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HomeMy WebLinkAbout1995-154 r -------- ,. 10 11 12 13 14 15 1 2 3 4 5 6 RESOLUTION NO. 95-154 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING AN UPDATED HARASSMENT/SEXUAL HARASSMENT POLICY FOR SAID CITY, AND REPEALING RESOLUTIONS NOS. 81-641 AND 91-330. WHEREAS, the City of San Bernardino has been and continues to be firmly committed to providing employees with a work environment free from sexual harassment and harassment due to 7 sex, race, age, color, ethnicity, religion, national origin, 8 disability, marital status or any other area protected by law; 9 and, WHEREAS, the City desires to adopt and implement an harassment/sexual harassment policy which is contained in one comprehensive document; NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City of San Bernardino Policy on 16 Harassment/Sexual Harassment, marked Exhibit "Au and attached 17 18 19 20 21 22 23 24 25 26 27 28 hereto and incorporated herein by reference, is hereby approved, adopted, and incorporated into the City of San Bernardino Affirmative Action Plan, which was adopted by Resolution No.15039. SECTION 2. Resolutions Nos. 81-641 and 91-330, including any amendments thereto, are hereby repealed. I I I / / / / / / / / / I I I I / / I I / / / I May 9, 1995 Page 1 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING AN UPDATED HARASSMENT/SEXUAL HARASSMENT POLICY FOR SAID CITY, AND REPEALING RESOLUTIONS NOS. 81-641 AND 91-330. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a regular meeting thereof, held on the 15th May day of , 1995, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT NEGRETE x CURLIN x - HERNANDEZ x OBERHELMAN x DEVLIN x POPE-LUDLAM x MILLER x ~ ~ City Clerk The foregoing resolution day of May , 1995. is hereby approved this /IY? ~;;;);;!It~~ Tom Minor, Mayor City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN, ::~Y;Z~~ Hay 9, 1995 Page 2 Res. 95-154 CITY OF SAN BERNARDINO POLICY ON HARASSMENT/SEXUAL HARASSMENT Harassment, including sexual harassment, in employment is a violation of State and Federal law as well as a violation of a person's privacy and dignity. It can cause emotional, physical and economic damage to its victims. It undcrmines the integrity of the employment relationship. It can result in economic loss to both the employer and employee, excessive absenteeism and turnover, loss of morale, polarization of staff, sabotaged work, a decrease in management credibility and a decrease in productivity. PU RPOSE: It is the policy of the City of San Bernardino to provide a work environment free from harassment on the basis of race, religious creed, color, national origin, ancestry, age, sex, marital status, physical disability, mental disability, medical condition or any other classification protected by law, and unwelcome sexual overtures, advances and coercion. Therefore, the City will not tolerate any form of harassment, sexual harassment, or reprisal, and expccts individuals to adhere to a standard of conduct that is respectful to all persons within the work environment. This policy is intended to allow the City to resolve complaints of harassment and sexual harassment internally. It is meant to supplement, not replace any applicable State and Federal remedies. SCOPE: This policy applies to all officers, agents, employees and elected officials of the City of San Bernardino (collectively called "employees" herein), as well as third parties (e.g., vendors, contractors, membcrs of the public) regularly entering the work environment. DEFINITION: A. Harassment includes the following when based upon race, religious creed, color, national origin, ancestry, age, sex, marital status, physical disability, mental disability, medical condition or any other classification protected by law: 1. Verbal harassment, e.g., epithets, derogatory comments or slurs; Exhibit "A" ~. .-- j "\ 2. Physical harassment, e.g., unwelcome or unconsented touching, impeding or blocking movement, or any interference with normal work or movement; and, 3. Visual harassment, e.g., leers, gestures, or derogatory posters, cartoons or drawings. For the purpose of this policy, harassment also spccifically includes sexual harassment. B. Sexual Harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: 1. Submission to such conduct is made either explicitly or implicitly as a term or condition of an individual's employment; 2. Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting the individual; or, 3. Such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or otherwise offensive working environment. For the purpose of further clarification, sexual harassment includes, but is not limited to: 1. Making unsolicited written, verbal, physical or visual contact with sexual overtones. (Written examples: suggestive or obscene letters, notes, invitations. Visual examples: leering, gestures, display of sexually suggestive objects or pictures, cartoons or postcards. Physical examples: touching in a sexually-suggestive manner, or touching of the private parts of another for sexual gratification.) 