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HomeMy WebLinkAbout18-Human Resources e e e CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: LINN LIVINGSTON Subject: RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING AN UPDATED NON.DISCRIMINATIONI WORKPLACE HARASSMENT POLICY & REPEALING RESOLUTION NO. 95. 154 MICC Meeting Date: October 3, 2005 Dept: HUMAN RESOURCES SEPTEMBER 19, 2005 Date: Synopsis of Previous Council Action: On May 9,1995, the Mayor and Common Council adopted Resolution No. 95-154, a Resolution of the City of San Bernardino adopting an updated Harassment/Sexual Harassment Policy for said City, and repealing Resolution Nos. 81-641 and 91-330. Recommended Motion: Adopt Resolution. w~s~~ Ignature Contact person: 384-5161 Linn Livinaston Phone: Supporting data attached: Ward: Yes FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (Acct. Description) Finance: Council Notes: Agenda Item NO.~ 10 r!JjO! e e e CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution of the City of San Bemardino adopting an updated Non-Discrimination/Workplace Harassment Policy and repealing Resolution No. 95-154. Backl!round: The previous City Policy on Harassment/Sexual Harassment was last updated in 1995. Since that time, numerous legal mandates have occurred that now makes this policy outdated. Therefore, the Human Resources Department, Mayor's, and City Attorney's Offices have worked together to revise and update the policy. The discrimination and harassment policies have been combined into one complete Non-Discrimination/Workplace Harassment Policy for a more comprehensive policy. The purpose of the policy is to confirm the City of San Bernardino's commitment to maintain a work environment free from unlawful discrimination and/or harassment/sexual harassment for all current and prospective employees and provide a complaint procedure to resolve complaints of this nature. The updating of this policy is especially important at this time due to the mandates of AB 1825 which requires that by January 1, 2006, employers with 50 or more employees must provide two hours of sexual harassment awareness training and education to all supervisory employees. After January 1, 2006, the sexual harassment awareness training and education must be provided to each supervisory employee once every two years and new supervisors must receive the training within six months of assuming a supervisory position. The City is currently in the process of providing this training to our supervisors and managers and is in need of providing an updated policy to our employees to support this training. Financial Impact: There is no financial impact to update the policy. Recommendation: Adopt Resolution. HRJ Agenda Items: SR.Harassment.Policy 1 Resolution No. 2 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING AN UPDATE NON-DISCRIMINATION/WORKPLACE HARASSMENT POLICY FOR SAID CITY REPEALING RESOLUTION NO. 95-154. 3 4 WHEREAS, the City of San Bernardino has been and continues to be firmly conunitte 5 to providing employees with a work environment free from discrimination and harassment on th 6 basis of sex, race, age, color, religion, national origin, physical disability, marital status, religiou 7 8 creed, ancestry, mental disability, medical condition, sexual orientation, pregnancy, childbirth 0 9 related medical conditions of any female employee or any other classification protected by law 10 and, 11 WHEREAS, the City desires to adopt and implement a non-discrimination/workplac 12 harassment policy which is contained in one comprehensive document; 13 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMO COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 14 1~ SECTION 1. That the City of San Bernardino Policy on Non-DiscriminationIWorkplac 16 Harassment, marked Exhibit 'A' and attached hereto and incorporated herein by reference, i 17 hereby approved and adopted. 18 SECTION 2. Resolution No. 95-154 is hereby repealed. 19 /1/ 20 //1 21 //1 22 /1/ 23 /1/ 24 /1/ 25 -1- No. /g ID/0/05 1 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING AN UPDATE NON-DISCRIMINATIONIWORKPLACE HARASSMENT POLICY FOR SAID CITY REPEALING RESOLUTION NO. 95-154. 