New Illinois Annual Sexual Harassment Training Requirements

New Illinois Annual Sexual Harassment Training Requirements

In response to the #MeToo movement, the Illinois legislature passed Senate Bill 75 and House Bill 252, as proactive measures to prevent harassment and discrimination in the workplace. Illinois Governor, J. B. Pritzker, is expected to sign both bills into law soon, allowing employers the opportunity to evaluate and update their sexual harassment training and prevention practices.

Senate Bill 75 requires employers in Illinois (with one or more employees) to provide workplace sexual harassment training to all employees annually. The training requirement law becomes effective January 1, 2020, with initial training required to be completed by January 1, 2021.

House Bill 252, effective July 1, 2020, amends the Illinois Human Rights Act (IHRA) to create a lower threshold for how “employer” is defined. Employers are now defined as “any person employing one or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation,” excluding individuals employed by places of worship to perform connected religious work or activities. Previously, the IHRA defined employers as those employing 15 or more employees within Illinois.

Here is what employers should know to ensure compliance:

• All employees must be trained each year.
• Annual required sexual harassment training programs should include the following content:
  • An explanation of sexual harassment
  • Examples of conduct that constitutes unlawful sexual harassment
  • A summary of federal and state statutory provisions, including remedies available to victims of sexual harassment
  • A summary of the responsibilities of employers for prevention, investigation, and corrective measures of sexual harassment.

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• The law defines “harassment” as “any unwelcome conduct on the basis of an individual’s actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, unfavorable discharge for military service, or citizenship status that has the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile or offensive working environment.”
  • • A “working environment” is not restricted to a physical location.
• An employer is legally responsible for harassment of its nonmanagerial and nonsupervisory employees if the employer was aware of the conduct and failed to take reasonable corrective measures.
• By July 1, 2020, and each July 1 after, employers are required to disclose to the Illinois Department of Human Rights (IDHR) the total number of final adverse administrative rulings or judgments in the previous year, including details of any relief. Employers may also be required to disclose during an investigation the total number of settlements entered into during the previous 5 years related to any alleged act of sexual harassment or unlawful discrimination.
• Employers must allow victims of domestic, sexual, or gender violence to take unpaid leave to seek medical help, legal assistance, counseling, safety planning, and other assistance without penalty – if requested. Employers are prohibited from discriminating against an employee who is a victim, or any employee who has a family or household member who is a victim.
  • Employers with 50 or more employees may be required to provide victims with a maximum total of 12 workweeks of leave during any 12-month period.
  • Employers with at least 1-14 employees may be required to provide victims with a maximum total of 4 workweeks of leave during any 12-month period.
• Employers who do not provide compliant training will be subject to civil penalties, including a $500 penalty to businesses with less than 4 employees, or a $1,000 penalty to those with 4 or more employees.
• Impact to industry-specific employers:
• Bar and restaurant owners are required to provide a supplemental training program annually to all employees (regardless of employee classification), available in both English and Spanish, specifically aimed at the prevention of sexual harassment in the restaurant and bar industry.
  • Employers must also provide employees with the company’s sexual harassment policy and instructions on how to report sexual harassment incidents within the first week of hire.
• Casino and hotel owners are required to provide portable safety notification devices (at no cost) to employees who frequently work alone in restrooms, guest rooms, casino floors, or other isolated spaces. The safety device must allow them to call for help if they fear their safety or witness sexual assault or harassment.
  • Employers must also provide all employees with a current copy of the hotel or casino’s anti-sexual harassment policy (including reporting procedures and the prohibition against retaliation) and post the policy in clearly visible areas of the hotel or casino, both in English and Spanish.

The Illinois Department of Human Rights will develop a free online model sexual harassment training program, including the minimum requirements as stated above. Employers can choose to use this program, or establish its own sexual harassment prevention training program that equals or exceeds this “minimum standard.” Of course, for many employers, ensuring that the training is interactive and accurate will be challenging. Many employers may not have anyone with the appropriate level of expertise to facilitate the required harassment training and answer questions from employees about harassment issues. An employer who provides the training with an unqualified facilitator runs the risk of providing non-compliant training and having the facilitator give inaccurate guidance. Most employers likely will turn to a third party with expertise in training on sexual harassment prevention, such as Clear Law Institute.

Why Clear Law Institute?

Hundreds of employers rely on Clear Law Institute to provide online sexual harassment training to their employees across the country, given that our training:

• Complies with all 50 states’ laws, including Illinois
• Provides users with the ability to ask questions and have those questions answered within two business days, as required by other states’ laws
• Is kept up-to-date with any changes in the law at no additional charge
• Utilizes cutting-edge instructional design principles
• Efficiently tracks who has and who has not completed the training each year, as handled by Clear Law’s Learning Management System. This prevents employers from having to collect and track certificates manually.

What if the law changes and my organization’s training courses need to be updated?

If needed, Clear Law will modify its training to comply with any changes in Illinois’ laws at no additional cost. Clear Law Institute’s hundreds of clients can sleep well knowing that we monitor laws around the country to ensure that our training stays up-to-date with changes in the law.

Where can I learn more?

Clear Law Institute continually monitors updates to federal and state laws to ensure that its online training is legally accurate and up-to-date. Clear Law Institute’s online course,  Preventing Workplace Harassment, is used by hundreds of employers across the nation, including several Fortune 500 companies. Learn more about Preventing Workplace Harassment and view a free course demo.

