AR 3435 - Administrative Regulations - General Institution

AR 3435 Discrimination and Harassment Complaints
               and Investigations

 

References:

Education Code Sections 212.5, 66281.5, and 67386
Government Code Section 12950.1
Title 5 Sections 59320, 59324, 59326, 59328, and 59300 et seq.
Title 2 Sections 11023 and 11024;
34 Code of Federal Regulations Section 106.8(b)


The law prohibits students, employees, (including but not limited to instructors, supervisors and managers) and third parties from engaging in harassment, discrimination, or retaliation.  Any person (e.g., an employee or non-employee of the District) who has suffered harassment, discrimination, or retaliation may file a formal or informal complaint of harassment, discrimination, or retaliation.

Informal Complaints

An informal complaint is: (1) A written or unwritten allegation of harassment, discrimination, or retaliation with a request to engage in the informal process; or (2) a written allegation of harassment, discrimination, or retaliation that falls outside the timelines for a formal complaint.

Any person may submit an informal complaint to the Vice Chancellor of Human Resources or any other District or college administrator.  Administrators receiving an informal complaint shall immediately notify the Vice Chancellor of Human Resources (or designee) in writing of all pertinent information and facts alleged in the informal complaint.

Upon receipt of an informal complaint, the Vice Chancellor of Human Resources will notify the person bringing the informal complaint of his/her right to file a formal complaint, and explain the procedure for doing so.  The complainant may later decide to file a formal complaint.  If the individual chooses not to file a formal complaint, or if the alleged conduct falls outside the timeline to file a formal complaint, the Vice Chancellor of Human Resources shall consider the allegations contained in the informal complaint and determine the appropriate course of action.  This may include efforts to informally resolve the matter, or a fact-finding investigation.

Investigation of an informal complaint will be appropriate if the Vice Chancellor of Human Resources determines that the allegation(s), if proven true, would constitute a violation of the District policy prohibiting harassment, discrimination, or retaliation.  The Vice Chancellor of Human Resources will explain to any individual bringing an informal complaint that the Vice Chancellor of Human Resources may decide to initiate an investigation, even if the individual does not wish the Vice Chancellor of Human Resources to do so.  However, the complaint's confidentiality will be preserved to the maximum extent possible. The Vice Chancellor of Human Resources shall not disregard any allegations of harassment, discrimination, or retaliation solely on the basis that the alleged conduct falls outside the deadline to file a formal complaint.

Formal Complaints

A formal complaint is a written and signed statement filed with the District or the State Chancellor's office that alleges harassment, discrimination, or retaliation in violation of the District's Board Policies, Administrative Procedures or in violation of state or federal law.

A Formal Complaint must meet each of the following criteria:

  • It must allege facts with enough specificity to show that the allegations, if true, would constitute a violation of District policies or procedures prohibiting discrimination, harassment, or retaliation;
  • The complainant must sign and date the Formal Complaint;
  • The complainant must file any Formal Complaint not involving employment within one year of the date of the alleged discriminatory, harassing, or retaliatory conduct or within one year of the date on which the complainant knew or should have known of the facts underlying the allegation(s) of discrimination, harassment, or retaliation.
  • The complainant must file any Formal Complaint alleging discrimination, harassment, or retaliation in employment within 180 days of the date of the alleged discriminatory, harassing, or retaliatory conduct, except that this period shall extended by no more than 90 days following the expiration of the 180 days if the complainant first obtained knowledge of the facts of the alleged violation after the expiration of the 180 days.

If the Formal Complaint does not meet the requirements set forth above, the Vice Chancellor of Human Resources will promptly return it to the complainant and specify the defect.  If the sole defect is that the Formal Complaint was filed outside the applicable proscribed timeline, the Vice Chancellor of Human Resources will handle the matter as an informal complaint.

Where to File a Formal Complaint

The completed Formal Complaint form must be filed with any of the following:

  • The Vice Chancellor of Human Resources, 2323 N Broadway, Santa Ana, CA 92706, and/or
  • The California Community College Chancellor's Office, 1102 Q Street, Sacramento, CA 95811.

