Administrative Procedures

Book:
Administrative Procedures

Section:
3000 General Institution

Title:
Prohibition of Harassment

Number:
3430AP

Status:
Active

Legal:

Adopted:
06/08/2006

Last Revised:

Last Reviewed:
Policy Detail

PROHIBITION OF HARASSMENT

Introduction and Scope
These are the written policies and procedures for filing and processing complaints of unlawful discrimination at the San Bernardino Community College District. These policies and procedures incorporate the legal principles contained in nondiscrimination provisions of the California Code of Regulations, title 5, sections 59300 et seq. as well as other state and federal substantive and procedural requirements.

A copy of these written policies on unlawful discrimination will be displayed in a prominent location in the main administrative building or other area where notices regarding the institution’s rules, regulations, procedures, and standards of conduct are posted.

These policies and procedures were adopted by the San Bernardino Community College District Board of Trustees June 8, 2006, in accordance with the procedures of the Board.

Authority: 20 U.S.C. § 1681 et seq.; Ed. Code, §§ 66270, 66271.1, 66281.5; Gov. Code, §§ 11135-11139.5; Cal. Code Regs., Title 5, § 59326. Reference: Cal. Code Regs., Title 5, §§ 59300 et seq.; 34
C.F.R. § 106.8(b).

Sexual Harassment Defined

Sexual Harassment is defined as unwelcome conduct of a sexual nature or based on sex; gender harassment; and harassment based on pregnancy, childbirth or related medical conditions. The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser. There are two categories of sexual harassment;

Quid Pro Quo harassment occurs when an individual of authority makes educational or employment benefits conditional upon another person’s willingness to engage in, or tolerate unwanted sexual conduct. Examples of Quid Pro Quo sexual harassment can include, but are not limited to the following: offering favors of educational or employment benefits such as transfers/reassignments, reference letters, better course grades, more favorable shifts, assignments or job duties; preferred room assignments or other work locations.

Environmental or “third party” harassment occurs when unwelcome conduct based on sex is sufficiently severe or pervasive so as to alter the conditions of an individual’s learning or work environment, unreasonably interfere with an individuals academic or work performance, or create an intimidating, hostile or abusive work or learning environment. The victim must subjectively perceive the environment as hostile, and the harassment must be such that a reasonable person of the same gender would perceive the environment as hostile. Examples of hostile environment can include, but are not limited to the following: unwanted sexual advances; actual or threatened retaliation; leering; making sexual gestures of displaying sexually suggestive objects, pictures, cartoons, or posters; making or using derogatory comments, epithets, slurs, or jokes; sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an individual; or suggestive or obscene letters, notes, or invitations, physical touching or assault, as well as impeding or blocking movements.

Consensual Relationships
Romantic or sexual relationships between two individuals are inappropriate and strongly discouraged when one of the individuals has evaluative and/or direct supervisory responsibilities over the other, including responsibilities for grading, counseling, and/or other authority or provision of academic services, because of the potential conflict of interest.

A consensual relationship may cause an appearance of impropriety; lead to third party charges of favoritism, and/or negatively impact the productivity and morale of others who observe and must interact with the two parties within the learning or workplace environments. Such relationships may change, with the result that sexual conduct that was once welcome can become unwelcome and harassing. Students and Employees Notice, Training, and Education The San Bernardino Community College District’s Responsible officer shall make arrangements for or provide training to employees and students on the District’s unlawful discrimination policy and procedures. Faculty members, members of the administrative staff, and members of the support staff will be provided with a copy of the District’s written policy on unlawful discrimination at the beginning of the first quarter or semester of the college year after the policy is adopted.

All District employees will receive this training and a copy of the unlawful discrimination policies and procedures during the first year of their employment. Because of their special responsibilities under the law supervisors will undergo mandatory annual training. New supervisors will be trained within the first six months of employment. In years in which a substantive policy or procedural change has occurred all District employees will attend a training update and/or receive a copy of the revised policies and procedures and receive training at least every two years.

