Finding the Facts - Disciplinary and Harassment Investigation

In contrast, nonemployment-based complaints may be filed within one year of the date of the alleged unlawful act or within one year of the date on which the complainant knew or should have known of the facts underlying the allegation of unlawful discrimination. 36 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. 37 For employment discrimination complaints, a district must advise the complainant that he or she may file the complaint with the U.S. Equal Employment Opportunity Commission (EEOC) and/or the Department of Fair Employment and Housing (DFEH) and forward a copy of any filing by the complainant with the EEOC or DFEH to the Chancellor’s Office for a determination of whether the issues presented require an independent investigation. 38 Within 90 days of receiving a nonemployment based complaint, the district is required to complete its investigation and forward a copy of the investigative report to the Chancellor, a copy or summary of the report to the complainant and written notice setting forth all of the following to both the Chancellor and complainant:  The determination of the chief executive officer or his or her designee as to whether there is probable cause to believe discrimination occurred with respect to each allegation in the complaint;  A description of actions taken, if any, to prevent similar problems from occurring in the future; The same requirements apply to employment based complaints except for providing the report to the Chancellor. 40 Also, the complainant must be advised of his or her right to appeal to the district governing board and to file a complaint with DFEH. 41 If the district, for reasons beyond its control is unable to comply with the 90-day deadline, the district may request that the Chancellor grant an extension. 42 The request for extension must be submitted no later than ten days prior to the expiration of the deadline. 43 The California Community Colleges Chancellor’s Office (CCCO) issued a Legal Advisory on September 2, 2011 regarding the discrimination complaint procedures under Title 5. The Office for Civil Rights of the U.S. Department of Education (OCR) brought to CCCO’s attention several areas where there may be some confusion regarding how best to comply with both state and federal regulations when responding to unlawful discrimination complaints. The advisory addresses these issues and identifies some areas of misunderstanding regarding the respondent’s (subject of a complaint or accused) rights within the Title 5 process. 44 Specifically, the respondent is entitled to the opportunity to address the complaint that has been filed, but those rights and entitlements are not covered by Title 5. Four examples are listed below with “best practices” recommendations in parentheses:  The proposed resolution of the complaint; and  The complainant’s right to appeal to the district governing board and the State Chancellor. 39

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 15