An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

Under the California Domestic Partner Rights and Responsibilities Act (“Domestic Partnership Act”), domestic partners must generally be treated as spouses under California law. 870 871 For schools, this means that domestic partners are protected from discrimination in employment under the FEHA, included within the California Family Rights Act provisions, and various Labor Code provisions. Religious schools incorporated as a California Religious Nonprofit Corporations are not subject to the FEHA. Therefore, those religious schools are not bound by FEHA’s protection on the basis of sexual orientation. In 2017, the first federal circuit court held that Title VII does protect on the basis of sexual orientation as a form of sex discrimination. The Ninth Circuit (which governs California), however, has not changed its position that Title VII does not protect on the basis of sexual orientation. This issue may go to the Supreme Court for clarification in the near future. Moreover, individuals who perform religious functions may be prohibited from bringing a claim under the “Ministerial Exception.”

LCW Practice Advisor

I. G ENETIC I NFORMATION Congress enacted Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) to protect job applicants, current and former employees, labor union members, and apprentices and trainees from discrimination based on their genetic information. GINA applies to employers with 15 or more employees as well as employment agencies, labor organizations, and joint labor- management committees involved in training programs. 872 GINA imposes several different prohibitions on employers. 873 First, GINA prohibits employers from discriminating against employees with respect to hiring, promotion, firing, or any other terms and conditions of employment because of genetic information related to that employee or their family members. 874 Second, GINA prohibits retaliation against employees who oppose any act made unlawful by GINA, who file a charge of discrimination or assist another in doing so, or who provide testimony in connection with a charge. 875 GINA also prohibits employers from negatively limiting, segregating, or classifying employees because of their or their family members’ genetic information. 876 Finally, with limited exceptions, GINA also prohibits employers from requesting, requiring, or purchasing genetic information about employees or employees’ family members. 877 Although GINA prohibits employers from requesting, requiring, or purchasing genetic information about employees or employees’ family members, the following is a list of the six statutory exceptions to this general rule:

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 215