More than four months after the Illinois Workplace Transparency Act (WTA) went into effect, the Illinois Department of Human Rights (IDHR) has now uploaded onto its website the “model” sexual harassment training required under the WTA for all employers (it can be accessed here). Now that employers can and must begin preparing to comply with the new training requirements, employers should consider whether this model training is enough to effectively combat sexual harassment and how best to implement it. Unfortunately, although many employers were expecting a form of self-contained online training, such as a video or some other type of computer-based presentation, the IDHR simply published a set of PowerPoint slides. (One initial word of caution is that the IDHR also offers free online training on a variety of topics on its website, including sexual harassment; however, these training programs are not intended to be the sexual harassment training required under the WTA.) While the PowerPoint presentation is a detailed outline of a sexual harassment prevention training program, it appears to be written for an employment attorney or HR expert to present, rather than for the average employer. Although the PowerPoint recites the law and provides some examples of sexual harassment, it is written in more of an outline form, with details needing to be separately provided. Also, as of publication of this Alert, the IDHR has not yet posted a training program specifically required for the restaurant and bar industry.
The IDHR PowerPoint is free of cost to download, and can also be downloaded and reviewed as a pdf. The IDHR has also published a Frequently Asked Questions (FAQ) page, which is useful in answering many questions, but leaves other questions unanswered and is not legally enforceable as regulations under the Illinois Administrative Code. IDHR FAQs. The IDHR, however, has not provided any guidance as to how an employer should implement training, including training with its PowerPoint, and has left it up to each employer’s discretion. Is it enough to hand these or similar slides to employees and have them read through them on their own and sign an acknowledgement that they have done so? Can an employer simply read the words on the slides out loud to the employee? Should an employer who does not have trained HR employees or counsel on staff retain an outside expert to present the material? Before answering these questions, employers should first consider some of the other logistical aspects of sexual harassment training to help with the decisions.
What Training Must Occur?
While there is no formula for the exact method of training, or how long the training must last, or who must present it, the basic requirements include providing:
- an explanation of sexual harassment consistent with the IHRA;
- examples of conduct that constitutes unlawful sexual harassment;
- a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
- a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
For restaurants and bars, in addition to the above requirements, the supplemental training must minimally include:
- specific conduct, activities, or videos related to the restaurant or bar industry;
- an explanation of manager liability and responsibility under the law; and
- English and Spanish language options.
When Must Illinois Sexual Harassment Training Occur?
All employers are required to comply with the sexual harassment prevention training by December 31, 2020, and thereafter must provide annual training to all employees. The WTA is silent on how soon after the start of employment the training must be provided. The law could be read to simply require it within one year of hire. The IDHR has taken the position (in FAQs, not formally approved regulations) that the training should occur:
as soon as possible after hire or by December 31, 2020, and then annually thereafter by December 31. Employers are encouraged to train employees as soon as possible because employers are liable for the sexual harassment conduct of new employees upon their hire.
Thus, although these FAQs are not enforceable as laws or regulations, this particular recommendation is a good practice for all employers for multiple reasons, including the fact that an employer may be responsible for conduct of its employees from the employees’ start date, not just from the date the training is provided. A best practice would be to pick a deadline, such as within one week of hire (perhaps even during onboarding) to require employees to undergo the necessary training. For businesses with dedicated HR or legal departments that can easily take an hour or so to present the training, it should be reasonable to conduct the training on a relatively regular basis for all new employees, perhaps, for example, monthly. Even if the employer conducts other harassment training on a regular basis or has planned training within the year, the benefits of a new employee receiving the training immediately upon hire not only increase the possibility of preventing sexual harassment, but also helps serve as a potential defense when the employer can show the steps it took to prevent harassment without waiting a year after hire and that it takes harassment training as seriously as training new employees on other policies and rules.
Who Must Receive Illinois Sexual Harassment Training?
As of July 1, 2020, the Illinois Human Rights Act will define “employers” as those having one or more employees (replacing the prior threshold of 15 or more employees in Illinois for most types of discrimination). This means that every employer in Illinois must comply with this sexual harassment training requirement. The IDHR’s guidelines suggest that all employees must be trained, regardless of their status as part-time, intern, or temporary. For most Illinois employers, the answer is simply that all employees in Illinois, regardless of their exact status, must receive the training. The FAQ page has done little, however, to clarify the language of the WTA in terms of exactly which employees must receive the training when the employer is based out of state, or when the employer is based in Illinois but has some employees out of state. The WTA states that “every employer with employees working in” Illinois must provide the sexual harassment prevention training. Read in its broadest terms, can this be interpreted to mean that if the employer has just one employee in Illinois, it has to provide the sexual harassment training to all its employees? What about an out of state employer who has an employee who occasionally works in Illinois, such as to attend a meeting, or work in Illinois for a few days? The FAQ page states:
How does the training requirement apply to employees and employers based outside of Illinois?
Any employees who work or will work in Illinois must be trained, regardless of whether the employer is based in Illinois. If an employee is based elsewhere but regularly interacts with other employees in Illinois, even if they are not physically present in Illinois, they should be trained.
- Example 1: Supervisor A works for ABC company in another state (e.g., Indiana, California, Florida, etc.) and supervises employees of ABC who work in the State of Illinois. Supervisor A should receive sexual harassment prevention training compliant with the IHRA even though Supervisor A is employed in another state.
