An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

 Opposition to Unlawful Harassment;  Association with a person that has any of the protected characteristics; and  Perception that a person has any of the protected characteristics. 838  Requesting accommodation of disability or religious beliefs, regardless of whether request was granted 839 .

A. R ACE A ND N ATIONAL O RIGIN Courts have broadly defined what constitutes race or national origin for purposes of establishing a claim of harassment or discrimination. An employee is protected if he or she is a member of a group that is perceived as distinct when measured against other employees. While the group need not have a common birthplace, it should be ethnically distinct. An employee who is African American, Native American, or Filipino American would be a member of a protected class, as would an employee who describes himself or herself as East Indian. 840 In 2016, the EEOC issued revised guidance on the issue of national origin discrimination, updating its

previous guidance from 2002. 841 LCW Practice Advisor

Harassment based on an individual’s language can fall under the protected status of race or national origin. California law prohibits English-only rules unless: (a) there is no alternative practice available that would meet the school’s business need for the rule; and (b) the school has notified its employees of the rule and the consequences of violating the rule. 842

B. R ELIGIOUS C REED Religious creed includes all aspects of religious belief, observance, and practice, including religious dress and grooming practices. 843 More generally, it can include moral or ethical beliefs as to what is right and wrong, where the beliefs are sincerely held with the strength of traditional religious views. 844 An employee’s beliefs, observances, and practices must occupy a place of importance parallel to that of traditionally recognized religions. Under California law, a three-part test applies: 845 (1) A religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. (2) A religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. (3) A religion often can be recognized by the presence of certain formal and external signs. 846

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 211