2 3 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Comrno Council of the City of San Bernardino at a meeting thereof, held on th day of , 2005, by the following vote, to wit: 4 5 6 NAYES ABSTAIN ABSENT 9 COUNCILMEMBERS: ESTRADA LONGVILLE MC GINNIS DERRY KELLEY JOHNSON MC CAMMACK AYES 7 8 10 11 12 13 14 Rachel G. Clark, City Clerk 1:; The foregoing resolution IS hereby approved this ,2005. o 16 17 Judith Valles, Mayor City of San Bernardino 18 Approved as to form and Legal content: 19 20 JAMES F. PENMAN, City Attorney 21 HRI Agenda Items:Reso.Harassment.Polic 22 23 24 25 -2- CITY OF SAN BERNARDINO POLICY ON NON-DISCRIMINATIONIWORKPLACE HARASSMENT I. PURPOSE: Discrimination and workplace 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 undermines the integrity ofthe employment relationship. It can result in economic loss to 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. The purpose of this policy is to confirm the City of San Bernardino's commitment to maintain a work environment free from unlawful discrimination and/or harassment/sexual harassment for all current and prospective City employees. This Policy: . Defines discrimination, harassment, and retaliation under this policy; . Confirms the City's commitment to prohibit and prevent unlawful discrimination, harassment/sexual harassment, and retaliation in employment; . Provides a City complaint and investigation procedure to resolve complaints of alleged discrimination, harassment/sexual harassment, and retaliation in violation of law or this policy. II. POLICY: It is the policy ofthe City of San Bernardino to provide all current and prospective employees a work environment free from discrimination and harassment/sexual harassment on the basis of race, religious creed, color, national origin, ancestry, age, sex, marital status, physical disability, mental disability, medical condition, sexual orientation, pregnancy, childbirth or related medical conditions of any female employee, or any other classification protected by law. Therefore, the City of San Bernardino will not tolerate any form of discrimination, harassment, sexual harassment, or retaliation, and expects individuals to adhere to a City of San Bernardino Policy on Non-Discrimination/Workplace Harassment 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 discrimination, harassment, sexual harassment, and retaliation internally. It is meant to supplement, not replace, any applicable State and Federal remedies. The City of San Bernardino further acknowledges and understands that in order to implement a non-discrimination!non-harassment policy of the type hereby promulgated, it is essential that all persons who witness or experience discrimination or harassment/sexual harassment of the type prohibited by this policy report that discrimination or harassment immediately in order to facilitate early, effective, efficient and impartial investigation and intervention by the City. Accordingly, any retaliation against a person for filing a discrimination! harassment complaint, reporting discriminationlharassment which he or she has witnessed or assisting in a discriminationlharassment investigation is strictly prohibited. In interpreting and implementing this policy, the constitutional rights of free speech and association shall be accommodated in a manner consistent with applicable Federal and State law in a manner consistent with the intent of this policy. III. 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, members of the public) regularly entering the work environment. IV. DEFINITION: A. Discrimination as used in this policy is defined to include, but is not limited to: 1. Basing an employment decision as to a job applicant or employee, e.g., decision to hire, promote, transfer, terminate, etc. on one's protected status, e.g., race, religious creed, color, national origin, ancestry, age, sex, Page 2 of 11 City of San Bernardino Policy on Non-Discrimination/Workplace Harassment marital status, physical disability, mental disability, medical condition, sexual orientation, or any other classification protected by law. 2. Treating an applicant or employee differently with regard to any aspect of employment because ofhislher protected status. 3. Engaging in harassment/sexual harassment as more specifically defined below. B. Harassment includes the following when based upon race, religious creed, color, national origin, ancestry, age, sex, marital status, physical disability, mental disability, medical condition, sexual orientation or any other classification protected by law: I. Verbal harassment, e.g., epithets, derogatory comments, lewd propositioning, sexual remarks, or slurs; 2. Physical harassment, e.g., assault, unwelcome, unconsented or offensive touching, impeding or blocking movement, or any physical interference with normal work or movement; and, 3. Visual harassment, e.g., leers, gestures, or derogatory posters, cartoons or drawings. 