An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

 Do not take punitive action against anyone for complaining about harassment, discrimination and retaliation, or engaging in any other protected activity.

In addition, it is important for schools to document carefully an employee’s misconduct or performance deficiencies in order to maximize the likelihood of successfully defending possible later challenges asserting unlawful harassment, discrimination or retaliation.

A NTI -D ISCRIMINATION L AWS D O N OT I MMUNIZE E MPLOYEES F ROM D ISCIPLINE W HEN W ARRANTED

Section 10

The tremendous growth in retaliation claims has left some schools afraid to discipline any student or employee who has, within recent memory, complained about anything. This dynamic not only chills legitimate and necessary employment actions, it encourages the filing of erroneous complaints. Some employees and students will lodge unfounded complaints so they will have a “protected activity” to point to if they anticipate an unfavorable evaluation or another adverse action, or just in case they are ever subjected to an adverse employment action. The best defense against erroneous claims, as well as the fear of such claims, is to implement basic, good management practices. Administrators who operate in a work environment where objectivity and consistency are the norm will be less intimidated by the fear of retaliation claims. This is because they will be more confident they will be able to defend their employment or educational decisions, if challenged. Schools should institute policies, procedures and training that encourage the fair and consistent treatment of all students and employees, and the thorough documentation of the school’s actions. A. T REAT A LL E MPLOYEES A ND S TUDENTS T HE S AME If a school treats its employees and students professionally and appropriately, and applies the same standards to all of them, a retaliation claim will be more difficult to prove. The school will be better positioned to rebut the claim of a causal link with a legitimate business reason for its actions. Therefore, it is important that schools administer both positive feedback of and corrective consequences for its employees and students in a fair, objective, and consistent manner, regardless of whether one employee or student has engaged in protected activity. B. P ERFORMANCE E VALUATIONS O F E MPLOYEES Evaluations should be grounded in objective criteria such as the employee’s job description and annual goals and objectives. They should include a written description explaining the areas of positive performance, areas that require improvement and suggestions for how to improve. Employees should be rated similarly for the same quality of work. Likewise, each employee’s evaluations should reflect the application of consistent standards. For example, if a supervisor or

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 247