Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

be shared with those who have a need to know and only as necessary to conduct a complete, thorough, and fair investigation. Witnesses should also be told that the information provided may also need to be disclosed during any hearing of the matter which may be held. Occasionally, complaining parties may request that the employer not take any action regarding their allegations. Districts cannot agree to those requests. Once on notice of possible unlawful harassment, discrimination, or retaliation, a district must investigate the allegations—even if the complainant asks you not to. Failure to do so can place other employees at risk of harassment, or discrimination. It can also preclude the district from asserting the avoidable consequences doctrine as an affirmative defense or as a basis to reduce damages. Thus, when faced with a request that the district do nothing about the allegations of unlawful harassment, discrimination, or retaliation, a district should advise the complainant that it is required to investigate the complaint. The district should also, however, elicit and address any specific concerns the complainant may have regarding an investigation, and assure the complainant that retaliation will not be tolerated. When a complainant insists on remaining anonymous, it is important to document in writing the fact that the complainant requested his or her identity remain confidential. Whether the district conducts the investigation itself or retains an outside investigator, the investigation must be not only prompt and thorough, it must be fair and impartial as well. Failure to ensure a fair investigation can result in the victim of the alleged harassment or even the alleged harasser challenging the fairness of the investigation. An improperly performed investigation can itself constitute discrimination. Thus, to avoid claims of unfair or discriminatory investigations, all parties must be given an opportunity to respond to the allegations of the other. While the initiation of the investigations may put a halt to the alleged harassment, the district must still complete the investigation. Aside from the fact that Title 5 specifically requires that the district set forth the results of its investigation in a written report, the district has a duty to both: (a) end harassment; and (b) deter future harassment by the same offender or others. The Chancellor’s office, however, may require a district to modify its policies if it feels that the district's policies are inconsistent with the standards established by Title 5.

Case Studies on Discriminatory Investigations:

Aguilar v. Avis Rent A Car Systems 244 When a client reported having left a calculator in a rental vehicle, and the calculator could not be found, the employer initiated an investigation. The investigator, however, only questioned Latino employees about the suspected theft of the calculator. The calculator was subsequently found. The Latino employees filed a lawsuit alleging discrimination and harassment because of race, and identified the investigation as one of the actions supporting their lawsuit. The jury found in their favor, and the judge issued an injunction ordering the employer to cease and desist from conducting discriminatory investigations.

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2018 (c) Liebert Cassidy Whitmore 81