HB4816 102ND GENERAL ASSEMBLY

LRB102 25914 LNS 35275 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB4816

Introduced 1/27/2022, by Rep. Mark Batinick

SYNOPSIS AS INTRODUCED:

110 ILCS 205/9.16	from Ch. 144, par. 189.16
775 ILCS 5/2-101
775 ILCS 5/2-105	from Ch. 68, par. 2-105

Amends the Illinois Human Rights Act. Provides that a university or community college under the Board of Higher Education Act may, at the discretion of its governing board, adopt a 5% plus factor with respect to a minority-owned business, women-owned business, and business owned by a person with a disability. Provides that the use of a 5% plus factor shall require every bid price that is submitted by an eligible bidder to be multiplied by 0.95 for purposes of bid selection. Provides that a university or community college may adopt reciprocity with respect to the procurement certifications operated by the City of Chicago with respect to a minority-owned business, women-owned business, or business owned by a person with a disability. Makes a conforming change in the Board of Higher Education Act.

A BILL FOR

AN ACT concerning human rights.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Board of Higher Education Act is amended by changing Section 9.16 as follows:

(110 ILCS 205/9.16) (from Ch. 144, par. 189.16)

Sec. 9.16. Underrepresentation of certain groups in higher education. To require public institutions of higher education to develop and implement methods and strategies to increase the participation of minorities, women and individuals with disabilities who are traditionally underrepresented in education programs and activities. For the purpose of this Section, minorities shall mean persons who are citizens of the United States or lawful permanent resident aliens of the United States and who are any of the following:

(1) American Indian or Alaska Native (a person having origins in any of the original peoples of North and South America, including Central America, and who maintains tribal affiliation or community attachment).

(2) Asian (a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent, including, but not limited to, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam).

(3) Black or African American (a person having origins in any of the black racial groups of Africa).

(4) Hispanic or Latino (a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race).

(5) Native Hawaiian or Other Pacific Islander (a person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands).

The Board shall adopt any rules necessary to administer this Section. The Board shall also do the following:

(a) require all public institutions of higher education to develop and submit plans for the implementation of this Section;

(b) conduct periodic review of public institutions of higher education to determine compliance with this Section; and if the Board finds that a public institution of higher education is not in compliance with this Section, it shall notify the institution of steps to take to attain compliance;

(c) provide advice and counsel pursuant to this Section;

(d) conduct studies of the effectiveness of methods and strategies designed to increase participation of students in education programs and activities in which minorities, women and individuals with disabilities are traditionally underrepresented, and monitor the success of students in such education programs and activities;

(e) encourage minority student recruitment and retention in colleges and universities. In implementing this paragraph, the Board shall undertake but need not be limited to the following: the establishment of guidelines and plans for public institutions of higher education for minority student recruitment and retention, the review and monitoring of minority student programs implemented at public institutions of higher education to determine their compliance with any guidelines and plans so established, the determination of the effectiveness and funding requirements of minority student programs at public institutions of higher education, the dissemination of successful programs as models, and the encouragement of cooperative partnerships between community colleges and local school attendance centers which are experiencing difficulties in enrolling minority students in four-year colleges and universities;

(f) mandate all public institutions of higher education to submit data and information essential to determine compliance with this Section. The Board shall prescribe the format and the date for submission of this data and any other education equity data; and

(g) report to the General Assembly and the Governor annually with a description of the plans submitted by each public institution of higher education for implementation of this Section, including financial data relating to the most recent fiscal year expenditures for specific minority programs, the effectiveness of such plans and programs and the effectiveness of the methods and strategies developed by the Board in meeting the purposes of this Section, the degree of compliance with this Section by each public institution of higher education as determined by the Board pursuant to its periodic review responsibilities, and the findings made by the Board in conducting its studies and monitoring student success as required by paragraph d) of this Section. With respect to each public institution of higher education such report also shall include, but need not be limited to, information with respect to each institution's minority program budget allocations; minority student admission, retention and graduation statistics; admission, retention, and graduation statistics of all students who are the first in their immediate family to attend an institution of higher education; number of financial assistance awards to undergraduate and graduate minority students; and minority faculty representation. This paragraph shall not be construed to prohibit the Board from making, preparing or issuing additional surveys or studies with respect to minority education in Illinois; and

(h) require all public institutions of higher education to comply with subsection (B) or (B-5) of the Illinois Human Rights Act.