Student complainants shall be notified that they may file a discrimination complaint with the U.S. Department of Education, Office for Civil Rights (OCR), 50 United Nations Plaza, Room 1490, Mail Box 1200 San Francisco, CA 94102 (415) 486-5555.

Employee complainants shall be notified that they may file employment discrimination complaints with the U.S. Equal Employment Opportunity Commission (EEOC), Royal Federal Building, 255 East Temple Street, 4th Floor Los Angeles, CA 90012 or the California Department of Fair Employment and Housing (DFEH)., 2218 Kausen Drive, Suite 100 Elk Grove, CA 95758.

Complaints filed with the EEOC and/or the DFEH should be forwarded to the California Community College Chancellor's Office by the District.

Any District employee who receives a harassment or discrimination complaint, regardless of whether it is brought by a student or an employee, shall notify the District's Vice Chancellor of Human Resources immediately.

Immediately upon receiving a Formal Complaint, as described above, regardless of whether the complaint is brought by a student or by an employee, the District shall forward a copy of the Formal Complaint to the California Community College Chancellor's Office.

Filing a Timely Complaint:  The District is firmly committed to providing an environment free of discrimination and harassment. The District strongly encourages anyone who believes they are being harassed or discriminated against, to file a complaint.  The District also strongly encourages the filing of such complaints as soon as possible after the alleged incident. While all complaints are taken seriously and will be investigated promptly, delay in filing impedes the District's ability to investigate and remediate.

All supervisors and managers have a mandatory duty to report incidents of harassment and discrimination; the existence of a hostile, offensive or intimidating work environment, and acts of retaliation.

The District will investigate complaints involving acts that occur off campus if they are related to or impact a District program or activity.

Confidentiality:  The District will keep the investigation confidential to the extent possible, but cannot guarantee confidentiality because release of some information on a "need-to-know-basis" may be essential to a thorough investigation.  The District shall take reasonable steps to ensure the confidentiality of the investigation and to protect the privacy of all parties to the extent possible without impeding the District's ability to investigate and respond effectively to the complaint.

Communicating that the Conduct is Unwelcome:  The District further encourages students and staff to let the offending person know immediately and firmly that the conduct or behavior is unwelcome, offensive, in poor taste and/or inappropriate.

Oversight of Complaint Procedure:  The Vice Chancellor of Human Resources is the "responsible District officer" charged with receiving complaints of discrimination or harassment, and coordinating their investigation.  The actual investigation of complaints may be delegated by the Vice Chancellor of Human Resources to other trained, qualified staff, outside persons or organizations under contract with the District.  This must occur whenever the Vice Chancellor of Human Resources is named in the complaint or implicated by the allegations in the complaint.

Who May File a Complaint:  Any person (employee or non-employee), individually or as a member of a class or on behalf of others, may file a complaint alleging discrimination or harassment that is prohibited by the District's anti-discrimination and anti-harassment policies and procedures.

Intake and Processing of the Complaint:  Upon receiving notification of a harassment or discrimination complaint, the Vice Chancellor of Human Resources or designee shall:

  • Upon approval by the parties involved, and when appropriate, undertake efforts to informally resolve the charges, including but not limited to mediation, rearrangement of work/academic schedules; obtaining apologies; providing counseling and/or training, etc.
  • Advise the complainant that he/she need not participate in an informal resolution of the complaint, as described above, and has the right to end the informal resolution process at any time.  Mediation is not appropriate for resolving incidents involving sexual violence.
  • Advise a student complainant that he/she may file a complaint with the Office for Civil Rights of the U.S. Department of Education and employee complainants may file a complaint with the Department of Fair Employment and Housing.  All complainants should be advised that they have a right to file a complaint with local law enforcement.  The District must investigate even if the complainant files a complaint with local law enforcement.  In addition, the District should ensure that complainants are aware of any available resources, such as counseling, health, and mental health services.  The Vice Chancellor of Human Resources shall also notify the State Chancellor's Office of the complaint.
  • Take interim steps to protect a complainant from coming into contact with an accused individual, especially if the complainant is a victim of sexual violence.  The Vice Chancellor of Human Resources should notify the complainant of his or her options to avoid contact with the accused individual and allow students to change academic situations as appropriate.  For instance, the District may prohibit the parties from having any contact with one another pending the results of the investigation. 