4. Unwanted sexual advances, even if the complainant is not the target of the sexual advances, but believes that engaging in sexual conduct or solicitations is a prerequisite to fair treatment. 5. For the purpose of this policy, harassment also specifically includes sexual harassment, as defined below. C. Sexual Harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: I. 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, Page 3 of 11 City of San Bernardino Policy on Non-DiscriminationIWorkplace Harassment 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. 4. For the purpose of further clarification, sexual harassment includes, but is not limited to: a. Making unsolicited written, verbal, physical or visual contact with sexual overtones, physical contact or blocking movement. (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, touching of the private parts of another for sexual gratification, pinching, grabbing, patting, propositioning or leering.) b. Continuing to express sexual interest repeated offensive sexual flirtations, advances, or propositions after being informed that the interest is unwelcome. (Reciprocal attraction is not considered sexual harassment.) c. 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. d. 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. Sexual harassment does not refer to occasional compliments of a socially acceptable nature. e. Offering favors or employment benefits, such as promotions, favorable performance evaluations, favorable assigned duties or shifts, recommendations, reclassifications, etc., in exchange for sexual favors. Page 4 of 11 City of San Bernardino Policy on Non-Discrimination/Workplace Harassment f. When employment benefits are granted because of sexual favor, other qualified persons who are denied the benefits may be considered to be victims of sexual harassment. g. Widespread sexual favoritism that is severe or pervasive enough to alter the complainant's working conditions and create a hostile work environment. h. A finding of sexual harassment may be made even though the conduct occurs outside of the workplace. D. Retaliation as used in this policy prohibits retaliation against a person who files a discrimination or harassment/sexual harassment complaint, reports discrimination or harassment/sexual harassment or assists in a discrimination or harassment/ sexual harassment investigation. Retaliation includes threats, intimidation, reprisals, and/or adverse actions related to employment. v. PENALTY GUIDELINES: The City of San Bernardino will undertake all appropriate necessary actions against any employee found to be in violation of this policy to prevent further discrimination, harassment, including sexual harassment, and retaliation. Appropriate necessary action may include corrective action (e.g., counseling and/or training) and/or punitive action up to and including termination from employment. Employees found to be retaliating against another employee for filing a discrimination charge, a harassment/sexual harassment charge or making a discrimination and/or harassment/sexual harassment complaint shaH be subject to disciplinary action up to and including termination. 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 shaH take such actions to prevent further discrimination or harassment/sexual harassment as may be within it's power. Page 5 of11 City of San Bernardino Policy on Non-DiscriminationIWorkplace Harassment Any manager, supervisor, or designated employee responsible for reporting or responding to discrimination, harassment, sexual harassment, and/or retaliation who knew about the discrimination, harassment, sexual harassment and/or retaliation and took no action to stop it or failed to report the aforesaid prohibited conduct also may be subj ect to disciplinary action. VI. DUTIES: A. City Responsibilitv: The City shall take prompt, appropriate action to avoid or minimize discrimination, harassment/sexual harassment, retaliation, and liability to the City. The City will pursue every possible preventative measure to insure employees are not subject to discrimination, harassment/sexual harassment, and retaliation; will investigate all complaints of discrimination, harassment/sexual harassment, retaliation, 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. B. Director of Human ResourceS/Citv's EEO Officer: The Director of Human Resources and/or the City's EEO Officer shall be responsible for: 1. Insuring that this policy and complaint procedures are disseminated to all employees. 