Our September 10, 2019, article on the Illinois Workplace Transparency Act (IWTA) focused on various provisions of the expansive legislation signed into law by Governor J. B. Pritzker on August 9, 2019. Though most provisions of the IWTA took effect on January 1, 2020, some were only recently activated. Among the most significant are new reporting requirements for Illinois employers.

Even after the law was enacted, many questions still remained. The Illinois Department of Human Rights’s (IDHR) recent publication of answers to frequently asked questions (FAQs) sheds helpful light on the specifics of the IWTA’s reporting mandate. What follows is information the IDHR provided in the new FAQs, as well as some additional helpful notes.

Question 1. Which employers are subject to the reporting requirements?

Answer 1. Almost all employers must report. By definition, an “employer” includes “any person employing one or more workers in Illinois.” Labor organizations such as unions are also included in the definition, as are the State of Illinois, Illinois municipal organizations, and other Illinois governmental units and agencies.

Q2. When must employers begin reporting?

A2. The first deadline is October 31, 2020. By that date, employers must report for the period January 1, 2019, to December 31, 2019.

The next reporting deadline will be July 1, 2021, for the year 2020, and July 1, 2022, for the year 2021. In other words, employers are given a six-month period in which to report for the previous year.

Q3. What must be reported?

A3. Employers must report the number of adverse judgments and administrative rulings entered against them during the previous year in each of several categories discussed below.

Employers must also report whether any equitable relief was ordered.

Helpful note: Employers must also report rulings and judgments entered in favor of nonemployee contractors and consultants on claims of sexual harassment.

Q4. What is equitable relief?

A4. Equitable relief is a nonmonetary award. Examples of equitable relief include a reinstatement of employment or an order to provide accommodation.

Q5. Under the IWTA, what are “adverse judgments and administrative rulings”?

A5. Adverse judgments and administrative rulings are any final and nonappealable judgments issued in an employee’s favor and against an employer. Administrative rulings include final orders issued by the Illinois Human Rights Commission, the Cook County Commission on Human Rights, or the Chicago Commission on Human Relations. Examples of nonappealable judgments include those issued by state circuit courts and federal courts.

Q6. Are decisions of the Illinois Department of Employment Security considered adverse judgments and administrative rulings?

A6. No. The IDHR states that “[d]ecisions in unemployment insurance proceedings are not considered adverse judgments or administrative rulings, and need not be report included.”

Q7. What categories of adverse judgments and administrative rulings must be reported?

A7. Employers must report adverse rulings and judgments issued on claims of discrimination or harassment on the basis of

• sex;
• race;
• color;
• national origin;
• religion;
• age;
• disability;
• military status or unfavorable military discharge;
• sexual orientation or gender identity; or
• any other basis protected by the Illinois Human Rights Act.

Helpful note: For claims and cases that include several theories of recovery, including claims unrelated to harassment and discrimination, employers may want to scrutinize judgments to determine whether they were rendered on the basis of categories that must be reported.

Q8. Are employers required to report adverse judgments and administrative rulings entered in jurisdictions outside Illinois?

A8. Yes.

Q9. What if an employer has no adverse judgments or administrative rulings entered against it in the listed categories?

A9. According to the IDHR, there is no need to report for that year.

Q10. How do employers report?

A10. The IDHR provides Form IDHR 2-108, which is available at www.illinois.gov/dhr and can be submitted online to IDHR.WEBMAIL@ILLINOIS.GOV.

Q11. Are employers required to report settlements?

A11. No, but note that the IDHR has the right to request information regarding past settlements as part of investigations of pending charges of discrimination. The IDHR may request the number of settlements from “the preceding five years or less” at the direction of the agency.

Q12. Are employers required to report settlements concerning off-site harassment?

A12. Yes. If requested by the IDHR, employers must provide information on settlements arising not only from harassment and discrimination occurring in the workplace but also off-site incidents involving employees or executives.

Helpful note: Though only the number of adverse judgments and administrative rulings must be disclosed under this provision, employers may want to maintain additional data concerning the nature of the claims and the defenses asserted, in the event the IDHR seeks information as part of its investigation of a charge of discrimination.

Q13. Is there any information that employers are prohibited from reporting when making required disclosures?

A13. Employers may not identify the name of any victim of an act of alleged sexual harassment or unlawful discrimination.

Q14. What happens if an employer fails to make its disclosures?

A14. Failure to disclose can result in a 30-day notice from the IDHR mandating an explanation for the employer’s failure to comply. If the employer fails to comply after 30 days, penalties may be assessed based on the employer’s size, as follows:

• Employers with fewer than four employees face maximum penalties of $500 (first offense), $1,000 (second offense), and $3,000 (third and subsequent offenses).
• Employers with four or more employees face maximum penalties of $1,000 (first offense), $3,000 (second offense), and $5,000 (third and subsequent offenses).

Key Takeaways for Employers

Employers may want to be careful about recordkeeping, since accurate records will be important to ensure compliance with the IWTA’s reporting requirements.

In cases involving a variety of claims, employers may want to review all adverse judgments and administrative rulings with an eye toward possible reporting obligations.