Following a growing trend across the country, Chicago amended its Sexual Harassment Ordinance with some significant changes on April 27, 2022, and employers should take note. Along with a new and expanded definition of “sexual harassment”, the Workforce Development Committee voted to increase annual training requirements, reporting periods, notification periods and monetary penalties. The order takes effect July 1, 2022, so preparations for these changes should begin immediately.
Under the new ordinance, all Chicago employers and their employees are covered. An “employer” includes virtually any entity that employs one or more employees during the preceding or current calendar year and any of their officers. “Employee” includes any person hired to work within the geographic limits of the City or under the direction and control of another person for monetary or other consideration. In short, any entity that employs at least one person working in the city of Chicago is a covered employer, and that Chicago-based employee is a covered employee.
Annual training requirements
Perhaps most importantly, all employers are now required to provide annual training that includes (a) one hour of sexual harassment prevention training for all employees or two hours for managers and supervisors; and (b) one hour of witness training for all employees. What is “bystander training”, you ask? U.S. too. It turns out that bystander training should focus on how bystanders should react if they witness incidents of real or suspected sexual harassment. While basic training requirements are largely consistent with current Illinois employer obligations, the Chicago ordinance adds additional layers to state requirements due to additional training of managers/supervisors and witness training.
According to the City, training modules will be offered through its website for the additional hour of training for managers and supervisors as well as for on-the-job training applicable to all employees. These modules will supposedly be available here when the changes come into effect.
The first round of annual training must be offered to employees no later than June 30, 2023.
Expanded definition of “sexual harassment”
Under the expanded scope of the order, “sexual harassment” now explicitly includes sexual misconduct as a separate category of prohibited harassment. “Sexual misconduct” includes “any behavior of a sexual nature that also involves coercion, abuse of authority, or abuse of an individual’s employment position.” While the expanded definition merely codifies what the courts have long considered sexual harassment in a hostile work environment, we anticipate an influx of sexual harassment claims based on this change alone. It’s unclear how the city’s change will affect its efforts to address workplace harassment.
The new definition came into effect on June 4, 2022.
Written Policy and Written Notice Requirements
Effective July 1, 2022, all Chicago employers must have a written sexual harassment policy. The policy should include:
A statement that sexual harassment is illegal in Chicago;
The definition of sexual harassment;
A requirement that all employees participate in sexual harassment prevention training annually;
Examples of prohibited behavior that constitutes sexual harassment;
Details on how to report sexual harassment, including instructions on how to make a confidential report using the employer’s internal complaint form (or other internal reporting mechanism) and legal services available to employees who may be victims of sexual harassment; and
A statement that retaliation for reporting sexual harassment is illegal in Chicago. In addition, the policy must be available in the employee’s primary language during the first calendar week following the start of that employee’s employment.
Employers must also post a poster (one in English and one in Spanish) regarding the prohibition of sexual harassment in a place where all employees can see, usually a break room or other space where employees pass or frequently congregate. . If there is no physical workspace, posting it on an internal intranet resource board should suffice.
When the changes come into effect on July 1, 2022, a sample Sexual Harassment Policy will be available via the city website in English, Spanish, Polish, Simplified Chinese, Arabic and Hindi. The poster containing the required notice will also be available for download at that time.
Extended notification and reporting period
Historically, the Chicago Commission on Human Relations was required to provide the alleged harasser with a copy of the complaint filed against them within ten days of its filing. Now, the amendments extend the notice period to thirty days, which is intended to mitigate retaliation against the complaining employee, such as the denial of a request for reasonable accommodation under the Safety and Economy Act. Illinois victims.
The changes also increase the time for employees to report any form of discrimination, including sexual harassment, to the Human Relations Commission. Employees now have up to 365 days (instead of 300).
Record keeping requirement
For the longer of (a) five years or (b) for the duration of any sexual harassment complaint, civil action or investigation, all employers must now keep records of any written policy prohibiting sexual harassment and training provided to each employee, along with the records necessary to “demonstrate compliance” with the order. Although not expressly defined in the order, records demonstrating compliance likely include written training records, employee attendance records, investigation records for any reported harassment or retaliation, and any disciplinary records pertinent. Failure to keep these records creates a rebuttable presumption that the employer has violated the order if and when an employee files a complaint with the Commission.
Increased monetary penalties
The amended ordinance toughens penalties for all forms of discrimination, including sexual harassment, from $500 to $1,000 per violation to $5,000 to $10,000 per violation. Existing sanctions remain, including damages and attorneys’ fees paid to the complaining party as well as injunctive relief ordering specific actions to eliminate discriminatory practices.
While many employers are well equipped to comply with these changes, it is nevertheless prudent to conduct a “policy and practice housekeeping”, ideally with a lawyer, to ensure that the policies and procedures regarding sexual harassment in the workplace meet these new, more stringent requirements.
This article was prepared with assistance from Summer 2022 Associate Zack Sikora.