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

Fuller v. City of Oakland, California 245 The investigator failed to interview the male alleged harasser and discontinued the investigation although none of the documents indicated the female complainant was untruthful. The Ninth Circuit Court of Appeals found that the City failed to take appropriate remedial steps once it learned of sexual harassment, and was therefore liable for Title VII hostile environment sexual harassment.

B. D ETERMINE AN A PPROPRIATE R EMEDY Even though districts must establish their own internal administrative remedies for resolving complaints of discrimination, harassment, or retaliation, complainants are not required to utilize those internal remedies. Instead, complainants asserting employment-based claims may go directly to the EEOC or the DFEH. Similarly, complainants with non-employment-based discrimination claims may file directly with the Office for Civil Rights of the U.S. Department of Education (OCR). But for complainants who choose to utilize the complaint processes established by Title 5, then Title 5 procedures govern. Complaints alleging a violation of Title 5 must be filed with either the Chancellor of the Community colleges or the district official designated to receive such complaints. Employment-based complaints must be filed within 180 days of the date of the alleged unlawful act. In contrast, nonemployment-based complaints may be filed within one year of the date of the alleged unlawful act. Upon receipt of either an employment-based or a nonemployment-based complaint, the district must forward a copy of the complaint to the State Chancellor’s office. In addition, the district must notify the complainant of his or her right to file directly with the DFEH or EEOC, or with the OCR. If an employee opts against pursuing the district’s internal remedy before filing a complaint with the DFEH or EEOC, the district may be able to reduce the employee’s damage claim by asserting the avoidable-consequences doctrine as an affirmative defense. This affirmative defense, however, only applies to damages that the employee could have avoided if it would have been reasonable for him or her to utilize the district’s anti-harassment procedures. (See Section 15 below for more detailed information.)

Employees alleging claims under Title VII, the ADEA, the ADA, or the FEHA do not need to file a Tort Claim. 246

Because it is unlawful for a district that knows or should know of harassment, discrimination, or retaliation to fail to take immediate and appropriate corrective action, a district cannot stand by waiting for the completion of the investigation before it takes action. Depending on the allegations, the district may need to place the alleged harasser on paid administrative leave pending the completion of the investigation. Alternatively, the district should transfer/reassign the alleged harasser to another location. If the investigation sustains the allegations of

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2018 (c) Liebert Cassidy Whitmore 82