An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

Beliefs or practices fall within the definition of religion if they are sincerely held and occupy in the life of their possessor a place parallel to that filled by the deity of religions admittedly qualifying for the exemption. 847 Under California law, a religious creed includes atheism. 848 LCW Practice Advisor As noted previously, religious schools may discriminate on the basis of religion. C. P HYSICAL D ISABILITY Anti-discrimination laws broadly define what constitutes a physical disability. 849 A physical disability is any physical condition that makes achievement of a major life activity more difficult. The condition includes any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects a major body system. The disability could be related to any body system including: neurological, immunological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genital-urinary, hemic and lymphatic, skin, and endocrine. 850 Example: Obesity may be a physical disability, but only if it is caused by an underlying physiological, systemic disorder affecting one or more of the referenced body systems. Obesity itself, however, absent an underlying condition, has been found not to be a disability that is protected under the ADA. 851 In California, to qualify as a physical disability, the physical condition need only limit the employee or applicant’s ability to participate in major life activities. 852 Major life activities include: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Under federal law, a disability is an impairment that substantially limits one or more major life activities. Under the Americans with Disabilities Amendments Act (ADAAA), the federal definition of “disability” under the ADA has been broadened by expanding the definition of “major life activities” to also include major bodily functions. “Major life activities” include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major bodily functions include, but are not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The ADAAA provides that “disability” includes any impairment that is episodic or in remission if it would substantially limit a major life activity when active. It also prohibits consideration of the ameliorative effects of “mitigating measures” when assessing whether an impairment substantially limits a person’s major life activities, with one exception, i.e. in assessing whether someone is limited in the major life activity of “seeing,” the person’s vision must be assessed in its corrected state when using glasses or contacts. Further, impairments which require special education or related services may also qualify as physical disabilities. 853 In fact, even if a person does not actually have a physical disability, that person could still state a claim of discrimination or harassment based on physical disability if he

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