More Training, More Notice, More Time – Oh, My! Chicago Adds New Anti-Harassment Obligations for Employers

Following a burgeoning trend across the country, Chicago amended its sexual harassment ordinance with some significant changes on April 27, 2022, and employers should take note. Along with a new and expanded definition of “sexual harassment,” the Committee on Workforce Development voted to increase annual training requirements, reporting periods, notification periods, and monetary penalties. The ordinance takes effect July 1, 2022, so preparations for these changes should start immediately.

Under the new ordinance, all Chicago employers and their employees are covered. An “Employer” includes virtually any entity that employs one or more employees in the preceding or current calendar year and any of their agents.  “Employee” includes any individual engaged to work within the geographic boundaries of the City or under the direction and control of another for monetary or other valuable consideration. In short, any entity that employs at least one individual who works in the city of Chicago is a covered employer, and that Chicago-based employee is a covered employee.

Annual Training Requirements

Perhaps most significantly, all employers are now required to provide annual training that includes (a) one hour of sexual harassment prevention training for all employees or two hours for managers and supervisors; and (b) one hour of bystander training for all employees. What is “bystander training,” you ask? We did too. It turns out that bystander training must focus on how onlookers should respond if they witness incidents of actual or suspected sexual harassment. While the basic training requirements are largely consistent with Illinois employers’ current obligations, Chicago’s ordinance adds additional layers to the State’s requirements because of the additional manager/supervisor training and the bystander training.

According to the City, training modules will be provided through its website for the additional hour of training for managers and supervisors as well as for the bystander training applicable to all employees. These modules will be purportedly available here when the amendments take effect.

The first round of annual training must be delivered to employees by or before June 30, 2023.

Expanded definition of “Sexual Harassment”

Under the ordinance’s expanded reach, “sexual harassment” now explicitly includes sexual misconduct as a separate category of prohibited harassment. “Sexual misconduct” includes “any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual’s employment position.” While the broadened definition merely codifies what courts have long considered hostile work environment sexual harassment, we anticipate an influx in the filing and prosecuting sexual harassment claims based on this change alone. It is uncertain how the city’s change will affect its efforts to combat workplace harassment.

The new definition took effect on June 4, 2022.

Written Policy and Written Notice Requirements

Starting July 1, 2022, all Chicago employers must have a written sexual harassment policy. The policy must include:

• A statement that sexual harassment is illegal in Chicago;
• The definition of sexual harassment;
• A requirement that all employees participate in sexual harassment prevention training annually;
• Examples of prohibited conduct that constitute sexual harassment;
• Details on how to report sexual harassment, including instructions on how to make a confidential report using the employer’s internal complaint form (or other internal reporting mechanism) and legal services available to employees who may be victims of sexual harassment; and
• A statement that retaliation for reporting sexual harassment is illegal in Chicago. Additionally, the policy must be available in the employee’s primary language within the first calendar week of that employee’s beginning employment.

Employers must also display a poster (one in English and one in Spanish) regarding the prohibition on sexual harassment in a location where all employees can see—usually a break room or some other space where employees frequently pass or gather. If there is no physical workspace, posting it on an internal intranet resource board should suffice.

When the amendments take effect as of July 1, 2022, a model sexual harassment policy will be available through the City’s website in English, Spanish, Polish, simplified Chinese, Arabic, and Hindi. The poster containing the required notice will also be available for download at that time.

Expanded Notification and Reporting Period

Historically, the Chicago Commission on Human Relations had to provide the alleged harasser with a copy of the complaint filed against them within ten days after it was filed. Now, the amendments increase the notification period to thirty days, which is intended to mitigate any retaliation against the complaining employee – such as denial of a reasonable accommodation request under the Illinois Victim’s Economic and Security Act.

The amendments also increase the length of time employees have to report discrimination of all forms, including sexual harassment, to the Commission on Human Relations. Employees now have up to 365 days (up from 300).

Recordkeeping Requirement

For the longer of either (a) five years or (b) for the duration of any sexual harassment claim, civil action, or investigation, all employers now must maintain records of any written policy prohibiting sexual harassment and the trainings given to each employee, as well as records necessary to “demonstrate compliance” with the ordinance. Although not expressly defined in the ordinance, records demonstrating compliance presumably include written training materials, records of employee attendance, investigation files for any reported harassment or retaliation, and any relevant disciplinary records. Failure to maintain these records creates a rebuttable presumption that the employer violated the ordinance if and when an employee files a complaint with the Commission.

Increased Monetary Penalties

The amended ordinance steepens the penalties for all forms for discrimination, including sexual harassment, from $500 – $1,000 per violation, to $5,000 – $10,000 per violation. Existing penalties remain, including damages and attorneys’ fees paid to the complaining party as well as injunctive relief ordering specific actions to eliminate discriminatory practices.

* * *

While many employers will be well equipped to comply with these changes, it is nonetheless a prudent time to do some “policy and practice housekeeping,” ideally with counsel, to ensure workplace sexual harassment policies and procedures meet these new, more rigorous requirements.

This article was prepared with the assistance of 2022 summer associate Zack Sikora.