A training program or informational services will be made available to all students at least once annually. The student training or informational services should include an explanation of the policy, how it works, and how to file a complaint. In addition, a copy of the District’s written policy on unlawful discrimination, as it pertains to students, will be provided as part of any orientation program conducted for new students at the beginning of each semester, or summer session, as applicable.

Authority: Ed. Code, § 66281.5; Cal. Code Regs., Title 5, §§ 59324 and 59326. Reference: Cal. Code Regs., Title 5, §§ 59300 et seq.; 34 C.F.R. § 106.8(b). Unlawful Discrimination Policy Prohibition of Harassment

The District is committed to providing an academic and work environment that respects the dignity of individuals and groups. The District shall be free of sexual harassment and all forms of sexual intimidation and exploitation. It shall also be free of other unlawful harassment, including that which is based on any of the following statuses: race, color, religion, ancestry, national origin, disability, sex (i.e. gender), sexual orientation, or the perception that a person has one or more of the foregoing characteristics.

Harassment based on any of the following statuses is prohibited and will not be tolerated; race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or the perception that a person has one or more of the foregoing characteristics.

Sexual harassment violates state and federal laws, as well as this policy, and will not be tolerated. It is also illegal to retaliate against any individual for filing a complaint of sexual harassment or for participating in a sexual harassment investigation, and retaliation constitutes a violation of this policy.
Sexual harassment is further defined as unwelcome sexual advances, requests for sexual favors and other conduct of a sexual nature when:
· Submission to the conduct is made a term or condition of an individual’s employment, academic status, or progress;
· Submission to or rejection of the conduct by the individual is used as a basis of employment or academic decisions affecting the individual;
· The conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile or offensive work or education environment; or
· Submission to or rejection of the conduct by the individual is used as the basis for any decision affecting the individual.
This policy applies to all aspects of the academic environment, including but not limited to classroom conditions, grades, academic standing, employment opportunities, scholarships, recommendations, disciplinary actions, and participation in any community college activity. In addition, this policy applies to all terms and conditions of employment, including but not limited to hiring, placement, promotion, disciplinary action, layoff, recall, transfer, leave of absence, training opportunities and compensation.

Retaliation

It is unlawful for anyone to retaliate against someone who files an unlawful discrimination complaint, who refers a matter for investigation of complaint, who participates in an investigation of a complaint, who represents or serves as an advocate for an alleged victim or alleged offender, or who otherwise furthers the principles of this unlawful discrimination policy.

Authority: 20 U.S.C. §§ 1681 et seq.; 34 C.F.R. § 106; Cal. Code Regs., Title 5, §§ 59300 et seq.; Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, Title IX, Office for Civil Rights, January 19, 2001.

False Allegations

Failure to substantiate a complaint is not equivalent to a false allegation. However, a false allegation brought forth with malicious intent or without regard for the truth, will subject the complainant (employees and students) to disciplinary action.

Academic Freedom
The San Bernardino Community College District Governing Board reaffirms its commitment to academic freedom, but recognizes that academic freedom does not allow any form of unlawful discrimination. It is recognized that an essential function of education is a probing of opinions and an exploration of ideas that may cause some students discomfort. It is further recognized that academic freedom insures the faculty’s right to teach and the student’s right to learn. Finally, nothing in these policies and procedures shall be interpreted to prohibit bona fide academic requirements for a specific community college program, course or activity.

When investigating unlawful discrimination complaints containing issues of academic freedom, San Bernardino Community College District will consult with a faculty member appointed by the Academic Senate with respect to contemporary practices and standards for course content and delivery.

Reference: Cohen v. San Bernardino Valley College (1995) 883 F.Supp. 1407, 1412-1414, affd. in part and revd. in part on other grounds, (1996) 92 F.3d 968; Cal. Code Regs., Title 5, § 59302.

Responsible District Officer

The San Bernardino Community College District has identified Trudy Largent, Vice Chancellor Human Resources and Employee Relations to the State Chancellor’s Office and to the public as the single District officer responsible for receiving all unlawful discrimination complaints filed pursuant to title 5, section 59328, and for coordinating their investigation. The actual investigation of complaints may be assigned to other staff or to outside persons or organizations under contract with the District. Such delegation procedures will be used whenever the officer designated to receive complaints is named in the complaint or is implicated by the allegations in the complaint.