Authorization of an Investigation: The Vice Chancellor of Human Resources or designee shall:

  • Authorize the investigation of the complaint, and supervise and/or conduct a thorough, prompt and impartial investigation of the complaint, as set forth below.  Where complainants opt for informal resolution, the designated officer will determine whether further investigation is necessary to ensure resolution of the matter and utilize the investigation process outlined below as appropriate.  In the case of a formal complaint, the investigation will include interviews with the complainant, the accused, and any other persons who may have relevant knowledge concerning the complaint.  This may include victims of similar conduct.
  • Review the factual information gathered through the investigation to determine whether the alleged conduct constitutes harassment, or other unlawful discriminatory conduct, giving consideration to all factual information and the totality of the circumstances, including the nature of the verbal, physical, visual or sexual conduct, and the context in which the alleged incidents occurred.

Investigation of the Complaint:  The District shall promptly investigate every complaint of harassment or discrimination.  No claim of employee or student harassment or discrimination shall remain unexamined.  This includes complaints involving activities that occur off campus and in connection with any academic, educational, extracurricular, athletic, or other programs of the District, whether those programs take place at a District facility, in a District vehicle, or at a class, training program or similar event sponsored by the District at another location.

As set forth above, where the complainant opts for an informal resolution, the Vice Chancellor of Human Resources may limit the scope of the investigation, as appropriate.  The District will keep the investigation confidential to the extent possible, but cannot guarantee confidentiality because release of some information on a "need-to-know-basis" is essential to a thorough investigation.  When determining whether to maintain confidentiality, the District may weigh the request for confidentiality against the following factors:  the seriousness of the alleged harassment; the complainant's age; whether there have been other harassment complaints about the same individual; and the accused individual's rights to receive information about the allegations if the information is maintained by the District as an "education record" under the Family Educational Rights and Privacy Act (FERPA), 20 U.S. Code Section 1232g; 34 Code Federal Regulations Part 99.15.  The District will inform the complainant if it cannot maintain confidentiality.

Investigation Steps:  The District will fairly and objectively investigate harassment and discrimination complaints.  Employees designated to serve, as investigators under this policy shall have adequate training on what constitutes discrimination, including sexual harassment and sexual violence, racial discrimination, disability discrimination and age discrimination and understand how the District's grievance procedures operate.  The investigator may not have any real or perceived conflicts of interest and must be able to investigate the allegations impartially.

Investigators will use the following steps:  interviewing the complainant(s); interviewing the accused individual(s); identifying and interviewing witnesses and evidence identified by each party; identifying and interviewing any other witnesses, if needed; reminding all individuals interviewed of the District's no-retaliation policy; considering whether any involved person should be removed from the campus pending completion of the investigation; reviewing personnel/academic files of all involved parties; reaching a conclusion as to the allegations and any appropriate disciplinary and remedial action; and seeing that all recommended action is carried out in a timely fashion.  When the District evaluates the complaint, it shall do so using a preponderance of the evidence standard.  Thus, after considering all the evidence it has gathered, the District will decide whether it is more likely than not that discrimination or harassment has occurred.

Timeline for Completion:  The District will undertake its investigation as promptly and as swiftly as possible.  To that end, the investigator shall complete the above steps, and prepare a written report within 90 days of the District receiving the complaint, unless an extension has been granted.  The Vice Chancellor of Human Resources will notify all the parties involved of the District's determination, in writing, within 10 working days of the determination being made.

Cooperation Encouraged:  All students and employees are expected to cooperate with a District investigation into allegations of harassment or discrimination.  Lack of cooperation impedes the ability of the District to investigate thoroughly and respond effectively.  However, lack of cooperation by a complainant or witnesses does not relieve the District of its obligation to investigate.  The District will conduct an investigation if it is discovered that harassment is, or may be occurring, with or without the cooperation of the alleged victim(s) and regardless of whether a complaint is filed.

