An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

It is also unlawful to harass or take any adverse action against an employee who supports or associates with a co-worker who has complained about unlawful harassment or discrimination. 884 Examples of Protected Activity:  An employee complained about the sexually offensive conduct of an outside

consultant whose seminar she had been required to attend. Although the employee might have been wrong as to whether the conduct was illegal, she had a good faith and reasonable belief that it was. As a result, the school could not retaliate against her for complaining.  An employee refused to follow the orders of her supervisor to fire a subordinate and replace the subordinate with “someone hot.” 885  A student filed a complaint against a physical education teacher after teacher improperly refused to allow student to return to class because of a medical condition. 886

K. A SSOCIATION /P ERCEPTION The anti-discrimination laws also prohibit discrimination and harassment of an employee or job applicant because of that individual’s association with a person of a protected class, or because that individual is perceived as being a member of a protected class. 887

Section 6 D ISCRIMINATION Unlawful discrimination means treating an employee or job applicant differently from others because of that person’s actual or perceived protected status. The different treatment must relate to the terms and conditions of employment and be reasonably likely to negatively affect an employee’s job performance or prospects for advancement or promotion. 888 An employee or job applicant can claim discrimination if the different treatment deprives or tends to deprive the employee or job applicant of employment opportunities or employment status. 889 In addition to harassment and retaliation claims, which are discussed more throughout this chapter, a discrimination claim may be based on the following grounds:  Disparate Treatment: Treating an individual differently because of his/her protected status; or

 Disparate Impact: A facially neutral policy or practice that has a negative impact on a protected group of persons, such as older persons or a particular racial group.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 217