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HomeMy WebLinkAbout8. Article 3 Policy Against Harassment ExcerptArticle 2: Equal Employment Opportunity & Reasonable Accommodation City of Saratoga Personnel Rules and Policies 3 Approved by the City Council on October 16, 2019 CalPERS disability retirement under the Public Employees’ Retirement Law (Government Code § 20000, et seq., the "PERL") or a family and medical care leave of absence under FMLA and/or CFRA. Subdivision 3. Case-by-Case Determination The City determines, in its sole discretion, whether reasonable accommodation(s) can be made, and the type of accommodation(s) to provide. The City will not provide accommodation(s) that would pose undue hardship upon the City finances or operations, or that would endanger the health or safety of the employee or others. The City will inform the employee in writing of its decision as to reasonable accommodation(s). ARTICLE 3. POLICY AGAINST HARASSMENT, DISCRIMINATION AND RETALIATION Section 1. Purpose It is the City’s intent and the purpose of this Policy to promote a workplace that is free of unlawful harassment, discrimination and retaliation. This Policy prohibits unlawful harassment, discrimination and retaliation as defined by federal and state laws based on an individual’s protected characteristics, including but not limited to the following protected classifications as defined by applicable law: race, religion, color, religious creed, gender (including gender identity and gender expression),sex (including pregnancy, childbirth, breastfeeding, and related conditions), sexual orientation (including heterosexuality, homosexuality and bisexuality), national origin, ancestry, citizenship status, marital status, age (40 years and older), medical condition, physical disability, mental disability, genetic information, and military and veteran status. Prohibited harassment also includes harassment based on a perception that an individual has any of these characteristics or that the individual is associated with a second individual who has or is perceived to have any of these characteristics. This Policy sets forth a procedure for filing a complaint alleging a violation of this Policy and sets forth a procedure for investigating alleged harassment, discrimination and retaliation complaints in violation of this Policy. Retaliation against an individual(s) who has complained, retaliation against anyone associated with the complaining individual because of the complaint, retaliation against an individual(s) for participating in any manner in an investigation into an alleged complaint, and retaliation for opposing practices prohibited by this Policy, or for filing a complaint with, or otherwise participating in an investigation, proceeding, or hearing conducted by, the DFEH or the EEOC is unlawful as provided by applicable law, in violation of this Policy and provides grounds for disciplinary action, up to and including termination. Section 2. Policy The City will not tolerate any conduct that violates this Policy and will take appropriate corrective action to stop inappropriate behavior. Conduct need not rise to the level of a violation of law to provide grounds for disciplinary action, up to and including termination. Instead, a single act can violate this Policy and provide grounds for discipline. If an employee is in doubt as to whether any conduct may violate this Policy, the employee should not engage in the conduct, and seek guidance from management or the Human Resources Manager. Article 3: Policy Against Harassment, Discrimination & Retaliation City of Saratoga Personnel Rules and Policies 4 Approved by the City Council on October 16, 2019 Section 3. Policy Coverage This Policy prohibits applicants, employees, supervisors, vendors, interns, volunteers, contractors, Committee members, City Council members, others in a business, service, or professional relationship with the City, and others who hold themselves out as being able to help another individual establish a business, service, or professional relationship related in any way to the City from unlawfully harassing or discriminating against others on the basis: (1) of an individual’s protected classification under applicable law (see Article 3, Section 1); (2) of the perception that an individual has a protected classification; or (3) the individual associates with a person who is in or is perceived to be in a protected classification. Employees, supervisors, vendors, interns, volunteers, contractors, Committee members, City Council members, others in a business, service, or professional relationship with the City, and others who hold themselves out as being able to help another individual establish a business, service, or professional relationship related in any way to the City, cannot engage in unlawful sexual harassment related to others involved with the City. (See Article 3 of the Rules). If a manager decides to pursue such a relationship with a subordinate, the manager or subordinate employee should request a reassignment to another department for which he or she is qualified and should be reassigned before pursuing the relationship to ensure that supervisory influence is not being misused. If reassignment is not possible, both employees will need to meet individually with the Human Resources Division to verify that the relationship is consensual and to ensure that no unlawful sexual harassment is involved. If an individual in any of these roles is in a position of power, authority, or