Victims’ Economic Security and Safety Act’s Expansion to “Gender Violence”
By Daniel W. Myerson
The Victims’ Economic Security and Safety Act (“VESSA”) can have serious consequences for unwary employers. VESSA covers any person that employs at least one employee. 820 ILCS 180/10. It was originally designed for victims of domestic and sexual violence and provides strong protections for them. Public Act 101-220 has markedly expanded its potential applicability by adding “gender violence” to its protections.
FMLA-Style Leave. Victims and their family or household members may take up to 12 workweeks of unpaid leave to address the situation, similar in many ways to FMLA leave, including intermittent leave and reduced work schedules. 820 ILCS 180/20(a). This leave can be used for a variety of services, including medical attention or counseling, recovering from physical or psychological injuries, safety planning or relocation, and legal assistance or proceedings. 820 ILCS 180/20(a). Any such leave must be held “in the strictest confidence,” and the employee has rights to be restored to the same or equivalent position. 820 ILCS 180/20(d-e). Both interference and discrimination are prohibited. 820 ILCS 180/20(f); 820 ILCS 180/30(a).
ADA-Style Accommodations. VESSA also requires that employers make reasonable accommodations for victims and their family or household members, similar in many ways to the Americans with Disabilities Act. A victim or family member can request accommodations such as adjustment to job structure, transfers, modified schedules, leave, different seating, or implementation of a safety procedure. 820 ICLS 180/30(b). Employers must make a reasonable accommodation in a timely fashion unless they can demonstrate an undue hardship. Id.
Notification and Enforcement: Employers must post notices summarizing VESSA’s requirements, or they cannot argue an employee failed to inform them of eligibility for leave. 820 ILCS 180/40. Claims of violations are heard before the Department of Labor, and damages include attorney fees. 820 ILCS 180/35.
Implications of the Addition of “Gender Violence.” Effective January 1, 2020, VESSA’s protections are expanded from domestic and sexual violence (which was defined narrowly to specific criminal offenses) to also “gender violence.” “Gender violence” is as an act or threat of:
- violence or aggression satisfying the elements of any criminal offense in Illinois committed, at least in part, on the basis of a person’s actual or perceived sex or gender; or
- a physical intrusion or invasion of a sexual nature under coercive conditions satisfying the elements of any criminal offense in Illinois.
820 ILCS 180/10(12.5). This new definition has the potential to be broadly interpreted with complex ramifications. It especially has potential to become entangled in sexual harassment claims, combined with the offenses of assault and battery. See 720 ILCS 5/12-1; 12-3.
For instance, if an employee alleges a co-worker sexually harassed them, and in doing so engaged in physical contact of an insulting or provoking nature, or put them in apprehension thereof, they may potentially qualify under VESSA’s expanded protections. As a result, employers receiving sexual harassment claims must also now be wary of VESSA’s reach, potentially including rights to reasonable accommodations and leaves of absence for alleged victims.
Should you have any questions regarding VESSA or harassment matters, or require assistance with bringing your employment contracts and policies into compliance, please contact Colette Kopon at [email protected] or Daniel Myerson at [email protected].