The City of Chicago amended its sexual harassment Ordinance on April 27, 2022. Chicago employers should take note of the following significant changes to the law that took effect on July 1, 2022. The amended Ordinance imposes new requirements on employers with respect to training, recordkeeping, and written policy language. It also increases penalties for violations by a factor of ten. But inconsistencies between the new Ordinance and existing law also create a number of questions.

Enhanced Definition of Sexual Harassment

The definition of “sexual harassment” has been revised to now include “sexual misconduct,” which is defined as “any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual’s employment position.”

This adds to the Illinois Human Rights Act’s (IHRA) definition of sexual harassment, which includes:

[U]nwelcome sexual advances or unwelcome conduct of a sexual nature, or requests for sexual favors or conduct of a sexual nature when (1) submission to such conduct is made explicitly or implicitly a term or condition of an individual’s employment; (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.

775 ILCS 5/2-101(E).

Annual Sexual Harassment Training Requirements

All Chicago employers are now required to provide the following annual sexual harassment training: (a) one hour of sexual harassment prevention for all employees, or two hours for supervisors and managers; and (b) one hour of “bystander” training for all employees. Training modules for the sexual harassment training for non-managerial employees, managerial employees, and bystander intervention training may be found here.

Bystander training refers to teaching employees what they can and should do if they witness sexual harassment against another person or group. The Ordinance does not specify when the training must be completed relative to the employee’s start date and, therefore, since training is to be completed annually, we must assume that an employer has until one year after an employee’s first day of employment to complete the training (not that the employer should wait if it can help it).

Notably, the Ordinance states that employers can use the training module created by the Illinois Department of Human Rights as part of the IHRA’s sexual harassment prevention training, but that creates several inconsistencies with the Ordinance that the City will need to clarify.

First, it is unclear whether the training that employers are required to provide to comply with Illinois law also complies with the Ordinance. Second, the State of Illinois’ training module is nothing more than a self-executing PowerPoint slide show that simply narrates word-for-word the slides created by the Illinois Department of Human Rights (IDHR). The module takes about 40 minutes to listen to/watch, which would not be compliant with the Ordinance’s one-hour requirement without some additional enhancement to fill the remaining time. Third, the IDHR’s module provides the definition of sexual harassment found in Illinois law, which does not include the newly added portion to the City’s definition pertaining to “sexual misconduct.” Fourth, the State of Illinois training module does not include any instructions for filing claims with the Chicago Commission on Human Relations (CCHR), which is included in the City’s sample training module.

We also note that the City’s training module suggests requirements that are not actually found in the Ordinance and, therefore, cannot be enforced as law. For example:

  • The City’s training module mentions a requirement for employers to also provide sexual harassment prevention training to independent contractors working on-site, but the Ordinance contains no such requirement.
  • The City’s training module also suggests that there is strict liability for managerial employees; but the actual Ordinance provides only that an employer shall be liable for sexual harassment by non-employees or non-managerial and non-supervisory employees if the employer became aware of the conduct and failed to take reasonable corrective measures and does not address liability standards for managerial employees.

Thus, employers who find themselves litigating a matter at the Chicago Commission on Human Relations should be wary of any attempt by the agency to overreach beyond the letter of the Ordinance.

Required Written Policy on Sexual Harassment

All Chicago employers must have a written sexual harassment policy that, at a minimum, includes the following:

  • A statement that sexual harassment is illegal in Chicago;
  • The Ordinance’s 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 an individual can report an allegation of sexual harassment, including, as appropriate, instructions on how to make a confidential report, with an internal complaint form, to a manager, employer’s corporate headquarters or human resources department, or other internal reporting mechanism(s), and legal services available to employees who may be victims of sexual harassment.
  • A statement that retaliation for reporting sexual harassment is illegal in Chicago.

The written policy must be available in the employee’s primary language within the first calendar week of the start of their employment. Model sexual harassment policies in English, Spanish, Polish, Simplified Chinese, Arabic, and Hindi are available here. Additionally, employers will be required to display a poster advising of the prohibition on sexual harassment where employees can see it.

Expanded Reporting Period

The statute of limitations to report all forms of discrimination—and not just sexual harassment—to the Chicago Commission on Human Relations has been increased from 300 to 365 days. Thus, Chicago employees who miss the deadline to file with the IDHR or EEOC have a reprieve to file with the CCHR. The Commission on Human Relations also now has 30 days (increased from 10 days) to provide an alleged harasser with a copy of the complaint filed against him or her.

Increased Monetary Penalties

Monetary penalties for all forms of discrimination, including sexual harassment, have increased ten-fold from $500 to $1,000 per violation to $5,000 to $10,000 per violation. Existing penalties—including damages to the complaining party and attorneys’ fees—still remain. In addition, the City can also award injunctive relief to eliminate discriminatory practices.

Recordkeeping Requirements

Employers must also retain a record of their written policies, trainings, and all other records necessary to show compliance with the Ordinance for at least five years or for the duration of any pending claim, civil action, or investigation under the Ordinance, whichever is longer.

Importantly, failure to maintain records of the written policy document prohibiting sexual harassment and trainings given to each employee creates a presumption (rebuttable by clear and convincing evidence) that the employer violated the Ordinance—subjecting the employer to the increased penalties noted above. Thus, it is critical for employers to keep records of their policies as they are updated or amended, proof that they properly trained each employee, and even arguably proof of required postings