An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

2. W HAT I F T HE C OMPLAINANT D OES N OT W ANT A N I NVESTIGATION ? Sometimes, complaining parties who report an incident request that the school do nothing. Honoring such a request, however, could place other employees or students at risk for similar conduct. Also, “doing nothing” or failing to investigate could place the school at risk for liability for failure to investigate and failure to take prompt remedial action. Once on notice of an alleged occurrence of misconduct, especially workplace harassment, discrimination, or retaliation, the employer must investigate, despite the complainant’s request to do nothing or not to investigate. The employer should therefore advise the complainant that it will investigate the complaint, but it should also elicit and address any specific concerns that the complainant has regarding an investigation. LCW Practice Advisor The investigation should proceed even when the alleged victim or other complainant does not request or consent to an investigation. 3. W HEN S HOULD T HE I NVESTIGATION B EGIN ? The investigation should commence within a few days of the receipt of the complaint (if one is filed) or when the school otherwise becomes aware of possible misconduct. If an investigation is delayed, memories fade, evidence may disappear, and the school might be accused of failing to take prompt and effective remedial action. Also, if the investigation is delayed, misconduct might remain unaddressed. A prompt investigation also sends a message that the school takes the complaint seriously and allows the school to fairly address the issues in a manner that will minimize disruption to the school community and individuals involved. 1928 The following cases concerning workplace harassment illustrate this principal: Waymire v. Harris County 1929 An employer prevailed in a harassment case in which (1) the supervisor began

the investigation on the day the plaintiff complained, (2) the supervisor interviewed the plaintiff, accused harasser and several witnesses within one week, and (3) the employer prepared a report regarding the investigation, forwarded it to management personnel, and reprimanded the “harasser.” Werger v. City of Ladue 1930 An employer prevailed in a harassment case where (1) numerous co-workers witnessed some of the objectionable conduct, (2) the department head immediately separated the accused from the accusers, ending the harassing behavior, and (3) the department head conducted an immediate and thorough investigation. Carmon v. Lubritzol Corp. 1931 An employer prevailed in a harassment case in which several supervisors and the personnel manager (1) met with the plaintiff the day she complained to tell her they appreciated her bringing the incident to their attention and to reiterate the policy against harassment, (2) completed the investigation within three days,

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