Harassment in Illinois is now defined as "unwelcome conduct" on the basis of a person's "actual or perceived":
- national origin
- marital status
- order of protection status
- military status
- sexual orientation
- unfavorable discharge from the military
that has the purpose or effect of substantially interfering with the individual's work performance or creating an intimidating, hostile or offensive working environment. "Working environment" is not limited to physical location and can occur outside of the plant/office.
The IHRA prohibits harassment, including sexual harassment, by an employer against non-employees as well. Non-employees include:
- anyone directly performing survices for the employer pursuant to a contract
Sexual harassment is a form of workplace gender discrimination that has been construed to violate both Title VII of the Civil Rights Act (Title VII) and the Illinois Human Rights Act (IHRA). In general, the same legal standards govern claims of sexual harassment under the IHRA as apply to claims of sexual harassment under Title VII except that there is case law under the IHRA which holds than an employer will be strictly liable for sexual harassment if done by an individual with supervisory status.
Sexual harassment is deliberate or repeated unsolicited comments, gestures or physical contact of a sexual nature which are unwelcome and directed at an employee because of his or her gender. Sexual harassment is behavior which is both sexual in nature and unwelcome:
- Sexual in nature:
- verbal, such as sexual jokes, propositions, slurs or innuendo, remarks about an employee’s physical appearance, use of derogatory sexual stereotypes, repeated invitations to social events or whistling
- nonverbal, such as staring or leering at someone’s body, deliberate blocking of a person’s path, displaying sexual material, such as obscene pictures or cartoons, writing sexual notes or making sexual gestures
- physical, such as massaging, touching, deliberately brushing up against someone, hugging, pinching, grabbing or actual physical assault.
- Unwelcome - To violate Title VII and the IHRA, the sexual conduct must be unwelcomed by the employee at whom it is directed (and occasionally others affected by the harassment). The test of “unwelcomeness” adopted by most courts is that the employee did not solicit or invite the sexual conduct and regarded the conduct as undesirable or offensive. In determining whether sexual behavior was unwelcome, courts look to objective evidence of an alleged victim’s conduct rather than consider his or her non-communicated feelings. A victim of sexual harassment may, however, be able to establish the unwelcome nature of the advances even though he or she:
- did not inform the harasser directly that his or her advances were unwelcome. An employee’s conduct alone may demonstrate that the sexual behavior is unwelcome, such as through a consistent failure to respond to suggestive comments or gestures.
- acquiesced to sexual activity with the harasser. The legal inquiry is not whether the victim voluntarily engaged in sexual activity but whether the entirety of the victim’s conduct indicates that the sexual advances were unwelcome. This distinction rests on recognition that victims of harassment may “consent” to advances due to pressure to retain a job.
Types of sexual harassment
Courts have recognized two types of sexual harassment:
- Quid pro quo harassment occurs when submission to or rejection of the employer’s sexual advances by the employee is used as the basis for an employment decision affecting the employee.
- Example - Employee A is promoted due to his acceptance of his supervisor’s advances. Employee B is terminated due to her rejection of her supervisor’s propositions.
- Hostile work environment harassment occurs when the sexual conduct unreasonably interferes with the employee’s job performance or creates an intimidating, hostile or offensive working environment. To prevail with this type of claim, the victim must establish that the harassment was sufficiently severe or pervasive to have altered the conditions of his or her employment and created an abusive working environment. A few isolated remarks or jokes of a sexual nature will usually be insufficient to establish hostile environment harassment. Whether a hostile work environment has been created is determined by looking at all the circumstances of the interactions between the alleged harasser and victim, including the frequency and severity of the sexual behavior. The sexual conduct is evaluated from the standpoint of a “reasonable person” rather than that of a hypersensitive person.
Every employer with employees working in Illinois is required to provide at least one hour of mandatory sexual harassment prevention training to its employees on an annual basis. This Illinois Department of Human Rights (IDHR) has established a model training program that is available to employers online at no cost. Employers may choose to use the IDHR program or create a program provided the employer’s program complies with the model program. For more information, visit the IDHR’s website at:
At a minimum, the training must:
- explain what sexual harassment is (per the IHRA’s definition
- provide examples of prohibited conduct
- summarize federal and state sexual harassment laws, including remedies available to victims
- summarize the employer’s responsibility to prevent, investigate and correct sexual harassment.
Internal records of training compliance must be kept and made available to the Illinois Department of Human Rights (IDHR) upon request. Such records may include:
- a certificate of participation
- a signed employee acknowledgement
- training sign-in worksheets with the names of employees trained and dates of training.
These records also may contain copies of all written or recorded materials included in the provided training.
Employers who do not meet the training and disclosure requirements will face penalties not to exceed:
- $500 for the first offense
- $1,000 for the second offense
- $3,000 for the third and subsequent offenses.
Employers within the city limits of Chicago are required to provide at least one hour of sexual harassment prevention training and one hour of bystander training per year, and at least two hours of sexual harassment prevention training for supervisors each year. Training that is compliant with Illinois’ training requirements is sufficient for the Chicago sexual harassment prevention training. However, bystander training is an additional requirement and must include information on safe and positive prevention and intervention tactics that can be carried out where there is a risk of sexual harassment.
Employers are strictly liable when harassment perpetrated by supervisory personnel results in a tangible employment action, which is defined as “a significant change in employment status.” Supervisory personnel are those who have the authority to grant or deny tangible employment benefits (promotions, demotions, transfers, etc.). Courts traditionally hold that supervisors who have the authority to make employment decisions are legally acting on their employer’s behalf, even if the employer did not know of the unlawful conduct or even if the employer had policies forbidding such conduct. In these cases, the employer has no defense.
