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

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.

LCW Practice Advisor

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.

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

Fuller v. City of Oakland

247

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.

248

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