SB75 Requires Employers To Disclose Judgments and Settlements
This alert is the fourth installment in our series on Illinois’ new anti-harassment legislation, SB75, which is awaiting signature by Governor Pritzker. This alert focuses on new disclosure requirements under the law.
Annual Reporting of Adverse Judgments In Harassment and Discrimination Cases
SB75 amends the Human Rights Act to require the Illinois Department of Human Rights (“IDHR”) to collect data regarding adverse judgments and administrative rulings in cases involving sexual harassment or unlawful discrimination. This requirement only applies to “final and non-appealable” judgments and rulings, not to interim rulings or “reasonable cause” findings. Beginning July 1, 2020 and every July 1st after that through July 1, 2029, employers who receive an adverse judgment or administrative ruling against them must disclose to the Department: (1) the total number of adverse judgments or administrative rulings received during the preceding calendar year; (2) whether equitable relief was awarded as part of the judgment or ruling; and (3) a breakdown of judgments and rulings by protected category. The Department is required to publish an annual report of the aggregated data compiled from employers.
Disclosure of Settlements
The amendments also allow the IDHR to require employers to provide up to 5 years of data relating to any settlement agreements the employer entered related to an alleged act of sexual harassment or unlawful discrimination. The IDHR may only request this information if it is investigating a charge of discrimination filed against the employer. Additionally, the IDHR’s request must be limited to alleged acts of sexual harassment or discrimination occurring in the employer’s workplace or involving conduct by the employer’s employees or corporate executives. While employers must provide this information, the IDHR is prohibited from relying on the existence of any settlement agreement entered into by the employer to support a finding of substantial evidence. Unlike the report of adverse judgments and administrative rulings, there is no requirement for the IDHR to create a report of the data collected under this provision.
Limitations on Use and Disclosure
When making disclosures in accordance with these requirements, employers are prohibited from disclosing the name of the victim of an alleged act of sexual harassment or discrimination. The law provides that information disclosed under these requirements is exempt from disclosure under the Freedom of Information Act.
Remedies for Failing to Disclose
Employers who fail to comply with the disclosure requirements will be given a 30-day grace period within which to make the required disclosures. Employers who fail to comply after the grace period will be subject to civil penalties ranging from $500 for a first offense by an employer with fewer than 4 employees, to $5,000 for third and subsequent offenses by employers with four or more employees.
Key Points for Employers
For most employers, the new reporting obligation for adverse judgments in harassment and discrimination cases will not be particularly burdensome. The reporting obligation applies only to final, non-appealable judgments against an employer – typically, cases where an employer takes a discrimination case to trial and loses, then decides not to appeal or exhausts the appeals process. The vast majority of discrimination and harassment lawsuits settle before they reach this stage. Even if a case settles on the eve of, or during a trial, it would not be subject to the new annual reporting obligation.
More concerning is the requirement that employers disclose settlements when asked to do so by the IDHR during an investigation. While the IDHR cannot use settlements to find against an employer on a particular charge, it is not clear how the agency might use the information in a particular investigation or more broadly.
To comply with the new laws, employers are strongly advised to maintain a centralized log or record of any internal complaints and external charges or lawsuits by employees, identifying the nature of the claims alleged and the outcome of the complaint, including whether there was a final judgment or administrative order or settlement.