(Source: P.A. 102-465, eff. 1-1-22.)

Section 10. The Illinois Human Rights Act is amended by changing Sections 2-101 and 2-105 as follows:

(775 ILCS 5/2-101)

Sec. 2-101. Definitions. The following definitions are applicable strictly in the context of this Article.

(A) Employee.

(1) "Employee" includes:

(a) Any individual performing services for remuneration within this State for an employer;

(b) An apprentice;

(c) An applicant for any apprenticeship.

For purposes of subsection (D) of Section 2-102 of this Act, "employee" also includes an unpaid intern. An unpaid intern is a person who performs work for an employer under the following circumstances:

(i) the employer is not committed to hiring the person performing the work at the conclusion of the intern's tenure;

(ii) the employer and the person performing the work agree that the person is not entitled to wages for the work performed; and

(iii) the work performed:

(I) supplements training given in an educational environment that may enhance the employability of the intern;

(II) provides experience for the benefit of the person performing the work;

(III) does not displace regular employees;

(IV) is performed under the close supervision of existing staff; and

(V) provides no immediate advantage to the employer providing the training and may occasionally impede the operations of the employer.

(2) "Employee" does not include:

(a) (Blank);

(b) Individuals employed by persons who are not "employers" as defined by this Act;

(c) Elected public officials or the members of their immediate personal staffs;

(d) Principal administrative officers of the State or of any political subdivision, municipal corporation or other governmental unit or agency;

(e) A person in a vocational rehabilitation facility certified under federal law who has been designated an evaluee, trainee, or work activity client.

(B) Employer.

(1) "Employer" includes:

(a) Any person employing one or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation;

(b) Any person employing one or more employees when a complainant alleges civil rights violation due to unlawful discrimination based upon his or her physical or mental disability unrelated to ability, pregnancy, or sexual harassment;

(c) The State and any political subdivision, municipal corporation or other governmental unit or agency, without regard to the number of employees;

(d) Any party to a public contract without regard to the number of employees;

(e) A joint apprenticeship or training committee without regard to the number of employees.

(2) "Employer" does not include any place of worship, religious corporation, association, educational institution, society, or non-profit nursing institution conducted by and for those who rely upon treatment by prayer through spiritual means in accordance with the tenets of a recognized church or religious denomination with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such place of worship, corporation, association, educational institution, society or non-profit nursing institution of its activities.

(C) Employment Agency. "Employment Agency" includes both public and private employment agencies and any person, labor organization, or labor union having a hiring hall or hiring office regularly undertaking, with or without compensation, to procure opportunities to work, or to procure, recruit, refer or place employees.

(D) Labor Organization. "Labor Organization" includes any organization, labor union, craft union, or any voluntary unincorporated association designed to further the cause of the rights of union labor which is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or apprenticeships or applications for apprenticeships, or of other mutual aid or protection in connection with employment, including apprenticeships or applications for apprenticeships.

(E) Sexual Harassment. "Sexual harassment" means any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

For purposes of this definition, the phrase "working environment" is not limited to a physical location an employee is assigned to perform his or her duties.

(E-1) Harassment. "Harassment" means any unwelcome conduct on the basis of an individual's actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, unfavorable discharge from military service, citizenship status, or work authorization status that has the purpose or effect of substantially interfering with the individual's work performance or creating an intimidating, hostile, or offensive working environment. For purposes of this definition, the phrase "working environment" is not limited to a physical location an employee is assigned to perform his or her duties.

(F) Religion. "Religion" with respect to employers includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

(G) Public Employer. "Public employer" means the State, an agency or department thereof, unit of local government, school district, instrumentality or political subdivision.

