By: Carol Smeltzer, Esq.
When an employee, parent, student, or other person files a complaint with the district’s affirmative action officer alleging hostile work environment or harassment based on a protected class, the affirmative action officer begins an investigation to determine if a violation of the district’s affirmative action policies has been committed. The scope of what constitutes a protected class is set forth in N.J.S.A. 10:5-4, part of the Law Against Discrimination (LAD). The statute states that protected classes include race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex, and gender identity or expression. The timeline for completion of the affirmative action investigation varies from district to district, so it is important to look at your district’s policies for this information.
While anyone can allege anything, it is important to bear in mind that a complainant needs to prove that the accused violated the district’s affirmative action policies. If there are witnesses to the complained of conduct, the complainant needs to inform the investigator who the witnesses are, and, to have a thorough investigation, it is incumbent upon the investigator to interview them. If there are relevant documents that demonstrate that the accused violated the district’s affirmative action policies, then the complainant needs to provide those documents to the investigator. In cases of alleged hostile work environment or harassment where there are no witnesses and it is one person’s word against another’s, the issue becomes one of credibility in determining whether a violation of the district’s affirmative action policies occurred.
If you are named in a hostile work environment or harassment complaint, you will likely be asked to attend an interview with the district’s affirmative action officer or other person designated by the district to conduct the investigation. Sometimes, school districts will have their board attorneys investigate a complaint or they may use an independent law firm to conduct the investigation. But, when asked to attend an interview with the investigator, it is recommended that you immediately call the NJPSA legal department for assistance. An attorney will discuss the process with you, prepare you for the interview and determine whether you need to have a legal representative present during the interview.
When you are interviewed, your answers should accurately reflect to the best of your recollection the events being investigated. Additionally, if you believe that the complainant may have had an improper motive for filing the complaint, it’s important that you point this out to the investigator. For example, if a staff member has named you in an affirmative action complaint after you have given the staff member a less than satisfactory evaluation and/or after you have placed the staff member on a corrective action plan, it is important that you relay this information to the investigator. Another example is a parent filing an affirmative action complaint after the child study team has denied a student an out-of-district placement. It is important that the investigator be advised accordingly so that motive can be properly assessed.
After the investigation is concluded, the investigator will prepare a report of his or her findings, which may include recommendations for disciplinary action. That is among the reasons why it’s so important that you receive counsel on how to respond to the affirmative action complaint at the very beginning of the process. When the investigation report is completed, you are not entitled to receive a copy of it, but you are entitled to written notification as to whether the allegations made against you have been substantiated.
If the complaint has been substantiated, or even partially substantiated, depending on the allegations and the findings made, disciplinary action may be imposed. If this occurs your mode of relief is to challenge the disciplinary action through the grievance procedure contained in your local association’s collective bargaining agreement.
In summary, affirmative action complaints are serious. They should be taken seriously, even if you believe that the complaint is bogus. This means that you should reach out to the NJPSA legal department immediately at the outset of the complaint process to fully protect your rights.