An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

Section 2 L AWS P ROHIBITING H ARASSMENT , D ISCRIMINATION , A ND R ETALIATION Several federal laws protect employees and job applicants from harassment, discrimination, and retaliation in the workplace. Title VII of the Civil Rights Act of 1964 (Title VII) is perhaps the best known and most evoked federal law. The Age Discrimination in Employment Act of 1967 (ADEA) protects those 40 and over. The Americans with Disabilities Act of 1990 (ADA), along with the 2008 ADA Amendments Act (ADAAA), safeguards employees or job applicants, as well as students or student applicants at secular schools, with physical or mental disabilities. The Genetic Information Nondiscrimination Act of 2008 (GINA) ensures that genetic information cannot be used improperly or relied upon for hiring or employment purposes. State law provides additional protections. The California Fair Employment and Housing Act (FEHA) prohibits harassment, discrimination, and retaliation based on a protected status. It is more than merely the state equivalent of Title VII; the FEHA provides employees and job applicants with far greater rights than those available through Title VII in terms of scope of coverage and available remedies. For example, the FEHA protects individuals who are not employees, such as unpaid interns and volunteers, from unlawful conduct. The California Unruh Act also provides important protections that are similar to Title VII and the FEHA and, in some situations, may apply to students. The Internal Revenue Service prohibits tax-exempt non-profits from discriminating against student applicants and current students on the basis of race and national origin. 817 The California Civil Code specifically prohibits sexual harassment by a teacher or someone in a similar position. 818 Additional state laws extend protections to students based on protected categories. 819 Apart from these and other laws, aggrieved employees and students can also rely on non- statutory common law causes of action, such as negligence and invasion of privacy claims, to sue for monetary damages. 820 R ELIGIOUS O RGANIZATION E XEMPTIONS F ROM T ITLE VII A ND T HE FEHA Both California and federal law provide exemptions for religious organizations. The type of legal entity involved (e.g., whether the organization is incorporated as a non-profit religious corporation or instead as a non-profit public benefit corporation) may also qualify an entity for an exemption from the law. A. E XEMPTIONS U NDER T ITLE VII Title VII expressly permits religious schools and other religious organizations to limit employment to members of their own faith. 821 However, religious schools must demonstrate that Section 3

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