Written Report:

The results of the investigation of a complaint shall be set forth in a written report that will include at least all of the following information:

  • A description of the circumstances giving rise to the Formal Complaint;
  • A summary of the testimony provided by each witness interviewed by the investigator;
  • An analysis of relevant evidence collected during the course of the investigation;
  • A specific finding as to whether there is probable cause to believe that discrimination, harassment, or retaliation occurred with respect to each allegation in the complaint; and
  • Any other information deemed appropriate by the District.

Confidentiality of the Process:

Investigations are best conducted within a confidential climate.  Therefore, the District does not reveal information about ongoing investigations except as necessary to fulfill its legal obligations.  The District will keep the investigation confidential to the extent possible, but it cannot guarantee absolute confidentiality because release of some information on a "need-to-know-basis" may be essential to a thorough investigation and to protect the rights of accused students and employees during the investigation process and any ensuing discipline.

Administrative Determination:

In any case not involving employment discrimination, within 90 days of receiving a formal complaint, the District shall complete its investigation and forward a copy of the investigative report to the State Chancellor, a copy or summary of the report to the complainant, and written notice setting forth all of the following to both the complainant and the Chancellor:

  • The determination of the Vice Chancellor of Human Resources (or 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 proposed resolution of the complaint; and
  • The complainant's right to appeal to the district governing board and the Chancellor.

In any case involving employment discrimination, within 90 days of receiving a complaint, the District shall complete its investigation and forward a copy or summary of the report to the complainant, and written notice setting forth all the following to the complainant:

  • The determination of the Vice Chancellor of Human Resources (or 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 proposed resolution of the complaint; and
  • The complainant's right to appeal to the district governing board and to file a complaint with Department of Fair Employment and Housing or the U.S Equal Employment Opportunity Commission.

Discipline and Corrective Action

If harassment, discrimination and/or retaliation occurred in violation of federal or state law, the policy or procedure, the District may take disciplinary action against the accused and any other remedial action it determines to be appropriate.  The action will be prompt, effective, and commensurate with the severity of the offense.  Remedies for the complainant might include, but are not limited to:

  • providing an escort to ensure that the complainant can move safely between classes and activities;
  • ensuring that the complainant and alleged perpetrator do not attend the same classes or work in the same work area;
  • preventing offending third parties from entering campus;
  • providing counseling services;
  • providing medical services;
  • providing academic support services, such as tutoring;
  • arranging for a student-complainant to re-take a course or withdraw from a class without penalty, including ensuring that any changes do not adversely affect the complainant's academic record; and
  • reviewing any disciplinary actions taken against the complainant to see if there is a causal connection between the harassment and the conduct that lead to the discipline.
  • conducting, climate surveys, including subsequent evaluation and corrective action, as appropriate
  • circulating memoranda to students and staff about pertinent District policy; and
  • other remedies deemed necessary by the District.

If discipline is imposed, the nature of the discipline will not be communicated to the complainant.  However, the District may disclose information about the sanction imposed on an individual who was found to have engaged in harassment when the sanction directly relates to the complainant's contact with the individual; for example, the District may inform the complainant that the harasser must stay away from the complainant.

Disciplinary actions against faculty, staff, and students will conform to all relevant statutes, regulations, personnel policies and procedures, including the provisions of any applicable collective bargaining agreement.

The District shall also take reasonable steps to protect the complainant from further harassment, and/or discrimination, and to protect the complainant and witnesses from retaliation as a result of communicating the complaint and/or assisting in the investigation.  The District will ensure that complainants and witnesses know how to report any subsequent problems, and should follow-up with complainants to determine whether any retaliation or new incidents of harassment have occurred.  The District shall take reasonable steps to ensure the confidentiality of the investigation and to protect the privacy of all parties to the extent possible without impeding the District's ability to investigate and respond effectively to the complaint.

