An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

school must show that the employment practice is necessary and bears a manifest relation to the employment at issue. 900 The defense of business necessity is not a defense to a claim of disparate treatment. 901 2. B ONA F IDE O CCUPATIONAL Q UALIFICATION D EFENSE An employment policy or practice may also be justified if it qualifies as a bona fide occupational qualification (BFOQ). 902 To qualify as a valid BFOQ, the employment policy or practice must affect an employee’s ability to perform the job and must relate to the essence or to the central mission of the school’s business. 903 The BFOQ defense is an extremely narrowly drawn exception to discriminatory employment policies or practices. Courts have rejected BFOQ defenses based on sex where there is insufficient evidence that the excluded sex cannot adequately perform the work. For instance, a court held that being male was not a BFOQ for the job of truck driver where there was no evidence that women could not perform the job. 904 Courts have also rejected the BFOQ defense based on third-party preference. For example, in Lam v. University of Hawaii , the court held that alleged “Japanese cultural preferences” for male authority figures did not qualify as a BFOQ for the position of Director of Pacific Asian Legal Studies at a law school. The court expressly rejected such third-party preferences as justification for discriminatory hiring practices. 905 Section 7 H ARASSMENT There are two types of unlawful harassment: hostile work/school environment and “quid pro quo.” A. H OSTILE W ORK /S CHOOL E NVIRONMENT H ARASSMENT Anti-discrimination laws protect employees from discriminatory work environments. 906 They also protect students from discriminatory educational environments. 907 But whether a work or school environment rises to the level of being unlawfully hostile requires a case-by-case analysis of the following:

 The frequency of the harassing conduct;  The severity of the harassing conduct;  Whether the harassing conduct is physically threatening or humiliating;  Whether the harassing conduct is unwelcome;  Whether the harassing conduct unreasonably interferes with an employee’s work performance or alters other conditions of employment; and

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 220