AP 3435 Procedures for Handling Complaints of Unlawful Discrimination - Administrative Procedures, Chapter 3 General Institution

  • Reference: Title 5, Sections 59300, et seq.

Introduction and Scope

These are the written procedures for filing and processing complaints of unlawful discrimination at Ohlone Community College District. These 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 the written policy on unlawful discrimination will be displayed in a prominent location in the main administrative building or other area where notices regarding Ohlone’s rules, regulations, procedures, and standards of conduct are posted.

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

Unlawful Discrimination Policy

The non-discrimination policy of the Ohlone Community College District is contained in BP 3410. A copy is available from Human Resources, Room 1203A, Building 1, second floor, Fremont campus, 43600 Mission Boulevard, Fremont, CA 94539, or the Ohlone website.

Informal/Formal Complaint Procedure

Pre-Complaint Discussion

Before filing a formal complaint, the District encourages an individual who has a concern to discuss and try to resolve that concern with the other individual involved when the individual with a concern is comfortable doing so. Many concerns can be resolved quickly through open communication and discussion. Once a formal complaint is filed, strict timelines govern the process, but the complaint process will take much more time as compared to a discussion that might be sufficient to resolve the concern.

If that discussion is unsuccessful or if the individual with the concern is uncomfortable discussing with the other individual, the individual with the concern should discuss and try to resolve the concern with the appropriate Dean with responsibility over the area of concern.

If the individual with the concern is not certain which Dean to contact or if the concern involves a Dean, then the individual with the concern should discuss and try to resolve the concern with the appropriate AVP or VP with responsibility over the area of concern. If the individual with the concern is not certain which AVP or VP to contact, as a general rule, the individual with the concern should contact the following:

  • For issues involving the Newark facility or classes, contact the AVP of Academic Affairs, currently Leta Stagnaro.
  • For issues involving students, contact the VP of Student Services, currently Ron Travenick.
  • For issues involving employees, contact the AVP of Human Resources, currently Shairon Zingsheim.
  • For issues involving faculty or instruction, contact the VP of Academic Affairs, currently Jim Wright.
  • For issues involving technology or computers, contact the AVP of Information Technology, currently Bruce Griffin.

The AVP or VP will assist the individual with the concern in trying to find an early resolution of the concern, when possible.

If the concern involves an AVP or VP other than the AVP of Human Resources, the individual should discuss with the AVP of Human Resources. If the concern involves the AVP of Human Resources, the individual should discuss with another AVP or VP with responsibility over the area of concern.

Informal Resolution Process

When a person brings charges of unlawful discrimination to the attention of the District’s responsible officer, who is the Associate Vice President of Human Resources, that officer will:

  1. Undertake efforts to informally resolve the charges;
  2. Advise the complainant that he or she need not participate in informal resolution;
  3. Notify the person bringing the charges of his or her right to file a formal complaint and explain the procedure for doing so;
  4. Assure the complainant that he or she will not be required to confront, or work out problems with, the person accused of unlawful discrimination;
  5. Advise the complainant that he or she may file a nonemployment-based complaint with the Office for Civil Rights of the U.S. Department of Education (OCR) where such a complaint is within that agency’s jurisdiction.
  6. If the complaint is employment-related, the complainant should also be advised that he or she may file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) and/or the California Department of Fair Employment and Housing (DFEH) where such a complaint is within that agency’s jurisdiction.

The purpose of the informal resolution process is to allow a complainant to resolve his or her discrimination complaint 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. Serious allegations of unlawful discrimination may need to be investigated even if the complaining party considers the matter resolved. In an informal process, the 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 the complaint 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. 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. Even if the complainant does dismiss the complaint, the responsible district officer may require the investigation to continue if he or she so determines. 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 also files with the Department of Fair Employment and Housing or with the U.S. Equal Employment Opportunity Commission, 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 processed through the Department of Fair Employment and Housing or the U.S. Equal Employment Opportunity Commission. However, the District may continue an investigation of the allegations, if the District chooses to do so and if appropriate, but the process will not be under the title 5 processes.

