As of January 1, 2020, all Illinois employers are required to provide sexual harassment training to all employees on an annual basis. The initial deadline for compliance is December 31, 2020. Despite the COVID-19 pandemic, the Illinois Legislature has not extended this deadline. Therefore, employers who have not yet provided the mandated training to employees only have a few weeks left to comply. For more information on best practices for implementation of training, including defining who outside of Illinois must receive this training, please see our previous Alert.
It is not too late to provide this training, and we can certainly assist with compliance, even in these last few weeks of 2020. But, what happens if an employer misses the December 31, 2020 deadline? Only time will tell, but for now, the law is written to be employee complaint-driven. This means that, in theory, the Illinois Department of Human Rights (IDHR) is not seeking out non-compliant employers when no complaint has been made. However, if an employee complains, or if the IDHR is investigating another Charge of Discrimination and requests information about sexual harassment training compliance, the IDHR can start the process of discipline against an employer. Importantly, the IDHR’s first step in seeking compliance by employers is to issue a notice to show cause that gives employers 30 days to provide the training. While we strongly recommend employers not wait to provide the training to employees until they receive such a notice, the procedural step of the show-cause notice indicates that even if the employer misses the December 31, 2020 deadline, it is still possible to comply as soon thereafter as possible without suffering serious consequences (unless a complaint is filed). Employers should never lose sight of the fact that the goal of this training requirement is to prevent sexual harassment, which should be important to everyone. Therefore, employers should strive to make the most of the requirement and provide the best and most useful training possible, and in a timely manner.
In April 2020, the IDHR published its sexual harassment training program. As previously discussed, the training program consists of a set of PowerPoint slides, and seems intended to be presented by someone with at least some knowledge and experience in human resources and/or employment matters. In November, with no announcement or alerts, the IDHR published an updated version of its model training program, which can be accessed here. The IDHR also included a Spanish version of that PowerPoint.
The updated version includes slight enhancements to the concepts of “working environment” (i.e. the location of the work) and harassment based on gender identity. The new version also provides additional slides and details regarding non-employees (including independent contractors, gig workers, customers, patrons, etc.) as both victims and perpetrators of sexual harassment. The remainder of the second version of the model program is the same as the first.
In addition, in November, the IDHR published a model sexual harassment training program for restaurants and bars, as required under the amendments to the Illinois Human Rights Act. Employers should note that although the IDHR did not include a Spanish version of training for restaurants and bars, the Illinois Human Rights Act specifically requires the training to be provided in Spanish.
Significantly, this model program for restaurants and bars provides numerous additional slides involving various hypothetical scenarios, with answers to and explanations for each scenario. These scenarios provide examples of what employees may experience in the workplace, and although they are all stated in the context of a restaurant/bar environment, they could be modified to fit almost any other type of employer. One should note, however, that the scenarios provided by the IDHR are intended to provide examples of sexual harassment, various options for dealing with the harassment, and potential liability on employers and their managers. They err on the side of considering the conduct harassment, and lead to fairly obvious results for how such conduct should be handled.
As employers know all too well, sexual harassment can be much more subtle than the examples in these scenarios and, therefore, more difficult to recognize. Further, there is no magical formula for how each particular situation should be addressed in order to prevent similar situations in the future. Therefore, a more useful conversation with employees, especially managers, should include the creation of other hypothetical situations or at least modification of the IDHR’s sample scenarios. Because many employers have limited or no specific experiences with sexual harassment in their workplaces, it is useful to engage the services of employment attorneys or HR professionals, who can provide training based on a broad range of actual situations involving other companies. Examples based on real life scenarios, whether from published case law or from personal experiences, are generally more meaningful than hypothetical situations that are skewed towards obvious answers.
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.