If the complainant refuses to participate in the investigation, the District should continue to pursue appropriate steps to limit the effects of the alleged harassment and prevent its recurrence.

Appeals

If the District imposes discipline against a student or employee as a result of the findings in its investigation, the student or employee may appeal the decision using the procedure for appealing a disciplinary decision.

If the complainant is not satisfied with the results of the administrative determination, he or she may, within fifteen calendar days of the date of the administrative determination, submit a written appeal to the Board of Trustees.  The Board shall review the original complaint, the investigative report, the administrative decision, and the appeal.  The Board shall issue a final District decision in the matter within 45 days after receiving the appeal.  A copy of the decision rendered by the Board shall be forwarded to the complainant. If the appeal is made to the Board in connection with a formal complaint, the District shall forward a copy of the Board's final decision to the State Chancellor's Office. If the Board does not act within 45 days the administrative determination shall be deemed approved and shall become the final decision of the District in the matter.

In any case not involving workplace discrimination, harassment, or retaliation, a complainant who filed a formal complaint shall have the right to file a written appeal with the State Chancellor's Office within thirty days after the Board issued the final District decision or permitted the administrative decision to become final.  Such appeals shall be processed pursuant to the provision of Title 5 Section 59350.

In any case involving employment discrimination, including workplace harassment, the complainant may, at any time before or after the issuance of the final decision of the District, file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), Royal Federal Building, 255 East Temple Street, 4th Floor Los Angeles, CA 90012 or the California Department of Fair Employment and Housing (DFEH), 2218 Kausen Drive, Suite 100 Elk Grove, CA 95758.

In any case involving student discrimination, including harassment, the complainant may, at any time before or after the issuance of the final decision of the District, file a complaint with the U.S. Department of Education, Office for Civil Rights (OCR), 50 United Nations Plaza, Room 1490, Mail Box 1200 San Francisco, CA 94102 (415) 486-5555.

Extension of Time

Within 150 days of receiving a formal complaint not involving employment harassment or discrimination, the District shall forward to the State Chancellor's Office the original complaint, the investigative report, a copy of the written notice to the complainant setting forth the results of the investigation, a copy of the final administrative decision rendered by the Board or indicating the date upon which the decision became final, and a copy of the notification to the complainant of his/her appeal rights. If, due to circumstances beyond its control, the District is unable to comply with the 150-day deadline for submission of materials, it may file a written request for an extension of time no later than ten days prior to the expiration of the deadline.

Dissemination of Policy and Procedures

District Policy and Procedures related to harassment will include information that specifically addresses sexual violence.  District policy and procedures will be provided to all students, faculty members, members of the administrative staff and members of the support staff, and will be visibly posted on campus and easily found on the District's website.

When hired, employees are required to sign that they have received the policy and procedures, and the signed acknowledgment of receipt is placed in each employee's personnel file.  In addition, these policies and procedures are incorporated into the District's course catalogs and orientation materials for new students.

Training:

All new supervisory employees must be provided with anti-discrimination training and education within six months of their assumption of a supervisory position.  The District shall provide anti-discrimination training, including sexual harassment training and education, to each supervisory employee once every two years.

The training and education required by this procedure shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of discrimination, including sexual harassment and the remedies available to victims of sexual harassment in employment.  The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

File Retention: The District will retain on file for a period of at least three years after closing the case copies of:

  • The original complaint;
  • The investigatory report;
  • The summary of the report if one is prepared;
  • The notice provided to the complainant, of the District's administrative determination and his/her right to appeal;
  • Any appeal;
  • The District's final decision; and
  • Documentation of any corrective actions taken.

The District will make such documents available to the State Chancellor upon request.

For further Information contact:

Vice Chancellor, Human Resources, 2323 N Broadway, Santa Ana, CA 92706. (714) 480 7489.

 

Responsible Manager:  Vice-Chancellor of Human Resources

 

Revised:  September 15, 2014 (Previously AR 3410)
Revised:  September 19, 2016
Revised:  October 2, 2017