Chicago Expands Sexual Harassment Prevention Requirements for EmployersJuly 1, 2022
- have written policies against harassment that specifically contain certain content prescribed by the City, including a definition of sexual harassment that tracks verbatim the City’s new definition of that term;
- disseminate such written policies “in the employee’s primary language” within the first calendar week of employment;
- provide certain minimum hours of sexual harassment prevention training on an annual basis to their managerial and non-managerial employees, the amount of which varies depending upon the employee’s classification, plus an additional one hour of “bystander training” for all employees on an annual basis;
- comply with new conspicuous posting requirements that must be conveyed in both English and Spanish;
- adopt new record retention policies and practices that require them to retain, for a minimum of five (5) years, records necessary to demonstrate their compliance with all of the new requirements.
New Content Requirements for Policies Proscribing Sexual Harassment
To comply with the Ordinance, employers must have a written policy that includes:
- a definition of “sexual harassment” as defined in the Ordinance and provide examples of prohibited conduct;
- a statement that sexual harassment is illegal in Chicago;
- annual sexual harassment prevention training for non-supervisory/non-managerial employees of at least one hour, plus one hour of bystander training annually;
- annual sexual harassment prevention training for supervisory/managerial employees of at least two hours, plus one hour of bystander training annually;
- a detailed complaint procedure explaining how people can internally report allegations of sexual harassment;
- details on legal services, including governmental services, available to employees who may be victims of sexual harassment; and
- a statement that retaliation for reporting sexual harassment is illegal in Chicago.
For the annual required sexual harassment prevention training, an employer may use the model sexual harassment prevention training program prepared by the Illinois Department of Human Rights (IDHR), or may establish its own sexual harassment prevention training program that equals or exceeds the minimum standards set forth in 775 ILCS 5/2-109(B). Notably, IDHR’s model training requires employers, among other things, to provide a summary of relevant federal and state statutes (including available remedies) to employees as part of the training. The Ordinance, however, does not define the content of the annual bystander training requirement.
Amendment of the Definition of Sexual Harassment
The Ordinance amended and expanded the definition of “sexual harassment” to include “sexual misconduct, which means any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual's employment position.” Notably, the Ordinance’s definition of “sexual harassment” is broader than the definition of “sexual harassment” in the Illinois Human Rights Act.
It remains to be seen how courts will construe and apply the expanded definition of sexual harassment, and whether, for instance, an employee will be required to prove that an individual’s alleged “abuse of authority” or “misuse of position” resulted in an adverse employment action or the creation of a hostile work environment to state a viable claim.
As noted, employers must maintain for at least five years, or for the duration of any claim, civil action, or investigation, whichever is longer, a record of their policy document(s) prohibiting sexual harassment and trainings given to each employee, and records necessary to demonstrate the employer’s compliance with the Ordinance. Failure to maintain such records creates a rebuttable presumption that the employer violated the Ordinance, subjecting the employer to fines of not less than $500.00 nor more than $1,000.00 for each offense for every day that a violation continues.
Expansion of Time Limit for Filing Complaints
Finally, the Ordinance also increases the deadline for filing a complaint of sexual harassment with the Chicago Commission on Human Rights from 300 to 365 days, which exceeds the 300 day reporting deadline for reporting violations of federal anti-discrimination law to the EEOC.
If you have questions regarding how the Ordinance may impact your business, please contact an author of this publication or any other member of our Labor and Employment practice group.