An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

D EVELOPING A N A NTI -H ARASSMENT , D ISCRIMINATION A ND R ETALIATION P OLICY

Section 11

A. E MPLOYEES Harassing behavior, even if it does not violate the law, is still unproductive and offensive and would likely still violate the prohibitions in the School’s policy. A school should prohibit and take a corrective action where employees engage in inappropriate behavior that violates the school’s anti- discrimination, harassment and retaliation policy, even if the behavior does not reach the level of unlawful discrimination, harassment or retaliation. School policies should not simply restate the law for two reasons. First, prohibiting inappropriate behavior and not just unlawful behavior enables a school to take corrective action at an early stage, thereby acting to prevent more severe and potentially unlawful conduct from developing. Second, if the school’s policy simply recites the legal standard, the school could be held to have admitted that illegal conduct occurred if it finds that the conduct violated its policy. Any such finding could be used against the school as an admission if litigation develops. For these reasons, schools should adopt a “zero tolerance” policy. In a zero tolerance policy, harassment, discrimination, and retaliation is prohibited, whether or not it would be found to be unlawful. See Compendium for sample policies and complaint procedures. LCW Practice Advisor Schools may be able to limit damages in a harassment lawsuit if it can prove that it has internal complaint procedures that are designed to eliminate harassment. 1019 A school can limit damages if it assures all employees they can use the school’s internal complaint procedure without retaliation. 1020 To do so, schools must do the following:

 Adopt a comprehensive complaint procedure that is user friendly;  Resolve complaints in a prompt, non-judgmental, objective fashion;  Communicate and publicize the complaint procedure to all employees; and  Periodically update and remind employees about the complaint procedure. 1021

Schools should make it a practice to review and, if necessary, revise their policy on an annual or bi- annual basis in order to ensure it is up to date.

LCW Practice Advisor

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 249