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

Title 5 requires that each district designate one person as the district officer responsible for receiving complaints and coordinating the investigation. However, depending on the circumstances, that district officer can assign the actual investigation of the complaint to other staff or retain an outside investigator. Districts should consider retaining an outside investigator if the complaint names or implicates a high-ranking employee or if it involves particularly sensitive issues. Once the district officer assigns the complaint for investigation, the district should provide the investigator with relevant documents and information, as well as access to potential witnesses.

Following the proper procedure can insulate you from liability.

Case Study for Investigating Allegations of Harassment, Discrimination and Retaliation:

Swenson v. Potter 254 Melanie Swenson believed that a co-worker was sexually harassing her, but she did not report it to anyone. Once management became aware of Swenson’s complaints, they spoke to the alleged harasser and opened an investigation. The investigation did not find sufficient evidence to support formal discipline. Swenson then sued for sexual harassment. The Ninth Circuit held that the employer could not be held liable under Title VII. The employer’s prompt response once it learned of the alleged harassment and the fair and unbiased investigation fulfilled its duty to Swenson.

Complaints should be processed as confidentially as possible, with identities disclosed only when necessary. Statements made by employees should not be disclosed to other employees except to elicit specific, relevant, and necessary information from the employee. At the start of each investigative interview, witnesses should be told that the information they provide will only 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/her/their identity remain confidential.

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2020 (c) Liebert Cassidy Whitmore 82