An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

statements can constitute direct evidence of discriminatory intent. 894

2. “M IXED M OTIVE ” Unlawful discrimination also occurs when an employment decision is motivated in part by discriminatory considerations, even though other lawful and legitimate considerations may have also supported the employment decision. 895 An applicant or employee may prevail in a discrimination lawsuit if the individual can prove that discrimination was a substantial motivating reason for the school’s adverse employment action. 896 LCW Practice Advisor

Prior to March 2013, individuals only needed to prove that the discrimination was a motivating reason for the employer’s adverse action. Now, employees must prove that the employer was substantially motivated by the employee’s protected status in order to succeed in a discrimination lawsuit. 897

While a school may be liable in a mixed-motive discrimination case, the applicant’s or employee’s remedies are much more limited. For example, the court could award declaratory and/or injunctive relief, attorney’s fees, and costs directly attributable to the pursuit of the claim, but may not award monetary damages or reinstatement. 898 B. D ISPARATE I MPACT Disparate impact discrimination occurs when a school’s facially neutral policy or practice results in a disproportionate adverse impact on a protected group of persons, such as a particular racial or ethnic group. To prevail on a disparate impact claim, the applicant or employee must be able to prove either:

 That an employment policy or practice results in a disparate impact on a protected group of persons, and the school cannot demonstrate that the policy or practice is job-related and consistent with business necessity; or  A less discriminatory alternative practice is available but the school refuses to adopt it. 899

The two defenses available to a school in a disparate impact discrimination claim are:  Business Necessity  Bona Fide Occupational Qualification 1. B USINESS N ECESSITY D EFENSE A school can defeat a claim of disparate impact by demonstrating that the challenged employment policy or practice is job-related and consistent with business necessity . To successfully demonstrate that an employment practice is job-related and a business necessity, the

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