Apendix C

Guidelines for Processing Formal

Title 5 Unlawful Discrimination Complaints[1]

 

The official Title 5 unlawful discrimination form and Model Policy were updated in connection with changes to the nondiscrimination provisions of Title 5.These guidelines are offered as a procedural aid to districts for processing formal unlawful discrimination complaints under the revised regulations.

 

Complaint Evaluation

 

When a district receives a formal unlawful discrimination complaint filed on the form prescribed by the Chancellorís Office (see website), the district representative or agent should review the complaint form carefully to determine if it has been completed properly, if additional information is required, or if it is defective and must be rejected.

 

The complaint may be rejected as defective if:

 

1.     The complaint is not filed by the person who alleges he or she personally suffered unlawful discrimination or by one who learned of the discrimination in his or her official capacity as a faculty member or administrator.Anonymous complaints are not accepted.(Cal. Code Regs., tit. 5, Section 59328.)

2.     The complaint is not filed in a form prescribed by the Chancellor.(Cal. Code Regs., tit. 5, Section 59328.)

3.     It is a non-employment-based complaint and the most recent incident of alleged discrimination occurred more than one year from the date the complaint was filed, or more than one year from the date the complainant knew or should have known of the facts underlying the allegation of unlawful discrimination.(Cal. Code Regs., tit. 5, Section 59328.)

4.     It is an employment-based complaint and the most recent incident of alleged discrimination occurred more than 180 days from the date the complaint was filed, or 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.(Cal. Code Regs., tit. 5, Section 59328.)

5.     The complaint does not allege discrimination based on at least one category protected under Title 5.The complete list of protected categories is contained on the Chancellorís unlawful discrimination complaint form and no others are within the jurisdiction of Title 5.(Cal. Code Regs., tit. 5, Section 59300.)

 

The complaint should be returned for more than information if:

 

††††† (1) The complaint does not indicate whether the complainant is a student, employee, or other.

(2)  The complaint is not signed with an original signature.Faxed or emailed complaints must be returned for an original signature.

(3)  The complaint does not provide enough information for the district to understand what the complainant believes is discriminatory and who was involved in the alleged discrimination.

(4)  The complainant fails to explain why he or she believes the alleged discrimination was because of [religion, age, race, sex or whatever protected category he or she selected] or why the complainant believes he or she was retaliated against for filing a complaint or asserting his or her rights.

 

The complaint need not be investigated if:

 

1.     Identical Title 5 allegations have already been investigated and resolved.Districts should not reinvestigate allegations that have already been resolved under Title 5.

2.     The allegations are a continuation of a pattern of previously filed complaints involving the same or substantially similar allegations against the same person(s) that have been found factually or legally unsubstantial by the district and/or the Chancellorís Office.

3.     The complaint is unintelligible.

4.     The complainant withdraws his or her complaint.

5.     The complaint does not provide sufficient information to proceed with the investigation and/or the complainant fails to cooperate by providing additional information or participating in a meeting with district representatives.The district should carefully document all failed attempts to secure the complainantís cooperation before closing the file.

6.     If an employment-based complaint has been filed with the Department of Fair Employment and Housing (DFEH), the district may forward the DFEH material to the Chancellorís Office for a determination of whether an independent investigation under Title 5 is necessary.The district may discontinue the investigation unless the Chancellor indicates that a separate investigation is required.

7.     The district has a court order directing it to prohibit the complainant from entering the campus or participating in an activity or class.

8.     Nexus/Prima Facie Case/Intake Screening:The complainant fails, even after the district requests additional information from the complainant, to allege facts that explain why he or she believes the alleged discrimination was because of [religion, age, race, sex or whatever protected category he or she selected] or why the complainant believes he or she was retaliated against for filing a complaint or asserting his or her rights.(For example, if a complainant alleges that the grade a student received in a course was a result of discrimination based on gender, the complaint must state facts to support this claim, such as no person of the complainantís gender received a passing grade in the class.The mere assertion of discrimination is not enough to trigger an investigation under Title 5.)The question is whether the facts alleged by the complainant, assuming they were to be proved true, would tend to suggest that discrimination might have occurred.If not, the complaint should be dismissed for failing to state a prima facie case.

 

 

 

 

6/06



[1] The information provided by these guidelines is informational only and should not be interpreted as legal advice.