On November 16, 2017, Governor Bruce Rauner signed Public Act 100-0554 amending in part the State Officials and Employees Ethics Act (“Act”) to prohibit sexual harassment by “[a]ll persons subject to this Act” and to require each unit of local government and school district to adopt an ordinance or resolution establishing a policy to prohibit sexual harassment. New or amended policies must be adopted no later than 60 days after the effective date of P.A. 100-0554, which results in a deadline of January 15, 2017.
P.A. 100-0554 defines “sexual harassment” as “any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when: (i) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (ii) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (iii) 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.”
In terms of the policy requirements, P.A. 100-0554 states that the policy shall include, at a minimum, the following elements: (i) a prohibition on sexual harassment; (ii) details on how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, Inspector General, or the Department of Human Rights; (iii) a prohibition on retaliation for reporting sexual harassment allegations, including the availability of whistleblower protections under the Act, the Whistleblower Act, and the Illinois Human Rights Act; (iv) the consequences of a violation of the prohibition on sexual harassment; and (v) the consequences for knowingly making a false report.
As you revise your policies to comply with P.A. 100-0554, you should also consider the following best practices and procedures related to policies specifically and harassment generally:
- Broad Anti-Harassment Prohibition. In addition to applying to sexual harassment, your policy should expressly prohibit harassment based on any legally protected characteristic (g., sex, race, national origin, disability, or age), and all other policy provisions should apply to harassment broadly. With respect to sexual harassment, the conduct is not required to be sexual in nature; epithets or offensive remarks about an individual’s sex may also qualify. Your policy should also contain a “complainant-friendly” procedure that encourages the reporting of allegations of harassment, contains numerous reporting avenues, and ensures confidentiality to the broadest extent possible. Finally, the policy should extend the prohibition on retaliation to individuals who participate in investigations of allegations of harassment.
- An effective anti-harassment training program is critical to reducing employer liability. An employer’s obligation to conduct training on harassment extends to every elected official, superintendent, officer, manager, and employee within the organization. All such individuals must know their rights or obligations and how to report violations of the anti-harassment policy.
- Prompt and Thorough Investigation. Upon receipt of a complaint, an employer must conduct a prompt and thorough investigation. Depending on the parties involved, the employer might consider whether to retain a third-party investigator or conduct its own investigation. The employer should immediately ensure that all relevant records are retained, such as electronic communications. During the investigation, the employer will need to restate the prohibition against retaliation and advise participants that confidentiality will be maintained to the greatest extent practicable.
- Immediate and Effective Corrective Action (If Warranted). If the investigation reveals that an individual has engaged in harassment, then the employer is obligated to implement immediate and effective corrective action, which may range from counseling to discharge. The corrective action should be proportionate to the conduct and sufficiently serious to ensure the behavior ceases immediately and permanently.
- Informing Complainant of Investigative Outcome. In consultation with counsel, the employer should consider whether to meet with the complainant following the investigation to assure him or her that it considered the complaint a serious matter, investigated promptly and thoroughly, and reached a certain conclusion. The decision of whether to meet with the complainant and what to report to him or her is highly strategic and should only be made after careful legal consideration.
For more guidance regarding this important subject, you may contact your Tressler attorney.