Administrators, faculty members, other District employees, and students shall direct all complaints of unlawful discrimination to the responsible District Officer.

Authority: Cal. Code Regs., Title 5, § 59324; 34 C.F.R. § 106.8.

Informal/Formal Complaint Procedure

When a person brings charges of unlawful discrimination to the attention of the District’s Responsible Officer, that officer will:

The purpose of the informal resolution process is to allow an individual who believes she/he has been unlawfully discriminated against or sexually harassed to resolve the issue through a mediation process rather than the formal complaint process. Typically, the informal process will be invoked when there is a simple misunderstanding or the complainant does not wish to file a formal complaint. Resolution of an informal complaint may require nothing more than a clarification of the misunderstanding or an apology from the respondent and an assurance that the offending behavior will cease. However, the district is responsible for maintaining a safe and discrimination-free educational environment and serious allegations may need to be investigated even if the complaining party considers the matter resolved. In an informal process, the responsible district officer shall advise the complainant of his or her rights and responsibilities under both the formal and informal processes. If the complainant declares his or her preference for the informal process, the responsible district officer shall present the complainant with a document that describes the informal/formal process that contains the basics of complainant’s allegations of unlawful discrimination. This document will clearly indicate that the complainant opted for the informal resolution process and should be signed and dated by the complainant. The informal resolution process will not be made a predicate to the process and investigation of a formal complaint. If a formal complaint is filed, an investigation must be completed within the time required unless it is voluntarily rescinded by a complainant as a result of a successful informal resolution.

Efforts at informal resolution need not include any investigation unless the responsible District officer determines that an investigation is warranted by the seriousness of the charges. Selecting an informal resolution does not extend the time limitations for filing a formal complaint. Efforts at informal resolution may continue after the filing of a formal written complaint, but after a complaint is filed an investigation is required to be conducted pursuant to title 5, section 59334, and will be completed unless the matter is informally resolved and the complainant dismisses the complaint. Any efforts at informal resolution after the filing of a written complaint will not exceed the 90-day period for rendering the administrative determination pursuant to title 5, section 59336.

In employment-related cases, if the complainant files with the Department of Fair Employment and Housing, a copy of that filing will be sent to the State Chancellor's Office requesting a determination of whether a further investigation under title 5 is required. Unless the State Chancellor's Office determines that a separate investigation is required, the District will discontinue its investigation under title 5 and the matter will be resolved through the Department of Fair Employment and Housing.

The District will provide for representation where required by law and may allow for representation for the accused and complainant in other circumstances on a case-by-case basis.

Authority: Cal. Code Regs., Title 5, §§ 59327, 59328, 59334, 59336, and 59339; NLRB v. Weingarten, Inc. (1975) 420 U.S. 251.

Filing of Formal Written Complaint

If a complainant decides to file a formal written unlawful discrimination complaint against the District, he or she must file the complaint on a form prescribed by the State Chancellor. These approved forms are available from the District and also at the State Chancellor’s website, as follows:
The completed form must be filed with the District representative or mailed directly to the State Chancellor’s Office of the California Community Colleges.

Once a complaint is filed, the individual(s) accused of engaging in prohibited discriminatory conduct should be advised of that filing and the general nature of the complaint. This should occur as soon as possible and in a manner that is appropriate under the circumstances. The District will also advise the accused that an assessment of the accuracy of the allegations has not yet been made, that the complaint will be investigated, that the accused will be provided an opportunity to present his/her side of the matter, and that any conduct that could be viewed as retaliatory against the complainant or any witnesses must be avoided.

Authority: Cal. Code Regs., Title 5, §§ 59311 and 59328.

