An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

recommendation. However, it was undisputed that the co-workers did not report the complaint and that the President was unaware of this complaint at the

time he recommended the PIP. Reeves v. Safeway Stores, Inc. 975

The plaintiff alleged that a supervisor initiated disciplinary proceedings against him in retaliation for the employee’s previous discrimination complaint. Safeway argued there was no causal connection between the protected activity and subsequent discipline because cause for discipline was separately investigated and the decision to discharge was made by a manager with no knowledge of the employee’s protected activities. The Ninth Circuit reversed a lower court ruling in favor of Safeway on the grounds that Safeway failed to show that all material contributors to the decision acted for legitimate nondiscriminatory motives, and the plaintiff presented sufficient proof to establish that retaliation by one or more decision-makers was a substantial contributing factor in bringing about his dismissal. If a supervisor uses another employee as a tool for carrying out a discriminatory action, the original actor’s purpose will be imputed through the “tool” to their common employer. Poland v. Chertoff 976 If a supervisor, in response to an employee’s protected activity, sets in motion a proceeding by an independent decision-maker that results in an adverse employment action, the supervisor’s bias will be imputed to the employer if the employee can prove that the allegedly independent adverse employment decision was not actually independent because the biased supervisor influenced or was involved in the decision or decision-making process.

D. O THER A NTI -R ETALIATION L AWS The prohibition against retaliation is not limited to the anti-discrimination provisions set forth in the FEHA, Title VII, the ADEA, the ADA, or the Education Code. In addition to the protections and prohibitions afforded by those statutes, the anti-retaliation laws also cover prohibitions against employer conduct ranging from fraud to environmental violations. Accordingly, the scope of retaliation liability is quite broad, protecting employees who expose or complain about a wide range of employer misconduct, from mismanagement of funds to hazardous conditions. Some of these prohibitions are reviewed briefly below to provide schools with a general understanding of the wide array of factual scenarios that can give rise to a retaliation claim. 1. P OLITICAL S PEECH R IGHTS The California Labor Code provides certain protections for employees’ political activities and affiliations. As a result, it is unlawful for a school to forbid an employee from engaging or participating in politics in their individual capacity or from becoming a candidate for public office. 977 Note this is different from political activity in an official school capacity. See Chapter 18 regarding Political Activity for a more detailed discussion. Likewise, schools cannot implement any rules or policies that would control or direct the political activities/affiliations of

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