influence over another individual in any of these roles, one of the individuals should request a reassignment or change in role to ensure that power, authority, or influence is not being used over the other person to force, coerce, influence, or encourage a relationship. If reassignment or a change in role is not possible, both individuals will need to meet individually with the Human Resources Division to verify that the relationship is consensual and to ensure that no unlawful sexual harassment is involved. Any individual in any of these roles that is in a relationship with another individual in any of these roles will be reminded to comply with the harassment policy, interact and communicate professionally and appropriately at work or at City-related functions, and to avoid favoritism, a conflict of interest, or the appearance of impropriety. Section 4. Responsibilities of Employees, Management and Supervisory Employees Subdivision 1. Employees In order to establish and maintain a professional working environment, while at the same time preventing unlawful harassment, discrimination, and retaliation, employees are expected to: a. Set an example of acceptable conduct by not participating in or provoking behavior that violates this Policy. People have different ethical values and standards and may be offended by behavior someone else thinks is proper. b. When comfortable doing so, employees should let fellow employees know when their behavior is considered offensive. The City hires people from a wide variety of cultural and ethnic backgrounds, and an individual may not realize behavior he or she thinks is proper could be seen by others as offensive. Article 3: Policy Against Harassment, Discrimination & Retaliation City of Saratoga Personnel Rules and Policies 5 Approved by the City Council on October 16, 2019 c. Report harassment, discrimination or retaliation as quickly as possible, whether the employee is the target of the conduct or a witness. d. Comply with bystander intervention training. A bystander witnessing one employee harassing a second employee may also request that the individual engaging in harassing behavior stop. When requested to stop behavior that is viewed as harassing, the employee is to stop the behavior and seek clarification with the Human Resources Division if in disagreement with the request. e. If an employee observes harassment, he/she should tell the individual being harassed that the City has a policy prohibiting such behavior, and that the individual can demand that the harasser stop the behavior. If the employee is not comfortable doing this, the employee should notify any management employee or the Human Resources Manager or designee. f. Protect confidentiality to the extent possible as required by this Policy. g. Fully cooperate with the City’s investigation of complaints made under this Policy and be forthcoming and tell the truth to the City’s investigator. Subdivision 2. Managers and Supervisors In addition to the responsibilities listed above, managers and supervisors are responsible for the following: a. Implement this Policy by taking all complaints seriously and model behavior that is consistent with this Policy. Direct all complaints to the Human Resources Manager or designee. b. Take positive steps to eliminate and remedy any form of harassment, discrimination or retaliation observed or brought to his/her attention. c. Refrain from retaliating through any action of intimidation, restraint, coercion or discrimination. d. Monitor the work environment and take appropriate action to stop potential Policy violations. e. Follow up with those who have complained to ensure the behavior complained of has stopped. f. Inform complainants of their option to contact the EEOC or DFEH regarding unlawful discrimination, harassment, and retaliation (see Section 6, Subdivision 4 of this Policy). Section 5. Definitions The definitions described in this section define terms used in this policy and establish standards for workplace conduct and are designed to be consistent with the City’s goal of creating a non- harassing and professional work environment in compliance with applicable law. Subdivision 1. Protected Classifications See Article 3, Section 1. Subdivision 2. 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. Subdivision 3. 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 Article 3: Policy Against Harassment, Discrimination & Retaliation City of Saratoga Personnel Rules and Policies 6 Approved by the City Council on October 16, 2019 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: leering, making sexual gestures, or displaying of sexually suggestive objects or pictures, cartoons or posters. • Verbal misconduct: making or using derogatory comments, epithets, slurs, sexually explicit jokes, or comments about an employee’s body or dress. • 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, massaging, assaulting, impeding or blocking movements. All conduct described in this section 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 the City. Subdivision 4. Discrimination This Policy prohibits treating individuals differently because of the individual’s protected classification as defined by this Policy. There is “disparate treatment” and “disparate impact” discrimination. Disparate treatment involves employer actions that treat an employee differently because they are a member of a protected class, e.g., promotion or termination that singles out an employee because of a protected characteristic. For example, only