Discrimination and Harassment Policies and Procedures

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August 23, 2018
Author: Julie A. Proscia
Organization: SmithAmundsen LLC

I. What Are Harassment And Discrimination Under Federal And State Laws
Workplace harassment is a form of discrimination that is prohibited by federal, state, and even some local laws. For example, federal law prohibits discrimination based on sex (including sexual harassment), race, national origin, religion, age, disability, genetic information, and retaliation. In addition to the foregoing prohibitions, Illinois State law also prohibits discrimination on the basis of sexual orientation (includes actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity), ancestry, marital status, unfavorable military discharge, military status, arrest records and citizen status. Moreover, local ordinances such as the Cook County Human Rights Ordinance make such harassment unlawful and protect additional classes of individuals based on parental status and source of income.

In today’s marketplace, it is no longer enough to know what types of conduct are prohibited. Prudent employers will make clear that discrimination and harassment are prohibited and will not be tolerated in the workplace. Failing to do so may subject an employer to a legal claim that, while defensible, will be costly in terms of legal fees, lost time, and community image. Moreover, prudent employers will focus on eradicating all unlawful harassment – not merely sexual harassment.

II. Overview of Title VII, ADA(AA), OWBPA, GINA, and ADEA
A. Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII makes it unlawful for an employer to discriminate against an applicant/employee with respect to hiring, firing, promotion, or any other terms or conditions of employment on the basis of that employee’s race, color, religion, sex or national origin. Title VII also forbids sexual harassment.

Title VII applies to employers who have 15 or more employees and are engaged in an industry affecting commerce. The phrase “industry affecting commerce” has been interpreted to include virtually every business.

B. Americans with Disabilities Act of 1990 and its Amendments (ADA(AA))
The Americans with Disabilities Act of 1990 prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, promotion, compensation, job training, or any other terms and conditions of employment. The ADA applies to employers with 15 or more employees, including employment agencies and to labor organizations.

Employers do not have to make accommodations which would place an undue hardship on the business, or which would not allow the employee to become able to perform the essential job functions. An “undue hardship” is a defense where an accommodation requires significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and nature and structure of its operations.

On January 1, 2009, the Americans with Disabilities Act Amendments Act of 2008 went into effect. The effect of these amendments make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

C. The Age Discrimination in Employment Act of 1967 (ADEA)
Under this Act, employers are prohibited from discriminating against employees who are 40 years of age or older with respect to hiring, firing, promotion, or any other terms or conditions of employment. The Act does not protect workers under age of 40; therefore, it is not unlawful for an employer to favor an older worker over a younger one.

Moreover, age must be the “but for” cause of an action to be unlawful under the ADEA. The ADEA contains five specific exceptions to its prohibition against age discrimination. It is not unlawful for an employer to take such actions where:

  • Age is a bona fide occupational qualification reasonably necessary to the operation of its business;
  • The action is based on reasonable factors other than age;
  • The action is in observance of a bona fide seniority system;
  • The action is in observance of a bona fide employee benefit plan; or
  • The employer has good cause to discipline or discharge the employee.

The ADEA applies to employers who have 20 or more employees and are engaged in an industry affecting commerce.

D. The Older Workers Benefit Protection Act of 1990 (OWBPA)
The Older Workers Benefit Protection Act of 1990 amends the ADEA to prohibit age discrimination in employee benefits (i.e., severance benefits) and also establishes minimum standards for an employee’s knowing and voluntary waiver of an ADEA claim.

When employees are over 40 years of age, the provisions of the OWPBA must be complied with in order for a release of ADEA claims to be valid (i.e., “knowing and voluntary”). For a waiver of an individual’s rights under the ADEA to be “knowing and voluntary,” the OWBPA provides:

  • The release must be in writing and written in understandable language.
  • The employee must receive consideration in addition to anything he or she is already entitled to.
  • The agreement must specifically refer to the ADEA.
  • The agreement cannot waive rights or claims that might arise after the date the agreement is signed.
  • The employee must be advised in the agreement that he or she has the right to consult with an attorney before signing the waiver.
  • The employee must be given sufficient time to decide whether or not to sign the release.
    - In order for the agreement to be effective, the employee must be given at least 21 days to consider it.
    - If a group or class is being offered severance and a release, and in most reduction in force situations, this period must be at least 45 days. If the 45- day rule applies, usually ADEA statistical data must also be attached to the agreement.
  • The release agreement must also provide for a period of at least 7 days following the execution, for the individual to revoke the agreement. The agreement shall not become effective or enforceable until the revocation period has expired.

E. Genetic Information Nondiscrimination Act of 2008 (GINA)
Under Title II of the Genetic Information Nondiscrimination Act, it is illegal to discriminate against applicants or employees because of their genetic information. Genetic information is broadly defined under the Act to include information about (1) an individual’s genetic tests, (2) the genetic tests of the individual’s family members, and (3) the manifestation of a disease or disorder in a family member. The law makes it unlawful to discriminate against individuals based on their “genetic information” in hiring, firing, and other terms and conditions of employment.

Please note that Illinois amended its Genetic Information Privacy Act to mirror the provisions in GINA. Employers must keep genetic information confidential in the same manner set forth in the ADA and must obtain the employee’s written consent before disclosing genetic information.

III. Overview of State and Local Laws and Administrative Agencies
A. State Laws and Administrative Agencies
a. Illinois Human Rights Act (IHRA)
The Illinois Human Rights Act prohibits employers from discrimination in employment. The IHRA is structured similar to Title VII. The Illinois Human Rights Act prohibits discrimination based on race, color, religion, sex, sexual harassment, national origin, age, ancestry, order of protection status, marital status, sexual orientation, military status, arrest record, citizenship status, language, and/or pregnancy.

