Illinois Passes Greater Protections for Those Alleging Workplace Discrimination

08-20-2019

Joining New York and California, Illinois has passed new legislation increasing the protections for employees alleging discrimination in the workplace.

The Workplace Transparency Act prohibits employers from the following:

1. Preventing employees from disclosing unlawful employment practices or criminal activities.
2. Requiring employees to waive, arbitrate, or diminish a future claim for an unlawful employment practice.
3. Including unilateral confidentiality clauses in settlement or termination agreements.
   1. The law does allow mutual confidentiality agreements if there is documented preference of and mutually beneficial to both parties, the employee knows he/she/they have the right to an attorney review of the agreements, the employee has 21 days to consider the agreement with a seven day revocation period, the waiver is knowing and voluntary, there is valid consideration in exchange for confidentiality, and the employee does not waive future claims.In companion legislation, the definition of an employer was expanded in Illinois to include employers with one or more employees (down from the previous 15); unlawful discrimination now includes “actual or perceived” inclusion in protected categories; unwelcome harassment is “unwelcome conduct” based on “actual or perceived” membership in a protected group “that has the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

“Work environment” may also include events that occur outside of the office.In addition, harassment of non-employees, such as contractors and consultants, is also prohibited.All employers with employees in Illinois must provide sexual harassment training on an annual basis with additional requirements imposed on restaurants and bars who must provide a written sexual harassment policy.

A ban on salary history also went into effect in the state recently. Employers may not ask an applicant’s salary history and may not refuse to hire someone who does not disclose their salary history. Employers may not prohibit employees from discussing their wages with others. The definition of comparators for determining equal wages was expanded to include “substantially similar” effort, skill, and responsibility instead of “equal.”

Employers doing business in Illinois should carefully review the new laws to learn the full impact of the changes.