2. Continuing to express sexual interest after being in formed that the interest is unwelcome. (Reciprocal attraction is not considered sexual harassment.) 2 3. Making reprisals, threats of reprisal, or implied threats of reprisal following a negative response. For example, either implying or actually withholding support for an appointment, promotion, or change of assignment; suggesting a poor performance report will be prepared, or suggesting probation will be failed. 4. Engaging in implicit or explicit coercive sexual behavior which is used to control, influence, or affect the career, salary or work environment of another employee. 5. Offering favors or employment benefits, such as promotions, favorable performance evaluations, favorable assigned duties or shifts, recommendations, reclassifications, etc., in exchange for sexual favors. 6. When employment benefits are granted because of sexual favors, other qualified persons who are denied the benefits may be considered to be victims of sexual harassment. A finding of sexual harassment may be made even though the conduct occurs outside of the workplace. PENALTY GUIDELINES: The City of San Bernardino will undertake all appropriate necessary action against any employee found to be in violation of this policy to prevent further harassment, including sexual harassment, and retaliation. Appropriate necessary action may include cor recti ve action (e.g., counselling and/or training) and/or punitive action up to and including termination from employment. In the case of elected officials, disciplinary actions are limited to private or public censure, unless otherwise permitted by Charter. In the case of a citizen, contractor or vendor the City shall take such actions to prevent further harassment as may be within its power. 3 CITY RESPONSIBILITY: The City shall take prompt, appropriate action to avoid or minimize harassment/sexual harassment and liability to the City. The City will pursue every possible preventive measure to insure employees are not subject to harassment/sexual harassment; will investigate all complaints of harassment/sexual harassment and all instances which it has good cause to believe to have occurred; and will take appropriate disciplinary action against any employee(s) found to be in violation of this policy. COMPLAINT PROCEDURE: 1. Any employee who believes that he/she has been harassed/sexually harassed may report the incident to the employee's supervisor or department head, to the Affirmative Action Officer, or to a City Equal Employment Opportunity ["City's EEO"] Counselor. (Any applicant for cmployment who believes he/she has been harassed may file with the Affirmative Action Officer or with a City EEO Counselor.) 2. If thc employec chooses to have the matter in vestigated by a City EEO Counselor, the Counselor shall follow the City's EEO Committee's Complaint Procedure, found in the City's Affirmative Action Plan, and submit a written report to the Affirmative Action Officer at the conclusion of the investigation. 3. The Affirmative Action Officer and the City's EEO Counselors shall perform their duties in a fair, impartial, and objective manner. Any person who attempts to influence the Affirmative Action Officer or a City EEO Counselor by means of any threat, intimidation, persuasion, or assurance of any pecuniary or other advantage, may be subject to prosecution and/or penalties as provided herein. 4. Upon the filing of a written complaint, or at such time as the Affirmative Action Officer has good cause to believe that harassment/sexual harassment has occurred, the Affirmative Action Officer shall promptly and confidentially investigate the matter. 4 I I'i,-' . ~: f ,I 5. The Affirmati ve Action 0 fficer shall provide the respondent an opportunity for an informal resolution of the matter, and shall notify the complainant of the proposed disposition of his/her complaint by the informal adjustment procedure. 6. If the matter cannot be resolved informally by the Affirmative Action Officer, he/she shall present the complaint to the City's EEO Committee. 7. The City's EEO Committee shall notify the complainant and the employee charged with the alleged harassment of the time and place of a hearing concerning such matter; shall provide such employee with a copy of the formal complaint or written charges; shall review the written report of the Affirmative Action officer concerning such matter; and may conduct an independent investigation into the matter which mayor may not include further hearings. The recommendation of the Committee shall be presented to all concerned persons. 