LAURA A. BALSON

Partner

M. ELYSIA BAKER ANALO

Associate

EXPANSIVE LEGISLATION REDEFINES SEXUAL HARASSMENT AND CREATES NEW EMPLOYER OBLIGATIONS AND RESPONSIBILITIES
NEW ILLINOIS LAW RESULTS IN MAJOR CHANGES TO SEXUAL HARASSMENT RULES

I. WHAT IS THE WORKPLACE TRANSPARENCY ACT?

The Workplace Transparency Act (“WTA”) restricts an employer’s ability to require nondisclosure and nondisparagement language in employment, separation, and settlement agreements. The WTA also amends the Uniform Arbitration Act and places limitations on the use of mandatory arbitration for sexual harassment or other discrimination claims. The WTA becomes effective on January 1, 2020.

More specifically, employers are prohibited from, “as a unilateral condition of employment or continued employment,” contractually restricting a prospective, current, or former employee’s ability in “making truthful statements or disclosures regarding unlawful employment practices.” Additionally, the WTA also bars employers from unilaterally requiring that a current or prospective employee waive, arbitrate, “or otherwise diminish” existing or future claims, rights, or benefits related to an unlawful employment practice.

The WTA permits an employer and employee to agree to, as a “mutual condition of employment or continued employment,” a nondisclosure, nondisparagement, and/or arbitration clause/agreement “that would otherwise be against public policy as a unilateral condition of employment or continued employment,” if it: (a) is in writing, (b) demonstrates “actual, knowing, and bargained-for consideration from both parties,” and (c) “acknowledges the right of the employee or prospective employee to” do the following:

1. Report any good faith allegation of unlawful employment practices to any appropriate federal, state, or local government agency enforcing discrimination laws;

2. Report any good faith allegation of criminal conduct to any appropriate federal, state, or local official;

3. Participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws;

4. Make any truthful statements or disclosures required by law, regulation, or legal process; and

5. Request or receive confidential legal advice.

In addition to voiding noncompliant agreements and/or provisions, the WTA also provides for an award of attorneys’ fees and costs in the event of a favorable, non-appealable ruling for the employee “on the question of the validity and enforceability of the contract.”

II. AMENDMENTS TO ILLINOIS HUMAN RIGHTS ACT
The amendments to the Illinois Human Rights Act will also become effective January 1, 2020 and have the potential to have a dramatic impact on employers’ practices. For example:

a) The amendments expand certain definitions under the IHRA and clarify the Act’s application to nonemployee contractors.

b) The Illinois Department of Human Rights (IDHR) is now required to collect data regarding adverse judgments and administrative rulings in cases involving sexual harassment or unlawful discrimination. The amendments also provide that employers must disclose information about any settlement agreements entered into in the preceding five (5) years that relate to workplace discrimination, if requested by the IDHR during an investigation into a pending charge of discrimination.

c) Beginning July 1, 2020, and every July 1st thereafter, every employer “that had an adverse judgment or administrative ruling against it” in the preceding calendar year must disclose to the IDHR the following information: (1) the total number of adverse judgments or administrative rulings received during the preceding calendar year; (2) whether equitable relief was awarded as part of the judgment or ruling; and (3) a breakdown of judgments and rulings in each protected category. The IDHR is required to publish an annual report of the aggregated adverse judgment data.

d) The amendments require that all employers covered by the IHRA must provide sexual harassment prevention training to their employees at least once a year.

e) In addition to the general sexual harassment training described above, restaurant and bar employers must also promulgate written sexual harassment policies designed for their industry.

Employers that fail to follow the amendments’ new disclosure and training requirements will be subject to civil penalties imposed by the IDHR. Employers who fail to comply with disclosure and/or training requirements, after the 30-day grace period, will be subject to monetary penalties as follows:

Employers with fewer than 4 employees: Up to $500 for a first offense, $1,000 for a second offense, and $3,000 for third and subsequent offenses

Employers with 4 or more employees: Up to $1,000 for a first offense, $3,000 for a second offense, and $5,000 for third and subsequent offenses

In assessing a penalty, the IDHR will consider the size of the employer charged, any good faith efforts made by the employer to comply, and the gravity of the violation.

III. AMENDMENTS TO VICTIMS’ ECONOMIC SECURITY AND SAFETY ACT (“VESSA”)
Also included in the legislation are amendments to VESSA, which now includes victims of “gender violence” in addition to domestic and sexual violence. Gender violence includes: (1) any acts of violence or aggression that are taken, at least in part, based on the person’s actual or perceived sex or gender; (2) physical intrusions or invasions of a sexual nature under coercive conditions; or (3) credible threats of the same.

If you have questions or need additional information, please contact an employment law attorney at Golan Christie Taglia, LLP.