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June 2019 Update: New York State Expands its Harassment, Discrimination, and Retaliation Laws

June 2019 Update: New York State Expands its Harassment, Discrimination, and Retaliation Laws

On June 19th, 2019, the New York State legislature revised New York’s sexual harassment and discrimination laws to provide additional protections for employees and additional responsibilities for employers. The legislation is expected to be signed by Governor Cuomo, with changes taking effect 60 days after for claims filed on or after the enactment date, unless otherwise specified below.

Required Distribution of Written Anti-Harassment Policy and Information from Training Program.

Employers must now provide employees in New York with notice at the time of their hire and during annual sexual harassment training. The notice must include the employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.

Employers must provide the required information in English and in the language identified by each employee as the primary language of that employee at the time of hire.

The state will publish a model policy in languages other than English (depending on the prevalence of each language in the state). New York employers are not required to provide their policy in another language if the state has not published a template in that language. This change goes into effect immediately on enactment.

View Free Demo

To view a 5-minute demo of our online course, Preventing Workplace Harassment, please complete the form below and you’ll be able to watch the demo now.

• Name*
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Burdens of Proof Lowered.

Perhaps most significantly, workplace harassment claims will have a lower standard of proof. Specifically, harassment based on sex or any other protected characteristic will be unlawful “regardless of whether such harassment would be considered severe or pervasive.”

In the past, New York State law was the same as federal law, in that it required an employee to prove that the harassment that he or she suffered was “severe or pervasive” to bring a claim against an employer. New York State law is now similar to New York City law, removing this standard. In 2005, New York City eliminated the “severe or pervasive” standard such that an employee bringing a harassment or retaliation claim only needs to show that the alleged conduct is more than “petty slights and trivial inconveniences.”

In addition, the New York State law now prevents employers from raising the defense that the employee did not use the employer’s internal complaince procedure. Going forward, under New York State Law, “[t]he fact that such individual did not make a complaint about the harassment to such employer shall not be determinative of whether such employer shall be liable.”

For discrimination claims, employees will no longer be required to demonstrate that they were treated less favorably than a comparable employee outside of the relevant protected category.

These changes will take effect 60 days after enactment for claims filed on or after

Statute of Limitations in Sexual Harassment Claims Extended.

Sexual harassment claimants now have three years to bring a sexual harassment claim under state law, whether filing in an administrative agency or in court. This statue of limitations was extended from the previous one year limit for filing in administrative agencies. This change takes effect one year after enactment for claims filed after. 

Employers Can Be Liable for Discrimination Against a Contractor.

In 2018, New York State expanded its sexual harassment prohibitions to include contractors. Under the new law, contractors are now also protected from any type of workplace discrimination or retaliation. Specifically, the law states that, “[a]n employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.”

Employers May Face Punitive Damages.

New York State law will now allow the imposition of punitive damages against employers in harassment, discrimination, and retaliation lawsuits brought under state law.

Attorney Fees “Shall” be Granted to the Prevailing Party.

The New York Human Rights Law now states that an employee who prevails before a court or the Division of Human Rights “shall” receive attorney fees. Previously, such an award was discretionary. If an employer prevails, it may only seek attorney fees if it can show that the plaintiff’s case was frivolous (continued in bad faith). This change goes into effect immediately once the law is enacted.

The Law Must be Construed to Maximize Deterrence.

New York State law must now be construed liberally to “maximize deterrence of discriminatory conduct.” Exceptions to the law is to be narrowly construed, and applies even where there may be divergence from comparable federal law. This change goes into effect immediately once the law is enacted.

NDA’s Restricted for All Types of Discrimination Cases, Not Just Sexual Harassment.

In 2018, New York State limited the use of nondisclosure agreements (NDAs) in sexual harassment cases. The new law applies the restrictions on NDA’s not only to sexual harassment claims, but to all types of harassment, discrimination, and retaliation claims.

Specifically, employers now may not include NDAs in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference.”

Mandatory Arbitration Clauses Prohibited.

In 2018, New York disallowed mandatory arbitration of sexual harassment claims. The state now prohibits mandatory arbitration clauses not just for sexual harassment claims, but also for any discrimination or retaliation claim.

Learn More.

While many providers offer training on preventing workplace harassment, few have the legal and instructional design expertise required to comply with certain harassment training laws, such as those in New York. Clear Law Institute’s hundreds of clients can sleep well knowing that we monitor laws around the country to ensure that our training stays up-to-date with changes in the law, such as these above. Clear Law has modified its courses to comply with changes in New York State and New York City laws. Importantly, Clear Law does not charge its clients to update its course content due to changes in the law. Clear Law Institute ensures that its online training is legally accurate and ready to be delivered to your employees. Clear Law Institute’s online course, Preventing Workplace Harassment, is used by hundreds of employers across the nation, including several Fortune 500 companies.

Learn more about Preventing Workplace Harassment and view a free course demo.

The post June 2019 Update: New York State Expands its Harassment, Discrimination, and Retaliation Laws appeared first on Clear Law Institute.

Read full post at: https://clearlawinstitute.com/blog/june-2019-update-new-york-state-expands-its-harassment-discrimination-and-retaliation-laws/