AB 1825 Sex Harassment Trainer

Bills (like art works or children) once enacted (completed or emancipated) are free to become whatever they turn out to be regardless of the intentions of the author (artist or parent).

Even so, we may nonetheless show a decent respect to the opinions of the creator.

In April 2005, the author of AB 1825, former assemblyperson Sarah Reyes, spoke at a Littler event in Phoenix (why speak in Arizona about a California-state law?) about her creation. Here's the transcript of her Q&A.

Significantly, Reyes says AB 1825 training may include scenarios covering types of harassment and discrimination other than solely sexual harassment and should be presented by trainers who have both "knowledge" and "expertise."

AB 1825 mandates harassment training for companies in California with more than 50 workers. Although the law says to count all employees and independent contractors, one of the prime questions for employers that operate both in and out of California is:

"Do you count employees outside of California?"

The answer is "Yes."

• First, the text of AB 1825 does not exclude out-of-state workers from an employer's count.
• Second, a publication of the Department of Fair Employment and Housing (DFEH), the agency that enforces FEHA (and thus AB 1825), says "For purposes of counting the number of 'persons employed,' both full-time and part-time employees who are 'regularly' employed within or outside of the State of California should be counted." [DFEH Case Analysis Manual, Vol. II §17(C)(1)(a)]
• Third, a consultant with the DFEH confirmed that the agency counts a company's employees in all the United States to determine the agency's jurisdiction (i.e., whether there are enough employees). I've also read on the 'net that the California Fair Employment and Housing Commission, the agency that issues FEHA regulations, is giving the same answer.
• Fourth, an official regulation for another law (the California Family Rights Act, which similarly applies only to companies with more than 50 employees), says employers should count all "persons within any State of the United States, the District of Columbia or any Territory or possession of the United States...." [2 CCR §7297.0(d)]

So, unless an official regulation or court decision limits counting to only California workers, the only reasonable approach is to include out-of-state workers in your AB 1825 count.

AB 1825, the law mandating workplace sexual harassment training in California, requires "employers" to comply. So, who's an "employer"?

We're still awaiting the official regulations, but I've parsed the statutory text to clarify the definition. Under the new Government Code §12950.1(c),

"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, or any person
          acting as an agent of an employer, directly or indirectly,
     the state, or
     any political or civil subdivision of the state, and
     cities.

In other words, any organization with 50 people working — including employees, independent contractors, consultants, and temps — and most public employers regardless of the number of employees.

I recently did a little market research, checking out the offerings in the AB 1825 sexual harassment training world. For example, I've listened to sales pitches by Corpedia, the California Chamber of Commerce (EmTrain), Workplace Answers, AHI, Brightline, Training Online, and so on.

The first thing that struck me was the fact that they were all scrambling. One salesperson referred to being "blindsided" by AB 1825. All of a sudden, it seemed, there was a two-hour interactive training mandate for California employers when once there wasn't.

To meet this unexpected (?!) requirement, most companies slapped together some sexual harassment training something-or-other that they'd like to sell to you. For example, "we've got a one-hour course here — and we'll have the second hour next month." Or, "we don't have an interactive question/answer system yet — but we're putting one together."

Not to boast, particularly, but my company has specialized in helping employers comply with California law since 1994, and focused strictly on online interactive questions-and-answers since 1998. We've handled over 6,100 email employment law questions-and-answers from individuals, and our automated knowledge-management system (the Memo library) handled over 45,000 natural-language questions-and-answers in just the past year.

All we do is California employment law compliance, and we've got years of experience providing interactive online learning. That's different than the competition.

One of the curious differences between California and federal anti-discrimination law is that the Fair Employment and Housing Act (FEHA) expressly prohibits harassment, while Title VII does not.

Instead, Title VII only prohibits "discrimination" but does not mention harassment. However, when harassment is directed toward only one sex (or race, or religion, etc.), this "discriminatory" harassment is forbidden by federal law.

Accordingly, federal law permits what I call the "bisexual defense." In other words, if a supervisor sexually harasses both men and women equally, this misconduct would not violate Title VII (since it's not "discriminatory") but it would violate FEHA (which specifically forbids sexual harassment). For a story on this point, see this case.

Although Title VII does not prohibit an "equal opportunity" (non-discriminatory) harasser, recent cases are showing that an abusive boss might nevertheless violate federal law if the impact of the abuse falls more heavily on one sex rather than another.

For example, this case involves a workplace in which dirty jokes were shared with both men and women, but which typically demeaned the women and thus had a discriminatory impact. Likewise, in this case a female supervisor at the Navy submarine base in Groton CT, though vulgar and abusive to both men and women, may have directed some of her abuse at her subordinates based on their gender (male), and hence may have violated Title VII.