An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

 Negative performance reviews;  Toleration of harassment by other employees; 959 and  Failure to treat impartially in the context of any recommendations for subsequent employment which the employer may make. 960 In contrast, courts found the following actions did not constitute adverse employment actions:  Counseling; 961  Nitpicking;  Mere oral or written criticism of an employee;  Lateral transfer (where there is no diminution in pay or benefits) unless some other materially adverse consequence;  Requiring an employee to develop new skills. 962 Nevertheless, while these actions individually may not constitute adverse employment actions, when taken collectively, they could be sufficient to establish an adverse employment action. In the student context, an adverse action is one that materially affects the terms, conditions, opportunities or privileges of the educational program. 963 The following examples identify types of conduct that courts have found constituted an adverse action in the student context:

 Discharge from educational program; 964  Banning student from entering campus; 965  Suspension; 966  Giving low grades; 967  Prohibiting the student from using certain school resources; 968 and  Verbal reprimand and written discipline. 969 Lucero v. Nettle Creek School Corp. 970 A twelfth grade teacher made multiple complaints of student sexual harassment during the course of an entire school year. Dissatisfied with the School’s response, the teacher further complained that the School’s failure to investigate placed the School at risk and that the School was not supporting her efforts to control her classroom. At the end of the school year, the School reassigned the teacher to the seventh grade. The teacher sued claiming retaliation under Title VII. The Court found that the teacher’s reassignment did not result in the loss of any pay, benefits, or privileges and did not constitute an adverse employment action for purposes of a retaliation claim.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 233