Threshold Requirements Prior to Investigation of a Formal Written Complaint

When a formal written complaint is filed it will be reviewed to determine if the complaint meets the following requirements:
• The complaint must be filed on a form prescribed by the State Chancellor's Office.
If the complaint is defective it will be immediately returned to the complainant with a complete explanation of why an investigation could not be initiated under California Code of Regulations, title 5, section 59300 et seq. Additional information about this initial review of complaints can be found in the Guidelines for Processing Formal Title 5 Unlawful Discrimination Complaints prepared by the State Chancellor's Office. Authority: Cal. Code Regs., Title 5, § 59328.

Investigation of a Formal Complaint:
Commitment to Timely Resolution:

The San Bernardino Community College District recognizes the importance of and is, therefore, committed to completing investigations and resolving complaints as quickly as possible, consistent with the requirements for a thorough investigation.

Step 1
A San Bernardino Community College District employee or student who believes that either unlawful discrimination or sexual harassment has occurred is to immediately notify the appropriate Responsible District Officer.

Other College and/or District Office managers who receive such complaints will do the following:
1. Report the complaint(s) immediately to the Responsible District Officer; and
2. Advise the Complainant to meet with the Responsible District Officer immediately.

Step 2
The Responsible District Officer will meet with the Complainant to do the following: Step 3
The Responsible District Officer meets with the Respondent to do the following:

a. Advise the Respondent that a Complaint of unlawful discrimination has been filed and its general nature. Such notification to the Respondent should occur as soon as possible following the filing of the Formal Complaint.
b. Advise the Respondent of his/her right to representation throughout the process, as required by law or by collective bargaining agreement (the Responsible District Officer may allow for representation for the Respondent and for the Complainant in other circumstances on a case-by-case basis), and schedule a meeting with the Respondent
c. At or prior to the initial meeting, provide the Respondent with a copy of this document that includes the Formal Complaint Procedures
d. Advise the Respondent about confidentiality and no retaliation
e. Advise the Respondent that an assessment of the accuracy of the allegations has not yet been made, that the Complaint will be investigated, and that the Respondent will be provided an opportunity to present his/her side of the matter.
f. Advise the Respondent that any conduct that could be viewed as retaliatory against the Complainant or any witnesses must be avoided.
g. Inform the Respondent that the timeline for rendering the administrative determination for Formal Complaints is 90 days, and that this timeline includes all Informal resolution efforts that may have been attempted prior to the Complainant filing the Formal Complaint. Step 4
The Responsible District Officer opens the full investigation of the Complaint allegations, including interviews with witnesses, review of applicable documents and such other activities as the Officer determines appropriate in fact-finding, and shall advise each witness and other participants about confidentiality and no retaliation.

a. The full investigation may include additional interviews with the Complainant, as needed.

b. All investigation materials, including notes and/or tape recordings of witness interviews, will be treated by the Responsible District Officer as confidential.

Step 5
Following compilation of all Complaint allegations and their specifics, the Responsible District Officer will contact the Respondent and schedule a meeting. At the Respondent’s discretion, the meeting may include the selected Respondent representative. The Responsible District Officer may tape-record the meeting following notification to the Respondent, and shall do the following:

a. Remind the Respondent about confidentiality and no retaliation.
b. Remind the Respondent that the purpose of the meeting is to provide an opportunity to present his/her side of the matter regarding each of the Complaint allegations.
c. Review each of the allegations, in detail, with the Respondent.
d. Document (or tape record, if previously notified) the complete responses made by the Respondent.
e. Collect from the Respondent the names and contact information of all witnesses.
f. Compile all written documents, provided or suggested by the Respondent.

Step 6
The Responsible District Officer shall:
a. Conduct interviews with all witnesses provided by the Respondent.
b. Elect to tape-record these meetings, following notification to each witness.
c. Review all written documents suggested or provided by the Respondent in support of his/her responses.

Step 7
On or before the end of the required deadline, the Responsible District Officer shall complete the investigation, review its findings, write a full investigation report, and review the investigation conclusions and recommendations with the chief executive officer. The Chief Executive Officer will then make the final administrative determination.

