An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

In deciding which, if any, interim measures to adopt, the school needs to carefully evaluate what is effective for the specific situation and which options have the least negative impact on the complainant. For example, it might be appropriate to temporarily transfer the alleged wrongdoer, but is less often acceptable to temporarily transfer the complainant. By asking the complainant for his or her input, a school might achieve a mutually satisfactory interim solution as well as reduce the potential for on-going liability or compounding it. In Swenson v. Potter, 1949 discussed above, during subsequent litigation, the employee who complained that a male coworker subjected her to sexual harassment claimed the employer violated Title VII by failing to take appropriate corrective action in response to her complaint. However, the court noted that the employer separated the two employees by moving the complainant to a different position and initiated an investigation. The court noted that while it is not proper to transfer a complainant to a less desirable location, an employer has broad discretion to choose how to minimize contact between the two employees. The court held that there was no evidence indicating that the position the complainant moved to was less desirable than the one she occupied at the time of her complaint. LCW Practice Advisor Proceed very cautiously in moving a complainant or taking any employment action that could be perceived C. W HEN D O Y OU A DVISE T HE E MPLOYEE O R S TUDENT T HAT H E O R S HE I S T HE S UBJECT O F A N I NVESTIGATION ? By way of example, assume that the investigator has been advised by an informant that the employee, a janitor, returns to the school on Wednesday evenings between 10:00 p.m. and midnight, and uses a school-furnished key to enter the facility and to remove cleaning supplies. Should the employee be promptly told that he is the subject of an investigation? The answer is an emphatic no! No statute or case requires that an employee be advised prior to the interview that he or she is the subject of an investigation. Using the above example, to advise the employee of the investigation could very well jeopardize the school’s ability to secure the necessary sub rosa (secretly gathered) evidence to prove the employee’s alleged misconduct. In addition, it is not unusual for several days or even weeks to pass between commencing an investigation and interviewing the subject employee. Pre-interview notification to the employee of the investigation may cause fellow employees to be more reluctant to come forward or to be open during their interviews (the subject may pressure potential witnesses). as adverse to the complainant. It might be more appropriate to temporarily transfer the alleged wrongdoer, and not the employee or student who complained. Asking the complainant for his or her input can also be helpful in achieving a mutually satisfactory interim solution and reducing the potential for on-going or compounding liability. Always document the complainant’s response.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 442