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

In contrast, nonemployment-based complaints may be filed within one year of the date of the alleged unlawful act. Upon receipt of either an employment-based or a nonemployment-based complaint, the district must forward a copy of the complaint to the State Chancellor’s office. In addition, the district must notify the complainant of his or her right to file directly with the DFEH or EEOC (employment complaints), or with the OCR (nonemployment-based complaints). If an employee opts against pursuing the district’s internal remedy before filing a complaint with the DFEH or EEOC, the district may be able to reduce the employee’s damage claim by asserting the avoidable-consequences doctrine as an affirmative defense. This affirmative defense, however, only applies to damages that the employee could have avoided if it would have been reasonable for him or her to utilize the district’s anti-harassment procedures. (See Section 15 below for more detailed information.) Because it is unlawful for a district that knows or should know of harassment, discrimination, or retaliation to fail to take immediate and appropriate corrective action, a district cannot stand by waiting for the completion of the investigation before it takes action. Depending on the allegations, the district may need to place the alleged harasser on paid administrative leave pending the completion of the investigation. Alternatively, the district should transfer/reassign the alleged harasser to another location. If the investigation sustains the allegations of harassment, discrimination, or retaliation, the district should immediately do whatever is necessary and appropriate to resolve the situation. Appropriate remedies include making the victim whole by restoring lost employment/educational benefits or opportunities, mandating training for all employees, and taking whatever action is necessary to prevent the misconduct from reoccurring. Disciplinary action against the harasser, ranging from reprimand to discharge for employees, and from warning to the expulsion for students is always required. Generally, the corrective action should reflect the severity of the misconduct. The district should make follow-up inquiries to ensure the harassment has not resumed and the victim has not suffered retaliation. If the district’s remedial efforts fail to end the misconduct, the district should impose additional, more severe, measures until the harassment ends. The reasonableness of a district’s remedy will depend on its ability to stop the harassment and dissuade potential harassers from unlawful conduct. Example: For first time, minor offenses, an employer may discipline the harasser and try to prevent further harassment by giving the harasser a verbal warning in a counseling session, expressing strong disapproval, demanding that the unwelcome conduct cease, and threatening more severe disciplinary action if the conduct does not cease. If the harassment continues despite the stern warning, the district must then pursue disciplinary action more severe than counseling to ensure that the behavior ends. Employees alleging claims under Title VII, the ADEA, the ADA, or the FEHA do not need to file a Tort Claim. 253

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 84