(H) Public Employee. "Public employee" means an employee of the State, agency or department thereof, unit of local government, school district, instrumentality or political subdivision. "Public employee" does not include public officers or employees of the General Assembly or agencies thereof.

(I) Public Officer. "Public officer" means a person who is elected to office pursuant to the Constitution or a statute or ordinance, or who is appointed to an office which is established, and the qualifications and duties of which are prescribed, by the Constitution or a statute or ordinance, to discharge a public duty for the State, agency or department thereof, unit of local government, school district, instrumentality or political subdivision.

(J) Eligible Bidder. Except as defined in subsection (B-5) of Section 2-105, "eligible "Eligible bidder" means a person who, prior to contract award or prior to bid opening for State contracts for construction or construction-related services, has filed with the Department a properly completed, sworn and currently valid employer report form, pursuant to the Department's regulations. The provisions of this Article relating to eligible bidders apply only to bids on contracts with the State and its departments, agencies, boards, and commissions, and the provisions do not apply to bids on contracts with units of local government or school districts.

(K) Citizenship Status. "Citizenship status" means the status of being:

(1) a born U.S. citizen;

(2) a naturalized U.S. citizen;

(3) a U.S. national; or

(4) a person born outside the United States and not a U.S. citizen who is not an unauthorized alien and who is protected from discrimination under the provisions of Section 1324b of Title 8 of the United States Code, as now or hereafter amended.

(L) Work Authorization Status. "Work authorization status" means the status of being a person born outside of the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States.

(Source: P.A. 101-221, eff. 1-1-20; 101-430, eff. 7-1-20; 102-233, eff. 8-2-21; 102-558, eff. 8-20-21.)

(775 ILCS 5/2-105) (from Ch. 68, par. 2-105)

Sec. 2-105. Equal Employment Opportunities; Affirmative Action.

(A) Public Contracts. Every party to a public contract and every eligible bidder shall:

(1) Refrain from unlawful discrimination and discrimination based on citizenship status in employment and undertake affirmative action to assure equality of employment opportunity and eliminate the effects of past discrimination;

(2) Comply with the procedures and requirements of the Department's regulations concerning equal employment opportunities and affirmative action;

(3) Provide such information, with respect to its employees and applicants for employment, and assistance as the Department may reasonably request;

(4) Have written sexual harassment policies that shall include, at a minimum, the following information: (i) the illegality of sexual harassment; (ii) the definition of sexual harassment under State law; (iii) a description of sexual harassment, utilizing examples; (iv) the vendor's internal complaint process including penalties; (v) the legal recourse, investigative, and complaint process available through the Department and the Commission; (vi) directions on how to contact the Department and Commission; and (vii) protection against retaliation as provided by Sections 6-101 and 6-101.5 of this Act. A copy of the policies shall be provided to the Department upon request. Additionally, each bidder who submits a bid or offer for a State contract under the Illinois Procurement Code shall have a written copy of the bidder's sexual harassment policy as required under this paragraph (4). A copy of the policy shall be provided to the State agency entering into the contract upon request.

(B) State Agencies. Every State executive department, State agency, board, commission, and instrumentality shall:

(1) Comply with the procedures and requirements of the Department's regulations concerning equal employment opportunities and affirmative action. ;

(2) Provide such information and assistance as the Department may request.

(3) Establish, maintain, and carry out a continuing affirmative action plan consistent with this Act and the regulations of the Department designed to promote equal opportunity for all State residents in every aspect of agency personnel policy and practice. For purposes of these affirmative action plans, the race and national origin categories to be included in the plans are: American Indian or Alaska Native, Asian, Black or African American, Hispanic or Latino, Native Hawaiian or Other Pacific Islander.