The District will allow 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., tit. 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 Human Resources Department, the District website at http://www.ohlone.edu/org/hr/docs/unlawfuldiscriminationcomplaintform.pdf, and also at the State Chancellor’s website, at http://www.cccco.edu/SystemOffice/Divisions/Legal/Discrimination/tabid/294/Default.aspx

The complainant must file the completed form with the responsible District officer or mail the form directly to the State Chancellor’s Office of the California Community Colleges. The complainant may choose to do both.

If a complaint of unlawful discrimination is presented in another written format, such as a letter, a district may request that the complainant complete the form. If there is a delay in obtaining a completed form, or the complainant refuses to transfer the information or otherwise complete the form but wishes to pursue the formal complaint process, a district may attach the letter to the form and open a formal investigation. While a complaint filed in an improper form is still procedurally defective under title 5 standards, the merits of the complaint itself may still be valid and must be addressed.

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 constitutes unlawful retaliation against the complainant or any witnesses must be avoided.

Authority: Cal. Code Regs., tit. 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 not filed on this form, every effort should be made to have the complaint filed on this form and to obtain complainant’s signature. However, where a complainant has indicated that he or she wishes to pursue the formal complaint process, a complaint should not be rejected solely based on the failure to file the complaint on this form.
  • The complaint must allege unlawful discrimination prohibited under title 5, section 59300.
  • Complaints under Title 5 regulations must be filed by one who alleges that he or she has personally suffered unlawful discrimination or by one who has learned of such unlawful discrimination in his or her official capacity as a faculty member or administrator.
  • Under federal law, a complainant who does not meet this definition (such as a third-party complainant) must also be provided access to the informal and formal complaint process, up through the first level of appeal.
  • In any complaint not involving employment, the complaint must be filed within one year of the date of the alleged unlawful discrimination or within one year of the date on which the complainant knew or should have known of the facts underlying the specific incident or incidents of alleged unlawful discrimination.
  • In any complaint alleging discrimination in employment, the complaint shall be filed within 180 days of the date the alleged unlawful discrimination occurred, except that this period will be extended by no more than 90 days following the expiration of that 180 days if the complainant first obtained knowledge of the facts of the alleged violation after the expiration of 180 days.

Authority: Cal. Code Regs., tit. 5, § 59328.

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 will specify in what requirement the complaint is defective. A copy of the notice to the complainant will also be sent to the State Chancellor's Office.

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

Notice to State Chancellor or District

A copy of all formal complaints filed in accordance with the title 5 regulations will be forwarded to the State Chancellor's Office immediately upon receipt, regardless of whether the complaint is brought by a student or by an employee. Similarly, when the State Chancellor's Office receives a complaint, a copy will be forwarded to the District.

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

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[1]of the report to the complainant, and written notice setting forth all the following to both the complainant and the State Chancellor:

  1. for Title 5 complaints under state regulations, 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, and for complaints under Title IX and other federal civil rights laws, a specific finding as to whether the preponderance of the evidence showed that discrimination occurred with respect to each allegation in the complaint;
  2. a description of actions taken, if any, to prevent similar problems from occurring in the future;[2]
  3. the proposed resolution of the complaint; and
  4. the complainant's right to appeal to the District governing board 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[3] of the report to the complainant, and written notice setting forth all the following to the complainant:

  1. for Title 5 complaints under state regulations, 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, and for complaints under Title IX and other federal civil rights laws, a specific finding as to whether the preponderance of the evidence showed that discrimination occurred with respect to each allegation in the complaint;
  2. a description of actions taken, if any, to prevent similar problems from occurring in the future[4];
  3. the proposed resolution of the complaint; and
  4. the complainant's right to appeal to the District governing board and to file a complaint with the Department of Fair Employment and Housing.

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.

The Ohlone 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.

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


[1] It is within the District's discretion to choose not to include the entire investigative report; however, a summary of an investigative report should, at the very least, include all of the following:

  1. a description of the circumstances giving rise to the complaint;
  2. for Title 5 complaints under state regulations, a specific finding as to whether there is probable cause to believe the discrimination occurred with respect to each allegation in the complaint, and for complaints under Title IX and other federal civil rights laws, a specific finding as to whether the preponderance of the evidence showed that discrimination occurred with respect to each allegation in the complaint;
  3. a summary and analysis of the relevant evidence (documents, data, or witness testimony) on which the determination rests; and
  4. any other information deemed appropriate by the district.

