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

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 255 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. Fuller v. City of Oakland, California 256 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).

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2020 (c) Liebert Cassidy Whitmore 83