SB75 Final Installment: The Remaining Changes You Need to Know
June 20, 2019
As the final segment in our series of alerts detailing key provisions of SB75, the anti-harassment legislation that is expected to be signed by Governor Pritzker, we review the new Sexual Harassment Victim Representation Act and summarize a number of small, but significant changes to existing laws.
Changes to the Illinois Human Rights Act
The most significant new change is an expansion of certain definitions under the Illinois Human Rights Act (“IHRA”). First, the Act now covers an individual’s actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service. In other words, an individual can now maintain a claim under state law based if they are subjected to harassment or other adverse employment action based upon a belief that they are part of a particular protected group, even if that belief turns out to be mistaken.
The new legislation adds a definition of “harassment,” which will include any “unwelcome conduct on the basis of an individual’s actual or perceived [protected status] that has the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The law will specifically provide that “working environment is not limited to a physical location an employee is assigned to perform his or her duties.” The IHRA will also now specify that “an employer is responsible for harassment by the employer’s nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.” These additions largely reflect existing law.
The legislation also extends anti-harassment protections to non-employees in the workplace. “Nonemployees” for purposes of this provision will mean “a person who is not otherwise an employee of the employer and is directly performing services for the employer pursuant to a contract with the employer,” including “contractors and consultants.”
Creation of the Sexual Harassment Victim Representation Act
The Sexual Harassment Victim Representation Act eliminates the potential conflict of interest that occurs when one union representative represents both the victim of sexual harassment and the accused. Under this Act, when a union member is the victim of sexual harassment and accuses a member of the same union as the perpetrator, the union cannot designate the same union representative to represent both the victim and the alleged perpetrator. Instead, the union must assign different union representatives to represent the victim and the alleged perpetrator.
Amendments to Other Existing Laws
SB75 amends the Civil Administrative Code of Illinois by allowing the Department of Professional Regulation Law to exchange information with the Department of Human Rights pertaining to recommendations regarding licensees or candidates for licensure if those individuals have committed a civil rights violation that may lead to the refusal, suspension, or revocation of a license from the Department of Professional Regulation Law.
The Uniform Arbitration Act is also amended to permit parties to bring before an arbitrator the issue of whether an employment contract (for employment, continued employment, a settlement or termination agreement) is compliant with the Workplace Transparency Act and consequently valid. For and in-depth review of the Workplace Transparency Act, please see our previous alert.
Finally, SB75 amends the Victims’ Economic Security and Safety Act by expanding its protections to include victims of gender violence. Currently, VESSA only provides protection to employees who suffer from domestic or sexual violence.
Key Points for Employers
Once SB75 is signed into law, employers should review their existing policies, procedures, and training programs to ensure that they reflect all of the requirements of the new law.
We encourage you to review our prior alerts related to SB75 and contact your Franczek attorney to make sure you’re ready for January 1, 2020 when many of these provisions take effect.
*Muaaz Maksud is currently a law student at Northwestern Pritzker School of Law and is a Franczek LEADS Fellow.