[2] If it is determined that discrimination did occur, possible remedies to prevent similar problems from occurring in the future include all the standard District disciplinary actions for students and employees, ranging from undocumented reprimand to termination or expulsion.  If formal disciplinary action is inappropriate, other possible remedies include training in the pertinent area(s) of unlawful discrimination, apology, and restricting or forbidding contact between the perpetrator and victim.

[3]See footnote 1.

[4]See footnote 2.

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 District’s governing board within 15 days from the date of the administrative determination. The District’s governing board will review the original complaint, the investigative report, the administrative determination, and the appeal.
  • The District’s governing board will issue a final District decision in the matter within 45 days after receiving the appeal. Alternatively, the District’s governing board may elect to take no action within 45 days, in which case the original decision in the administrative determination will be deemed to be affirmed and shall become the final District decision in the matter. A copy of the final decision rendered by the District’s governing board will be forwarded to the complainant and to the State Chancellor's Office.
  • Second level of appeal: The complainant has the right to file an appeal with the California Community College Chancellor’s Office in any case not involving employment-related discrimination within 30 days from the date that the governing board issues the final District decision or permits the administrative determination to become final by taking no action within 45 days. (Title 5, section 59339(b) does not provide appeal rights to the State Chancellor in employment-related discrimination cases.) The appeal must be accompanied by a copy of the decision of the governing board or evidence showing the date on which the complainant filed an appeal with the governing board, and a statement under penalty of perjury that no response was received from the governing board within 45 days from that date. In any case involving employment discrimination, the complainant has the right to file a complaint with the Department of Fair Employment and Housing (DFEH) where the case is within the jurisdiction of that agency.

Complainants must submit all appeals in writing.

The title 5 process provides no corresponding appeal rights to any other parties aside from the complainants.

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

Provision of Information to State Chancellor

In any case not involving employment discrimination, within 150 days of receiving a complaint, the responsible District officer will either:

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; or

Notify the State Chancellor that the complainant has not filed an appeal with the district governing board and that the District has closed its file.

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., tit. 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. Where an extension is deemed necessary by the District, it must be requested from the State Chancellor regardless of whether or not the case involves employment discrimination. 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 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., tit. 5, § 59342.

Additional Details of Ohlone’s Policy against Unlawful Sexual and Other Harassment of Employees and Contractors

The following section provides additional guidance on expectations and requirements for interaction with employees and contractors. Many of these concepts may also apply to students, so please comply for all of your interactions with others while on campus or otherwise while representing Ohlone.

Ohlone is committed to providing a workplace free of unlawful sexual harassment as well as unlawful harassment based on such factors as race, religious creed, color, national origin, ancestry, age (over 40), medical condition, marital status, sexual orientation, gender, disability, pregnancy or related medical condition, or any other basis protected by applicable law to the extent protected by applicable law. Ohlone strongly disapproves of and will not tolerate unlawful harassment of employees or contractors by managers, supervisors, contractors or co-workers. Ohlone will also attempt to protect employees and contractors from unlawful harassment by non-employees in the workplace.

Ohlone, as an employer or contracting entity, must take all reasonable steps to prevent discrimination and unlawful harassment from occurring. Sexual or other unlawful harassment in employment violates Ohlone’s policy and is prohibited under laws including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the California Fair Employment and Housing Act (FEHA), and the Education Code. FEHA also prohibits harassment of contractors.

Ohlone will not tolerate harassment on the basis of race, color, sex, gender, national origin, ancestry, religion, age (over 40), physical and mental disability, medical condition, marital status, sexual orientation, or pregnancy or related medical conditions. All such conduct is prohibited.

Each and every employee is required to not engage in any behavior or conduct that could be considered sexual harassment or other unlawful harassment.

