An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

 The employer inadvertently requests or requires family medical history of the employee or family member of the employee;  The employer collects such genetic information as a result of its offers of health or genetic services to the employee, e.g., information obtained as part of a bona fide wellness program, provided that certain confidentiality measures are followed to protect disclosure of that information and the employee provides prior voluntary written authorization;  The employer requests or requires family medical history from an employee to comply with the FMLA or the CFRA;  The employer purchases commercially and publicly available documents that contain family medical histories of its employees;  The employer seeks the information for genetic monitoring of the biological effects of toxic substances in the workplace; and  The employer conducts DNA analysis for law enforcement purposes. 878

In addition to proscribing the practices set forth above, GINA also functions to enhance the confidentiality of the genetic information of employees. Specifically, GINA requires an employee’s genetic information to be maintained on separate forms and in separate medical files. 879 GINA further requires employers to treat these documents as confidential medical records, disclosure of which is only permitted in a few specific instances. 880 The FEHA and the Unruh Civil Rights Act both prohibit discrimination based on genetic information. 881 “Genetic information” is defined as (1) the individual’s genetic tests; (2) the genetic tests of family members of the individual; and (3) the manifestation of a disease or disorder in family members of the individual. Many genetic disorders are associated with particular racial, social, or ethnic groups. California law prevents the use of genetic information to stigmatize or unfairly discriminate against such groups. Although similar to GINA, California offers broader protections by prohibiting discrimination based on genetic information in the additional areas of housing, business services, emergency medical services, licensing qualifications, life insurance coverage, mortgage lending, and participation in state-funded or state-administered programs. J. O PPOSITION T O U NLAWFUL C ONDUCT Discrimination, harassment, or retaliation based on opposition to such conduct is itself unlawful retaliation. For these protections to apply, an employee need not say the word “harassment” when reporting the conduct. 882 Because it is difficult—if not impossible—for an employee to know if the complained-of conduct is “unlawful,” all that is required is a sincere, good faith and reasonable belief that the complained-of conduct is unlawful. Therefore, even if no unlawful conduct occurred, a school may not retaliate against an employee for complaining about conduct which he or she sincerely and reasonably believes is unlawful. 883

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 216