The Chicago City Council recently adopted an ordinance (“Amendments”) amending the Municipal Code of Chicago to require employers to provide training to employees and supervisors on sexual harassment prevention and bystander reporting obligations.
The Amendments also expanded the Municipal Code’s definition of “sexual harassment,” added record-keeping requirements, extended the period of time in which employees can file a complaint, and increased penalties for violations. For the most part, the Amendments, which apply to all employers with at least one employee working within the geographical boundaries of the city of Chicago, took effect by June 4, 2022. However, Chicago employers have until July 1, 2022, to implement the new policy and training requirements.
Expanded Definition of “Sexual Harassment”
As explained in guidance recently published by the Chicago Commission on Human Relations (CCHR), the city’s sexual harassment laws now explicitly include sexual misconduct within the definition of “sexual harassment.” The definition, as amended, effective June 4, 2022, states that “sexual misconduct” is “any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual’s employment position.” The Amendments incorporate this expanded definition into all portions of the Municipal Code related to the city’s policy on sexual harassment. The modified definition applies to private employers covered under the Chicago Human Rights Ordinance, as well as city contractors and subcontractors.
New Written Policy Requirements
The Amendments require all employers with at least one employee working within the geographical boundaries 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 stated in the Municipal Code (section 6-10-020), which means any:
(i) unwelcome sexual advances or unwelcome conduct of a sexual nature; or
(ii) requests for sexual favors or conduct of a sexual nature when
(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or
(2) submission to or rejection of such conduct by an individual is used as the basis for any employment decision affecting the individual, or
(3) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment; or
(iii) sexual misconduct, which means any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual’s employment position.
- Examples of prohibited behavior that constitutes sexual harassment.
- A statement regarding the requirement that all employees participate in (i) sexual harassment prevention training annually, with at least one hour of training required 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 how to make confidential reports using an internal complaint form to managers, corporate headquarters, human resources, or other internal reporting processes.
- Information about legal services, including services available through governmental agencies such as the U.S. Equal Employment Opportunity Commission (EEOC), the Illinois Department of Human Rights (IDHR), and the CCHR, that are available to employees who may be the victims of sexual harassment.
- A statement that it is illegal in Chicago to retaliate against an individual for reporting sexual harassment.
Note that these requirements not only include the need to maintain a policy containing the specific points enumerated above but also obligate Chicago employers to have an internal complaint process, including a complaint form. The CCHR will publish a model policy on its website in multiple languages by July 1, 2022.
New Training Obligations
All employers with at least one employee working within the geographical boundaries of the city of Chicago must provide the annual trainings outlined in the mandatory policy to their workforce:
- A minimum of one hour of sexual harassment prevention training for all employees.
- A minimum of two hours of sexual harassment prevention training for supervisors and management.
- One hour of bystander training for all employees.
The IDHR model sexual harassment prevention training program meets the Amendments’ requirements for sexual harassment training for employees. Alternatively, employers may 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 hour of training for supervisors and for the bystander training will be made available to employers on the CCHR’s website by July 1, 2022.
Employers must conduct the first set of trainings by June 30, 2023. All subsequent trainings must be completed between July 1 and June 30, annually.
Notice and Record-Keeping Requirements
The Amendments also create notification and record retention obligations for employers with Chicago employees. Specifically, employers must display, in at least one employee common area, posters designed by the CCHR setting forth sexual harassment prohibitions. There must be at least one poster in English and one poster in Spanish on display.
Employers must also retain written records of their sexual harassment policies and annual trainings. Records must reflect that each employee received the minimum annual training required. All records showing compliance with the Amendments must be retained for at least five years or the duration of any claim, civil action, or investigation pending pursuant to the Amendments, whichever is longer. Failure to maintain the required records creates a presumption that the employer violated the Amendments, only rebuttable by clear and convincing evidence.
The CCHR Complaint Process
The Amendments modified the statute of limitations for all complaints alleging discrimination filed with the CCHR. Effective June 4, 2022, complainants have 365 days (instead of 300) from the alleged discriminatory act to file a complaint. Generally, respondents against whom allegations are filed must be notified by the CCHR within 10 days of the complaint being filed. However, in cases alleging sexual harassment, the CCHR may delay notifying the respondent for up to 30 days, per the Amendments. According to guidance materials, the rationale for this expanded timeline is to help mitigate retaliation. The Amendments also provide that employees may pursue any other remedy available under the law, including a simultaneous complaint with the IDHR or the EEOC.
The Amendments provide that, starting July 1, 2022, violations of the new written policy, training, notice, or record-keeping requirements may result in fines of at least $500 and up to $1,000 per day. Further, effective June 4, 2022, employers found to have violated any anti-discrimination provision of the law, including those prohibiting sexual harassment, will be fined between $5,000 and $10,000 per offense. Notably, employers are only liable for sexual harassment by nonemployees or nonmanagerial and nonsupervisory employees if the employer knew of the conduct and failed to take reasonable corrective measures. The Amendments also maintain the CCHR’s authority to impose fines on complainants who make “clearly frivolous, clearly vexatious” claims.
How Chicago’s Law Differs from the Illinois Human Rights Act
The IHRA prohibits discrimination in the workplace, including sexual harassment, throughout Illinois. While there are many similarities between Chicago’s municipal code provisions and the IHRA, the Amendments expand Chicago employers’ obligations beyond what is required under the IHRA in the following ways:
- The IHRA only requires bars and restaurants to have a written policy regarding sexual harassment prevention. The Amendments extend a written policy requirement to all employers in the city of Chicago.
- The Amendments impose separate training obligations for supervisors/managers. The IHRA generally requires sexual harassment training prevention for all employees, but the Amendments specify a two-hour requirement for supervisors/managers.
- The Amendments require Chicago employers to provide “one hour of bystander training annually” for all employees, including supervisors/managers. There is no comparable provision in the IHRA. Further, the language in the Amendments creating this requirement is vague, neither defining a “bystander” nor describing “bystander training.”
- The IHRA does not expressly require a specific duration for sexual harassment prevention trainings. The Amendments, however, require training to be a minimum of one hour for employees, two hours for supervisors/managers, and an additional one hour for bystander training.
- The Amendments impose specific record-keeping and notice requirements.
- Employees have an additional 65 days to file a complaint with the CCHR, as compared with the 300-day statute of limitations available under the IDHR (and the EEOC, for that matter).
What Employers Should Do Now
Employers with at least one employee working within the geographical boundaries of the city of Chicago should do the following:
- Develop or purchase training programs for employees, managers, and bystanders that meet the Amendments’ minimum requirements.
- Review any existing written sexual harassment policy and revise (or develop) it as necessary to ensure compliance with the written policy requirements set forth in the Amendments.
- Review internal reporting and complaint processes, ensuring that they include a form for internal complaints and clear instructions on how to submit a confidential report.
- Review the Amendments’ record retention obligations with managers, human resources, and other personnel responsible for maintaining training records.
- Be on the lookout for further guidance and resources, particularly with respect to “bystander training,” mandatory written notices, and templates, promised by CCHR to be available by July 1, 2022, when the new rules take effect. We will update this Insight when those materials are published.
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