AB 1825 Sex Harassment Trainer

While religious organizations are exempt from some of the anti-discrimination laws, they are not totally exempt.

For example, federal Title VII does not contain an express exemption for religious organizations. (Even so, courts have carved out a so-called "ministerial exception," recognizing the First Amendment right of religious organizations to determine who may speak on their behalf. For example, see Bias Not a Crisis in the Diocese.) Thus (except for "clerical" positions), religious organizations may be liable for discrimination and harassment under federal law.

California's FEHA has a much broader, but not absolute, exemption for religious associations and corporations. This is true because FEHA's definition of "employer" for both discrimination (Gov. Code §12926(d)) and harassment (Gov. Code §12940(j)(4)) exclude most religious associations and corporations (unless they operate a school or health care facility, in which case they may be covered).

Even so, the AB 1825 law (Gov. Code §12950.1) and regulations have their own separate definition of employer that does not include this exclusion for religious organizations.

Gov Code §12950.1(c) says: "For purposes of this section only, 'employer' means any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract...."

Similarly, the FEHC's AB 1825 regulations also do not exempt religious organizations. Title2 CCR §7288.0(a)(4) says an AB 1825 "employer" includes "any person engaged in any business or enterprise in California, who employs 50 or more employees to perform services for a wage or salary or contractors...."

As a result, religious organizations are AB 1825 "employers" and are not exempt from its training mandate. So, although they may be exempt from most of FEHA, religious organizations must provide AB 1825 training and may be liable under Title VII.

This analysis was confirmed by Ann Noel, the Fair Employment and Housing Commission's Executive and Legal Affairs Secretary (the executive officer and principal legal advisor for the Commission, and its chief administrative law judge) in conversation with this blogger on December 17, 2009. She explained the "carve out" for religious organizations under FEHA is not available under the AB 1825 law or regulations.

Should your AB 1825 training include subjects other than "sexual" harassment, and cover harassment based on race, religion, disability, and other protected characteristics? Yes, absolutely.

Although much of the popular focus of AB 1825 (Government Code section 12950.1) is on "sexual harassment" training, the content required to comply with the official AB 1825 regulations issued by the Fair Employment and Housing Commission (FEHC) is more complex.

According to 2 CCR section 7288.0(c), "the training mandated by California Government Code section 12950.1, shall include but is not limited to..." and then goes on to list eleven items. While most of the items refer to issues involving sexual harassment (including: statutes, cases, types of misconduct, remedies, strategies to prevent, practical examples, and company resources), the two hour requirement is not satisfied by sexual harassment alone.

For example, the FEHC regulation specifies the two hours must include "FEHA and Title VII statutory provisions and case law principles concerning the prohibition against and the prevention of unlawful sexual harassment, discrimination and retaliation in employment," the "limited confidentiality of the complaint process," the "employer’s obligation to conduct an effective workplace investigation of a harassment complaint," "[t]raining on what to do if the supervisor is personally accused of harassment," and the "essential elements of an anti-harassment policy...."

As stated in subsection (c)(2), the topics of "discrimination and retaliation in employment" as prohibited by "FEHA and Title VII" must be included, and these laws both forbid job bias not only based on sex, but also on race, color, religion, national origin, etc. Thus, subsection (c)(1) says, "In addition to a definition of sexual harassment, an employer may provide a definition of and train about other forms of harassment covered by the FEHA, as specified at Government Code section 12940, subdivision (j), and discuss how harassment of an employee can cover more than one basis."

Under Government Code section 12940, subdivision (j), harassment is forbidden when based on "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation." Thus, all these types of harassment are permitted to satisfy the two hour requirement.

Moreover, as the regulation states, "harassment of an employee can cover more than one basis." This has been a growing trend in litigation; for example:
--Harassment Grand Slam
--Sexual & Nonsecular Harassment

Basically, employers should not consider sexual harassment to be so unique a type of misbehavior that it requires special training, while other types of job harassment (racial, religious, disability-related, ageist, etc.) do not. Instead, employers are required to take all reasonable steps to discourage all types of harassment, discrimination, and retaliation (including training), and should take advantage of the AB 1825 regulations to equally provide training to prevent all types of harassment, discrimination, and retaliation.

