Loading...
HomeMy WebLinkAbout2013-277 1 Resolution No. 2013-277 2 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING AN UPDATE P 3 NON-DISCRIMINATION, RETALIATION, WORKPLACE HARASSMENT AND SEXUA HARASSMENT POLICY AND REPEALING RESOLUTION NO. 2006-28. 4 WHEREAS, the City of San Bernardino has been and continues to be firmly committee 5 to providing employees with a work environment free from discrimination and harassment on the 6 basis of race, religious creed, color, national origin, ancestry, age, sex, marital status, physica 7 disability, mental disability, medical condition, sexual orientation, genetic information, 8 pregnancy, childbirth or related medical conditions of any female employee, or any othe 9 10 classification protected by law; and, 11 WHEREAS, the City desires to adopt and implement a non-discrimination, retaliation 12 workplace harassment and sexual harassment policy which is contained in one comprehensiv: 13 document; 14 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMO COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 15 16 SECTION 1. That the City of San Bernardino Policy on Non-Discrimination 17 Retaliation, Workplace Harassment and Sexual Harassment, marked Exhibit `A' and attache. 18 hereto and incorporated herein by reference, is hereby approved and adopted. 19 SECTION 2. Resolution No. 2006-28 is hereby repealed. 20 21 /// 22 /// 23 /// 24 /// 25 /// -1- 2013-277 1 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING AN UPDATE S NON-DISCRIMINATION, RETALIATION, WORKPLACE HARASSMENT AND SEXUA 2 HARASSMENT POLICY AND REPEALING RESOLUTION NO. 2006-28. 3 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor an. 4 Common Council of the City of San Bernardino at a joint regular meeting thereof 5 held on the 7th day of October , 2013,by the following vote,to wit: 6 Council Members: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ x 9 JENKINS 10 VALDIVIA x 11 SHORETT x 12 KELLEY X 13 JOHNSON X 14 MCCAMMACK x 15 16 s George, Hanna, Tity Clerk 17 it The foregoing Resolution is hereby approved this I • day of October , 2013. 18 19 'atric J. Morris, Mayo 20 • of San Bernardino 21 Approved as to form: 22 JAMES F. PENMAN, City Att. ey 23 By: 24 25 -2- 2013-277 CITY OF SAN BERNARDINO POLICY ON NON-DISCRIMINATION, RETALIATION, WORKPLACE HARASSMENT AND SEXUAL HARASSMENT I. PURPOSE Discrimination and workplace harassment, including sexual harassment, is a violation of State and Federal laws, 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 of the employment relationship. It can result in economic loss to the employer and employee, excessive absenteeism and turnover, loss of morale, division of staff, sabotaged work, decreased management credibility and decreased 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, harassment, sexual harassment and/or retaliation for all current and prospective City employees. This Policy: • Defines discrimination, harassment, sexual harassment and retaliation for purpose of this policy; • Confirms the City's commitment to prohibit and prevent unlawful discrimination, harassment, sexual harassment and retaliation in employment; • Provides a 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 of the City of San Bernardino to provide all current and prospective employees a work environment free from discrimination, harassment, sexual harassment and/or retaliation on the basis of race, religious creed, color, national origin, ancestry, age, sex, marital status, physical disability, mental disability, medical condition, sexual orientation, genetic information, 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 and/or retaliation and expects individuals to adhere to a standard of conduct that is respectful to all persons within the work EXHIBIT "A" 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment environment. This policy is intended to allow the City to resolve complaints of discrimination, harassment, sexual harassment and/or 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 developed, it is essential that all persons who witness or experience discrimination, harassment and/or 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 and/or sexual harassment complaint; reporting discrimination, harassment and/or sexual harassment which he or she has witnessed; or assisting in a discrimination, harassment and/or sexual harassment 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 laws and 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. DEFINITIONS A. Discrimination, as used in this policy, is defined to include but is not limited to: 1. Basing an employment decision on 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, marital status, physical disability, mental disability, medical condition, sexual orientation, genetic information or any other classification protected by law. 2. Treating an applicant or employee differently with regard to any aspect of employment because of his/her protected status. 3. Engaging in harassment and/or sexual harassment as more specifically defined below. 2 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment 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, genetic information or any other classification protected by law: 1. 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 reasonably believes that engaging in sexual conduct or solicitations is a prerequisite to fair treatment. 5. For the purpose of this policy, harassment 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: 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, visual or physical contact with sexual overtones, physical contact or blocking movement. (Written examples: suggestive or obscene letters, notes, invitations. Verbal examples: epithets, derogatory comments, lewd propositioning, 3 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment sexual remarks, or slurs. 