Hardly anything is more stressful, or potentially expensive, to a school community than the termination of an employee that results in a claim of discrimination. Over the years, we’ve encountered three common myths which make religious schools susceptible to discrimination claims:
First, honest evaluations and documented employee issues are not that important.
In order to carry its burden of proof in an unlawful discrimination claim, the school must be able to articulate a legitimate, non-discriminatory reason for its action. Once the school does so, the burden shifts to the employee to show the pretext of the reasons given. Schools frequently fail to provide poor employees with reviews that accurately reflect performance problems, nor do they properly document issues with problem employees.
Second, no claims can be made by the employee because they were either at will or because the school simply did “not renew” the contract.
Most state and federal anti-discrimination provisions prohibit unlawful discrimination in any “term or condition” of employment. If an at will employee is terminated or the school decides not to renew the contract of an employee, that only prohibits a breach of contract claim. An employee can always claim that the reason for the non-renewal or the reason they were terminated from their at will job was because of an unlawful discriminatory reason (i.e. race, age, gender, national ethnic origin, disability, etc.).
Third, we don’t need to seek counsel from a knowledgeable attorney before communicating non-renewal or termination decisions.
A party who successfully brings a claim against your school can receive compensatory damages, damages for emotional suffering, punitive damages for intentional discrimination, plus their attorneys’ fees. Many times the school has a legitimate reason for its decision, but the staff improperly communicates the decision to the employee or has not taken the steps to properly document the problems.
Many schools do not have any form of employment practices insurance coverage for employment related claims, meaning the school will not only have to pay its own attorneys fees, but also any judgment rendered and the attorneys fees of the opposing side. As a result, making a mistake can cost the school hundreds of thousands of dollars. Schools should budget an annual amount for attorney consultations and review negative employment decisions with knowledgeable counsel before ever communicating them to the employee.