NEW REQUIREMENTS AND RESTRICTIONS FOR EMPLOYERS IN RECENTLY ENACTED WORKPLACE HARASSMENT BILL

By: A. Lynn Himes and John E. Fester

September 18, 2019

            On August 9, 2019, Governor Pritzker signed into law Public Act 101-0221, also known as the Workplace Transparency Act, which will become effective January 1, 2020.  The legislation significantly impacts employers’ harassment policies and procedures.

 Employer-Imposed Arbitration Agreements Prohibited

             The new law amends the Illinois Human Rights Act and prohibits, as a unilateral condition of employment, any waiver or requirements to arbitrate employee claims related to unlawful employment practices.  Existing employment agreements which contain the provisions will remain in effect, but provisions related to waiver or arbitration would be rendered void.  This change will have little impact on school districts as it will not affect the arbitration provisions of a collective bargaining agreement.

 Confidentiality Provisions Severely Restricted in Settlement and Termination Agreements

             Confidentiality provisions related to alleged unlawful employment practices contained in settlement or termination agreements will be subject to stringent conditions.  At the outset, some form of consideration will need to be given to an employee, prospective employee, or former employee in return for the confidentiality provision.  Moreover, the law states that a confidentiality provision must be “mutually beneficial” to both parties.  The term “mutually beneficial” is not defined, which might be problematic when determining the validity of confidentiality agreements.  Further, the employer must provide written notice to an employee, prospective employee, or former employee that he or she has the right to have an attorney or representative review the settlement or termination agreement before execution.  Settlement or termination agreements may not contain provisions that waive any claims of unlawful employment practices which accrue after the settlement or termination agreement is executed. 

                        The legislation also institutes reconsideration periods akin to the Age Discrimination in Employment Act.  Employees, prospective employees, or former employees will be granted a twenty-one-day period to consider the agreement and confer with counsel before executing the agreement.  Once the employee executes the agreement, he or she would have a further seven days in which to revoke the agreement.  Both the twenty-one-day period and the seven-day-period may be knowingly and voluntarily waived by the employee.

 Discrimination Based on “Perceived” Characteristics

             The legislation expressly broadens the definition of unlawful discrimination to include a person’s “perceived” characteristics.  Under this definition, employees can allege discrimination based on a protected characteristic (e.g. race, sex, religion) that they do not actually possess, but which the alleged perpetrator believed them to have.      

 “Working Environment” Definition Broadened

             The legislation broadens the definition of working environment to include areas outside the actual physical location where an employee performs her duties.  The expanded definition likely will serve to cover claims of harassment and discrimination at offsite locations, such as overnight student trips.

 Harassment of Nonemployees

             Employers may become liable for the harassment of nonemployees.  A nonemployee is defined as a person who is not otherwise an employee and is directly performing services for the employer pursuant to a contract (e.g. contractors and consultants).  To be responsible for the harassment of nonemployees, the employer must be aware of the conduct and fail to take “reasonable corrective measures.”  Examples include contracted food service and custodial employees, contracted nursing and other therapeutic services, and contracted bus services.  Employees should be reminded that the same prohibitions banning harassment of employees protect contracted employees as well.

 New Employer Disclosure Requirements

             Beginning July 1, 2020, employers will be required to disclose annually (by July 1 of each year) the number of adverse judgments and administrative rulings related to sexual harassment or discrimination to the Illinois Department of Human Rights.  Adverse judgments or administrative rulings include any final, non-appealable, judgment or administrative ruling entered in favor of an employee in which there was a finding of sexual harassment or discrimination.  Specifically, employers will be required to disclose: 1) the total number of adverse judgments or administrative rulings during the preceding year; 2) whether any equitable relief was ordered against the employer pursuant to a judgment or ruling; and 3) a breakdown of the number of adverse judgments or administrative rulings into to the following categories: sexual harassment; discrimination on the basis of sex; on the basis of race, color, or national origin; on the basis of religion; on the basis of age; on the basis of disability; on the basis of military status or unfavorable discharge from military status; on the basis of sexual orientation or gender identity; and on the basis of any other characteristic protected by the Illinois Human Rights Act

             Further, if the Department of Human Rights is investigating a charge of sexual harassment or discrimination, it could compel the responding employer to disclose the total number of settlements it has entered into related to sexual harassment and discrimination during the five years preceding the charge.  Settlements included are those pursuant to actions that occurred in the workplace or involved the behavior of an employee regardless of whether the behavior occurred in the workplace.  Employers would be required to report the number of settlements broken down into the categories listed above. 

                        Finally, an employer will be prohibited from disclosing the name of a victim of an act of alleged sexual harassment or discrimination in any of the disclosures required in the legislation. 

 Annual Sexual Harassment Training for All Employees

             Employers will be required to institute annual sexual harassment prevention training for all employees.  The legislation calls for the Department of Human Rights to create a model sexual harassment training program to be used by employers.  Employers may, however, supplement their own sexual harassment prevention training with the model training program.  Those districts using online sexual harassment training will need to verify that the service provider has incorporated the IDHR model provisions into its materials.

 Dual Union Representation Prohibited in Harassment Cases

             In cases in which a victim alleges discrimination or harassment by a member of the same labor union, the victim and the alleged perpetrator must be represented by different union representatives.  The legislation requires unions to designate separate representatives for each party to the proceeding.

             Scariano, Himes & Petrarca stands ready to assist school districts in addressing the new requirements.