Nondiscrimination Regulations

1
Nondiscrimination Regulations

• A Review of Recent Changes

2
Board of Governors of the California Community
CollegesCalifornia Code of Regulations, title 5,
division 6

• Presented by Jonathan R. Lee, Assistant General
  Counsel
• Association of Chief Human Resources Officers/
• Equal Employment Officers
• ACCHROA Conference 2008
• October 2008, Lake Tahoe
• Staff Support Francesca Reitano, Community
  College Program Assistant II
• http//www.cccco.edu/SystemOffice/Divisions/Legal/
  Discrimination/tabid/294/Default.aspx
• legalaffairs_at_cccco.edu

3
Background

• Why make changes at all?
• Legislation
• January 1, 2008, two bills were enacted.
• SB 777 (Stats. 2007, ch. 569)
• AB 14 (Stats. 2007, ch. 568)
• Clarification
• 2006 amendment to title 5, section 59339(b) in
  the California Code of Regulations.

4
SB 777 (Stats. 2007, ch. 569)

• Revised the list of prohibited bases for
  discrimination and the kinds of prohibited
  instruction and activities.
• Defined disability, gender, nationality, race or
  ethnicity, religion, and sexual orientation.
• Changed references of handicapped to
  individuals with physical disabilities.

5
AB 14 (Stats. 2007, ch. 568)

• Enacted Civil Rights Act of 2007.
• Attempted to cross-reference and make consistent
  all references made in
• Unruh Civil Rights Act
• Government Code section 11135

6
Unruh Civil Rights ActSection 51 of the Civil
Code

• Provides that all persons within the state are
  free and equal, and no matter what their sex
  (including gender identity), race, color,
  religion, ancestry, national origin, disability,
  medical condition, marital status, or sexual
  orientation, are entitled to full and equal
  accommodations, advantages, facilities,
  privileges, or services in all business
  establishments of every kind whatsoever and
  prohibits other arbitrary discrimination.

7
Government Code Section 11135

• Prohibits discrimination in state-funded programs
  and activities based on race, national origin,
  ethnic group identification, religion, age , sex
  (includes gender and sex harassment), sexual
  orientation, color, or mental or physical
  disability, or on the basis of these perceived
  characteristics, or based on association with a
  person or group with any of these characteristics.

8
2006 Title 5 Amendment

• Section 59339(b) amendments
• Eliminated appeals to the Chancellor in
  employment related complaints.
• Restated employment discrimination complainants
  right to file a complaint with the Department of
  Fair Employment and Housing (DFEH) where the
  complaint is within DFEH jurisdiction.
• Other regulations needed to be modified to
  provide clarity in light of this amendment.

9
Background cont.

• Proposed changes to Consultation Council on March
  20, 2008.
• Public notices were sent out on May 5 and May 16,
  2008.
• Regulations adopted July 14-15, 2008, by the
  Board of Governors.

10
What Hasnt Changed - Non-employment Complaints

• Note Reporting requirements for formal
  non-employment complaints have not changed.
  (Generally are student complaints.)
• Copy of complaint to Chancellor. ( 59330.)
• Notification to complainant and Chancellor if
  complaint is defective. ( 59332.)
• Copy of letter to Chancellor and complainant upon
  commencing investigation. ( 59334.)

11
What Hasnt Changed -Non-employment Complaints
cont.

• 90 days after complaint is filed Full
  investigative report to Chancellor, copy or
  summary to complainant. ( 59336.)
• Notice to complainant and Chancellor
• Determination of CEO or designee whether
  discrimination occurred.
• Description of actions taken, if any, to prevent
  future discrimination.
• Proposed resolution of the complaint.
• Complainants appeal rights under 59338,
  59339.

12
What Hasnt Changed -Non-employment Complaints
cont.

• 150 days after complaint is filed Notice to
  complainant and Chancellor of --
• Final district determination. ( 59338 59340.)
• Non-employment complainants appeal rights to the
  State Chancellor. ( 59339.)
• Clarification If non-employment complainant does
  not appeal to local Board ( 59338), notice to
  Chancellor (may be done by e-mail).
• ( 59340(a)(2).)

13
The Changes

• Breakdown of the Changes
• Interchangeable usage of the terms sex and
  gender.
• Amended district responsibilities.
• Clarification of Chancellors Office role in
  employment related complaints.
• Technical adjustment to clarify student appeals
  to the Chancellors Office. ( 59351.)

14
Sex and Gender

• Both terms are now to be used interchangeably.
  ( 59300, 59311.)
• Sex and gender are interchangeable terms for
  filing an unlawful discrimination complaint. (
  59320.)

15
Amended District Responsibilities

• Removal of requirement for Chancellors Office
  approval of unlawful discrimination policies. A
  copy still must be sent to Chancellor when
  adopted or amended. Chancellor retains right to
  request amendments in order to comply with title
  5. ( 59322.)
• District officer has oversight of formal and
  informal complaint process. ( 59324.)
• Documents in all discrimination cases should be
  retained for 3 years. ( 59340(b).)

16
Amended District Responsibilities cont.

• Clarification (non-employment) If complainant
  does not appeal to local Board ( 59338), notice
  to Chancellor (may be done by e-mail). (
  59340(a)(2).)
• Clarification of notice and appeal rights
• Appeal to local Board 15 days from the date of
  the 59336 notice. ( 59338(a).)
• Appeal to State Chancellor (non-employment) 30
  days from the final decision or date of notice,
  whichever is later. ( 59339(a).)

17
Employment Discrimination

• Copies of all unlawful discrimination complaints
  should be forwarded to the Chancellor. (
  59330.)
• Notice must be given to Chancellor and
  complainant if complaint is defective. (
  59332.)
• When a complaint is filed under title 5, forward
  complainants Department of Fair Employment and
  Housing (DFEH) or Equal Employment Opportunity
  Commission (EEOC) complaint to Chancellor to
  determine whether separate title 5 investigation
  is required. ( 59328.(f)(2).)

18
Employment Discrimination cont.

• Chancellor does not need to receive copies of
  materials related to employment discrimination
  case investigations and determinations. (
  59336, 59338, 59340.)
• Important note Districts must comply with all
  requirements of 59336, 59338 and 59339 with
  regard to complainant.
• No appeals to State Chancellor allowed in
  employment-related complaints. ( 59339(b).)

19
Employment Discrimination cont.

• Complainants should be notified that if not
  satisfied with districts final decision, they
  may file a complaint with DFEH. ( 59338
  59339.)
• Extension of time requests should be made to the
  Chancellor in employment and non-employment
  complaints with written notice to complainant of
  right to file objections.
• ( 59342.)