Attention Illinois Employers -- sweeping anti-harassment law changes are on the way

On August 9, Gov. J.B. Pritzker signed a new bill into law creating new protections for employees and contractors, and rules for employers regarding sexual harassment. The new legislation, called the Workplace Transparency Act ("IWTA"), which was sent to the governor in June, makes several changes effective January 1, 2020:

• The law limits the use of certain contract provisions that may have the effect of prohibiting employees from reporting harassment, including non-disclosure agreements and non-disparagement clauses unless certain conditions are met, for matters involving harassment, discrimination and retaliation.
• The law extends legal harassment protections to contract workers and consultants, stating that employers may be held responsible "for harassment of nonemployees by the employer's nonmanagerial and nonsupervisory employees," if the employer becomes aware of the conduct and fails to take reasonable corrective measures.
• The law provides unpaid leave for medical or legal help or other assistance to gender-related violence victims.
• Employers will be required to provide sexual harassment training at least once a year. The Illinois Department of Human Rights ("IDHR") will provide a sexual harassment training program available for employers, with a separate program for restaurants and bars.
• The law requires unions representing both the victim and an alleged harasser in disciplinary proceedings to provide separate representation.
• The law requires all private or public employers, labor organizations, and parties to a public contract to report annually any settlement, adverse judgment, or administrative ruling against them, involving harassment or discrimination, to the IDHR.
• Finally, the law creates limitations on an employer's ability to disclose the name of a victim of an act of alleged sexual harassment or unlawful discrimination.

The new law also has special provisions for hotels and casinos, requiring them to provide emergency notice devices to those employees who work in isolated spaces in case of harassment or assault.

Certain Contracts & Employment Policies May Need To Be Updated: Under the IWTA, contracts or other "documents" are prohibited from including provisions that prohibit prospective, current, or former employees from reporting allegations of "unlawful conduct" to federal, State, or local officials for investigation. For purposes of the IWTA, unlawful conduct includes criminal conduct or conduct violating the anti-harassment and discrimination laws enforced by the IDHR or EEOC. This new rule applies to any form of employment contract, including, for example, formal employment agreements, confidentiality agreements, and separation agreements. The law's reference to "documents" appears to be intended to mean employee handbooks and other workplace policies. Contracts also cannot include provisions that prevent an employee from testifying about unlawful employment practices (i.e., discrimination and harassment) in response to a court order, subpoena, or request from an administrative agency.

Similarly, employment contracts and policies that must be signed as a condition of employment no longer can prohibit a prospective, current, or former employee from making truthful statements or disclosures about alleged unlawful employment practices (i.e., discrimination and harassment).

Importantly, care must be taken in preparing confidentiality or non-disparagement clauses in a non-negotiated agreement so that they do not have the effect of preventing an employee from making truthful statements or disclosures about discrimination or harassment, or the entire clause could arguably be rendered unenforceable. In contrast, employers may continue to rely upon confidentiality, non-disclosure and non-disparagement clauses in settlement or separation agreements that are negotiated with employees. Now such agreements are required to include bargained-for consideration, and also contain an express acknowledgment of the employee's right to: (1) report any good faith allegation of unlawful employment practices to any appropriate federal, State, or local government agency enforcing discrimination laws; (2) report any good faith allegation of criminal conduct to any appropriate federal, State, or local official; (3) participate in a proceeding with any appropriate federal, State, or local government agency enforcing discrimination laws; (4) make any truthful statements or disclosures required by law, regulation, or legal process; and (5) request or receive confidential legal advice.

Settlement, separation or severance agreements may include promises of confidentiality relating to discrimination and harassment only if the following statutory requirements are met: (1) the employee is told in writing of the right to have an attorney or representative of his or her choice review the agreement before it is executed; (2) confidentiality is the documented preference of the employee and is a mutual contractual obligation; (3) there is valid, bargained for consideration in exchange for the confidentiality (e.g., a severance payment as compared to payment of final earned compensation); (4) the agreement does not waive any claims of discrimination or harassment that accrue after the date agreement is signed; and (5) the agreement gives the employee twenty-one (21) days to consider it before signing and seven (7) days to revoke his or her acceptance of the agreement (similar to the manner in waivers of federal age-related claims with individuals who are over age forty (40) need to be drafted).

Illinois Human Rights Act Amendments (Effective January 1, 2020)

The Illinois Human Rights Act (IHRA) also will be amended in numerous respects to further secure employees' rights to a workplace free of harassment and discrimination. For example, the prohibition against discrimination and harassment will be expanded to cover all "actual" and "perceived" protected classes (e.g., race, sex, age, religion, sexual orientation, etc.). In addition, the IHRA will be amended to define "harassment" more broadly than under federal law, as any "unwelcome conduct" that "has the purpose or effect of substantially interfering with the individual's work performance or creating an intimidating, hostile, or offensive working environment."

Additionally, effective July 1, 2020, the IHRA will now apply to any employer with one (1) or more employees within Illinois during twenty (20) or more calendar weeks in the current year or year preceding the alleged violation. The IHRA currently applies only to employers with fifteen (15) or more employees.

The Victims' Economic Security and Safety Act (VESSA) also will be amended to expand the protections to victims of domestic and sexual violence, sexual assault, and stalking to victims of gender violence. Gender violence includes one or more acts of violence or aggression that is a crime under State law committed, at least in part, on the basis of a person's actual or perceived sex or gender, or threats of any such actions.

Big changes are underway in Illinois with respect to employer’s potential exposure to sexual harassment and discrimination claims. Please feel free to contact Chris Kentra at 312-840-7112 / ckentra@burkelaw.com or Rachel E. Yarch at 312/840-7029 / ryarch@burkelaw.com to discuss the possible impact of these new laws on your business.