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

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

Swenson v. Potter 250 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 or her identity remain confidential. 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.

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 82