The Chicago City Council recently passed an ordinance (“Amendments”) amending the Chicago Municipal Code to require employers to train employees and supervisors on sexual harassment prevention and bystander reporting requirements.
The changes also expanded the local code’s definition of “sexual harassment,” added record-keeping requirements, extended the period during which employees can file a complaint, and increased penalties for violators. The changes, which apply to all employers with at least one employee within the geographic boundaries of the City of Chicago, went into effect largely on June 4, 2022. However, Chicago employers have until July 1, 2022 to implement the new policies and training requirements.
Expanded definition of “sexual harassment”
As explained in a guide recently published by the Chicago Commission on Human Relations (CCHR), the city’s sexual harassment laws now specifically include sexual misconduct within the definition of “sexual harassment.” The definition, as amended on June 4, 2022, states that “sexual misconduct” is “any conduct of a sexual nature that also involves coercion, abuse of power, or abuse of a person’s employment position.” The amendments incorporate this expanded definition into all portions of the municipal code that relate to the city’s sexual harassment policy. The amended definition applies to private employers covered by the Chicago Human Rights Ordinance, as well as city contractors and subcontractors.
New written policy requirements
The changes require all employers with at least one employee working within the geographic limits of the City of Chicago to have a written policy that includes:
- A statement that sexual harassment is illegal in Chicago.
- The definition of “sexual harassment” as given in the Municipal Code (Section 6-10-020), which means:
(i) unwanted sexual advances or behavior of a sexual nature; or
(ii) soliciting sexual favors or conduct of a sexual nature when
(1) submission to such conduct is either express or implied a condition or condition of a person’s employment, or
(2) the submission or rejection of such conduct by an individual is used as a basis for an employment decision affecting the individual, or
(3) such conduct has the purpose or effect of significantly impairing an individual’s job performance or creating an intimidating, hostile, or offensive work environment; or
(iii) sexual misconduct, which means any conduct of a sexual nature that also involves coercion, abuse of power, or abuse of a person’s employment position.
- Examples of prohibited conduct that constitutes sexual harassment.
- A statement of the requirement that all employees attend (i) annual sexual harassment prevention training, with a minimum of one hour of training for employees and a minimum of two hours for managers and supervisors, plus (ii) one hour of “bystander training”. ‘ for all employees annually.
- Details on how employees can report allegations of sexual harassment, including submitting confidential reports to managers, corporate headquarters, Human Resources, or other internal reporting processes using an internal grievance form.
- Information about legal services, including services provided by government agencies such as the US Equal Employment Opportunity Commission (EEOC), the Illinois Department of Human Rights (IDHR), and CCHR, available to employees who may be victims of sexual harassment.
- A statement that it is illegal in Chicago to take revenge on someone who has reported sexual harassment.
Note that these requirements not only include the need to maintain a policy that includes the specific items listed above, but also require Chicago employers to have an internal grievance process, including a grievance form. CCHR will post a sample policy in multiple languages on its website by July 1, 2022.
New training requirements
All employers with at least one employee working within the geographic limits of the City of Chicago must provide their employees with the annual training outlined in the mandatory policy:
- At least one hour of sexual harassment prevention training for all employees.
- At least two hours of sexual harassment prevention training for supervisors and management.
- One hour viewer training for all employees.
The IDHR Model Sexual Harassment Prevention Training Program meets the requirements of the amendments to employee sexual harassment training. Alternatively, employers can establish their own training that meets or exceeds the minimum requirements set forth in the Illinois Human Rights Act (IHRA). Training modules for the additional supervisor training hour and for the bystander training will be made available to employers on CCHR’s website by July 1, 2022.
Employers must complete the first training sessions by June 30, 2023. All subsequent training must be completed annually between July 1st and June 30th.
Notification and Record-Keeping Obligations
The changes also create notification and record-keeping requirements for employers with Chicago employees. Specifically, employers are required to post CCHR-designed posters in at least one employee common area explaining the prohibition of sexual harassment. There must be at least one poster in English and one in Spanish.
Employers must also keep written records of their sexual harassment policies and annual training sessions. Records must reflect that each employee has received the minimum required annual training. All records demonstrating compliance with the amendments must be retained for a minimum of five years, or for the duration of any claim, civil action, or pending investigation pursuant to the amendments, whichever is longer. Failure to keep the required records leads to a presumption that the employer has breached the changes, which can only be rebutted by clear and convincing evidence.
The CCHR Complaints Procedure
The amendments changed the statute of limitations for all complaints of alleged discrimination filed with CCHR. From June 4, 2022, complainants have 365 days (instead of 300) from the alleged discriminatory act to file a complaint. Generally, suspects against whom allegations are made must be notified by CCHR within 10 days of filing the complaint. However, in cases of suspected sexual harassment, CCHR may delay notifying the respondent by up to 30 days under the amendments. According to the guides, this expanded schedule is intended to help mitigate retaliation. The changes also provide that employees may pursue any other remedy available under law, including a simultaneous complaint to the IDHR or the EEOC.
The changes provide that starting July 1, 2022, violations of the new written policies, training, notification, or record-keeping obligations could result in fines of at least $500 and up to $1,000 per day. Additionally, effective June 4, 2022, employers will be fined between $5,000 and $10,000 per violation if they are found to have violated any antidiscrimination provision of the law, including those prohibiting sexual harassment. In particular, employers are only liable for sexual harassment by non-employees or non-managerial employees if the employer knew of the behavior and failed to take appropriate corrective action. The amendments also retain CCHR’s power to impose fines on complainants who make “clearly frivolous, clearly vexatious” allegations.
How Chicago’s law differs from the Illinois Human Rights Act
The IHRA prohibits discrimination in the workplace, including sexual harassment, throughout Illinois. Although there are many similarities between the provisions of the Chicago Local Code and the IHRA, the amendments expand Chicago employers’ obligations beyond the requirements of the IHRA in the following ways:
- The IHRA only requires bars and restaurants to have a written policy on preventing sexual harassment. The changes expand a written policy requirement for all employers in the City of Chicago.
- The changes provide for separate training requirements for supervisors/managers. The IHRA generally requires sexual harassment prevention training for all employees, but the changes mandate a two-hour requirement for supervisors/managers.
- The changes require Chicago employers to provide “one hour of onlooker training annually” to all employees, including supervisors/managers. There is no comparable provision in the IHRA. Additionally, the language in the changes creating this requirement is vague and does not define a “viewer” or describe “viewer training”.
- The IHRA does not specifically require a specific length of time for sexual harassment prevention training. However, the changes require at least one hour of training for employees, two hours for supervisors/managers, and an additional hour of training for viewers.
- The changes impose specific record-keeping and reporting requirements.
- Employees have an additional 65 days to file a complaint with CCHR compared to the 300-day statute of limitations under IDHR (and EEOC for that matter).
What employers should do now
Employers with at least one employee working within the geographic limits of the City of Chicago should do the following:
- Develop or purchase training programs for employees, managers, and viewers that meet the minimum requirements of the changes.
- Review all existing written sexual harassment policies and revise (or develop) them as necessary to ensure compliance with the written policy requirements set forth in the amendments.
- Review internal reporting and grievance procedures and ensure they include an internal grievance form and clear instructions on how to make a confidential report.
- Review record-keeping requirements for changes with managers, human resources, and other personnel responsible for maintaining training records.
- Keep an eye out for additional guidance and resources, particularly regarding “Viewer Training,” mandatory written notices and templates that are promised by CCHR and will be available by July 1, 2022, when the new rules go into effect. We will update this insight when these materials are published.