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

Remedial action should not include moving the complainant in an effort to separate the complainant from the alleged harasser and hostile environment. Doing so could be perceived as retaliation for complaining about harassment.

LCW Practice Advisor

Case Studies on Employer’s Duty to Prevent and Remedy:

Fuller v. City of Oakland 254 The City of Oakland was liable for a decision not to take remedial action because the harasser had stopped his inappropriate conduct. The court held that by doing nothing but hoping the harasser did not repeat his misconduct, the City effectively ratified the harassment. Instead, the City should have taken some kind of remedial action, whether it was to discipline the harasser or do something else to deter future harassment by any of its employees. Birschtein v. New United Manufacturing, Inc. 255 A co-worker made repeated sexual comments to Michelle Birschtein. A supervisor put an end to the comments, but the co-worker then began to stare at Birschtein several times a day. Birschtein complained to her employer but the employer took no action to stop the co-worker’s conduct. Birschtein brought suit against her employer for sexual harassment. The trial court granted summary judgment for New United on the basis that staring did not constitute sexual harassment. The Court of Appeal disagreed and found summary judgment inappropriate because a triable issue of fact existed as to whether the staring constituted intimidation and hostility. The Court also found that managerial failure to intervene effectively to prevent or end sexual harassment in the workplace can amount to a ratification of the misconduct for which the employer may be held liable.

R ECORDS U SE AND R ECORDS R ETENTION

Section 11

A. P ERSONNEL F ILES Personnel files contain employment applications, required Immigration and Naturalization Service forms, performance evaluations, written confirmation of employment actions, documents regarding discipline or proposed discipline, personal data, leave and attendance records, test results, and sometimes medical and psychological information and reports. Any of these records could be used to determine the employee’s qualification for employment, promotion, additional compensation, or disciplinary action. LCW recommends that districts maintain medical and psychological information and reports received on behalf of an employee but that these be kept in a separate file from the general personnel file. Employees have an interest in being able to inspect their own files to assure accuracy and fairness.

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 85