Employment law practitioners serving victims of workplace harassment and assisting businesses in creating healthy work environments have reason to celebrate. On August 9, 2019, Governor J.B. Pritzker signed into law Public Act 101-0221, known as the Workplace Transparency Act (the “Act”). Among other sweeping changes to various employment-related laws, the Act requires that Illinois employers, regardless of size, provide annual sexual harassment prevention training to all employees. This requirement, and most other provisions of the Act, takes effect January 1, 2020.
As with all legal changes, not everyone will necessarily be happy. Companies might wonder, “Is this yet another burdensome compliance requirement for Illinois business owners?” Workers might ask themselves, “Is this just another check-the-box-training I’ll have to suffer through half-awake?” We think not. The Act codifies what many employment law experts (quite strongly) believe: sexual harassment deterrence helps companies avoid the business-crippling costs (and not simply financial ones) that accompany complaints of sexual harassment. In fact, we have made the business case for training employees and management many times (see our blogs here, here, here, and here, and our training page here). More importantly, the Act reflects another truth that many employment attorneys have known for some time: anti-harassment training simply protects employees, and any real attempt at effectively curbing sexual harassment must begin with training.
Illinois’ General Assembly appreciated these two facets of workplace harassment and issued specific findings in connection with its adoption of the new law. The Senate’s draft of the Act recognized that “25% to 85% of working women have experienced sexual harassment on the job.” The final language of the Act acknowledged that “organizational tolerance of sexual harassment has a detrimental influence in workplaces by creating a hostile environment for employees,” leading it to encourage employers “to adopt and actively implement policies to ensure their workplaces are safe for employees to report concerns about sexual harassment without fear of retaliation, loss of status, or loss of promotional opportunities.” Lawmakers realized that workplace harassment is not the sole problem. So often employees who report harassment are then retaliated against by their employers, and so training should also encompass anti-retaliation policies and practices.
The General Assembly also recognized the negative business impact of harassment. In addition to creating a hostile work environment, the Act states that harassment “reduc[es] productivity and increase[es] legal liability” for employers. By passing the Act, legislators signaled they are aware that combatting workplace harassment is good news for both employees and employers. As a result, Illinois has now become part of the small league of states that requires employers to provide sexual harassment prevention training.
The Act directs the Illinois Department of Human Rights to develop a model training protocol aimed at helping participants understand, recognize, and prevent sexual harassment. This resource will be available online free of charge to employers (and the general public), who may utilize it or another program, so long as the training contains certain minimum components.
Which employers must provide training and who must be trained?
The Act states that “every employer”(emphasis added) with employees in Illinois shall provide this training “once a year to all employees.” The language of the Act is quite absolute: everyone from the CEO to the seasonal shift worker must be provided with sexual harassment prevention training.
What type of information must be contained in the training?
The Act contains specific categories of information that must be contained in annual sexual harassment prevention training, including the following:
- Explanations of sexual harassment as defined by the Act, as well as examples of conduct that constitutes sexual harassment;
- A summary of the state and federal laws relating to sexual harassment, including remedies available to victims; and
- A summary of employers’ obligations in terms of prevention, investigation, and corrective measures in cases of sexual harassment.
Bars and restaurants are subjected to additional obligations, including a requirement that training be available in both English and Spanish, and a duty to provide employees with written sexual harassment policies in both English and Spanish within the first calendar week of employment. Entities contracting with state government also have other training-related requirements.
What if employers fail to provide the required training?
Employers that fail to provide training can be subjected to civil penalties, ranging from $400 to $5,000, depending on their size and number of previous offenses.
There’s no doubt that the Act’s new training requirements are a step in the right direction toward preventing harassment of employees and avoiding employer liability for harassment. But is it enough? We have seen in our practice that even though some workplace conduct does not rise to the level of legal “harassment,” it can nevertheless be damaging and should have no place in a business. Often it is clear that harassment (or conduct resembling it) is a symptom of a larger cultural problem within a business organization. You are almost sure to find other nasty, havoc-wreaking, liability-creating behaviors nearby… And while treating the particular symptom that is sexual harassment is good, our philosophy is that a wholesale overhaul of your business environment is often most effective, so that nothing even approaching harassment (or discrimination, retaliation, and related behaviors) creeps into your workplace. We have designed training programs that achieve the basic requirements of the Act, but also meet a broader goal for businesses: to build a happy, productive environment where employees and the business both flourish.
We will keep you updated as the Illinois Department of Human Rights fully promulgates its training materials. If you want to move toward a truly healthy and compliant workplace environment, please contact us for help in readying your business for compliance with the Act.