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

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts

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.

While the initiation of the investigations may put a halt to the alleged harassment, the district

must still complete the investigation. Aside from the fact that Title 5 specifically requires that

the district set forth the results of its investigation in a written report, the district has a duty to

both: (a) end harassment; and (b) deter future harassment by the same offender or others. The

Chancellor’s office, however, may require a district to modify its policies if it feels that the

district's policies are inconsistent with the standards established by Title 5.

Case Studies on Discriminatory Investigations:

Aguilar v. Avis Rent A Car Systems

244

When a client reported having left a calculator in a rental vehicle, and the

calculator could not be found, the employer initiated an investigation. The

investigator, however, only questioned Latino employees about the suspected

theft of the calculator. The calculator was subsequently found. The Latino

employees filed a lawsuit alleging discrimination and harassment because of

race, and identified the investigation as one of the actions supporting their

lawsuit. The jury found in their favor, and the judge issued an injunction

ordering the employer to cease and desist from conducting discriminatory

investigations.