Each and every manager or supervisor is required to ensure that this policy against sexual or other unlawful harassment is strictly followed. Each manager or supervisor must ensure that each employee is aware of the policy against harassment and that the work environment is free from any behavior or comments that could be considered to create a hostile environment.

Definition of Harassment

Harassment includes verbal, physical or visual conduct that creates an intimidating, offensive or hostile working environment or that unreasonably interferes with job performance. Harassment may also include unwelcome, offensive racial or ethnic slurs, jokes, or other similar conduct.

Sexual Harassment Defined

Federal law defines sexual harassment as unwanted sexual advances, requests for sexual favors or visual, verbal or physical conduct of a sexual nature when: (1) submission to such conduct is made a term or condition of employment; or (2) submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile or offensive working environment.

California law defines sexual harassment as unwanted sexual advances or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior. The following is a partial list:

  • Unwanted sexual advances.
  • Offering employment benefits in exchange for sexual favors.
  • Making or threatening reprisals after a negative response to sexual advances.
  • Visual conduct: staring, leering, making sexual gestures, or displaying or sharing of sexually suggestive objects or pictures, cartoons, screensavers, calendars, cards, drawings, writings, photos, or posters.
  • Verbal misconduct: making or using derogatory comments, epithets, slurs, sexually explicit jokes, sexually offensive comments, sexually degrading stories, sexual or gender profanity, sexual questions, unwelcome discussion of personal or sex life, sexual rumors, or comments about an employee’s body or dress.
  • Repeatedly asking a co-worker for a date or relationship after being turned down or told no.
  • Verbal sexual advances or propositions.
  • Verbal abuse of a sexual nature, graphic verbal commentary about an individual’s body, sexually degrading words to describe an individual, or suggestive or obscene letters, notes or invitations.
  • Physical conduct: touching, hugging, massaging, standing too close, assaulting, impeding or blocking movements.

All such conduct is prohibited.

It is unlawful for males to sexually harass females or other males, and for females to sexually harass males or other females.

Sexual harassment on the job is unlawful whether it involves co-worker harassment, harassment by a supervisor or manager, or by persons doing business with or for Ohlone.

Even if no one has told an employee that the employee’s conduct is offensive, the employee is subject to discipline, up to and including termination, for engaging in unlawful harassment. To minimize the risk of violating the policy against harassment, employees should remember and follow these guidelines:

  • An individual may consider touching, hugging, or massaging to be unwelcome or offensive.
  • Racial, religious, ethnic, sexual preference, and sexual jokes/epithets, derogatory comments and offensive comments, are to be completely avoided. Such comments on any legally protected basis are prohibited. Legally protected basis include: sex, race, religious creed, color, national origin, ancestry, age (over 40), medical condition, marital status, sexual orientation, gender, disability, pregnancy or related medical condition.
  • Compliments to others should be kept general. More specific comments may be perceived as sexually suggestive.
  • Drinking impairs good judgment. When at an Ohlone-related social function or when with employees or other individuals associated with Ohlone, drink responsibly.
  • Do not behave in a way that you would not want your spouse, significant other, and/or children to see or hear about.

Employees must use good judgment before seeking a romantic relationship with another employee. You are not to repeatedly ask another employee to date, apply pressure to have a relationship or retaliate in any way due to an employee’s decision not to date or not to have a relationship.

Preventing Sexual and Other Unlawful Harassment

A program to eliminate sexual and other unlawful harassment from the workplace is not only required by law but is the most practical way to prevent incidents from occurring, or to avoid or limit damages if harassment should occur despite preventive efforts. Ohlone will act to remedy unlawful harassment.

  • Supervisors and managers must immediately refer all harassment complaints to the Human Resources Department of Ohlone.
  • Ohlone and its representatives will protect the confidentiality of harassment complainants to the extent possible.
  • All incidents of sexual or other unlawful harassment that are reported must be investigated.
  • If Ohlone determines that sexual or other unlawful harassment has occurred, Ohlone will take immediate and effective remedial action commensurate with the circumstances. Appropriate action will also be taken to deter any future harassment. If a complaint of sexual or other unlawful harassment is substantiated, appropriate disciplinary action, up to and including discharge, will be taken. Ohlone will communicate to the employee or contractor who complained as to appropriate corrective action being taken against the harasser, and Ohlone will take appropriate action to remedy any loss to the employee or contractor resulting from the sexual or other unlawful harassment.

