by Maureen Anichini Lemon (Winter 2018)
Most workplaces already have a policy in place prohibiting sexual harassment. Recent events in Hollywood, Congress, and Springfield, highlighted by the #metoo movement, have created a renewed interest in this topic. As a result, the Illinois General Assembly passed Public Act 100-554 into law in November, 2017. P.A. 100-554 added new sections to, and amended other sections of, the Illinois State Officials and Employees Ethics Act (5 ILCS 430). That is the statute that gave us the Gift Ban Act and the Ethical Conduct prohibition against political activities by employees on compensated time.
The recent changes require state agencies to have a sexual harassment policy and require all officers, members and employees of the state entities to undergo sexual harassment training on an annual basis. P.A. 100-554 also requires all local governmental units, including school districts, to adopt an ordinance or resolution establishing a policy to prohibit sexual harassment. The ordinance or resolution was to have been adopted no later than 60 days after the effective date of the amendatory act, or by January 15, 2018.
P.A. 100-554 identifies four elements that must be contained in each sexual harassment policy of a local governmental unit in Illinois. First, the policy must clearly prohibit sexual harassment. State and federal anti-discrimination laws provide a legal definition of sexual harassment as:
unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting that individual; or (3) such conduct has the intent or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.
The policy should contain examples of the types of conduct that meet this definition.
Second, the policy must detail how an individual can report an allegation of sexual harassment. This would include making a confidential report to a supervisor or someone with human resources authority within the school district. This would also include how to file a complaint with the Illinois Department of Human Rights.
Third, the policy must prohibit retaliation against anyone who reports a sexual harassment allegation. The Illinois Human Rights Act expressly prohibits retaliation and the Illinois Whistleblower Act protects anyone who discloses information of a violation of a state or federal law.
Fourth, the policy must include the consequences of a violation of the prohibition against sexual harassment as well as the consequences for knowingly making a false report of sexual harassment.
Although school boards do not typically adopt policies through passage of an ordinance or resolution, they must do so to be in compliance with the requirements of this law.
Finally, although P.A. 100-554’s mandate for annual sexual harassment training is limited to state rather than local entities, it is best practice to mandate such training for your school district’s employees. It is also best practice to ensure that your elected and appointed officials receive such training at least once upon being seated as a school board member. While they are not employees, school board members have a responsibility to ensure that the District’s policy is implemented and that the policy’s complaint procedure is effectively utilized.
Even if your current sexual harassment policy meets each of the requirements of P.A. 100-554, we recommend that it be re-adopted through the passage of a resolution. If you have questions regarding the content of the policy or resolution or are in need of training of your staff or school board members, please contact one of the attorneys at Ottosen Britz for assistance.