Make sure your diversity work complies with your legal obligations | Fisher phillips
Whether your school aims to be more diverse and inclusive, or wants to be in the best possible position to uphold religious principles, it is important to consult an experienced independent or private school legal advisor when engaging in a process. diversity work for school. Many schools undertake this work only by engaging consultants, such as those who focus on issues of diversity, equity and inclusion, or those who emphasize religious freedom. There is no doubt that their voices and perspectives are important to the process. What is often overlooked, however, are the legal ramifications of such work. Lack of continuity between this work and general school policies – including those spelled out in employee and student handbooks as well as employment and enrollment contracts – may result in legal liability.
Your school administration and its board can go to great lengths by spending a lot of time, money and effort in developing and writing a diversity statement or others. similar documents. These typically provide for inclusion on the basis of race, religion, national origin, sex, sexual orientation, gender identity, gender expression and disability, among others. This diversity statement is then often superseded on your school’s website and in student manuals, employee manuals, enrollment contracts, employment contracts, and marketing materials without further ado. However, such statements about diversity may be unknowingly inconsistent with the school’s non-discrimination policies or with the protections the school is legally required to provide.
Consider local laws
When considering the types of diversity declarations to adopt, it is also important to examine any applicable state laws or local ordinances, especially those relating to non-discrimination. Cities, counties or states often require protection for individuals beyond that required by federal law. For example, many local governments provide legal protection to transgender people through public housing laws or ordinances. Secular or religious private schools may or may not be exempt from public housing depending on the language of the law or ordinance. If your school has a public planning requirement and your school’s diversity statement does not include these categories, an investigator (i.e. a judge, jury, EEOC or other government agency) may interpret absence as the school’s intention to discriminate or hold the absence against the school in litigation.
Consider the categories of protection
A diversity statement usually contains more categories of protection than what is legally required. By broadening the categories of protection, your school can extend legal protection to people who would otherwise not be protected. If a school wants to offer this additional legal protection, which is perfectly acceptable – but it is important that the administration and the board exercise sound and informed judgment when deciding to do so, as this increases the legal responsibility of the school . Although this does not necessarily provide statutory rights to these people, there could be contractual complaints if the school does not keep its promises. Thus, if your school chooses to provide protection outside the scope of legally required categories, then it must follow up on its own statements. So, for example, if a diversity statement states that a school does not discriminate on the basis of gender identity, then it must welcome transgender students.
On a related note, your school should check with their insurance broker as you develop your diversity statement. You’ll want to make sure that you have insurance coverage in the event of a claim if you choose to extend the promises of diversity beyond what’s legally required and your school is presumed to have failed.
Religious schools should not ignore diversity issues
On the other hand, if your school is seeking to uphold its religious principles, it is just as important that you take diversity issues into account as well.
Statements of faith
For starters, you shouldn’t just take a “statement of faith” and call it a day. Religious schools should always have non-discrimination policies, and they can often be narrower than those required for secular schools. However, this also means that religious schools that do not employ LGBTQ employees based on the religious principles of the school, for example, should not have extensive policies talking about diversity and inclusiveness based on sexual orientation or gender identity. Consistency between your statement of faith, your non-discrimination policy, employee handbook, student handbook, board policies, governance documents, and facility use agreements (among others) is the key to positioning your school to be able to withstand legal scrutiny when applying the religious principles of the school.
Religious schools should do an analysis with legal counsel to determine if the school is “religious enough” to withstand scrutiny of the various legal exemptions available to certain religious schools. This analysis should include whether, to what extent and to which employees your school can apply the ministerial exception and whether certain actions of your school fall under the protection of ecclesiastical abstention.
- The ministerial exception exempts religious institutions from anti-discrimination prosecution in certain employment situations.
- If applicable, the doctrine of ecclesiastical abstention provides that civil courts do not have jurisdiction over prosecutions involving religious doctrine, membership of religious organizations, management of internal affairs, standards of conduct, and church morals or discipline.
If your religious school is considering taking advantage of these doctrines, you should know that the courts will look at a multitude of factors when reviewing employment discrimination cases to determine if the ministerial exception applies. This exam can include everything from whether the teacher is leading the children in prayer, to the type of food served in the school cafe, to whether the school facilities are rented to. organizations incompatible with the religious mission of the school, and beyond. This means that, among other things, employee agreements, enrollment agreements, food service provider contracts, and facility use agreements should all be consistent with the work being done by the school to uphold its principles. religious.
For religious and secular schools, it is not uncommon for courts reviewing employee or student discrimination cases to look at the school’s mission, marketing materials, and various policies and procedures to see how the he school talks about diversity and non-discrimination. and inclusion. Your school’s position could be significantly weakened if any of these policies or documents are inconsistent with the school’s approach to a particular employee or student situation. For example, it would be incongruous for a school to talk about in its admissions documents or on its website celebrating differences in family structure if the school does not admit families with two moms or two dads.
In short, diversity work should not be done in a vacuum without the benefit of a legal perspective and how the work can impact a school’s accountability.