- Example 2: Employee B works for ABC company in another state (e.g., Indiana, California, Florida, etc.) and will be working on a temporary basis with employees of ABC in Illinois. Employee B should receive sexual harassment prevention training compliant with the IHRA even though Employee B's home employer is in another state.
Thus, the IDHR’s FAQs tell employers that those who supervise employees located in Illinois should have the training, and that employees working on a “temporary basis” with employees in Illinois should receive the training. But the FAQs do not define “temporary basis,” and still do not tell employers the extent to which employees based out of state but with contact in Illinois (such as attending a meeting, or who are in Illinois for a few days or weeks, or any number of other scenarios) are considered “working in” Illinois. Exceptionally broad, the FAQs also suggest that sexual harassment training is required of out-of-state employees who regularly interact with Illinois employees, even if those employees never step foot in Illinois or perform work in Illinois. Based on the examples in the FAQs, however, it would seem that the IDHR is at least not taking the broadest approach of requiring any company with any employees in Illinois to provide the training to all its employees, regardless of where they are based and where they work.
Interestingly, although the IDHR encourages employers to train their new employees, the FAQs state that it is possible for employers to rely on documentary proof from the employee (which the employer must retain) showing that the employee received the requisite training within the prior year. The risk in this reliance, however, is that the employer would need to verify that the prior training the employee received complied with all of the requirements of Illinois law, as enumerated above. This would also mean that if an employer re-hires a prior employee and that employee had the requisite training within the prior year, the employer does not need to require the employee to repeat the training for that year (though nothing prevents the employer from doing so).
IDHR Training, Professional Training, or Something In Between?
As for the actual training program published by the IDHR, how long each session should take will likely depend on the form of training the employer chooses and likely also on who performs the training (a skilled trainer compared to someone without expertise in sexual harassment training). The PowerPoint provides some definitions and basic examples of sexual harassment, and describes in detail what an employee can do if he/she feels sexually harassed, including how an employee may file a Charge of Discrimination with the IDHR. In other words, it checks the boxes of the minimum of what the law requires, but not much more.
It is doubtful that employers who simply hand out the PowerPoint or something similar and have their employees read it would be deemed to be in compliance with sexual harassment training requirements, as this would arguably be nothing more than having a written policy against harassment. It is clear that employers who use an outside employment lawyer, a third-party provider, or a skilled inside employee with HR experience to provide a formal live presentation using this or a similar PowerPoint would likely be in compliance. The question then is what can and should employers do beyond having employees merely read the materials but short of a formal live presentation by a professional? The answers to these questions will depend on many factors, including the size of the employer, the nature of the business, the demographics of the employees, the number of locations, the extent of interactions with employees outside of Illinois, and many other factors. At this point, with the law and model program being new and with no IDHR regulations in place, this analysis is somewhat speculative, but is our best presumptions based on the law and FAQs.
Professional Training, Live or Recorded?
Although the IDHR’s sexual harassment training PowerPoint is free (though employers must not neglect to pay employees for taking whatever training the employee provides, even if the training is done outside the employee’s normal work hours), the WTA allows employers to provide their own sexual harassment training, as long as the training complies with all of the requirements under the WTA. Other than for very specific employers (for example those with only a few employees, or a small family-owned business), we recommend that most employers provide professional anti-harassment and discrimination training, whether from an in-house HR expert or an outside expert. Also, the IDHR’s program only covers sexual harassment. All employers should train their employees about all forms of unlawful harassment and discrimination, not just sexual harassment. Therefore, while employers are already spending the time (and money?) providing the legally mandated sexual harassment training, a best practice would be to include all forms of harassment and discrimination.
Live Professional Training: Employers should not lose sight of the fact that the purpose of requiring sexual harassment training is to prevent sexual harassment, not simply checking a box to say they complied with the law. While the IDHR’s PowerPoint slides provide the minimum of what the law requires, the IDHR’s program is textbook and bland, while live (in-person or on video conference) harassment and discrimination training can be more interactive and personalized for the particular company and employees in a way that will better resonate with and be retained by employees. The interactive nature of live training also allows for questions to be asked with immediate responses to be given, and real-life examples offered. For employers with in-house HR professionals or attorneys, performing live training (or over teleconference) should not be too difficult or costly.
Recorded Professional Training: Recognizing that live training can be expensive if an employer needs to retain an outside trainer, particularly if it has to be repeated frequently throughout the year due to the size or nature of the company, many employers have another viable option: recorded professional training that can be played to new employees. While not perfect because it is not interactive, the person providing the training can still tailor it for the particular employer and its business, anticipate the more common questions, and provide specific and useful examples in a manner that would be cost effective for many employers. Whether this is the right choice depends on many of the factors enumerated above. One caveat to using a pre-recorded video would be for the employer to be sure to have the program updated as the laws change and new laws are enacted.
The bottom line is that the lack of any kind of formal online training from the IDHR will require most employers to determine for themselves what kind of training is best for them. The key takeaways for employers are:
- Implement training as soon as possible and feasible after hiring.
- Using the IDHR PowerPoint as a minimal starting point, enhancing it when logistically and economically feasible.
- Strongly consider incorporating general harassment and discrimination prevention into required sexual harassment training.
- Live professional training is the best; Recorded training video may also be okay, but simply having employees read the slides or anti-harassment policy is not enough.
- Keep track with signed acknowledgements of employees’ completion of training.
If you have any questions regarding this Alert, please contact the author, Kimberly Ross, partner in our Chicago office, at kross@fordharrison.com, or the FordHarrison attorney with whom you usually work.
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