks to requirements imposed by the Workplace Transparency Act in 2020. Chicago’s Ordinance takes the training obligations a step further. Chicago employers are now required to provide a minimum of one hour of sexual harassment training annually and “anyone who supervises or manages employees shall participate in a minimum of two hours of sexual harassment prevention training annually.” Additionally, all employees must participate in one hour of bystander training annually.
The Ordinance specifically allow employers to “use the model sexual harassment prevention training program prepared by the State of Illinois required under 775 ILCS 5/2-109” for the one hour of general training. The City also has provided model training programs for the additional supervisor and bystander training obligations. These trainings must be provided by June 30, 2023.
And You Thought Travel Was Onerous
Employers also are required maintain records of any written policy prohibiting sexual harassment, records of trainings given to each year to each employee and records necessary to demonstrate compliance with the Ordinance. These records must be maintained for at least five years, or the duration of any claim, civil action or investigation, whichever is longer. Failure to maintain these records “shall create a presumption, rebuttable by clear and convincing evidence, that the Employer violated” the Ordinance.
The amended ordinance significantly increases the penalties for all forms of discrimination, including sexual harassment, from $500-$1,000 per violation to $5,000-$10,000 per violation. Additionally, employers also will be subject to penalties if they fail to comply with policy, training and positing obligations.
Chicago employers need to ensure they update their policies to comply with the amended Ordinance, post the notices referenced above (in English and Spanish), and implement the annual training requirements. Failure to do so will hurt even more than filling up your gas tank for that family road trip.
Please contact Steve Brenneman, Kelly Smith Haley, Brandon Liss, or the Fox Swibel attorney with whom you regularly work to address these issues.
This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.
This article was written by Kelly Smith-Haley, who is a Partner of the Employment Law Group at Fox Swibel and editor of the Illinois Employment Law Letter.