2. Providing training and assistance to department heads, supervisors and employees in preventing and addressing discrimination, harassment/sexual harassment, and retaliation. 3. Investigating, resolving and making findings and recommendations on complaints of unlawful discrimination, harassment/sexual harassment, and retaliation. C. Deoartment Heads Department heads shall be responsible for: Page 6 of 11 City of San Bernardino Policy on Non-Discrirnination/Workplace Harassment I. Assisting the City's EEO Officer and/or Director of Human Resources by disseminating this policy and ensuring that the workplace remains free of discrimination, harassment/sexual harassment, and/or retaliation. 2. Coordinating and cooperating with the City's EEO Officer and/or Director of Human Resources in resolving complaints involving employees in their respective departments; and, when discrimination, harassment/sexual harassment, and/or retaliation has occurred, taking: . Prompt and appropriate remedial action against the perpetratorlharasser. . Reasonable steps to protect the complainant from further discrimination, harassment/sexual harassment, and/or retaliation. . Action to remedy the effects of discrimination, harassment/sexual harassment, and/or retaliation. D. Emplovees Employees shall cooperate fully with all investigations of discrimination, harassment/sexual harassment, and retaliation; implementation of remedial measures; and shall not retaliate against complainants or witnesses. VII. COMPLAINT PROCEDURE: A. Any employee who believes that he/she has been discriminated against, harassed/sexually harassed, retaliated against, or has the reason to believe that someone else has been the subject of discrimination, harassment/sexual harassment, and/or retaliation has the obligation to notify the employee's supervisor or department head, the Human Resources Director, or the City Equal Employment Opportunity (City's EEO) Officer. (Any applicant who believes he/she has been discriminated against and/or harassed/sexually harassed may file with the City's EEO Officer or Human Resources Director.) B. The City's EEO Officer and/or the Human Resources Director shall be responsible for ensuring that all complaints of harassment/sexual harassment, discrimination, and retaliation are investigated thoroughly and are responded to in a timely fashion and arranging for periodic training for employees. Page 7 of 11 City of San Bernardino Policy on Non-Discrimination/Workplace Harassment C. The City's EEO Officer and Human Resources Director shall perform hislher duties in a fair, impartial, and objective manner. Any person who attempts to influence the City's EEO Officer and/or Human Resources Director 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. D. Upon the filing of a written complaint (see attached forms) or at such time as the City's EEO Officer and/or Human Resources Director has good cause to believe that discrimination, harassment/sexual harassment, and/or retaliation has occurred, the City's EEO Officer and/or Human Resources Director shall promptly and confidentially investigate the matter and keep the complaint confidential to the extent practicable within the context of the investigation. E. The City's EEO Officer and/or the Human Resources Director 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. F. 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 City's EEO Officer and/or the Human Resources Director shall be advisory only. VIII. LIABILITY FOR SEXUAL HARASSMENT Any employee who engages in unlawful sexual harassment or retaliation, including any Supervisor or Manager who knew about the sexual harassment and took no action to stop it, may be held personally liable for monetary damages. IX. EMPLOYEE RIGHTS AND RESPONSIBILITIES A. Complainants: Any employee who believes he or she has been discriminated against, harassed/sexually harassed, and/or retaliated against has the responsibility to take immediate action to assure that the situation does not persist. Page 8 of 11 City of San Bernardino Policy on Non-Discrimination/Workplace Harassment Employees have the following rights: 1. The right to work in an environment free of discrimination, harassment/sexual harassment and/or retaliation. 2. The right to an informal hearing by the City's EEO Officer or Human Resources Director. 3. The right to a full, impartial and prompt investigation through the City's EEO Office or Human Resources Department including the right to produce witnesses and to have them interviewed. 4. The right to be represented by legal counselor other representatives, at his/her own cost, at all stages. 