An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

Section 2 R ECRUITING A ND A DVERTISING

A. A PPLICABLE D ISCRIMINATION L AWS I N H IRING A school should base its hiring decisions upon non-discriminatory criteria and procedures. Discrimination based upon an applicant’s protected status is not only illegal, but it also minimizes the school’s prospects of hiring the best qualified individual for the job by limiting the available pool of applicants. Title VII of the 1964 Civil Rights Act (“Title VII”), 42 U.S.C. section 2000e, et seq. , is the federal law that prohibits discrimination, harassment, and retaliation in the workplace. 77 Another Federal Law, the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. section 621, et seq. , prohibits discrimination, harassment, and retaliation against employees or job applicants because of age. 78 Title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. section 12101, et seq ., prohibits employers from discriminating, harassing, or retaliating against employees or job applicants because of physical or mental disability. 79 The California Fair Employment and Housing Act (“FEHA”), California Government Code section 12900, et seq. , prohibits discrimination, harassment, and retaliation based on an employee’s or applicant’s protected status. 80 It is more than merely the state equivalent of Title VII in that the FEHA provides employees and job applicants with far greater rights than those available under Title VII in terms of scope of coverage and available remedies. LCW Practice Advisor Non-profit religious corporations are specifically

excluded from the definition of “employer” under the FEHA. Thus, non-profit religious corporations generally cannot be held liable under the FEHA for discrimination or harassment claims brought under state law by their employees, whether on the basis of religion or any other protected classification such as age, race or gender. See the Recognizing and Preventing Harassment, Discrimination and Retaliation Chapter for more details.

B. R ECRUITING A ND A DVERTISING P RACTICES M UST B E N ONDISCRIMINATORY Schools must recruit and advertise for positions in a nondiscriminatory manner. With limited exceptions, a school may not:

 Restrict, exclude, or classify individuals in a protected group;  Express a preference for individuals in a protected group; or

 Communicate or use advertising methods to communicate the availability of employment benefits in a manner intended to discriminate on the basis of a protected category. 81

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 47