Skip to main content

Nixon Peabody LLP

  • People
  • Capabilities
  • Insights
  • About
Trending Topics
    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    Practices

    View All

    • Affordable Housing
    • Community Development Finance
    • Corporate & Finance
    • Cybersecurity & Privacy
    • Entertainment & Media
    • Environmental
    • Franchising & Distribution
    • Government Investigations & White Collar Defense
    • Healthcare
    • Intellectual Property
    • International Services
    • Labor, Employment, and Benefits
    • Litigation
    • Private Wealth & Advisory
    • Project Finance
    • Public Finance
    • Real Estate
    • Regulatory & Government Relations
    Industries

    View All

    • Aviation
    • Cannabis
    • Consumer
    • Energy
    • Financial Services
    • Healthcare
    • Higher Education
    • Infrastructure
    • Manufacturing
    • Nonprofit Organizations
    • Real Estate
    • Sports & Stadiums
    • Technology
    Value-Added Services

    View All

    • Alternative Fee Arrangements

      Developing innovative pricing structures and alternative fee agreement models that deliver additional value for our clients.

    • Continuing Education

      Advancing professional knowledge and offering credits for attorneys, staff and other professionals.

    • Crisis Advisory

      Helping clients respond correctly when a crisis occurs.

    • DEI Strategic Services

      Providing our clients with legal, strategic, and practical advice to make transformational changes in their organizations.

    • eDiscovery

      Leveraging law and technology to deliver sound solutions.

    • Environmental, Social, and Governance (ESG)

      We help clients create positive return on investments in people, products, and the planet.

    • Global Services

      Delivering seamless service through partnerships across the globe.

    • Innovation

      Leveraging leading-edge technology to guide change and create seamless, collaborative experiences for clients and attorneys.

    • IPED

      Industry-leading conferences focused on affordable housing, tax credits, and more.

    • Legal Project Management

      Providing actionable information to support strategic decision-making.

    • Legally Green

      Teaming with clients to advance sustainable projects, mitigate the effects of climate change, and protect our planet.

    • Nixon Peabody Trust Company

      Offering a range of investment management and fiduciary services.

    • NP Capital Connector

      Bringing together companies and investors for tomorrow’s new deals.

    • NP Second Opinion

      Offering fresh insights on cases that are delayed, over budget, or off-target from the desired resolution.

    • NP Trial

      Courtroom-ready lawyers who can resolve disputes early on clients’ terms or prevail at trial before a judge or jury.

    • Social Impact

      Creating positive impact in our communities through increasing equity, access, and opportunity.

    • Women in Dealmaking

      We provide strategic counsel on complex corporate transactions and unite dynamic women in the dealmaking arena.

    1. Home
    2. Insights
    3. Alerts
    4. Illinois enacts new, broad-reaching employment legislation aimed at combatting discrimination, harassment, and retaliation

      Alerts

    Alert / Employment

    Illinois enacts new, broad-reaching employment legislation aimed at combatting discrimination, harassment, and retaliation

    Aug 23, 2019

    LinkedInX (Twitter)EmailCopy URL

    By Brian Alcala

    Earlier this month, Illinois passed yet another broad-reaching piece of employment legislation that will impact the way in which Illinois employers do business. This new legislation, enacted with the purpose of “securing individuals’ freedom from unlawful discrimination and harassment in the workplace,” amends several existing laws, including the Illinois Human Rights Act, the Victims’ Economic Security and Safety Act, and the Uniform Arbitration Act. It also creates three new laws, including the Workplace Transparency Act, the Sexual Harassment Victim Representation Act, and the Hotel and Casino Employee Safety Act.

    Most of these new requirements go into effect on January 1, 2020, with the main exception being certain provisions applicable to the service industry (i.e., hotels, restaurants/bars, casinos, etc.), which go into effect immediately. A review of some of these important new requirements is as follows:

    The Workplace Transparency Act

    The Workplace Transparency Act (“WTA”) creates several new prohibitions and obligations pertaining to employment-related agreements entered into, modified, or extended on or after January 1, 2020, including relating to non-disclosure provisions, non-disparagement provisions, arbitration agreements, and settlement and termination agreements.

    Non-disclosure and non-disparagement clauses

    Under the WTA, no agreement may contain a non-disclosure provision that prohibits, prevents, or otherwise restricts any current, former, or prospective employee from reporting allegations of discrimination, harassment, or retaliation to any federal, state, or local agency.

    Further, no agreement may include a non-disparagement provision that prohibits an employee or prospective employee from making truthful statements or disclosures about alleged unlawful employment practices.

