An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

A. D ISPARATE T REATMENT Intentional discrimination—or “disparate treatment”—occurs when a school impermissibly considers protected characteristics such as race, religion, age, sex, etc., when making an employment decision that adversely affects an applicant or employee. 890 In other words, a school intentionally discriminates against an applicant or employee when the school treats the applicant or employee differently because of his or her protected status. In order to establish a prima facie case of intentional discrimination, the applicant or employee must establish the following four factors:  He or she is a member of a protected class;  He or she was qualified for the position for which he or she applied, or was performing his or her job in a manner consistent with the employer’s legitimate expectations;  He or she suffered an adverse employment action; and  A discriminatory motive. 891 1. A DVERSE E MPLOYMENT A CTION – D EFINED An “adverse employment action” encompasses far more than just a suspension, demotion, or termination. However, not all unwelcome employment actions constitute an adverse employment action. Generally, in order to constitute adverse employment action, the action must be reasonably likely to deter reasonable employees from engaging in protected activities. Consequently, to be materially adverse, an employee’s working conditions must be disrupted,

and not just inconvenienced. 892 LCW Practice Advisor

Once an employee or applicant establishes a prima facie case of disparate treatment, the burden shifts to the school to:  Articulate a legitimate, nondiscriminatory reason for the adverse employment action, i.e., give a business reason why it took or failed to take the action. If the school establishes a legitimate, nondiscriminatory reason, the burden shifts back to the applicant or employee who must prove that:  The school’s stated reason is not the real reason, i.e., it is pre-textual and an excuse for the actual discrimination; 893  The real reason for the school’s action is discriminatory, (i.e., based on the employee or applicant’s protected status). Racist or sexist

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