COMPLAINANT NOTIFICATION
a. For Complaints involving employment discrimination (pursuant to Sections 59300 et seq., of Title 5), the Responsible District Officer shall forward to the Complainant, within 90 days of receiving the Complaint; § A summary of the investigation findings that includes the determination of the Chief Executive Officer as to whether there is probable cause to believe discrimination occurred with respect to each of the allegations made § A description of the 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 Board of Trustees and to the Department of Fair Employment and Housing

b. For Complaints not involving employment discrimination, within 90 days of receiving an unlawful discrimination Complaint (pursuant to Title 5), the Responsible District Officer shall complete the investigation and

§ forward a copy of the investigative report to the State Chancellor’s Office, Division of Legal Affairs, upon request. § forward a summary of the report to the Complainant, with written notice that includes the following information
o the determination of the chief executive officer or his/her designee as to whether there is probable cause to believe discrimination occurred with respect to each allegation in the Complaint.
o a description of the actions taken, if any, to prevent similar problems from occurring in the future.
o the proposed resolution of the Complaint; and
o the Complainant’s right to appeal to the District Board of Trustees and to the State Chancellor.
o a reminder about confidentiality and no retaliation.

Respondent Notification

At the conclusion of all employment and non-employment investigations, the Responsible District Officer shall forward written notification to the Respondent that includes the following information:
§ A summary of the investigation and findings as to each of the allegations made in the Complaint that related to the Respondent.
§ The administrative determination of the Chief Executive Officer (or designee).
§ (If the Respondent was found to have violated unlawful discrimination and/or sexual harassment policies) actions that will be taken by the District, including proposed disciplinary action and notice of Respondent rights.
§ Advice about confidentiality and no retaliation
§ Advice about rights to representation throughout any subsequent processes.

Defective Complaint

If a complaint is found to be defective, it will be immediately returned to the complainant with a complete explanation of why an investigation will not be initiated under California Code of Regulations, title 5, section 59300 et seq. The notice will inform the complainant that the complaint does not meet the requirements of section 59328, and shall specify in what requirement the complaint is defective. A copy of the notice to the claimant will also be sent to the State Chancellor's Office.

Authority: Cal. Code Regs., Title 5, §§ 59328, 59332.

Notice to State Chancellor or District

A copy of all complaints filed in accordance with the title 5 regulations will be forwarded to the State Chancellor's Office immediately upon receipt. Similarly, when the State Chancellor's Office receives a complaint a copy will be forwarded to the District.

Authority: Cal. Code Regs., Title 5, § 59330.

Confidentiality of the Process

Investigative processes can best be conducted within a confidential climate. Therefore, the District does not reveal information about such matters except as necessary to fulfill its legal obligations. However, potential complainants are sometimes reluctant to pursue a complaint if their names will be revealed.

The inability to reveal the name of a complainant or facts that are likely to reveal the identity of the complainant can severely limit the ability of the District to respond. Complainants must also recognize that persons who are accused of wrongdoing have a right to present their side of the matter, and this right may be jeopardized if the District is prohibited from revealing the name of the complainant or facts that are likely to disclose the identity of the complainant.

If a complainant insists that his or her name not be revealed, the responsible officer should take all reasonable steps to investigate and respond to the complaint consistent with the complainant’s request as long as doing so does not jeopardize the rights of other students or employees.

It is also important that complainants and witnesses understand the possibility that they may be charged with allegations of defamation if they circulate the charges outside of the District’s process. In general, persons who are participating in a District investigative or disciplinary process that is related to a charge of discrimination are protected from tort claims such as defamation. However, persons who make allegations outside of these processes or who discuss their claims with persons outside of the process may expose themselves to tort charges. Complainants, witnesses, and those accused of discrimination will all be asked to sign a confidentiality acknowledgement statement.

Where an investigation reveals the need for disciplinary action, the complainant may wish to have information about what disciplinary actions the District took. However, the privacy rights of the persons involved often prevent the District from providing such information. In student disciplinary actions for sexual assault/physical abuse charges, Education Code section 76234 provides that the victim shall be informed of the disciplinary action, but that the victim must keep the information confidential. Disciplinary actions taken against employees are generally considered confidential.

