[co-author: Dru Selden]
On August 9, 2019, Governor J.B. Pritzker signed into law Public Act 101-0221 (the Act), which amended the Illinois Human Rights Act (IHRA). Among other changes, this amendment requires employers with at least one adverse judgment or administrative ruling to disclose to the IDHR the total number of final, non-appealable judgments or final, non-appealable rulings against the employer in which there was a finding of sexual harassment or unlawful discrimination.
Without further guidance from the Illinois Department of Human Rights (IDHR), employers were left seeking clarification. Now, almost a year after the Act was signed into law, the IDHR has released guidance for this reporting requirement. This Frequently Asked Questions document supplements the requirements stated in the IHRA, but in some cases, raises more questions than it answers. These supplemental guidelines are noted in bold below:
- Although the Act was not signed into law until August of 2019, the IDHR has defined the reporting period (the time period for recording the number of adverse judgments or administrative rulings) for 2019 as January 1, 2019 to December 31, 2019.
- The employer deadline for making disclosures about the 2019 reporting period differs from the deadline for future years. Without any explanation, the IDHR has established that the deadline for reporting disclosures is October 31, 2020, even though this is not indicated by the statutory language.
- For years following, the disclosure deadline will be July 1 of the following year. For example, the required disclosures from the 2020 calendar year must be filed by July 1, 2021.1
“Adverse Judgments or Administrative Rulings” Defined
- The IDHR and the IHRA define “adverse judgment or administrating ruling” as “any final and non-appealable judgment that finds sexual harassment or unlawful discrimination, where the ruling is in the employee’s favor and against an employer.”2
Requirements and Prohibitions of Disclosure Reports
- Employers must disclose the number of adverse judgments or administrative rulings for each of the following categories:
- sexual harassment;
- discrimination/harassment on the basis of sex;
- discrimination /harassment on the basis of race, color, or national origin;
- discrimination /harassment on the basis of religion;
- discrimination /harassment on the basis of age;
- discrimination /harassment on the basis of a disability;
- discrimination /harassment on the basis of military status;
- discrimination /harassment on the basis of sexual orientation or gender identity; and
- discrimination /harassment on the basis of any other protected characteristic under the IHRA.3
- Employers are not required to report settlements as part of their annual disclosures of adverse judgments or administrative rulings. However, the IDHR has the right to request that an employer submit the total number of settlements entered into following a charge of discrimination during the preceding five years.4
- Employers are prohibited from disclosing the name of a victim of an act of alleged sexual harassment or unlawful discrimination in any of the required disclosures.5
If an employer has had no adverse judgments or administrative rulings, it is not required to report this information to the IDHR.
Method of Submitting Disclosure Reports
- The IDHR will provide employers with a form for Section 2-108 disclosure reports, which will be available for download on July 20, 2020 from the IDHR website.
Penalties for Failure to Report Adverse Judgments or Administrative Rulings
- If an employer fails to make required disclosures, the IDHR will first issue a notice to show cause, which will give the employer 30 days to disclose the required information. If the employer fails to show cause, the IDHR shall petition the Illinois Human Rights Commission for entry of an order imposing a civil penalty.6
- The civil penalties for the failure to report are calculated based on the number of employees that the employer has, as well as the number of offenses on behalf of the employer.
- Employers with fewer than four employees face a maximum penalty of $500 for a first offense, $1,000 for a second offense, and $3,000 for third and subsequent offenses.
- Employers with four or more employees face a maximum penalty of $1,000 for a first offense, $3,000 for a second offense, and $5,000 for third and subsequent offenses.7
Out-of-State Judgments or Administrative Rulings
- The IDHR has broadly interpreted the IHRA to require employers to report adverse judgments or administrative rulings that are entered in jurisdictions outside of Illinois.
This seems contradictory to the language of the IHRA, which defines “employee” as: 1) any individual performing services for remuneration within this State for an employer; 2) an apprentice; or 3) an applicant for any apprenticeship. Therefore, when read in context with this definition, the guidance suggests that employers are required to report adverse judgments or rulings pertaining to out-of-state apprentices and applicants for apprenticeships, but not out-of-state employees. This would be nonsensical and cannot possibly be what the Act requires.
- No guidance has been given as to whether an employer that has had no adverse judgments or administrative rulings in Illinois is required to report out-of-state judgments or rulings.
While the IDHR’s ability to request disclosures related to out-of-state claims seems tenuous at best, the Department has nonetheless taken this position.
Employers with questions on how to appropriately comply with these requirements are advised to consult counsel for more information.