Thus, Government Code section 12950.1(f) says: "The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination."

How does the federal government inform the public about the anti-harassment laws? The EEOC says bad publicity about sued employers helps.

“The public nature of law enforcement can serve as one effective form of preventative education,” said EEOC Regional Attorney Robert Canino.

Canino was talking about a recent pregnancy discrimination case involving Studio 69, a nightclub in El Paso, Texas. According to the agency, when the club learned a bartender was pregnant, it place her on indefinite “pregnancy leave” – or as the EEOC describes the situation: “it fired Crystal Aguilar from her job.”

The take-away lesson is that treating an employee differently because of her pregnancy violates Title VII when “the employer had neither requested nor received any information from her doctor regarding her physical ability to perform her job duties.”

The EEOC’s announcement cited a fetal-protection chestnut, the 1991 case International Union v. Johnson Controls. “The United States Supreme Court explicitly held that the decision to work while being pregnant was reserved for each individual, not her employer, to make,” explained EEOC lawyer Tisha Dominguez.

As we enter the last half of the year (only 166 days left in 2009 as I write this), the AB 1825 train is picking up steam. Here are two AB1825 compliance question from California employers that I answered in the last couple of days.

1. We hired some new supervisors last November (2008) and they completed sexual harassment training in February (2009). Our training years were 2005 and 2007, and we've set a training for everyone in October 2009. Do the new supervisors have to train again this year to join our training year calendar?

Answer: No. AB 1825 requires supervisors be trained:
(1) within six months if they're newly hired or promoted, and
(2) every two years.

As long as these requirements are met, they don't have to be trained twice in any single year. Under the "training year" tracking system, your supervisors can complete the required anti-harassment anytime during 2009 (including in February 2009) and you'll be in compliance with the regulations.

2. Do we have to train supervisors who are "temporary"?

Answer: AB 1825 does not have an exception for "temps" or any other type of supervisor. If someone meets the legal definition of "supervisor," they must be trained, regardless of their classification or employment status.

The AB 1825 definition of "supervisor" is based on the Fair Employment & Housing Act (FEHA) definition at Government Code section 12926(r):

"Supervisor" means any individual having the authority, in the
interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other
employees, or the responsibility to direct them, or to adjust their
grievances, or effectively to recommend that action, if, in
connection with the foregoing, the exercise of that authority is not
of a merely routine or clerical nature, but requires the use of
independent judgment.

Basically, they don't have to even be your employees: if the boss' wife or a powerful shareholder or a non-employee consultant meets the legal description of "supervisor," your company is expected to provide AB1825 training.

Still, it's important to note that the law gives you six months to train new supervisors, so you're not technically out-of-compliance if an untrained supervisor hasn't worked (doesn't work?) for six month. Even so, it may not be "reasonable" to avoid providing training to temps, and (independent from your duty to train under AB 1825), FEHA always requires employers to take every reasonable step to prevent harassment from occurring.

Although the law protects everyone – both sinner and saint – from sexual harassment, Courts sometimes rule against victims (most often women) when they’ve engaged in sexualized behavior in the workplace.

Often, the Court finds the abuse suffered by these “bad girls” wasn’t enough to interfere with their ability to do their jobs. As explained by the EEOC, to qualify as sexual harassment, misconduct generally must "alter the conditions of the victim’s employment and create an abusive working environment."

However, Courts sometimes limit recoveries for female employees who participate in sexualized behavior at work, ruling the abuse they were exposed to didn't “alter” their working conditions; see the 2008 Brief: Bad Girls Can't Complain.

Last month, a federal Court in Delaware made a similar decision. In Laymon v. Lobby House, waitress/bartender Shannon Laymon sued the Lobby House pub for sexual harassment. She claimed management made sexist remarks and encouraged sexual behavior (including stripping) by female employees. She convinced the jury; they awarded her $500 for sexual harassment, plus $100,000 in punitive damages (which are designed to punish the employer and to serve as a deterrent).

The pub appealed, challenging the amount of punitive damages. After all, Lobby House argued, Laymon herself participated in skeezy behavior at the pub. “While at work, Laymon admittedly displayed her vertical hood piercing to two co-employees,” the Court wrote. It explained in a footnote: “A vertical hood piercing is a piercing in the clitoral area.”

