An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

In fact, case law establishes that once a school knows or should have known of possible harassment, failure to conduct any investigation at all may constitute an independent violation of federal law. 1030 Under California law, the failure to investigate may constitute a violation of the statute requiring an employer to take reasonable steps to prevent harassment. 1031 SB 1300, effective January 1, 2019, provides that an employer’s failure to take all reasonable steps to prevent discrimination and harassment from occurring can establish liability for the employer under FEHA even if the underlying discrimination or harassment was not significant enough to be actionable under FEHA. Prior to the passage of SB 1300, failure to take reasonable steps to prevent discrimination and harassment was only actionable if the plaintiff could also prove that he or she was the victim of discrimination or harassment. Generally a school must conduct an investigation anytime a complaint of harassment is received, either formally or informally. This is true even where the complaint appears to have no merit whatsoever. An investigation may also be triggered by the following:  When a person complains that he or she has been harassed;  When a person, other than the allegedly aggrieved person, complains about harassment;  When someone indicates that inappropriate conduct is occurring, even if the word “harassment” is not used;

 When a supervisor personally observes inappropriate conduct or language, or has general knowledge of a potentially hostile work environment. In this situation, the supervisor must request that any inappropriate conduct cease and that an investigation be conducted.

The investigation should proceed even when the alleged victim or other complainant does not file a formal complaint, does not request or consent to an investigation, or if the alleged victim requests that the school do nothing.

LCW Practice Advisor

The investigation should start promptly after receipt of the complaint (if one is filed) or when the school otherwise becomes aware of possible harassment, discrimination, or retaliation. If an investigation is delayed, memories fade, evidence may disappear, and the school may be accused of failing to take prompt and effective remedial action. Occasionally, it may become necessary to place an accused employee on paid administrative leave, pending an investigation. For a sample notice to an accused employee that the employee is being placed on administrative leave, please see Compendium. Schools that have established complaint investigation procedures are expected by the courts, the EEOC, and the DFEH to follow those procedures. It is particularly important to abide by all timelines.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 252