AB 1825 Sex Harassment Trainer

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)

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.

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.

The AB 1825 course I wrote was mentioned in the blog Boing Boing, the hip-cool-pop-wow Directory of Wonderful Things.

In a post called Arnold's Fables: What Koko Wants, Dale Dougherty (editor and publisher of Maker Media) wrote in about taking an AB 1825 training course in which he read about Koko, the sign-language talking great ape. Then, he cites the text from our program (if you take our course, he's quoting from an exercise in Part III entitled "Case Study: Gorilla Suit")!

For those who haven't taken our course, you can also read our story about the case: Gorilla Suit Exposes Fetish.

I'd like to think the citation in Boing Boing is evidence of our success at creating a contemporary and memorable program. We know supervisors generally do not like being required to spend two hours away from their primary duties thinking about harassment, and we hoped our course would be informative, engaging, provocative, and entertaining. Having my text quoted in Boing Boing helps me feel we achieved our goals.