In the past several months, it often seems like the news brings daily revelations of a new individual in a position of power committing sexual harassment, or even sexual assault, against employees. Springfield is no stranger to sexual harassment, as nearly 160 women and men signed an open letter detailing rampant sexual harassment in state government. In response, the General Assembly passed Senate Bill 402—unanimously—during its veto session. Today, Governor Bruce Rauner signed the bill, now Public Act 554 (“the Act”), which takes effect immediately.
What kind of conduct is prohibited? The Act defines harassment broadly to include any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when submitting to the conduct is made, either explicitly or implicitly, a term or condition of employment or used as the basis for any employment decision. Moreover, it is sexual harassment if the conduct has the “purpose or effect” of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. The most striking change in SB 402 is that it does not require an employment relationship for sexual harassment to be actionable.
Who is covered by the changes in the Act? Under the Act, most state government entities must adopt policies and implement trainings regarding sexual harassment. The covered entities include:
- Each executive branch constitutional officer (i.e., the Governor, the Attorney General, the State Treasurer);
- The Senate Operations Commission for all Senate employees;
- The Speaker of the House of Representatives for all House employees;
- The Joint Committee on Legislative Support Services, with respect to State employees of the legislative support services agencies;
- Individual members of the General Assembly in their roles as employers of legislative aides and assistants;
- The Board of Higher Education for state colleges and universities; and
- The Illinois Community College Board with respect to employees of community colleges.
The Act also amends the Lobbyist Registration Act, 25 ILCS 170, to give the Secretary of State’s Inspector General the power and duty to investigate allegations that a registered lobbyist committed an act of sexual harassment. Finally, local governments, including school districts and municipalities, must pass ordinances and/or resolutions prohibiting harassment.
What must State agencies and registered lobbyists do? The Act requires the agencies and offices listed above to amend their personnel policies to address sexual harassment. The harassment policies must contain, at a minimum: (1) a prohibition on sexual harassment; (2) details for reporting an allegation of sexual harassment; (3) a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under the Whistleblower Act; and (4) the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report. Most government agencies’ existing policies likely address these topics, but any changes will have to be drafted quickly: the Act gives agencies 30 days to implement policies containing these provisions. Lobbyists must also draft identical policies prohibiting harassment no later than January 1, 2017.
Additionally, each constitutional officer, member of the General Assembly, and state employee must complete, at least annually beginning in 2018, a sexual harassment training program. The training must include the definition of sexual harassment utilizing examples; details on reporting sexual harassment; the definition of retaliation for reporting sexual harassment; and the consequences of a violation of the prohibition on sexual harassment. Proof of completion for such trainings must be submitted to the applicable ethics officer, and training programs will be overseen by the appropriate Ethics Commission or agency Inspector General. The training requirement also applies to registered lobbyists, who must attend training programs provided by the Secretary of State’s Office.
What must local government entities do? The Act mandates that “each governmental unit” pass an ordinance or resolution establishing a policy to prohibit sexual harassment within 60 days. Based on the definitions in the State Officials and Employees Ethics Act, 5 ILCS 430, this requirement applies to all units of local government (including a community college district) and school districts. The policy established by ordinance or resolution must include at least the same four elements as state agencies’ personnel policies prohibiting harassment, discussed in detail above. Most local governments already have policies that address sexual harassment and how to report it. However, all local governments should review their policies to ensure they fully comply with the required elements above. Unlike state employees and lobbyists, local government employees are not required to undergo training under the Act.
Enforcement Authority: Inspectors General have broad authority to investigate sexual harassment claims and bring any claim before an ethics commission for a hearing. Parties found liable for sexual harassment face fines up to $5,000 for each verified instance of sexual harassment. The Act also creates a telephone hotline administered by the Department of Human Rights to which victims can report sexual harassment and learn more about their options for filing a complaint.
As public and private sector employers alike grapple with this evolving landscape, we will provide updates regarding new legal mandates and best practices.
This article is co-authored by Anna K. Perocchi who is a second year law student at Loyola University Chicago College of Law.