He’s driving me back into the city and he says, under his breath, “I’ll bet you’re really nasty in the bedroom!” and I said, “Did I hear that right?”
“Whips and chains and high-heeled boots!” he went on, and I said to myself, “Did I really just hear that?”
I wanted to dive roll out of the car—but instead I pretended I didn’t hear it. I just totally dismissed it and changed the subject.
Back in the office I said to a friend, “OMG, [person’s name] just said [and I repeated his remarks].” She just said, “Yeah.”
He is a client. I can’t report it to my HR. I don’t have anyone I can really go to.
Top-level Executive, 40+, Public Relations
Keplinger et al., 2019
It is the responsibility of the employer to create a place of employment that is free from sexual harassment. Further, it’s their responsibility to investigate and eliminate the harassment.
It is considered a civil rights violation for any employer, employee, agent of any employer, employment agency, or labor organization to engage in sexual harassment of employees and non-employees such as vendors, independent contractors, and delivery people. Non-employees can also violate sexual harassment laws against employees (WTA, 2019).
Employers (in addition to the harasser) are liable for sexual harassment by their management personnel whether or not they are aware of the harassment.
The employer (in addition to the harasser) can also be held liable for harassment by nonmanagerial and nonsupervisory employees, including non-employees such as independent contractors and consultants. The Workplace Transparency Act, however, does not hold the employer liable for harassment by nonmanagerial and nonsupervisory employees unless the employer becomes aware of the conduct and fails to take reasonable corrective measures (WTA, 2019).
“It is the General Assembly’s intent to encourage employers to adopt and actively implement policies to ensure their workplaces are safe for employees to report concerns about sexual harassment without fear of retaliation, loss of status, or loss of promotional opportunities” (IHRA, section 2-109, 2019b).
Illinois Governor J.B. Pritzker signed Public Act 101-0221 into law in August 2019, requiring all Illinois employers who have one or more employees to provide sexual harassment training to their employees by December 31, 2020 and every year thereafter. All employers who have employees working in Illinois must abide by this law. By December 31, 2020, employers must have trained all their employees (IDHR, 2020a).
Any employees who work or will work in Illinois must be trained, regardless of whether the employer is based in Illinois. If an employee is based elsewhere but regularly interacts with other employees in Illinois, even if they are not physically present in Illinois, they should be trained. All employees regardless of their status (i.e., short-term, part-time, or intern) must be trained (IDHR, 2020A).
Although employers are not required to train independent contractors, it is strongly advised that independent contractors receive training if they are working on-site at an employer’s workplace or interact with the employer’s staff (IDHR, 2020A).
Employers are encouraged to retrain their new employees, even if the employee received the required training at a prior place of employment. The employer is required to ensure that the training is compliant with the IHRA. Employers must independently retain their own records to show that all employees received the required sexual harassment prevention training. If the employer is unable to obtain the proper documentation, the employee must be retrained (IDHR, 2020a).
Public Spaces: Restaurants and Bars
At lunch, it was the three of us at the table, and [our customer] asked us, “Where are you staying? . . . That’s like a girls’ pajama party, you all staying at the same place! What do you wear to your girls’ pajama party?”
You want to nip it in the bud early so that you don’t lose a customer over it—you don’t lose an opportunity over it—and you don’t get put in a position where you have to really shut it down.
I no longer work with that customer anymore, because I just don’t want to have to deal with him. Is that fair? No, but life is too short.
Top level executive, 40+, tech industry
Keplinger et al., 2019
In addition to the state’s required training for all places of employment, restaurants and bars are required to provide supplemental sexual harassment prevention training that complies with Section 2-110 of the Illinois Human Rights Act (IHRA) (IDHR, 2020b). This is in addition to the training required of all employees under Sections 2-109.
Every restaurant and bar operating in the State of Illinois must have a sexual harassment policy provided to all employees, in writing, within the first calendar week of employment. Restaurants and bars are required to develop a supplemental model training program in consultation with industry professionals specifically aimed at the prevention of sexual harassment in the restaurant and bar industry. The training must include specific conduct, activities or videos related to that industry, an explanation of manager liability, and English and Spanish language options (Illinois General Assembly, 2020).
It is the responsibility of every employer to maintain a workplace free of sexual harassment. It is the responsibility of all employers in the State of Illinois to adopt and actively implement policies to ensure their workplaces are safe for employees to report concerns without fear of retaliation, loss of status, or loss of promotional opportunities. All employers must make it clear that sexual harassment will not be tolerated. All employers who have employees working in the State of Illinois must:
- Use the model sexual harassment prevention training program developed by the Department or develop their own sexual harassment training program that equals or exceeds the minimum standards outlined in subsection B of the Workplace Transparency Act.
- The training must be carried out for all employees by December 31, 2020 and every year thereafter.
- Have a written policy that clearly defines sexual harassment and what the penalties are for committing it.
- If the employer does not comply, the Department shall petition the Human Rights Commission for entry of an order imposing a civil penalty against the employer pursuant to Section 8-109.1. The civil penalty shall be paid into the Department of Human Rights Training and Development Fund. (WTA, 2019)
Harassment Because of Sexual Orientation
“The Illinois Human Rights Act prohibits discrimination based on someone’s actual or perceived sexual orientation, which is defined to include heterosexuality, homosexuality, bisexuality, and gender-related identity,” according to the Illinois Bar Association (ISBA, 2020). Both the victim and the harasser can be a woman or a man, and the victim and harasser can be the same sex.
It is unlawful to harass a person because of that person’s sex. Harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general (EEOC, n.d.).
Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim’s being fired or demoted) (EEOC, n.d.).
Sexually harassing conduct violates the law if the harassing conduct is unwelcome and is based on the victim’s protected status, i.e., sex (including pregnancy). Sexual behavior becomes unlawful when it is not welcome or any time it becomes unwelcome. The conduct must be subjectively abusive to the person affected and objectively severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive (DOL, 2012).
Whether an instance or a pattern of harassing conduct is severe or pervasive is determined on a case-by-case basis, with consideration paid to the frequency and severity of the unwelcome conduct. The following questions should be asked:
- Was the conduct physically threatening or humiliating or a mere offensive utterance?
- Did the conduct unreasonably interfere with work performance or have an adverse effect on the psychological well-being of the employee?
- Was the harasser a superior within the organization?
- Each factor is considered, but none are required or dispositive. Hostile work environment cases are often difficult to recognize, because the particular facts of each situation determine whether offensive conduct has crossed the line from “ordinary tribulations of the workplace, such as the sporadic use of abusive language. . . and occasional teasing,” to unlawful harassment (DOL, 2012).