Employers will have to increase their sexual harassment training under a new Chicago ordinance that takes effect Friday or face fines of up to $10,000 a day.
The measure requires additional training for supervisors and broadens the legal definition of sexual harassment. It expands on the statewide Workplace Transparency Act that took effect Jan. 1, 2020, that placed some requirements on Illinois employers to combat sexual harassment in the workplace.
Importantly, the ordinance requires employers to provide employees with one hour of “bystander” intervention training each year. A bystander is a person who is present when an alleged event takes place but not directly involved. Some sexual harassment training materials include tips on how bystanders can react if they witness an inappropriate action at work.
Jillian Molz, a Husch Blackwell LLP associate specializing in employment law, said the bystander mandate is the first time in her experience a municipality has imposed such a requirement on employers.
The Chicago Commission on Human Relations is expected to release guidance as early as Friday defining who a “bystander” is and what type of training people who could be in that position must receive on an annual basis, Molz said.
“We have really come a long way from when the #MeToo hashtag first went viral, but we still have a long way to go,” Sharmili Majmudar, Women Employed executive vice president of policy & organizational impact, said in an interview.
“There really are particular groups of people—low-paid women and other underrepresented groups—that are vulnerable. So it’s really an opportunity, and I would say a responsibility, to act proactively as possible,” said Majmudar, whose Chicago-based nonprofit organization works to improve women’s economic status and remove barriers to economic equity.
Building on Existing Law
Under the 2020 statewide law, employers must train employees annually on sexual harassment prevention. They can either develop their own training programs, equaling or exceeding minimum standards contained in the state’s human rights act, or use a training model provided by the Illinois Department of Human Rights.
The Chicago ordinance goes further, requiring all Chicago businesses to have written policies containing specific elements, such as a statement that sexual harassment is illegal in the city, examples of prohibited conduct, and how employees can safely—and without facing retaliation—report alleged incidents of sexual harassment.
Even though it’s not known precisely what employers will be required to do under the bystander requirement, company training policies should be robust and include guidance on how to intervene—and when not to—if an employee sees a possible harassment violation. They should also know how to report an incident, Husch Blackwell LLP partner Anne Mayette said in an interview.
“Employers are going to have an obligation to tell their employees if they see something that’s wrong, they need to report it, so the company can investigate it and stop the behavior,” Mayette said.
The ordinance also requires all Chicago employers to provide a minimum of one hour of sexual harassment prevention training to all employees annually and a minimum of two hours of training for managers and supervisors. Bosses not located in Illinois but who manage or supervise employees based in Chicago also must take the training.
Companies have about a year to complete initial mandatory training under the ordinance.
Employers also must retain written records of their policies and training for five years. The statute of limitations increases to 365 days from 300 days, giving people another two months to report harassment allegations. Penalties on employers for violating the new policy will range from $5,000 to a maximum of $10,000 a day per violation. Currently, the range is $500 to $1,000. Fines accrue daily until the violation is corrected.
Law Firm Trainers
Additional training could be performed by companies’ internal human resources departments or by outside specialists in sexual harassment training, including law firms, Mayette said in an interview.
“The reporting and training, I’d say it’s definitely an increasing part of our practice over the years as Illinois and the city of Chicago and municipalities increase protections for employees,” Mayette said. “I always recommend that the clients tailor the training to their policies, their programs, and procedures and make it related to how they run their business.”
The Chicagoland Chamber of Commerce tried unsuccessfully to delay the ordinance’s effective date and temporarily limit the pool of workers required to receive the sexual harassment prevention training because of the ongoing labor shortage.
Acts covered by the ordinance include:
- Unwelcome physical contact of a sexual nature;
- Requests for sexual favors in exchange for an employment benefit;
- Making or sharing repeated, unwelcome sexually suggestive comments, gestures, email, or pictures; and
- Requests for sexual favors in exchange for an agreement to rent an apartment or make repairs.