On the other hand, in cases of sexually hostile work environments, employers may be held liable for the hostile environments created by co-employees and even nonemployees (i.e., customers or vendors) if the employer knew or should have known, about the harassment and failed to take prompt corrective action. An employer may defend against sexual harassment claims by establishing both:
- that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior
- that the employee failed to take advantage of any preventive or corrective measures.
- Note: This defense is not available in cases resulting in tangible employment action. In these cases, the employer is strictly liable. In addition, as described previously, under the IHRA an employer may be strictly liable if the harassment is committed by an individual with supervisory authority and the employer may not have the ability to avail itself to any defenses regardless of if a tangible employment action took place or not. An employer should:
Implement and distribute anti-harassment policies
An employer may defend against a sexual harassment claim by showing that it exercised reasonable care to prevent sexually harassing behavior. Therefore, employers should ensure that they implement a comprehensive anti-harassment policy. This policy should:
- state that the company will not tolerate harassment by managers, employees or nonemployees
- give examples of some types of prohibited conduct or statements (without limiting the application of the policy to these examples)
- outline procedures for reporting harassment and promise that employees will not be retaliated against for raising claims of harassment
- warn that employees who engage in unlawful harassment will be subject to disciplinary action, up to and including termination.
In addition, employers should make sure that the policy prohibits all forms of harassment, not just sexual harassment.
Educate employees about harassment issues
Employees need to be educated on the types of conduct that are prohibited under the policy. An employer may want to conduct an anti-harassment seminar as part of any new hire training program. Supervisors and managers should be trained on how to recognize problems and handle complaints. The sexual harassment requirements in Illinois provide that:
• Employers must train all employees in Illinois, including short-term and part-time employees and interns.
• Employers are not required to train independent contractors but are strongly advised to train independent contractors who work on-site at the employer’s workplace or interact with the employer’s staff.
• Employees who perform work or regularly interact with the employer’s employees in Illinois should be trained, even if they are based in another state.
Develop an effective reporting/grievance procedure
Often, an employer’s liability is based on its failure to provide employees with a reasonable method to report harassment rather than its failure to have an anti-harassment policy.
Example - The Supreme Court found that an employer’s policy did not protect it from liability because the policy required the employee to report the harassment to her direct supervisor, the very person who was harassing her.
Employers should ensure that their policies identify at least two different avenues through which an employee may report a complaint, usually to a supervisor and a member of human resources. Employers may also want to consider supplying their employees with a toll-free hotline for reporting complaints.
Conduct prompt, thorough investigations into complaints
Do not wait for an employee to make a formal complaint. Courts have held employers directly liable for harassment if they knew or reasonably should have known, about the harassment and did nothing to stop it. Furthermore, an employer should never promise an employee that his or her complaint will be strictly confidential. Total confidentiality may not be possible because the employer may have to disclose the nature of the allegations and perhaps even the identity of the alleged victim, to the accused or to witnesses in order to conduct a thorough investigation into the claim. Therefore, the policy should only promise that complaints will be kept confidential “to the extent possible.”
Take appropriate remedial action
Following an investigation into a harassment complaint, the employer should determine what corrective action is warranted and will be sufficient to stop the harassment and should discipline the harasser as appropriate. The employer should meet with the complaining employee and explain the outcome of the investigation and what steps, if any, have been taken to resolve the complaint. Finally, the employer should review the sexual harassment policy with all parties involved in the complaint.
Beginning July 1, 2020, employers are required annually (every July 1) to disclose any adverse judgment or administrative ruling against them in the preceding year to the Illinois Department of Human Rights (IDHR). This disclosure may also include settlements of any sexual harassment or unlawful discrimination claims, but only if the IDHR is investigating a charge filed under the IHRA and requests such disclosure. Employers who fail to comply with this reporting requirement could face civil penalties of up to $5,000 per offense.
Anti-sexual harassment training and other obligations for employers in Chicago
Chicago employers are required to:
• establish, post and distribute to employees a written anti-sexual harassment policy and display a poster advising employees of the prohibition on sexual harassment
• provide sexual harassment training for employees and managers, including additional training on how bystanders who witness harassment in the workplace should respond
• retain written records of the policies and trainings given to each employee, as well as other records necessary to show compliance with the ordinance.
The written policy, written notice and training requirements go into effect on July 1, 2022.
Failure to comply can result in fines from $500 to $10,000 depending on the infraction
The Supreme Court has upheld discrimination claims in which an employee is harassed by a supervisor or co-worker of the same sex. The Court stressed that the critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not.
Taking claims to court
On March 3, 2022, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was signed into law. The law was designed to provide victims of workplace sexual misconduct with the right to seek justice in a court room. Traditionally, such matters were addressed through arbitration.
The act amends the Federal Arbitration Act (FAA) to include a new section, which states, in part:
[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.
What employers need to know
• The act gives employees the option to invalidate arbitration agreements and class or collective action waivers with respect to sexual assault and sexual harassment claims. This means employees may choose to either arbitrate these claims or pursue them in court regardless of any contractual agreements with their employers.
• The act applies to all claims that arise or accrue after March 3, 2022, regardless of the date of the agreement at issue. The act, however, does not affect claims that arose or accrued before March 3, 2022.
• The act does not affect otherwise valid arbitration agreements for claims that are not related sexual assault and sexual harassment.
• Future litigation is anticipated over the scope and interpretation of this law.