This plan shall include a current detailed status report:

(a) indicating, by each position in State service, the number, percentage, and average salary of individuals employed by race, national origin, sex and disability, and any other category that the Department may require by rule;

(b) identifying all positions in which the percentage of the people employed by race, national origin, sex and disability, and any other category that the Department may require by rule, is less than four-fifths of the percentage of each of those components in the State work force;

(c) specifying the goals and methods for increasing the percentage by race, national origin, sex, and disability, and any other category that the Department may require by rule, in State positions;

(d) indicating progress and problems toward meeting equal employment opportunity goals, including, if applicable, but not limited to, Department of Central Management Services recruitment efforts, publicity, promotions, and use of options designating positions by linguistic abilities;

(e) establishing a numerical hiring goal for the employment of qualified persons with disabilities in the agency as a whole, to be based on the proportion of people with work disabilities in the Illinois labor force as reflected in the most recent employment data made available by the United States Census Bureau.

(4) If the agency has 1000 or more employees, appoint a full-time Equal Employment Opportunity officer, subject to the Department's approval, whose duties shall include:

(a) Advising the head of the particular State agency with respect to the preparation of equal employment opportunity programs, procedures, regulations, reports, and the agency's affirmative action plan.

(b) Evaluating in writing each fiscal year the sufficiency of the total agency program for equal employment opportunity and reporting thereon to the head of the agency with recommendations as to any improvement or correction in recruiting, hiring or promotion needed, including remedial or disciplinary action with respect to managerial or supervisory employees who have failed to cooperate fully or who are in violation of the program.

(c) Making changes in recruitment, training and promotion programs and in hiring and promotion procedures designed to eliminate discriminatory practices when authorized.

(d) Evaluating tests, employment policies, practices, and qualifications and reporting to the head of the agency and to the Department any policies, practices and qualifications that have unequal impact by race, national origin as required by Department rule, sex, or disability or any other category that the Department may require by rule, and to assist in the recruitment of people in underrepresented classifications. This function shall be performed in cooperation with the State Department of Central Management Services.

(e) Making any aggrieved employee or applicant for employment aware of his or her remedies under this Act.

In any meeting, investigation, negotiation, conference, or other proceeding between a State employee and an Equal Employment Opportunity officer, a State employee (1) who is not covered by a collective bargaining agreement and (2) who is the complaining party or the subject of such proceeding may be accompanied, advised and represented by (1) an attorney licensed to practice law in the State of Illinois or (2) a representative of an employee organization whose membership is composed of employees of the State and of which the employee is a member. A representative of an employee, other than an attorney, may observe but may not actively participate, or advise the State employee during the course of such meeting, investigation, negotiation, conference, or other proceeding. Nothing in this Section shall be construed to permit any person who is not licensed to practice law in Illinois to deliver any legal services or otherwise engage in any activities that would constitute the unauthorized practice of law. Any representative of an employee who is present with the consent of the employee, shall not, during or after termination of the relationship permitted by this Section with the State employee, use or reveal any information obtained during the course of the meeting, investigation, negotiation, conference, or other proceeding without the consent of the complaining party and any State employee who is the subject of the proceeding and pursuant to rules and regulations governing confidentiality of such information as promulgated by the appropriate State agency. Intentional or reckless disclosure of information in violation of these confidentiality requirements shall constitute a Class B misdemeanor.

(5) Establish, maintain, and carry out a continuing sexual harassment program that shall include the following:

(a) Develop a written sexual harassment policy that includes at a minimum the following information: (i) the illegality of sexual harassment; (ii) the definition of sexual harassment under State law; (iii) a description of sexual harassment, utilizing examples; (iv) the agency's internal complaint process including penalties; (v) the legal recourse, investigative, and complaint process available through the Department and the Commission; (vi) directions on how to contact the Department and Commission; and (vii) protection against retaliation as provided by Section 6-101 of this Act. The policy shall be reviewed annually.

(b) Post in a prominent and accessible location and distribute in a manner to assure notice to all agency employees without exception the agency's sexual harassment policy. Such documents may meet, but shall not exceed, the 6th grade literacy level. Distribution shall be effectuated within 90 days of the effective date of this amendatory Act of 1992 and shall occur annually thereafter.

(c) Provide training on sexual harassment prevention and the agency's sexual harassment policy as a component of all ongoing or new employee training programs.

