The State Labor Commissioner found that it is a violation of Labor Code Section 1102.1 to transfer a student because of a teacher’s sexual orientation. On appeal the Director of the Department of Industrial Relations agreed and upheld the decision. (In the Matter of the Complaint of Alta Kavanaugh against Hemet Unified School District, Case No. 99-04090 (June 19, 2000).)
Facts
Ms. Kavanaugh taught 10th grade English for the School District. Ms. Kavanaugh is openly gay and conducted training and workshops on gay and lesbian issues with the California Teacher’s Association and worked with the gay youth group in town. Starting in September 1998, the parents of one of Ms. Kavanaugh’s students requested that the school transfer their child out of her class. The parents were told that transfer based on sexual orientation was against school policy and the request was denied.
However, in October 1998, the child was transferred out of the class due to an alleged "hostile learning environment." The parents of the student stated in an October request to transfer their child that this "environment" was created by a class assignment concerning the most important person in each student’s life. Ms. Kavanuagh used the example of her gay companion as the most important person in her life. The parents of the student complained that their child was "uncomfortable and felt awkward."
Conclusions
Labor Code Section 1102.1 protects employees from discrimination or different treatment in any aspect of employment or opportunity for employment because of their sexual orientation. In order to establish a violation of Labor Code Section 1102.1, a complainant must show: 1) that she is a member of a protected group; 2) that she suffered an adverse action; and 3) that there is a causal connection between the adverse action and the complainant’s sexual orientation.
First, Ms. Kavanaugh is openly gay. She is therefore a member of a protected group under Section 1102.1.
Second, there is no dispute that the School District took action which was adverse to Ms. Kavanaugh when they transferred a student from her class without her approval.
Third, there was a causal connection between the adverse action and Complainant’s sexual orientation. All of the School District officials admitted that they were aware that the parents objected to Ms. Kavanaugh’s sexual orientation. There is no evidence to show that the reason for the transfer changed from the first request by the parents to the final request.
The Labor Commissioner concluded the October request "appears to be a thinly veiled attempt to conceal the real reason why [the mother] so persistently sought to have her daughter transferred. It is apparent that the motivating factor was still Ms. Kavanaugh’s sexual orientation."
On appeal, the Director of the Department of Industrial Relations adopted the Labor Commissioner’s finding of a violation of Labor Code Section 1102.1, and ordered the School District to:
-Immediately cease and desist from any activity that is discriminatory under Labor Code Section 1102.1
-Immediately purge Alta Kavanaugh’s personnel files of any adverse record that has resulted from this violation of Labor Code Section 1102.1.
-Conduct anti-discrimination training.
Update
Labor Code Section 1102.1 has been repealed. The words “sexual orientation” were added to Government Code Section 12920 as part of the California Fair Employment & Housing Act.
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