Alerts and Updates

New Guidance for Illinois Employers on Required Annual Harassment and Discrimination Disclosure Reports

July 23, 2020

If an employer has no adverse rulings or judgments in the prior calendar year, the FAQ provides that the Department will not require an employer to file a report.

The Illinois Workplace Transparency Act (WTA) is an expansive piece of legislation that was designed to help prevent all forms of harassment and discrimination in the workplace (see item No. 2 of our previous Alert). The last of its new mandates requires employers to submit an annual disclosure report of certain harassment and discrimination matters to the Illinois Department of Human Rights. The Department has published new guidance in the form of a FAQ for employers that outlines the annual disclosure report content and format for the reporting period that began July 1, 2020. The new guidance requires employers’ first annual disclosure report to be filed with the Department by October 31, 2020, for the 2019 calendar year, but also narrows the scope of information required to be reported. The Department also expects to publish a downloadable disclosure report (Form IDHR 2-108) for employers’ use.

The annual disclosure obligations under the WTA apply to all employers with one or more employees in Illinois. The first annual reporting period covers January 1, 2019, to December 31, 2019, and will cover each subsequent calendar year going forward. For 2019 data, employers are required to file their annual disclosure report by October 31, 2020, whereas the deadline for each subsequent year will revert to the following July 1 (e.g., by July 1, 2021, for 2020 data), as provided in the WTA.

The Department’s FAQ also clarifies that the annual disclosure report will only require reporting of adverse judgments or administrative rulings and does not need to include settlements as permitted under the WTA. The Department will continue to exercise its right to request information about any settlements an employer has entered in the preceding five years during the investigation of any employment discrimination charge.

Adverse judgments and administrative rulings are defined to include any final and nonappealable judgment that included a finding of sexual harassment or other unlawful harassment or discrimination where the ruling is in the employee’s favor and against the employer. The FAQ provides specific examples as including final orders or judgments (that are no longer appealable) entered against an employer by the Illinois Human Rights Commission, the Chicago Commission on Human Relations, the Cook County Commissions on Human Rights, an Illinois circuit court or by a federal court in a matter arising under Title VII, the Americans with Disabilities Act or the Age Discrimination in Employment Act. A notice of substantial evidence issued at the conclusion of the Department’s charge investigation process is not a final order required to be disclosed. Unemployment insurance proceedings need not be included. Notably, judgments or adverse rulings entered outside of Illinois that involve an employee or nonemployee as defined under the WTA must be included. This will include any person performing services for the employer in Illinois for remuneration, as well as apprentices, apprentice applicants and unpaid interns, and arguably any nonemployee performing services under a contract (e.g., independent contractors and consultants).

Information that must be reported includes only the number of adverse rulings or judgments against the employer in the prior calendar year. The report format will require employers to categorize the judgment or adverse rulings into the various protected categories (e.g., sexual harassment, harassment or discrimination based on sex, race, color or national origin, religion, age, sexual orientation or gender identity and any other category protected under the Illinois Human Rights Act). If an employer has no adverse rulings or judgments in the prior calendar year, the FAQ provides that the Department will not require an employer to file a report.

The Department may pursue penalties for an employer’s failure to comply with the annual reporting obligation that range from $500 to $5,000, depending on the size of the employer and the number of prior offenses.

Illinois employers that believe they had any final adverse judgment or administrative ruling entered against them in any venue during the period of January 1 through December 31, 2019, should consult with counsel promptly to determine whether they are required to file a report with the Department by the deadline of October 31, 2020. Going forward for 2020 and beyond, all Illinois employers should track such information annually to be prepared to submit the annual report by no later than July 1, 2021, and by July 1 for each subsequent year.

Additional Reminder on Annual Sexual Harassment Training Requirement

The WTA also requires Illinois employers to provide annual sexual harassment training to all employees, which must be completed for the first annual period by December 31, 2020. Employers may provide their own internal training or use counsel or a qualified vendor, but the training must meet minimum statutory requirements which have been outlined in a model training program published by the Department. The Department now has confirmed that the deadline will not be extended, despite the ongoing pandemic. Illinois employers should ensure such training is completed for all employees by December 31.

For More Information

If you have any questions about this Alert, please contact Daniel O. Canales, Jennifer Long, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.