Authority: Cal. Const. Art. I, § 1; Civil Code § 47; Ed. Code, §§ 76234 and 87740; Silberg v. Anderson (1990) 50 Cal.3d. 205; Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, Title IX, Office for Civil Rights, January 19, 2001.

Administrative Determination

In any case not involving employment discrimination, within 90 days of receiving an unlawful discrimination complaint filed under title 5, sections 59300 et seq., the Responsible District officer will complete the 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 the following to both the complainant and the State Chancellor:
(a) the determination of the Chief Executive Officer or his/her designee as to whether there is probable cause to believe discrimination occurred with respect to each allegation in the complaint;
(b) a description of actions taken, if any, to prevent similar problems from occurring in the future;
(c) the proposed resolution of the complaint; and
(d) the complainant's right to appeal to the Board of Trustees and the State Chancellor.

In any case involving employment discrimination, within 90 days of receiving an unlawful
discrimination complaint filed under title 5, sections 59300, et seq., the responsible District officer will complete the investigation and forward a copy or summary of the report to the complainant, and written notice setting forth all the following to the complainant: (c) the proposed resolution of the complaint; and The District will keep these documents on file for a period of at least three years after closing the case, and make them available to the State Chancellor upon request.

Authority: Cal. Code Regs., Title 5, § 59336.

Complainant’s Appeal Rights

Complainants have appeal rights that they may exercise if they are not satisfied with the results of the District’s administrative determination. At the time the administrative determination and summary is mailed to the complainant, the responsible District officer or his/her designee shall notify the complainant of his or her appeal rights as follows:

• First level of appeal: The complainant has the right to file an appeal to the Board of Trustees within 15 days from the date of the administrative determination. The Board of Trustees will review the original complaint, the investigative report, the administrative determination, and the appeal.
Complainants must submit all appeals in writing.

Authority: Cal. Code Regs., Title 5, §§ 59338 and 59339.

Respondent Appeal Rights

If the investigation finds evidence that the Respondent unlawfully discriminated (including sexual harassment), the Respondent has the right to representation, and to respond to, and/or appeal the administrative determination and all resulting disciplinary actions proposed by the District. A copy of the response by respondent will be attached to the findings and placed in personnel file.

Forward to State Chancellor

In any case not involving employment discrimination, within 150 days of receiving a complaint, the Responsible District officer will forward the following to the State Chancellor:
• A copy of the final District decision rendered by the governing board or a statement indicating the date on which the administrative determination became final as a result of taking no action on the appeal within 45 days.
• A copy of the notice of appeal rights the District sent the complainant.
• Any other information the State Chancellor may require.
The District will keep these documents on file for a period of at least three years after closing the case, and in any case involving employment discrimination, make them available to the State Chancellor upon request.

Authority: Cal. Code Regs., Title 5, §§ 59338 and 59340.

Extensions

If for reasons beyond its control, the District is unable to comply with the 90-day or 150-day deadlines specified above for submission of materials to the complainant and the State Chancellor's Office, the responsible District officer will file a written request that the State Chancellor grant an extension of the deadline. The request will be submitted no later than 10 days prior to the expiration of the deadlines established by title 5 in sections 59336 and/or 59340 and will set forth the reasons for the request and the date by which the District expects to be able to submit the required materials.

A copy of the request for an extension will be sent to the complainant, who will be advised that he or she may file written objections with the State Chancellor within 5 days of receipt.

The State Chancellor may grant the request unless delay would be prejudicial to the complainant investigation. If an extension of the 90-day deadline is granted by the State Chancellor, the 150-day deadline is automatically extended by an equal amount.

Authority: Cal. Code Regs., Title 5, § 59342.

Record Retention

Unlawful discrimination records that are part of an employee’s employment records may be classified as Class-1 Permanent records and retained indefinitely or microfilmed in accordance with title 5, California Code of Regulations, section 59022. Unlawful discrimination records of a student that are deemed worthy of preservation but not classified as Class-1 Permanent may be classified as Class-2 Optional records or as Class-3 Disposable records, to be retained for a period of three years.

Authority: Cal. Code Regs., Title 5, § 59020

Informal Complaint Form.pdfFormal_Complaint_Form.pdf