8. The complainant and respondent shall abide by the terms of any settlement they agree to at any time in the process. In all other respects, the recommendations of the EEO Counselor, Affirmative Action Officcr or EEO Committee shall be advisory only. EMPLOYEES' RIGHTS AND RESPONSIBILITIES: 1. Complainants: Any employee who believes he or she has been harassed/sexually harassed has the responsibility to take immediate action to assure that the situation does not persist. Employees have the following rights: A. The right to a work environment free of harassmenl/sexual harassment. B. The right to an informal, confidential hearing by the Affirmative Action Officer and/or a City EEO counselor. C. The right to have harassment/sexual harassment complaints kept confidential until such time as he/she gives the counselor permission to do otherwise, in order to bring the complaint to the appropriate authority 5 for remedy as set forth ill the City's Affirmative Action Complaint Procedure. D. The right to a full, impartial and prompt investigation through the Affirmative Action Office, including the right to produce witnesses and to have them interviewed. E. The right to be represented by legal counselor other representati ve, at bis/her own cost, at all stages. F. The right to a timely decision after full consideration of all relevant facts and circumstances. G. The right to be advised of the results of the Affirmative Action Officer's investigation and conclusions. (If discipline is imposed, the specific terms of the discipline will not be communicated to the complainant.) H. The right to be free from retaliation for filing a complaint or otherwise participating in an investigation of harassment/sexual harassment. Employees may also file complaints of harassment/sexual harassment with the following State and Federal offices: State Department of Fair Housing and Employment (DFEH) 1845 S. Business Ctr. Dr., #127255 San Bernardino, CA 92408-3426 (909) 383-4711 Equal Employment Opportunity Commission (EEOC) East Temple Street, 4th Floor Los Angeles 90012 (800) 669-4000 2. ResDondent: Any employee wbo has been accused of harassmcnt/sexual harassment ("Respondent") has a responsibility to cooperate with the investigation by the Affirmative Action Officer and also has the following rights: A. The right to an attempt at an in formal resolution of the complaint with the Affirmative Action Officer prior to the institution of any formal process. 6 ., F. The right to a timely decision after full consideration of all relevant facts and circumstances. G. The right to be advised of the results of the Affirmative Action Officer's investigation and conclusions. (If discipline is imposed, the specific terms of the discipline will not be communicated to the complainanL) H. The right to be free from retaliation for filing a complaint or otherwise participating in an investigation of harassment/sexual harassment.IS Employees may also file complaints of harassment/sexual harassment with the following State and Federal offices:19 State Department of Fair Housing and Employment (DFEH) 1845 S. Business Ctr. Dr., #127255 San Bernardino, CA 92408-3426 (909) 383-4711 Equal Employment Opportunity Commission (EEOC) East Temple Street, 4th Floor Los Angeles 90012 (800) 669-4000 2. Resoondent:20 Any employee who has been accused of harassment/sexual harassment ("Respondent") has a responsibility to cooperate with the investigation by the Affirmative Action Officer and also has the following rights: A. The right Lo an attempt at an informal resolution of the complaint with the Affirmative Action Officer prior to the institution of any formal process. B. The right to be represented by legal counselor other representative, at his/her own cost, at all stages of the proceedings. 18 Policy Statement on Sexual DiscriminatiOl: and Harassment, adopted pursuant to Resolution No. 81-641, p.4. 19 New. 20 This section on the rights of the accused was added to give notice of the due process rights of the accused. All of these rights are currently found in the City's Affirmative Action Policy, Complaint Procedure. They are also afforded to classified employees pursuant to the Charter, Civil Service Rules, case law and the Constitution, before any adverse employment action may be taken. In the case of elected officials the rights emanate from the Constitution. In addition, it provides some protection for the City against tort claims for defamation because an independent fact finder (who may be one who is agreed to by both sides, and may even be a City officer if mutually agreeable) makes the determination, and helps to insulate the City against claims of malice. 7 Res. 95-154 It shall be the responsibility of any supervisor or other employee to whom alleged harassment/sexual harassment has been reported to maintain such report as a matter of strict confidence. Such report may be discussed only with the Department/Division Head or others in the chain of command and the Affirmative Action Officer prior to the investigation. A complaint of harassment/sexual harassment is to be considered and treated as any other confidential personnel record of the complaining and responding employees. Copies of this policy shall be distributed to all employees and elected officials. 8