Protection against Retaliation

Ohlone’s policy and law prohibit retaliation against any employee, student, or contractor by another employee, by another student, by another contractor, or by Ohlone for opposing unlawful practices prohibited by discrimination laws, for using this complaint procedure or for filing, testifying, assisting or participating in any manner in any investigation, proceeding or hearing conducted by a federal or state enforcement agency.

Prohibited retaliation includes, but is not limited to, demotion, suspension, failure to hire or consider for hire, failure to give equal consideration in making employment recommendations or contracting decisions, failure to make employment decisions impartially, adversely affecting working conditions or otherwise denying any employment benefits.

Once Ohlone knows of the occurrence of sexual or other unlawful harassment, no further harassment will knowingly be permitted, and Ohlone will not knowingly permit any retaliation against any employee or contractor who complains of sexual or other unlawful harassment or who participates in an investigation. Ohlone policy and law prohibit retaliation against any employee or contractor who opposes sexual or other unlawful harassment. Opposition includes, but is not limited to: seeking advice or assisting or advising any person in seeking advice of an enforcement agency regardless of whether a complaint is filed or, if filed, substantiated; opposing employment practices or other practices that an employee or a contractor reasonably believes to be unlawful; participating in an activity perceived to be opposition to discrimination by an employer covered by the law; or contacting, communicating with or participating in any federal, state, or local human rights or civil rights agency proceedings.

Any report of retaliation by the one accused of harassment, or by coworkers, contractors, supervisors or managers, will also be immediately, effectively and thoroughly investigated in accordance with Ohlone’s investigation procedure outlined above. If a complaint of retaliation is substantiated, appropriate disciplinary action, up to and including immediate discharge, will be taken.

Liability for Sexual or Other Unlawful Harassment

Any contractor or employee of Ohlone, whether coworker, supervisor or manager, who is found to have engaged in unlawful sexual or other unlawful harassment is subject to corrective and/or disciplinary action up to and including discharge from employment or termination of contract. An employee who engages in sexual or other unlawful harassment, including any manager who knew about the harassment and took no action to stop it, may be held personally liable for monetary damages.

Additional Enforcement Information

In addition to Ohlone’s internal complaint procedure, employees should also be aware that the federal Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment & Housing (DFEH) investigate and prosecute complaints of sexual or other unlawful harassment in employment. DFEH also investigates and prosecutes contractor complaints of unlawful harassment.

Employees who believe that they have been sexually harassed or harassed on other grounds protected by applicable law may file a complaint with the EEOC or with the DFEH. Contractors may file a complaint of unlawful harassment with the DFEH. Both the EEOC and the DFEH serve as neutral fact finders and attempt to help the parties voluntarily resolve disputes.

Damages and remedies such as hiring, reinstatement, back pay, promotion and changes in policies and/or practices may be obtained.

For more information, contact Human Resources or the nearest office of the EEOC or DFEH, as listed in the local telephone book or on the internet. (www.eeoc.gov or www.dfeh.ca.gov).

Equal Employment Opportunity and Reasonable Accommodation

Ohlone is an equal opportunity employer. All recruiting, screening, hiring, training, promotion, transfer and terms and conditions of employment will be conducted without discrimination due to race, religious creed, color, ancestry, age (over 40), sex, medical condition, marital status, disability, sexual orientation, national origin, pregnancy or related medical condition, Vietnam-era veteran status or other veteran protected by The Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), and any other basis protected by applicable law to the extent required by law.

To the extent required by applicable law, employment shall not be affected by physical or mental disability where the employee is able to perform the essential duties required by the job (with or without reasonable accommodation.)

To comply with applicable laws ensuring equal employment opportunities to individuals with a disability, Ohlone will make reasonable accommodation(s) for the known physical or mental limitations of an individual with a disability who is an applicant or an employee, unless undue hardship would result, to the extent required by applicable law.

