By Kyla J. Miller and Tracy M. Billows
Seyfarth Synopsis: The Illinois Senate unanimously passed an all-encompassing sexual harassment bill, which hits all of the big ticket workplace sexual harassment hot topics, including imposing sexual harassment training and extensive reporting requirements, bans on non-disclosure agreements, arbitration clauses and non-disparagement clauses, and hefty penalties for non- compliance. Whether the House will now move forward with the bill is to be continued…
On Thursday, April 11, 2019, the Illinois Senate approved SB 1829, showing this bill has some teeth with unanimous support on a vote of 56-0. The bill–dubbed the Sexual Harassment Omnibus Bill– aims to provide additional protections to victims of sexual harassment in the workplace. At the same time, the legislation imposes strict requirements for employers, including requiring annual sexual harassment training, and banning any non-disclosure or similar agreements. If ultimately passed, this bill would bring Illinois in line with several other states–including New York, Vermont, and California, among others–that have passed sweeping sexual harassment legislation in response to the #MeToo movement.
- Bans the use of legal documents that could prevent an employee from reporting sexual harassment. This includes: (1) non-disclosure agreements, (2) arbitration clauses, and (3) non-disparagement clauses. Such provisions would be prohibited for any case involving harassment, discrimination, or retaliation.
- Provides independent contractors with protection against harassment for the first time in Illinois history. Currently, only employees are protected.
- Increases protection for employees who are merely perceived to be part of a protected class–i.e. gender, sexual orientation, ethnicity–even if they are not actually a part of the protected class.
- Expands applicability of the Victims Economic Security and Safety Act (VESSA) to victims of sexual harassment. Currently, VESSA only covers victims of domestic or sexual violence. This expansion would allow sexual harassment victims to also take unpaid leave from work to seek medical help, legal assistance, counseling, safety planning, and other assistance.
- Prevents union representatives from representing both a victim of sexual harassment and the alleged harasser in a disciplinary proceeding.
- Requires employers, labor organizations, and units of local government to disclose the number of sexual harassment and discrimination settlements or actions against them to the Department of Human rights.
- Mandates employers conduct annual, interactive sexual harassment training for employees. The Department of Human Rights would be tasked with creating a sexual harassment training program made available to all employers. Employers would need to either comply with the Department’s program, or create their own program that equals or exceeds the minimum standards in the model.
- Imposes penalties for employers who fail to report sexual harassment data, or comply with training requirements.
Illinois Continues To Push For Sexual Harassment Reform
SB 1829 comes as no surprise. Both the House and Senate have been vocal about creating an all-encompassing bill to address the workplace concerns that surround the #MeToo movement. Last year, the Senate created a Bipartisan task force on sexual harassment. The group has been actively discussing the issue of workplace sexual harassment for the past year. The legislation will proceed to the House for consideration next month.
While employers don’t need to take action yet–they should keep a close watch. Should this bill, or some variation pass, it would impose significant hurdles for employers, and hefty penalties for failure to comply. Consider taking a brief inventory now–what policies and practices do you have in place? If you do not currently require sexual harassment training–or if you do but it is not interactive–be prepared to adjust. Similarly, if you currently enforce non-disclosure agreements, arbitration, or non-disparagement clauses, be ready to make those cuts. Given the political pressure surrounding this reform, it is likely at least portions of this bill will eventually become law, but in exactly what form remains unclear.
For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.