An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

Swenson v. Potter 1032 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.

LCW Practice Advisor Implementing specific investigative procedures can help ensure complete investigations and consistent handling of complaints of harassment, discrimination, and retaliation. For a checklist for conducting investigations, please see Compendium. Please refer to the Investigations Chapter for specific guidance on conducting investigations.

E XHAUSTION O F A DMINISTRATIVE R EMEDIES A ND A PPLICABLE S TATUTE O F L IMITATIONS

Section 13

A. E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION In California, to seek damages solely under Title VII, the employee must file a charge of discrimination with the Equal Employment and Opportunity Commission (“EEOC”) within 180 days of the alleged unlawful act. 1033 If the employee seeks damages under both Title VII and the FEHA, then the employee must file the charges of discrimination within 300 days of the alleged unlawful act, or within 30 days of receiving notice that the DFEH has terminated its investigation of the same charge, whichever is earlier. 1034 The EEOC must notify the employer of the charge within 10 days of receiving it and then promptly investigate it. 1035 During the investigation, each party may submit to the EEOC a statement of position and evidence regarding the allegations in the charge. The EEOC may also issue subpoenas requiring the attendance and testimony of witnesses, the production of evidence, and access to evidence. LCW Practice Advisor

Remember that although the investigation is confidential, the EEOC file may be made public if the complainant later sues the school in a civil lawsuit. Therefore, the school’s statement to the EEOC should be factual and persuasive, but it should not include anything the school would not want the complaining employee to see.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 253