Any applicant or employee who requires an accommodation should contact Human Resources and request such an accommodation. The individual with the disability should specify what accommodation he or she believes is necessary to perform the job. Ohlone will determine possible accommodations, if any, that will help eliminate the limitation. Ohlone will make the accommodation if the accommodation is reasonable and will not impose an undue hardship and if the accommodation will result in the employee being able to perform essential job functions without a direct threat to the health and safety of the employee or others.

Ohlone will maintain confidentiality of all medical information in compliance with disability laws. Such medical information will be maintained in separate files, not the employee’s Human Resource file.

This policy of equal employment opportunity applies to all terms and conditions of employment, including but not limited to, recruitment, hiring, training, wages, promotions, demotions, transfers, discipline and terminations.

Employees with questions or concerns about discrimination are encouraged to talk to Human Resources. Ohlone will not allow retaliation against an employee who expresses a concern of discrimination.

Any employee who engages in unlawful discriminatory practices will be subject to discipline, up to and including termination.

Definitions

Definitions applicable to nondiscrimination policies are as follows:

  • "Appeal" means a request by a complainant made in writing to the Ohlone Community College District governing board pursuant to title 5, section 59338, and/or to the State Chancellor’s Office pursuant to title 5, section 59339, to review the administrative determination of the District regarding a complaint of discrimination.

  • "Association with a person or group with these actual or perceived characteristics" includes advocacy for or identification with people who have one or more characteristics of a protected category listed under "Unlawful Discrimination Policy" and title 5, section 59300, participation in a group associated with persons having such characteristics, or use of a facility associated with use by such persons.

  • "Complaint" means a written and signed statement meeting the requirements of title 5, section 59328 that alleges unlawful discrimination in violation of the nondiscrimination regulations adopted by the Board of Governors of the California Community Colleges, as set forth at title 5, sections 59300 et seq.

  • "Days" means calendar days.

  • "Gender" means sex, and includes a person's gender identity and gender related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth. (Ed. Code § 66260.7; Penal Code § 422.56(c).)

  • "Mental disability" includes, but is not limited to, all of the following:

    1. Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:

      1. "Limits" shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.

      2. A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.

      3. "Major life activities" shall be broadly construed and shall include physical, mental, and social activities and working.

    2. Any other mental or psychological disorder or condition not described in paragraph (1) that requires specialized supportive services.

    3. Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the District.

    4. Being regarded or treated by the District as having, or having had, any mental condition that makes achievement of a major life activity difficult.

    5. Being regarded or treated by the District as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2). (Ed. Code § 66260.5; Gov. Code § 12926(i).)

    "Mental disability" does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.[5] (Gov. Code § 12926(i).)

  • "Physical disability" includes, but is not limited to, all of the following:

    1. Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:

      1. Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

      2. Limits a major life activity. For purposes of this section:

        1. "Limits" shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.

        2. A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.

        3. "Major life activities" shall be broadly construed and include physical, mental, and social activities and working.

    2. Any other health impairment not described in paragraph (1) that requires specialized supportive services.

    3. Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the District.

    4. Being regarded or treated by the District as having, or having had, any physical condition that makes achievement of a major life activity difficult.

    5. Being regarded or treated by the District as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).

    6. "Physical disability" does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.[6] (Gov. Code § 12926(k).)

  • “Nationality” includes citizenship, country of origin, and national origin. (Ed. Code § 66261.5.)

  • “Race or ethnicity” includes ancestry, color, ethnic group identification, and ethnic background. (Ed. Code § 66261.7.)

  • “District” means the Ohlone Community College District or any District program or activity that is funded directly by the state or receives financial assistance from the state.

  • “Responsible District Officer” means the officer identified by the District to the State Chancellor's Office as the person responsible for receiving complaints filed pursuant to title 5, section 59328, and coordinating their investigation.

  • “Sex” includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. “Sex” also includes, but is not limited to, a person's gender, as defined in section 422.56 of the Penal Code. (Gov. Code § 12926(p).) Discrimination on the basis of sex or gender also includes sexual harassment.