The IHRA differs from Title VII in that it further recognizes sexual orientation, ancestry marital status, military status, arrest records, and citizenship as protected classes.

b. Illinois Department of Human Rights
Employees who believe they have been discriminated against must file a charge of discrimination with the Illinois Department of Human Rights (IDHR) within 180 days of the date that the alleged discrimination took place in all cases except housing discrimination (one year filing deadline). Generally, employers charged with discrimination under the IHRA must have at least fifteen (15) employees in the State of Illinois for the IDHR to investigate. However, the IDHR will investigate if the employer is a public contractor, a unit of State government, or the charge alleges sexual harassment, retaliation, or physical or mental disability where an employer employs one (1) employee.

The processing of a charge at the IDHR involves several steps:

  • Intake
  • Mediation (optional)
  • Investigation – including a Fact-finding Conference
  • Findings and results
  • Legal review (Illinois Human Rights Commission or circuit court)

Once a charge of discrimination is filed with the IDHR, the state agency has 365 days to investigate the charge. If at the end of that 365-day period, the Department has not filed a Complaint or a notice of dismissal, the employee has 90 days to file a complaint with the Illinois Human Rights Commission or in circuit court.

The IDHR will often contact the employer shortly after the charge is filed to obtain the employer’s version of events. It is important for employers to take these charges and the IDHR’s investigation seriously. Before responding to the IDHR, employers should investigate the situation fully. This will later assist the employer in responding to the charge and denying each allegation made with specific reasons of why the allegation is untrue.

B. Local Ordinances and Administrative Agencies
In addition to the state agencies, employers should be aware that there are also local antidiscrimination agencies. For instance, the Cook County Commission on Human Rights enforces the Cook County Human Rights Ordinance.

a. Cook County Human Rights Ordinance
The Cook County Human Rights Ordinance is designed to protect all people who live and work in the Cook County from discrimination and sexual harassment in employment, public accommodations, housing, credit transactions, county services, and contracting. The Ordinance prohibits these forms of discrimination when they are based upon a person’s race, color, sex, age, religion, disability, national origin, ancestry, sexual orientation, marital status, parental status, military discharge status, source of income, housing status, or gender identity.

b. Cook County Commission on Human Rights
The Commission on Human Rights enforces the Cook County Human Rights Ordinance by investigating, conciliating, and conducting hearings on complaints of discrimination. A complaint filed with the Cook County Commission must contain a statement of the facts alleged to constitute a violation of the Ordinance, including the date and place where the discriminating conduct occurred, and the basis of the discrimination. Like the IDHR, complaints filed with the Cook County Commission must be filed within 180 days of the date of the alleged discrimination.

The Commission shares jurisdiction over many complaints with other enforcement agencies, such as the Illinois Department of Human Rights and the Equal Employment Opportunity Commission.

IV. What You Should Have In Your Harassment/Discrimination Policy
Regarding Investigations
A properly drafted and enforced anti-harassment and discrimination policy may raise an affirmative defense to liability or damages. This is known as the Ellerth/Farragher defense. By having an anti-harassment and discrimination policy, an employer can show that it “exercised reasonable care to prevent and correct promptly any harassing behavior by an adopted and enforced policy.” Moreover, by having a clear complaint procedure that is known and made available to employees, an employer can show that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid unnecessary harm by failing to report the harassment.

All employers should provide each and every employee with a copy of its harassment/ discrimination policy and complaint procedure, and redistribute it periodically. The policy and complaint procedures should be written in a manner that will be easily understood by all employees.
A well-drafted anti-harassment/discrimination policy will contain at a minimum:

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  • An explanation/definition of unlawful harassment and discrimination and prohibited conduct;
  • Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
  • A clear complaint process that provides accessible avenues of complaint;
  • Lays out a complaint process that provides a prompt, thorough, and impartial investigation;
  • Describes investigation process; and
  • Provide assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred and describes disciplinary action.

V. What, If Any, Training Should You Do Regarding Employees and Supervisors
Today, training supervisors and managers is a business necessity. Employers have a duty to educate their supervisors and managers regarding their obligations to maintain a workplace free of unlawful harassment and discrimination. Failure to educate supervisors regarding their responsibilities and the employer’s liabilities and failure to make employees aware of the employer’s policies, procedures, and compliance commitment has a negative impact on the employer’s bottom line through litigation fees and costs, employee turnover, low morale, decrease in productivity, and workplace discontent and disruption.

Such training is also critical to prevent employer liability. Under the IHRA, employers are strictly liable for harassing conduct of its “managers” and “supervisors.” This includes “hostile work environment claims,” even where the alleged harasser had no authority to affect the terms and conditions of the complaining employee’s employment. Thus, under Illinois law, employers are left without any defenses for supervisors who engage in harassing conduct with employees that do not even repot to that harassing supervisor.

Therefore, supervisors and managers must be regularly trained to identify and recognize discriminatory or harassing conduct in the workplace, to avoid such conduct, and on how to respond to issue(s) they observe or that are otherwise reported to them. Supervisory training should emphasize all types of unlawful harassment – not just sexual harassment. The better-trained supervisors are to identify potential issues, the more quickly and effectively an employer can initiate an impartial and thorough investigation and take prompt corrective action, if warranted, to resolve the complaint.

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