Appendix 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 Chancellor’s 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. (
2.
The
complaint is not filed in a form prescribed by the Chancellor. (
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. (
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. (
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 Chancellor’s unlawful
discrimination complaint form and no others are within the jurisdiction of
Title 5. (
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 Chancellor’s 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 complainant’s 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 Chancellor’s 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 complainant’s 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.