An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

marital status discrimination. The School asserted the Ministerial Exception, in part, as a defense. The Court determined that the Ministerial Exception precluded Henry’s claim. It noted that “[t]he preservation of the free exercise of religion is deemed so important a principle as to overshadow the inequities which may result from its liberal application. In our society, jealous as it is of separation of church and state, one who enters the clergy forfeits the protection of the civil authorities in terms of job rights.” 833 The Court also concluded that “ministers” covered a broad swath of positions: “the exception applies [to] … teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” 834 As a result, the California Court of Appeal determined that Henry, a preschool teacher at a religious school, fell within the Ministerial Exception. She could not bring a claim against her employer. Courts look beyond job titles or descriptions to determine the specific facts of a claim under the Ministerial Exception. Religious schools should not assume that all their employees will be covered under this doctrine. P ROTECTED S TATUSES /C LASSIFICATIONS Subject to the foregoing exceptions, it is illegal to discriminate or retaliate against, or harass an employee or applicant based on:  Race or Color;  National Origin or Ancestry;  Religious Creed (except for religious schools);  Physical or Mental Disability; Section 5

 Medical Condition (including cancer, a record of cancer, and genetic characteristics, diseases, disorders, or other inherited characteristics);  Marital Status;  Sex (including pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, and breastfeeding or a condition related to breastfeeding 835 );  Gender (including gender identity, gender expression, and transgender status 836 );  Age (40 and above);  Sexual Orientation under the FEHA (including heterosexuality, homosexuality, and bisexuality);  Genetic information; 837

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 210