In response to the #MeToo movement, Illinois has enacted the Workplace Transparency Act ("WTA") to increase employee protections from both harassment and discrimination. The WTA, set to take effect on January 1, 2020, impacts employment-related agreements, amends the Illinois Human Rights Act (IHRA), and creates certain industry specific requirements.
The WTA impacts employment agreements by creating prohibitions on arbitration and confidentiality clauses in an employee's contract in regard to any form of harassment claims. Specifically, it prohibits unilateral agreements between an employer and employee where the agreement bars the employee's ability to disclose unlawful employment practices, or where it requires the employee to arbitrate any claim concerning unlawful employment practices. Employees may still be able to consent to such confidentiality and arbitration clauses, however, so long as specific statutory requirements are met, such as the presence of bargained-for consideration and the preservation of the employee's right to report certain protected disclosures. Employers should review their employee contracts to ensure it refrains from using such prohibited clauses.
The amendments to the IHRA include amending the definitions of discrimination and protected parties, and requiring employers provide employees with mandatory sexual harassment training. The IHRA now defines unlawful discrimination to include discrimination based on an individual's actual and perceived protected characteristics. Further, employers can now be held liable for unlawful harassment perpetuated against non-employees, such as consultants or contractors. Employers must also provide annual sexual harassment trainings to all employees; the Illinois Department of Human Rights is expected to release model trainings for this purpose. Additionally, the IHRA will now require Illinois employers to report adverse judgments pertaining to harassment or discrimination to the Illinois Department of Human Rights.
Employers in the restaurant and bar industry, and hotel and casino industry, have additional requirements to be met, including industry specific training. All employers should verify their sexual harassment procedures and reporting mechanisms are up to date and satisfy the newly required standards.
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