older workers are laid off or only males are promoted. This type of discrimination often happens because of personal prejudice or dislike. Disparate impact occurs when an employer’s rules or practices affect employees differently based on their protected characteristics. This type of discrimination is often proven by statistics. For example, an employer policy of counting all absences and leaves against seniority that has a disproportionate adverse impact on women who must take time off for pregnancy disabilities. Subdivision 5. Retaliation Retaliation against a person (and his or her associates) because the person has reported or provided information about harassment or discrimination is strictly prohibited. Any act of unlawful retaliation violates this Policy and will result in appropriate disciplinary action, up to and including termination. Article 3: Policy Against Harassment, Discrimination & Retaliation City of Saratoga Personnel Rules and Policies 7 Approved by the City Council on October 16, 2019 Examples of actions that might be retaliation against a complainant, witness or other participant in the complaint process include: (1) singling a person out for harsher treatment, (2) lowering a performance evaluation, (3) failing to hire, failing to promote, withholding pay increases, assigning more onerous work, abolishing a position, demotion or discharge, (4) spreading rumors about a complainant, (5) treating negatively, refusing or failing to interact or communicate about work-related issues, or refusing or failing to include an individual in work-related meetings and functions because the individual has reported harassment or discrimination or participated in the complaint process, and/or (6) real or implied threats of intimidation to prevent or discourage an individual from reporting harassment or discrimination or to punish an individual because of a previous report of such concern. Even well-intentioned attempts to insulate or protect a complainant by changing his or her work environment, schedule, or duties may be retaliatory. Before a supervisor takes such action, the supervisor should seek guidance from any management employee, the Human Resources Manager, or designee. Any act of retaliation will be treated as a separate and distinct incident, regardless of the merit or outcome of the preceding harassment or discrimination complaint. Section 6. Reporting of Harassment, Discrimination, or Retaliation An applicant, employee, intern, volunteer, contractor, officer, or official who feels he or she has been harassed, discriminated against or retaliated against in violation of this Policy should report the conduct immediately as outlined below so that the complaint can be investigated and resolved quickly and fairly. Contractors are to report harassment to the Human Resources Manager or the City Manager. Complainants involved in the complaint process may be represented by a person of their choosing, union representative, or attorney, at the complainant’s expense. Subdivision 1. Objection to the Conduct If comfortable doing so, a person who believes he/she is being harassed is encouraged to first use the informal and direct approach by informing the offending person that his/her conduct or language is offensive and unwelcome and request the offending person to discontinue his/her offensive conduct or language immediately. Sometimes an offending person is unaware that his/her conduct is offensive and using the informal and direct approach is the solution. However, if this approach is utilized and unsuccessful and the conduct in question continues or if the person who believes he/she is being harassed is not comfortable using the informal and direct approach with the offending person, the person should make a report in accordance with Subdivision 2 and/or 3 below or go directly to the formal reporting process. Subdivision 2. Oral Report If a person believes that this Policy has been violated and does not want to confront the offending person, he/she should report the conduct to any management employee. Any management employee who receives such a report must inform the Human Resources Manager or designee. Subdivision 3. Written Complaint An individual who believes this Policy has been violated and does not feel comfortable using the process outlined above is to provide a written confidential complaint in the form of a memo Article 3: Policy Against Harassment, Discrimination & Retaliation City of Saratoga Personnel Rules and Policies 8 Approved by the City Council on October 16, 2019 or email to any management employee, who in turn must direct the complaint to the Human Resources Manager or designee. Subdivision 4. Option to Report to Outside Administrative Agencies While the City encourages individuals to report all concerns to the City to allow the City to take prompt and appropriate corrective action, applicants, employees, interns, volunteers, contractors, officers, and officials have the option to report harassment, discrimination, or retaliation to the U.S. Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH). These governmental agencies offer legal remedies and a complaint process. The nearest offices are listed in the government section of the phone book as well as on the posters located on City bulletin boards. Section 7. City’s Response to Complaint of Harassment, Discrimination, or Retaliation Subdivision 1. Investigation Upon receipt of a complaint of alleged harassment, discrimination or retaliation, the Human Resources Manager or designee will be responsible for determining the type of investigation and coordinating the investigation (unless the Human Resources Manager or designee is named in the complaint, in which case City Manager or designee will coordinate the investigation, unless the City Manager or designee is named in the complaint, in which case the City Attorney or designee will coordinate the investigation, in which case the Human Resources Manager references below will mean the investigation coordinator). The Human Resources Manager or designee may coordinate the investigation with the complainant’s department director(s) and may hire an outside investigator if the City deems appropriate. The type of investigation undertaken, and the party chosen to conduct the investigation will depend on the nature of the complaint made and shall be determined by the Human Resources Manager or designee. The Human Resources Manager or designee or the City Manager or designee, or the City Attorney or designee if the City Manager is named in the complaint, may take interim action to address the allegations and special circumstances, such as placing the alleged accused on paid administrative leave. No interim action should be taken to change the complainant’s working conditions unless the complainant voluntarily requests and/or consents to the temporary change. Internal investigations typically fit into two categories, informal investigations and formal investigations, which are dictated by circumstances and at the discretion of the investigator. The investigator will review the complaint allegations in an objective manner and to the extent that the City deems necessary. The investigation will normally include interviews with the reporting individual (complainant), the accused, and any other person who is believed to have relevant knowledge concerning the allegations. The investigator will remind all witnesses to maintain the confidentiality of the content of the interview when appropriate and not to retaliate against those who report alleged harassment or who participate in the investigation. The City takes a proactive approach to potential Policy violations and will investigate if any manager becomes aware that harassment, discrimination or retaliation may be occurring, regardless of whether the recipient of the alleged conduct or a third party reports a potential violation of this Policy. Article 3: Policy Against Harassment, Discrimination & Retaliation City of Saratoga Personnel Rules and Policies 9 Approved by the City Council on October 16, 2019 Subdivision 2. Remedial and Disciplinary Action If the investigation determines that the alleged conduct occurred and that the conduct violated this Policy, the City will notify the complainant and accused of the general conclusion(s) of the investigation and take effective remedial action that is designed to remedy the impact on the complainant and end the violation(s). Any employee or officer determined to have violated this Policy will be subject to disciplinary action, up to and including termination. Disciplinary action may also be taken against any official, supervisor or manager who condones or ignores potential violations of this Policy, or who otherwise fails to take appropriate action to enforce this Policy. Any official or contractor or other individual found to have violated this Policy will be subject to appropriate sanctions. Subdivision 3. Confidentiality Every possible effort will be made to protect the confidentiality of complaints made under this Policy. Complete confidentiality cannot occur, however, due to the need to fully investigate potential Policy violations and take effective remedial action. An individual who is interviewed during an investigation may be prohibited from discussing the substance of the interview when appropriate, except with a representative for the employee such as an exclusive representative or as otherwise directed by a supervisor or the Human Resources Manager or designee. Any individual who discusses the content of an investigatory interview with any individual other than a representative after being directed not to do so will be subject to discipline, up to and including termination. Subdivision 4. Investigation Report The City will not disclose a completed investigation report except as it deems necessary to support a disciplinary action, to take remedial action, to defend itself in adversarial proceedings, or to comply with the laws or other legal requirements. ARTICLE 4. EMPLOYEE RECRUITMENT, SELECTION AND APPOINTMENT Section 1. Policy It is the policy of the City of Saratoga to recruit and select the most qualified persons for positions in the City's service. Recruitment and selection shall be conducted in a manner in accordance with the City's hiring process that will ensure open competition, provide equal employment opportunity, and prohibit discrimination or favoritism based on any of the protected classifications under applicable law. (See Article 3, Section 1.) Section 2. Department Hiring Procedures Subdivision 1. Department When a department has a staffing requirement, a memorandum (“justification memo”) is prepared by the department director for City Manager approval and sent to the Human Resources Division. The memo should include the following essential information: • Preferred date the position is filled. • Job title and type of position – regular or temporary and full-time or part-time. If the position is temporary, include the start and end date of the temporary assignment.