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AB 1825 Sex Harassment Trainer

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

Religious organizations must train

Thursday, December 17, 2009
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.