An Administrator's Guide to California Private School Law

Chapter 4 - Employment Contracts And Separation Of Employees

designed to be used for termination of employment. Likewise an employee with a history of no evaluations may successfully argue that his or her reemployment each year was reasonably interpreted as confirmation of satisfactory performance. For all of the above reasons, using performance as a layoff criterion can carry a higher risk of successful legal challenges. The subjectivity of performance evaluations is one factor that raises the level of risk. If the school’s performance evaluation program has not been well administered it is not advisable to utilize performance as a criterion. Conversely, performance can be effectively used as a criterion where a school has a history of timely, well-executed performance evaluations. c. Special Skills Special skills, in conjunction with other criteria, such as seniority, can be a very effective tool to ensure a diversely skilled faculty and staff. Under this option, individuals who have special skills are “skipped over” and retained during a layoff, even though they may have lower seniority to another individual who is laid off. Examples of special skills include fluency in foreign languages, training or experience working with students with special needs, ability to work in dual capacities (e.g., a mathematics teacher who can also coach softball), or proficiency in certain software. Whether a special skill is a legitimate criterion to skip over an employee depends on the individual circumstances. For example, a teacher who is proficient in communicating in sign language could likely be legitimately skipped over by a school that has a population of hearing- impaired students. However, a decision to “skip over” a mathematics teacher because of his or her ability to coach football at a school that does not have a football team likely would not be viewed by a court as being legitimately motivated by the employee’s special skill. While private schools have broad discretion to effectuate layoffs in the manner that best meets the needs of the school, it is the defensible application of any articulated criteria that will provide a solid defense if challenged. Generally in using this criterion, if the school can demonstrate a genuine need for a special skill, the school can likely skip over an employee who possesses that special skill. d. Elimination Of Programs Schools may also eliminate whole school programs, such as drama, music, fine arts or outdoor education programs. Under this option, all of the faculty and staff involved with a particular program would generally be laid off. Criteria such as employee seniority or performance should not be factors. So long as the school is able to put forth a reasonable, business-related reason for its decision, these types of layoffs are highly defensible. EEOC v. Boeing Co. (9th Cir. 2009) 577 F.3d 1044

Renee Wrede worked as an engineer for Boeing. Boeing laid her off, along with six men, for having a low reduction in force (RIF) score based on performance evaluations. However, all six low-scoring male engineers ultimately avoided separation. One of the layoff notices was cancelled and the five other employees were transferred. Wrede’s supervisor told two of the employees about new job openings, which facilitated their transfers, but he did not offer Wrede any similar assistance. The EEOC sued Boeing for sex

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