Overreach in Illinois’ New Employer Mandate on Anti-Sexual Harassment Training

By: Mark Glennon*

You’d think a state struggling to keep its tax base from fleeing would avoid passing a law that has a lot of employers “panicking,” which is the word used by a labor law expert quoted by the Chicago Tribune.

And you’d hope lawmakers would realize that good intentions can be undermined by overreaching, vague laws that are likely to generate a backlash.

But this is Illinois, where poking sticks in employers’ eyes is routine. Let’s look at a few aspects of the new mandate for all Illinois employers to provide workplace training on sexual harassment.

Starting January 1, employers must provide annual workplace training on how to recognize and prevent sexual harassment or face steep fines. New employees will have to be trained within 90 days. For violators with more than four workers, the penalties for the first offense start at $1,000 and go up to $5,000 on the third offense.

By next year, all employers, even with just one employee, must provide the training, and all types of employers are covered, including nonprofits. Most employer mandates have exemptions for smaller operations, but not this one.

Think about that. Start with Wirepoints as an example, where Ted and I have just one employee (though we are soon expanding thanks to your contributions). Each year we will have to provide the training for him – and to ourselves, I guess. Or how about a lady with few employees providing manicure services. Same for the guy who runs a car repair shop with a few mechanics.

Other troubling examples are endless. Eighty-nine percent of businesses have fewer than 20 employees.

The training process itself will be made immensely complicated because the new law also broadens the definition of harassment to cover nonemployees such as contractors or consultants – even when the harassment occurs at some location other than the workplace. That’s so broad that it’s hard to think through the full impact. An employee who harasses a consultant he runs into at a bar, for example, would mean liability.

The new amendments may also apply in some cases to non-Illinois employers that have telecommuters or remote employees located in Illinois, according to one law firm. Out of state employers will see that as another disincentive to hiring in Illinois.

The law does provide a degree of protection by imposing liability “only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.” However, awareness of prohibited activity isn’t difficult to allege. A claim, for example, that an employer heard a defendant whistling at the claimant would probably do. Whistling at someone, alone, is cited as activity that may constitute harassment in one of the state’s harassment training documents.

Who needs to be aware to deem the employer aware? I have no idea, and I expect most small business owners don’t which is probably part of why they are panicking.

It would have been easy for the state to avoid the burden and confusion that the training mandate will place on small employers – and maybe there’s still some hope. That’s because the law requires the Illinois Department of Human Rights to publish a model training program, which it hasn’t done yet. Maybe it will be a standalone, turn-key video or presentation that small employers can use, which would sure help.

However, it does not appear to be shaping up that way. According to JD Supra, “the format of the model program remains a mystery (will it be a video? A bullet-point list? A slide show?), employers may be wise to enlist the assistance of counsel to facilitate the training.” Furthermore, the training program must be “interactive,” which would seem to suggest some live teaching by somebody who is qualified.

Why didn’t the state just make the effective date of the new law concurrent with the release of the model training program? And why didn’t the state specifically provide that the model is useable by itself, at least for small employers? That would have allowed them to avoid the uncertainty and expense of retaining lawyers and consultants eager to charge for the new training.

There’s no excuse. It’s all contained in a 195-page bill that will have smallish employers pulling their hair out.

Finally, what’s the real impact of the new law, in the long run, on the #MeToo movement? That movement has done a major service exposing not just the worst monsters like Harvey Weinstein and Bill Cosby but many less known who still engage in conduct that shouldn’t be tolerated.

But any movement loses support when it overreaches. Guilt-by-accusation was openly endorsed by many Bret Kavanaugh critics, doing immense damage to the movement’s credibility. When hundreds of thousands of small Illinois businesses that conduct themselves honorably awake to the new training mandate, many will sour on the movement.

*Mark Glennon is founder of Wirepoints.