New Workplace Law in Illinois, Increased Obligations for Employers: Part II

In our second posting on the new Workplace Transparency Act (“WTA” or the “Act”), effective January 1, 2020, we consider the dramatic changes to Illinois law under the WTA – defining previously undefined terms, expanding existing definitions, and increasing protections for employees against “unlawful employment practices.”  The WTA defines “unlawful employment practices” as acts of discrimination, harassment and retaliation.

Expands Discrimination and Harassment Claims

• Amends the Illinois Human Rights Act (“IHRA”) to prohibit discrimination and/or harassment based on a person’s “actual or perceived” membership in every protected class.
• Previously, the IHRA barred perceived discrimination based on disability only. The WTA expands “perceived” membership to every protected class: race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service.
• Employers can now face liability if an employee alleges that he or she experienced discrimination based on the employer’s perception that the employee belongs to a protected group, regardless of whether or not the employee actually belongs to that group.

Expands Protections Against Harassment to Independent Contractors and Consultants

• Further amends the IHRA to prohibit harassment, including sexual harassment, of non-employees such as independent contractors and consultants.

Expands Employer Liability for Nonmanagerial and Nonsupervisory Employees

• Does NOT hold employer liable for harassment by nonmanagerial and nonsupervisory employees UNLESS the employer becomes aware of the conduct and fails to take reasonable corrective measures.
• DOES expand the employer’s liability for harassment by nonmanagerial and nonsupervisory employees by including NONEMPLOYEES such as independent contractors and consultants.

Defines “Working Environment”

• Defines the phrase “working environment” which was previously not defined.
• “Working environment” is NOT limited to a physical location an employee is assigned to perform his or her duties.
• Employers now face liability for incidents of employee harassment that occur outside the office.

Expands Definition of Violence to Include Gender

• Amends the Victims’ Economic Security and Safety Act (“VESSA”) to include victims of “gender violence,” that is, individuals who experience violence or credible threats of violence, including sexual violence, based on their actual or perceived sex or gender.
• Requires employers to provide 8-12 weeks of unpaid leave to employees who experience gender violence to obtain medical, psychological, or other services previously offered only to employees who experience domestic or sexual violence.

Establishes Mandatory Annual Disclosures

• Beginning July 1, 2020, requires employers to annually disclose to the Illinois Department of Human Rights (“IDHR”) the number of adverse judgments or administrative rulings against them in the prior year involving discrimination and harassment, including:

• • Whether an employee received equitable relief; and
  • A breakdown of the judgments and rulings by unlawful employment practice; and
  • May require an employer being investigated by the IDHR to disclose the number of its settlements in the past 5 years related to allegations of sexual harassment or unlawful discrimination.
• Requires the IDHR to publish an annual report with aggregated data of the compiled information.
• May require employers who do not comply with the reporting requirements to pay penalties ranging from $500 to $5,000 per violation, based on number of employees and prior violations.
• Does NOT subject these disclosures to Illinois Freedom of Information Act requests.
• Does NOT require IDHR to identify employers in its public reports.
• DOES allow IDHR to use the reported information to begin an investigation and possibly bring a discrimination charge against an employer.

What Do Employers Need To Do To Comply With WTA?

• Immediately review and modify policies on discrimination and VESSA.
• Prepare for annual disclosures to the IDHR.
• Contact an attorney at Boodell & Domanskis, LLC to assist your company in reviewing and updating your discrimination policies and procedures.
• Watch for our upcoming blog on the WTA’s new mandatory sexual harassment training requirements that will follow a model program being drafted by the IDHR.

In case you missed it. . .  click here to read the first article in this series “Workplace Transparency Act – How It Affects Illinois Employers”.