An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

To state a claim of unlawful retaliation under any of the anti-discrimination statutes, an individual must show that: (1) he or she engaged in a protected activity; (2) the school subjected the employee or student to an adverse action; and (3) a causal connection exists between the protected activity and the adverse action. 942 A. P ROTECTED A CTIVITY An employee engages in protected activities by:

 Refusing to obey an order reasonably believed to be discriminatory;  Filing a discrimination, harassment, retaliation or other protected complaint with a federal or state enforcement agency;  Participating or cooperating with a federal or state enforcement agency conducting an investigation of the employer regarding an alleged unlawful activity, such as the U.S. Equal Employment Opportunity Commission (EEOC), 943 California Department of Fair Employment and Housing (DFEH), 944 or Cal/OSHA;  Testifying as a party or witness against the employer regarding an alleged unlawful activity;  Filing an internal complaint with the employer regarding an alleged unlawful activity. 945  Opposing an unlawful practice, including complaining to a harassing supervisor. 946

Further, because the concept of what constitutes protected activity is generally viewed liberally, schools should treat employees and students as having engaged in a protected activity whenever the school is made aware of informal, as well as formal conduct that appears to question the legality of the school’s conduct. Other examples of protected activity include:  Cooperating with an internal investigation of alleged harassment or discriminatory practices;  Serving as a witness in an EEO investigation or litigation;

 Requesting a reasonable accommodation based on religion or disability;  Employee complaints (verbal or written) alleging unlawful activity to a supervisor;  Rumors of an employee complaining of alleged unlawful activity to outside agencies or supervisors; and  Employee or student association with another employee or student engaged in protected activity.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 230