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

Fuller v. City of Oakland, California

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The investigator failed to interview the male alleged harasser and discontinued

the investigation although none of the documents indicated the female

complainant was untruthful. The Ninth Circuit Court of Appeals found that the

City failed to take appropriate remedial steps once it learned of sexual

harassment, and was therefore liable for Title VII hostile environment sexual

harassment.

B. D

ETERMINE AN

PPROPRIATE

EMEDY

Even though districts must establish their own internal administrative remedies for resolving

complaints of discrimination, harassment, or retaliation, complainants are not required to utilize

those internal remedies. Instead, complainants asserting employment-based claims may go

directly to the EEOC or the DFEH. Similarly, complainants with non-employment-based

discrimination claims may file directly with the Office for Civil Rights of the U.S. Department of

Education (OCR).

But for complainants who choose to utilize the complaint processes established by Title 5, then

Title 5 procedures govern. Complaints alleging a violation of Title 5 must be filed with either the

Chancellor of the Community colleges or the district official designated to receive such

complaints. Employment-based complaints must be filed within 180 days of the date of the

alleged unlawful act.

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, or with the OCR.

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.)

Employees alleging claims under Title VII, the ADEA, the ADA, or the FEHA

do not need

file a Tort Claim.

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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