(6) Notify the Department 30 days before effecting any layoff. Once notice is given, the following shall occur:

(a) No layoff may be effective earlier than 10 working days after notice to the Department, unless an emergency layoff situation exists.

(b) The State executive department, State agency, board, commission, or instrumentality in which the layoffs are to occur must notify each employee targeted for layoff, the employee's union representative (if applicable), and the State Dislocated Worker Unit at the Department of Commerce and Economic Opportunity.

(c) The State executive department, State agency, board, commission, or instrumentality in which the layoffs are to occur must conform to applicable collective bargaining agreements.

(d) The State executive department, State agency, board, commission, or instrumentality in which the layoffs are to occur should notify each employee targeted for layoff that transitional assistance may be available to him or her under the Economic Dislocation and Worker Adjustment Assistance Act administered by the Department of Commerce and Economic Opportunity. Failure to give such notice shall not invalidate the layoff or postpone its effective date.

As used in this subsection (B), "disability" shall be defined in rules promulgated under the Illinois Administrative Procedure Act.

The provisions of this subsection do not apply to a purchasing institution of higher education that has adopted a 5% plus factor under subsection (B-5).

(B-5) State Agencies; Public Higher Education. A university or community college listed in Section 1 of the Board of Higher Education Act, at the discretion of its governing board, may adopt a 5% plus factor with respect to a minority-owned business, women-owned business, or business owned by a person with a disability. The use of a 5% plus factor shall require every bid price that is submitted by an eligible bidder to be multiplied by 0.95 for purposes of bid selection.

A university or community college listed in Section 1 of the Board of Higher Education Act, at the direction of the governing board, may adopt reciprocity with respect to the procurement certifications operated by the City of Chicago with respect to a minority-owned business, women-owned business, or business owned by a person with a disability.

This subsection applies to the purchasing institution of higher education and the provisions of subsection (B) are suspended. However, if the plus factor ceases to be applied, the provisions of this subsection shall automatically be suspended and the institution of higher education shall be subject to subsection (B).

As used in this subsection:

"Business owned by a person with a disability" has the same meaning as used in Section 2 of the Business Enterprise for Minorities, Women, and Persons with Disabilities Act.

"Eligible bidder" has the meaning provided in subsection (J) of Section 2-101 and also means a business granted standing under Chapter 2-92 of the Municipal Code of Chicago.

"Minority-owned business" means a has the same meaning as used in Section 2 of the Business Enterprise for Minorities, Women, and Persons with Disabilities Act.

"Procurement certifications operated by the City of Chicago" refers to the certification of eligible businesses under Section 2-92-495 of the Municipal Code of Chicago.

"Women-owned business" has the same meaning as used in Section 2 of the Business Enterprise for Minorities, Women, and Persons with Disabilities Act.

(C) Civil Rights Violations. It is a civil rights violation for any public contractor or eligible bidder to:

(1) fail to comply with the public contractor's or eligible bidder's duty to refrain from unlawful discrimination and discrimination based on citizenship status in employment under subsection (A)(1) of this Section; or

(2) fail to comply with the public contractor's or eligible bidder's duties of affirmative action under subsection (A) of this Section, provided however, that the Department has notified the public contractor or eligible bidder in writing by certified mail that the public contractor or eligible bidder may not be in compliance with affirmative action requirements of subsection (A). A minimum of 60 days to comply with the requirements shall be afforded to the public contractor or eligible bidder before the Department may issue formal notice of non-compliance.

(D) As used in this Section:

(1) "American Indian or Alaska Native" means a person having origins in any of the original peoples of North and South America, including Central America, and who maintains tribal affiliation or community attachment.

(2) "Asian" means a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent, including, but not limited to, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.

(3) "Black or African American" means a person having origins in any of the black racial groups of Africa.

(4) "Hispanic or Latino" means a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race.

(5) "Native Hawaiian or Other Pacific Islander" means a person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.

(Source: P.A. 102-362, eff. 1-1-22; 102-465, eff. 1-1-22; revised 9-22-21.)