    Any agreement or waiver that is a mutual condition of employment or continued employment may include these provisions, but only if it demonstrates “actual, knowing, and bargained-for consideration” from both parties, and acknowledges the right of the employee/prospective employee to: (1) report any good faith allegations of discrimination, harassment, or retaliation to the relevant governmental agencies; (2) report any good faith allegations of criminal conduct to the relevant authorities; (3) participate in a proceeding with the relevant agency charged with enforcing discrimination laws; (4) make any truthful statements or disclosures required by the law; and (5) request or receive confidential legal advice.

    Settlement and termination agreements

    An employer may enter into settlement agreements with any employee, prospective employee, or former employee that include a confidentiality provision covering discrimination, harassment, or retaliation claims, but only under very limited circumstances. Specifically, the following requirements must be met:

    • confidentiality is the documented preference of the employee and is mutually beneficial to both parties;
    • the employer notifies the employee in writing of his or her right to have any attorney review the agreement before it is executed;
    • valid consideration is provided in exchange for confidentiality;
    • the agreement does not waive any claims of discrimination, harassment, or retaliation accruing after the date of the agreement;
    • the employee is given 21 days to review the written agreement; and
    • the employee is given seven days to revoke the agreement following his/her execution of the agreement, and the agreement is not valid/enforceable until the revocation period has expired (unless the employee knowingly and voluntarily waives the revocation period).

    An employer is prohibited from unilaterally including any clause that prohibits the employee, prospective employee, or former employee from making truthful statements or disclosures regarding discrimination, harassment, or retaliation.

    Arbitration agreements

    Pursuant to the WTA, agreements to arbitrate are presumptively invalid, expressly providing that any agreement that is a unilateral condition of employment or continued employment cannot require an employee (or prospective employee) to waive or arbitrate any discrimination, harassment, or retaliation claims.

    We anticipate legal challenges to this provision and time will tell if it withstands legal scrutiny.

    The Illinois Human Rights Act Amendments

    This new legislation also includes multiple amendments to the Illinois Human Rights Act (“IHRA”).

    First, the IHRA is amended to clarify that discrimination and harassment may be based on an individuals’ actual or “perceived” membership in a protected class.

    Second, the IHRA expands the definition of “working environment” such that it is no longer “limited to a physical location an employee is assigned to perform his or her duties.”

    Third, it clarifies that employers are only liable for discrimination or harassment by nonmanagerial and nonsupervisory employees if the employer becomes aware of the conduct and fails to take “reasonable corrective measures.”

    Fourth, it expands the IHRA protections to independent contractors and consultants.

    Fifth, it creates new disclosure requirements. Beginning on July 1, 2020, and continuing on each July 1 thereafter, each employer that has had an adverse judgment or administrative ruling against it during that preceding calendar year must disclose the same to the Illinois Department of Human Rights. Specifically, the employer must disclose:

    • the total number of adverse judgments or administrative rulings during the previous year;
    • whether equitable relief was ordered against the employer; and
    • how many of those adverse judgments or administrative rulings fall into various categories, including sex, race, color, national origin, etc.

    These new disclosures are exempt from discovery pursuant to the Freedom of Information Act, but the IDHR will publish a general report each year aggregating the information from employers.

    Sixth, it provides the IDHR with additional discovery tools when investigating state discrimination, harassment, and retaliation claims, including permitting the IDHR to discover information pertaining to settlements of discrimination, harassment, and retaliation over the last five years.

    Training requirements

    The new legislation also amends the IHRA to add in specific requirements for employee training. Specifically, all Illinois employers, regardless of size, will be required to provide anti-harassment training to its employees. A model training program will be available from the IDHR.

    Next steps

    In order to get fully up to speed, Illinois employers need to take a hard look at their employment-related agreements and policies.

    Locations

    Chicago

    Practices

    Labor, Employment & BenefitsLabor & Employment LitigationWorkplace Policies, Procedures & Training

    Insights And Happenings

    • Article

      Corporate Transparency Act — First set of final regulations released and deadlines set for compliance under New Beneficial Owner Reporting Rules

      Oct 5, 2022
    • Alert

      Court rejects a student’s Title IX claim alleging retaliation based upon her participation in a sexual harassment investigation

      Feb 24, 2020
    • Alert

      Recreational marijuana in Illinois is almost here: What employers need to know

      Dec 13, 2019
    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

    Subscribe to stay informed of the latest legal news, alerts, and business trends.Subscribe

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    • Cookie Preferences
    • Privacy Policy
    • Terms of Use
    • Accessibility Statement
    • Statement of Client Rights
    • Purchase Order Terms & Conditions
    • Nixon Peabody International LLC
    • PAL
    © 2025 Nixon Peabody. All rights reserved