Illinois releases model sexual harassment prevention training program

Last August, Gov. J.B. Pritzker signed the Workplace Transparency Act (the Act), which amended the Illinois Human Rights Act to require all Illinois employers provide annual sexual harassment prevention training to their employees by Dec. 31, 2020, and annually thereafter. The Act permits employers to develop and use their own programming as long as it meets or exceeds the minimum statutory requirements. The Act, however, also directs the Illinois Department of Human Rights (IDHR) to develop a free online program for employers. This did not exist in August 2019 when the law was signed, and many Illinois employers have waited anxiously for its release. On April 28, 2020, after a few missed dates, the IDHR released a 35-slide PowerPoint presentation complete with required certifications.

This model program provides:

• An explanation of sexual harassment;
• Examples of conduct that constitute unlawful sexual harassment;
• A summary of federal and state laws concerning harassment and the remedies available to victims, including identifying the state and federal agencies (IDHR and Equal Employment Opportunity Commission) to which employees may make sexual harassment and unlawful workplace discrimination complaints; and
• A list of employers’ responsibilities to prevent, investigate and correct instances of sexual harassment.

The program does not have a lot of bells and whistles but it provides concise and useful training that can be presented virtually or live, and it can be used to train just one employee or groups of employees.

The PowerPoint offers many illustrations of unlawful conduct and reminds employees that conduct that may have been welcome could quickly become unwelcome, using consensual joking as an example and that consent can be revoked at any time. In one slide, the IDHR explains and puts great emphasis on the following: “When someone experiencing sexual harassment behavior says, ‘Stop talking to me like this,’ it must stop. The perpetrator cannot use as a defense, ‘Well, you started it’ or ‘You were okay with it at first.’”

From the PowerPoint, employers also learn when they can be held responsible for sexual harassment. An employer will be held strictly liable for sexual harassment perpetrated by members of its management (managers and supervisors), regardless of whether the employer knew of the harassment. An employer also will be held liable for coworker or non-employee harassment from vendors or customers, provided the employer knew or reasonably should have known of the sexual harassment but failed to take corrective action.

The training explains what steps employers must take to prevent harassment, to investigate complaints and what corrective actions they might implement to avoid the recurrence of sexual harassment behavior.

The model program is a good refresher for employers and provides a free option that meets Illinois’ training requirements. This is particularly helpful when the obligation to provide mandatory training has not been tolled as a result of the pandemic, and employers face many new challenges in returning their employees to work after the stay-at-home orders are modified and lifted. The IDHR program can be used as is or enhanced to be more interactive or supplemented with live instruction (when that is possible). All employees must be trained by year-end and then annually thereafter.

In addition to this model programing, the IDHR has offered a set of frequently asked questions to help Illinois employers understand their mandatory obligations. Employers should take care to provide this training because failing to do so will result in civil penalties, including fines.

“The release of the IDHR’s model sexual harassment prevention is a major step in ensuring that every working person in Illinois understands the seriousness of sexual harassment,” said IDHR Director Jim Bennett, when releasing the model programming. “We cannot combat rampant sexual harassment in the workplace without substantive and accessible education.”

If you have questions about your obligation to provide annual training to all employees or would like a review of your proposed training, we encourage you to contact one of Chuhak & Tecson, P.C.’ s Employment law attorneys.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.