And, based in part on her workplace genital-jewelry display, the Court cut her punitive damage award by 75 percent.

“Balanced against [the employers’ conduct] is testimony that Laymon participated in inappropriate conduct," the Court wrote, "and, that Laymon only complained of sexual harassment after she was confronted by management regarding her negative behavior. In balancing the ... factors, the court believes that reducing the amount of the punitive damages award is warranted, particularly in light of the conduct of both Laymon and Lobby House. As a result, the court will reduce the jury’s punitive damages award from $100,000 to $25,000....” [Laymon v. Lobby House (5/1/2009) USDC Delaware]

Are you looking for something new for your 2009 AB 1825 sexual harassment prevention training? Here’s one idea: Teach supervisors to avoid making stupid statements based on gender stereotypes.

Often, discrimination cases based on sex stereotyping relate to “family responsibility” bias — another way of saying that employers commit sex discrimination by assuming female (and not male) workers will be family caregivers and thus less involved with their careers (see EEOC Guide to Caregiver Bias).

Of course, it’s not only women subject to sex stereotyping. For example, a 2009 case says an employer may be liable for sex discrimination because a supervisor presumed a male worker was guilty in a "he said/she said" sexual harassment situation (see 'Men Are Harassers' Is Biased).

Still, it’s female (and especially pregnant) workers who are most often subject to discrimination due to traditional beliefs about family duties. Here are several examples of stupid statements by supervisors involving illegal sex stereotyping of women workers.

• After a woman becomes a new mother (or step-mother), don’t say: “Go home and be with your baby,” or “Mothers cannot perform as well as men, or women without children.” (see 'New Moms Should Stay Home' Is Biased)
• Don’t deny a promotion to a mother of four saying: "It was nothing you did or didn't do. It was just that ... you have the kids.” (see 'Moms Less Involved' Is Biased)
• Don’t ask women (but not men) about family plans, such as: "You're not going to get pregnant again, are you?” (see $2.1M for Mommy Bias)
• Don’t give unwelcome family advice: “There is no way you can be a good mother while achieving what I aspire.” (see "Good Mother" Advice = $75K)
• Don’t insult working women: "Mothers like you caused Columbine." (see Don't Disrespect Moms)
• Don’t reject pregnant job applicants by saying: "Come back after you have the baby." (see "After the Baby" Costs $220K+)

One type of sex bias that's seen a steady rise — and no sign of let up — is discrimination based on pregnancy. Since only women become pregnant, treating workers differently simply because they're pregnant leads to liability for sex discrimination.

It's a popular type of discrimination; employers worry about liability (to the woman, others, and the baby); some managers think pregnant women should rest/stay home/feather a nest/whatever rather than work. Still, it's illegal.

The Equal Employment Opportunity Commission (EEOC) regularly reports on it's pregnancy bias cases. Here are some from 2009:

• Judge Awards Maximum Damages In EEOC Pregnancy Bias Suit Against Janitorial Company (May 21, 2009)
• ABC Financial Services Settles Pregnancy Suit (April 17, 2009)
• Saipan Supermarket Chain Settles EEOC Suit; Sex Harassment, Pregnancy Bias, Retaliation Alleged (April 8, 2009)
• Clearfield Japanese Restaurant Sued by EEOC for Pregnancy Discrimination (April 2, 2009)
• Delaware County Pain Management to Pay $95,000 To Settle Pregnancy Discrimination Suit (April 1, 2009)
• Otto Bock Healthcare and Robert Half to Pay $64,500 For Pregnancy Discrimination and Retaliation (April 1, 2009)
• Britthaven To Pay $300,000 To Settle Pregnancy Discrimination Suit (March 31, 2009)
• Investment Firm Settles EEOC Pregnancy Discrimination Lawsuit (March 20, 2009)
• Movie Production Companies Resolve Pregnancy Discrimination Case with EEOC (February 12, 2009)

And here's a case brought by the Department of Justice (it handles bias complaints involving schools):

• Justice Department Settles Pregnancy Discrimination Lawsuit Against the Board of Education of the City of Chicago (May 29, 2009)