Chicago expands sexual harassment prevention obligations for employers

On April 27, 2022, the Chicago City Council passed amendments (“Amendments”) to its Human Rights Ordinance (“Order”) adding important sexual harassment prevention requirements for employers, including a new employer policy, notification and training requirements, expanded record-keeping requirements and penalties stricter in the event of violation. The amendments also expand the definition of “sexual harassment” and “sexual orientation”. The amendments, which apply to all employers with at least one employee working within the geographic city limits of Chicago, went into effect on June 4, 2022. Chicago employers, however, have until July 1, 2022 to implement implement the modified version of sexual harassment prevention. terms.

Who is covered? The ordinance defines employers as “any individual, partnership, association, corporation, limited liability company, business trust, or any person or group of persons who provides employment to one or more employees during the current calendar year or predecessor and any officer of such entity or person[,]that are subject to Chicago licensing requirements or maintain a commercial facility within city limits.

Employee is defined as “a person who is engaged to work within the geographic limits of the city of Chicago for or under the direction and control of another for monetary consideration or other value.”

Improved definition of sexual harassment. The Ordinance’s definition of “sexual harassment” now explicitly includes “sexual misconduct”. “Sexual harassment” is defined as any

  • (i) unwelcome sexual advances or unwelcome conduct of a sexual nature;
  • (ii) requests for sexual favors or conduct of a sexual nature when

– (1) submission to such behavior is made either expressly or by implication a term or condition of an individual’s employment;

– (2) submission or rejection of such behavior by an individual is used as the basis for any employment decision affecting the individual; Where

– (3) such conduct has the purpose or effect of substantially interfering with an individual’s job performance or creating an intimidating, hostile or offensive work environment; Where

  • (iii) sexual misconduct, meaning any conduct of a sexual nature that also involves coercion, abuse of authority or abuse of an individual’s position.

Additionally, the amendments change the definition of “sexual orientation” to mean “a person’s actual or perceived sexual and emotional attraction, or lack thereof, to another person.”

Written Policy and Written Notice Requirements. As of July 1, 2022, all employers in the City of Chicago must have a written sexual harassment policy. The written policy document should include at least the following:

  • A statement that sexual harassment is illegal in Chicago.
  • The definition of sexual harassment set out above.
  • A requirement that all employees participate in sexual harassment prevention training annually.

– Employees must participate in a minimum of one (1) hour of annual training on the prevention of sexual harassment.

– Any person who supervises or manages employees must participate in a minimum of two (2) hours of training on the prevention of sexual harassment annually.

– All employees must participate in one (1) hour of observer training annually.

  • Examples of prohibited behaviors that constitute sexual harassment.
  • Details about:

– how a person can report an allegation of sexual harassment, including, where appropriate, instructions on how to make a confidential report, with an internal complaint form, to a manager, the employer’s head office or the human resources department, or another internal reporting mechanism; and

– legal services, including governmental ones, made available to employees likely to be victims of sexual harassment.

  • A statement that retaliation for reporting sexual harassment is illegal in Chicago.

The written policy must be available in the employee’s primary language within the first calendar week of starting employment. In addition, employers will be required to post a poster advising of the prohibition of sexual harassment where employees can see it. The Chicago Commission on Human Rights (“CCHR”), which monitors and enforces the order, issued a policy template and poster templateboth in English.

New training requirements. As of July 1, all employers must provide the following training annually:

  • Sexual Harassment Prevention Training

– For supervisors/managers – two (2) hours (minimum) annually – For all other employees – one (1) hour (minimum) annually

  • Bystander Intervention Training

– For all employees – one (1) hour (minimum) annually

The Illinois State Training Module, which offers one (1) hour of training, is sufficient for training in the prevention of sexual harassment for non-managerial employees/executives mandated under the Ordinance. The Chicago Training modules for the additional training hour and for the accompanying training will be made available to employers by July 1, 2022 on CCHR’s website.

Employers must provide the above training between July 1, 2022 and June 30, 2023, and annually thereafter.

Retention of Records. Employers must retain written records to show compliance with the Order, including records of policies and training provided to employees, for the longer of five (5) years or the duration of any claim, civil action or investigation under the Order.

Extended limitation period. Victims will now have 365 days, instead of 300 days, to report everything forms of discrimination, including sexual harassment, at CCHR.

Complaint process. In cases of sexual harassment, the amendments allow CCHR to delay notifying a respondent of a complaint from ten (10) days to a maximum of thirty (30) days. This is intended to help mitigate retaliation, such as the denial of a request for reasonable accommodation, under the Illinois Victim Safety and Economics Act.

Penalties. The amendments increase penalties for all forms of discrimination from $500 to $1,000 per violation to $5,000 to $10,000 per violation.

Employers are only liable for sexual harassment by non-supervisory/managerial employees if they knew of the conduct and failed to take reasonable corrective action. The amendments also maintain the CCHR’s power to impose fines on complainants who make “clearly frivolous, clearly vexatious” claims.

The Ordinance c. the Illinois Human Rights Act. While the Illinois Human Rights Act (“IHRA”) requires employers with employees in the State of Illinois to provide annual sexual harassment prevention training to employees since 2020, the amendments expand the obligation of Chicago employers beyond what is required under the IHRA in the following ways:

  • The IHRA does not impose a length requirement for sexual harassment prevention training, unlike the ordinance, which mandates a minimum of two (2) hours of training for managers/supervisors and one (1) hour training for all other employees.
  • The IHRA does not mandate separate bystander intervention training, while the ordinance mandates one (1) hour of bystander intervention training for all employees.
  • The IHRA does not impose any notification or record-keeping requirements, unlike the ordinance, which requires both and penalizes employers for non-compliance.
  • The IHRA only requires that restaurants and bars have written policies on the prevention of sexual harassment, while the Ordinance requires such policies to everything employers.
  • Under the order, employees have an additional 65 days to file a complaint with the CCHR, compared to the IHRA’s (and EEOC’s) 300-day statute of limitations.

Preparation for compliance. Chicago employers are urged to take the following immediate steps to ensure compliance with the changes:

  • Review and revise existing sexual harassment prevention policies to ensure they comply with the expanded requirements of the Ordinance.
  • Prepare to deliver the required training to employees between July 1, 2022 and June 30, 2023, which will be available on CCHR website before July 1, 2022.

About Yvonne Lozier

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