AB 1825 Sex Harassment Trainer

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.