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AB 1825 Sex Harassment Trainer

A free resource for California employers about the sexual harassment training law (AB 1825).

Piercing punitive liability

Monday, June 22, 2009
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]

Sex stereotyping stupidity

Wednesday, June 17, 2009
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+)

Pregnancy discrimination swells

Tuesday, June 09, 2009
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:
And here's a case brought by the Department of Justice (it handles bias complaints involving schools):

More harassment nationwide

Wednesday, June 03, 2009
The US Equal Employment Opportunity Commission (EEOC) received 95,402 workplace discrimination complaints in 2008. This was a 15 percent increase from the 82,792 complaints made by employees to the federal agency in 2007.

These complaints included:
  • 28,372 sex discrimination charges
  • 13,867 sexual harassment charges (15.9 percent from men)
  • 954 Equal Pay Act charges

See the EEOC Statistics page for all the details.

Or, for a visual presentation of bias complaint trends, news agency MSNBC posted a nice chart showing EEOC claims 1998-2008.

What's new for 2009?

Monday, June 01, 2009
Since we're now smack dab (or "dab smack" as Obama has written) in another AB1825 training year, it's time for me to start posting.

I haven't updated this blog since December 2007 (the last AB 1825 "training year"), since the archived information was still pretty good and nothing new had occurred; no new regulations, no change in the law, same old same old.

However, now that California employers are once again in full swing trying to comply with AB 1825, I figure to provide some current (and hopefully useful) information.

For example, if you want to prevent harassment in California, it's helpful to know what harassment is occurring. One source to learn what harassment employees are complaining about is the state Department of Fair Employment & Housing (DFEH), which collects and investigates bias complaints.

Basically, if you want to know what harassment problems need to be addressed in California, the DFEH statistics provide some clues.

First, complaints are way up from 2007. In 2008, the DFEH received 18,785 employment bias complaints. That's almost 1,800 MORE than the total number of employment AND housing bias cases combined that the DFEH received in 2007.

Out of these 18,785 complaints, 7,972 related to sex bias
  • 999 involved pregnancy bias
  • 821 involved sex orientation bias
  • 3,863 involved sexual harassment
  • 2,289 involved other sex discrimination
The remaining major categories of bias complaints included:
  • 6,844 disability
  • 5,697 retaliation
  • 4,208 race/color
  • 3,655 age
  • 1,937 national origin/ancestry
  • 579 religion
  • 300 marital status
For more details, see the DFEH 2008 report.