5. The right to a timely decision after full consideration of all relevant facts and circumstances. 6. The right to be advised of the results ofthe City's EEO Officer's or Human Resources Director's investigation and conclusions. (If discipline is imposed, the specific terms of the discipline will not be communicated to the complainant.) 7. The right to be free from retaliation for filing a complaint or otherwise participating in an investigation of discrimination, harassment/sexual harassment and/or retaliation. Employees may also file complaints of discrimination, harassment/sexual harassment, and/or retaliation with the following State and Federal Offices: Department of Fair Employment & Housing (DFEH) Los Angeles Housing District 611 West 6th Street, Suite 1500 Los Angeles, CA 90017 Phone: 800-233-3212 Equal Employment Opportnnity Commission (EEOC) Roybal Federal Building 255 East Temple Street, 4th Floor Los Angeles, CA 90012 Phone: 213-894-1000 B. Respondent: Any employee who has been accused of discrimination, harassment/sexual harassment, and/or retaliation ("Respondent") has a responsibility to cooperate Page 9 of 11 City of San Bernardino Policy on Non-Discrimination/Workplace Harassment with the investigation by the EEO Officer and/or Human Resources Director and also has the following rights: 1. The right to an attempt at an informal resolution of the complaint with the City's EEO Officer and/or Human Resources Director prior to the institution of any formal process. 2. The right to be represented by legal counselor other representative, at his/her own cost, at all stages of the proceedings. C. It shall be the responsibility of any supervisor or other employee to whom alleged discrimination, harassment/sexual harassment, and/or retaliation has been reported to maintain such report as a matter of strict confidence. Such report may be discussed only with the EEO Officer and/or Human Resources Director prior to the investigation. A complaint of discrimination or harassment/sexual harassment, and/or retaliation is to be considered and treated as any other confidential record of the complaining and responding employees. Copies of this policy shall be distributed to all employees and elected officials. Page 10 of 11 City of San Bernardino Policy on Non-DiscriminationIWorkplace Harassment ACKNOWLEDGMENT OF MANDATORY COMPLIANCE WITH CITY OF SAN BERNARDINO POLICY ON NON-DISCRIMINATION/WORKPLACE HARASSMENT/SEXUAL HARASSMENT I hereby acknowledge receipt ofthe City of San Bernardino Policy on Non-Discrimination! Workplace Harassment/Sexual Harassment. I understand that compliance with this policy is mandatory and violation of this policy may result in discipline up to and including termination. DATE Employee Signature Employee Name (Print) HR/Miscellaneous:Policy.Harassment-Sexual Harassment Page 11 of 11 ~1t16i-r ',4' CITY OF SAN BERNARDINO COMPLAINT OF DISCRIMINATION (Please Print or Type) 2. 1. Name: Address: City: State: Are you currently employed by the City of San Bernardino? Department: Job Title: Zip: Yes 0 No 0 3. City Employee/Agent you believe discriminated against you: Name: Department/Division the individual is employed within: Address: City: State: 4. What is the basis on which you believe you were discriminated? Race: 0 Sex 0 Marital Status 0 Age 0 Physical Disability 0 Mental Disability 0 Medical Condition 0 Race 0 Religious Creed 0 Color 0 National Origin 0 Ancestry 0 Sexual Orientation 0 Other 0 S. Date or period the alleged discrimination occurred: 6. Did the discrimination occur while on duty? Yes 0 No 0 If yes, where did it occur?_ 7. Have you discussed the discrimination with your Supervisor? Yes 0 No 0 8. Provide a detailed description of the discrimination (attach additional pages, if necessary): 9. What corrective action do you want taken on your behalf in the resolution of this complaint (attach additional pages, if necessary): Signature: Date: CITY OF SAN BERNARDINO COMPLAINT OF HARASSMENT/SEXUAL HARASSMENT Your Full Name: Address: City: Home Phone: Your Job Title: Name of Alleged Harasser: Form of Harassment (circle one): Race: 0 Physical Disability 0 Mental Disability 0 Color 0 National Origin 0 Ancestry 0 Date of Occurrence: Have you discussed the harassment with your Supervisor? Yes 0 No 0 State: Zip: Work Phone: Dept.: Dept.: Sex 0 Marital Status 0 Age 0 Medical Condition 0 Religious Creed 0 Sexual Orientation 0 Other 0 Description of harassment (attach additional pages, if necessary): What corrective action do you want taken on your behalf regarding this complaint? Signature: Date: