An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

their curriculum “is directed toward the propagation of a particular religion.” 822 Courts will not simply accept that a religious school is automatically entitled to the exemption. 823 B. E XCEPTIONS U NDER T HE FEHA Non-profit religious corporations are specifically excluded from the definition of “employer” under the FEHA. 824 Therefore, non-profit religious corporations are generally not liable under the FEHA for discrimination or harassment claims brought under state law by their employees, whether on the basis of religion or any other protected classification such as age, race or gender. 825 Religious schools incorporated as non-profit public benefit corporations are not entitled to the same broad exemptions under the FEHA. Even though it may be affiliated with a religious organization, a religious school organized as a public benefit corporation is generally subject to the FEHA’s prohibitions on discrimination, except that such a school may restrict employment in any or all employment categories to individuals of a particular religion. 826 LCW Practice Advisor Determining whether receipt of federal or state

assistance will trigger any new legal obligations needs to be made on a case-by-case basis. Private schools should check with the agency sponsoring any assistance program and confer with legal counsel to determine whether there are any particular legal requirements that may be triggered by receipt of the assistance.

Section 4 T HE M INISTERIAL E XCEPTION T O T ITLE VII A ND T HE FEHA Under both Title VII and the FEHA, the “Ministerial Exception” precludes judicial review of employment actions involving ministerial employees . The Ministerial Exception is based on the principle that courts cannot review certain employment actions taken by religious organizations or entities without excessive entanglement with religion; 827 the Ministerial Exception avoids violations of the Free Exercise Clause or Establishment Clause of the First Amendment of the U.S. Constitution. The prohibition extends to church-related organizations that have a “substantially religious character,” 828 and includes religious schools. The determination as to whether the Ministerial Exception may be applied is fact-based. The exception does not extend to whole entities, but rather to specific employees who perform truly ecclesiastical functions and, therefore, are deemed “ministerial employees.” The determination may further depend upon whether the challenge to an employment action is filed in state or federal court.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 208