  • “Sexual harassment” is unlawful discrimination and includes unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the workplace or in the educational setting. Examples include but are not limited to:

    1. Submission to the conduct is explicitly or implicitly made a term or a condition of an individual's employment, academic status, or progress.

    2. Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.

    3. 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 educational environment.

    4. Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution. (Ed. Code § 66262.5 and § 212.5).

    Examples of unlawful sexual harassment include but are not limited to:

    1. Making unsolicited written, verbal, physical, and/or visual contacts with sexual overtones. (Examples of possible sexual harassment that appear in a written form include, but are not limited to: suggestive or obscene letters, notes, invitations. Examples of possible visual sexual harassment include, but are not limited to: leering, gestures, display of sexually suggestive objects or pictures, cartoons, or posters.)

    2. Continuing to express sexual interest after being informed that the interest is unwelcomed.

    3. Making reprisals, threats of reprisal, or implied threats of reprisal following a rebuff of harassing behavior. The following are examples of conduct in an academic environment that might be found to be sexual harassment: threatening to withhold, or actually withholding, grades earned or deserved; suggesting a poor performance evaluation will be prepared; or suggesting a scholarship recommendation or college application will be denied.

    4. Engaging in explicit or implicit coercive sexual behavior within the work environment which is used to control, influence, or affect the employee’s career, salary, and/or work environment.

    5. Engaging in explicit or implicit coercive sexual behavior within the educational environment that is used to control, influence, or affect the educational opportunities, grades, and/or learning environment of a student.

    6. Offering favors or educational or employment benefits, such as grades or promotions, favorable performance evaluations, favorable assignments, favorable duties or shifts, recommendations, reclassifications, etc., in exchange for sexual favors.

    7. Awarding educational or employment benefits, such as grades or duties or shifts, recommendations, reclassifications, etc., to any student or employee with whom the decision maker has a sexual relationship and denying such benefits to other students or employees.

  • “Sexual orientation” means heterosexuality, homosexuality, or bisexuality. (Ed. Code § 66262.7.)

  • “Unlawful discrimination” means discrimination based on a category protected under title 5, section 59300, including retaliation and sexual harassment.

Authority: Gov. Code, § 12926; Cal. Code Regs., tit. 5, §§ 59300, 59311; Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, Title IX, Office for Civil Rights, January 19, 2001.


[5] If the Americans with Disabilities Act of 1990 definitions would result in broader protection of the civil rights of individuals with a mental or physical disability, or would include any medical condition not included within these definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of the definitions in Government Code section 12926 and is deemed to be included in district policy. (Gov. Code, § 12926(l).)

[6] See prior footnote

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.

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 claims and damages.

Complainants, witnesses, and those accused of discrimination will all be reminded to maintain confidentiality and may 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.[7]

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.


[7]Complainants must trust the District to take appropriate action and must understand that the District is generally not at liberty to discuss personnel or student matters, particularly disciplinary matters.  In some disciplinary cases, the complainant may be required to testify at a hearing, and would therefore be aware of the proposed disciplinary action.  The complainant is to maintain the confidentiality of the disciplinary hearing.

Notice, Training, and Education for Students and Employees

The Ohlone Community College District’s responsible officer shall make arrangements for notifying or training 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 notification or 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 of employees will undergo mandatory training on unlawful sexual harassment within six months of assuming a supervisory position and bi annually thereafter. 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.

A training program or informational services will be made available to all students at least once annually. The student training or informational services will 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 quarter, semester, or summer session, as applicable.

Authority: Ed. Code, § 66281.5; Gov. Code § 12950.1 ; Cal. Code Regs., tit. 5, §§ 53003, 59324 and 59326. Reference: Cal. Code Regs., tit. 5, §§ 59300 et seq.; 34 C.F.R. § 106.8(b).

Academic Freedom

The Ohlone Community College District 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 ensures 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 Ohlone Community College District may 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., tit. 5, § 59302.

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. Class-2 Optional records shall be retained until reclassified as Class-3 Disposable Records. Class-3 Disposable Records shall be retained for a period of three years after being classified as Class-3 Disposable records.

Authority: Cal. Code Regs., tit. 5, § 59020 et seq.

Adopted: September 2011
Revised: May 2012