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.) 2. Continuing to express sexual interest, or repeated offensive sexual flirtations, advances, or propositions after being informed that the interest is unwelcome. (Reciprocal attraction is not considered sexual harassment.) 3. Making reprisals, threats of reprisal, or implied threats of reprisal following a negative response. (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. (Sexual harassment does not refer to occasional compliments of a socially-acceptable nature.) 5. Offering favors or employment benefits, such as promotions, favorable performance evaluations, assigned duties or shifts, recommendations, reclassifications, etc., in exchange for sexual favors. 6. Granting employment benefits because of sexual favor; other qualified persons who are denied the benefits may be considered to be victims of sexual harassment. 7. Widespread sexual favoritism that is severe or pervasive enough to alter the complainant's working conditions and create a hostile work environment. 8. A finding of sexual harassment even though the conduct occurs outside of the workplace. D. Retaliation, as used in this policy, prohibits reprisal against a person who files a discrimination, harassment or sexual harassment complaint; reports discrimination, harassment or sexual harassment; or assists in a discrimination, harassment or sexual harassment investigation. Retaliation includes threats, intimidation and/or adverse actions related to employment. 4 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment 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. 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 or sexual harassment charge or making a discrimination, harassment or sexual harassment complaint shall 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 shall take such actions to prevent further discrimination, harassment, sexual harassment or retaliation as may be within its power. 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 may also be subject to disciplinary action. VI. DUTIES A. City's Responsibility 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 ensure employees are not subject to discrimination, harassment, sexual harassment and retaliation; will investigate all complaints of discrimination, harassment, sexual harassment, retaliation, and all instances in which it has good cause to believe it has occurred; and will take appropriate disciplinary action against any employee(s) found to be in violation of this policy. B. Human Resources Division Manager and/or City's Equal Employment Opportunity (EEO) Officer The Human Resources Division Manager and/or the City's EEO Officer shall be responsible for: 1. Ensuring that this policy and complaint procedures are disseminated to all employees. 5 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment 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. Department Heads Department heads shall be responsible for: 1. Assisting the Human Resources Division Manager and/or the City's EEO Officer by disseminating this policy and ensuring that the workplace remains void of discrimination, harassment, sexual harassment and/or retaliation. 2. Coordinating and cooperating with the Human Resources Division Manager and/or City's EEO Officer in resolving complaints involving employees in their respective departments; and, when discrimination, harassment, sexual harassment and/or retaliation has occurred, taking: a) Prompt and appropriate remedial action against the perpetrator/harasser. b) Reasonable steps to protect the complainant from further discrimination, harassment, sexual harassment and/or retaliation. c) Action to remedy the effects of discrimination, harassment, sexual harassment and/or retaliation. D. Employees 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 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 6 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment Division Manager or the City's EEO Officer. (Any applicant who believes he/she has been discriminated against, harassed, sexually harassed and/or retaliated against may file a complaint with the Human Resources Division Manager and/or the City's EEO Officer.) B. The Human Resources Division Manager and/or the City's EEO Officer shall be responsible for ensuring that all complaints of discrimination, harassment, sexual harassment and retaliation are investigated thoroughly and are responded to in a timely fashion. C. The Human Resources Division Manager and/or the City's EEO Officer shall be responsible for arranging periodic training for employees. D. The Human Resources Division Manager and/or the City's EEO Officer shall perform his/her duties in a fair, impartial, and objective manner. Any person who attempts to influence the Human Resources Division Manager and/or the City's EEO Officer by means of any threat, intimidation, persuasion, or assurance of any financial or other advantage, may be subject to prosecution and/or penalties as provided herein. E. Upon the filing of a written complaint (see attached forms) or at such time as the Human Resources Division Manager and/or the City's EEO Officer have good cause to believe that discrimination, harassment, sexual harassment and/or retaliation has occurred, the Human Resources Division Manager and the City's EEO Officer shall promptly and confidentially investigate the complaint and keep it confidential to the extent practicable within the context of the investigation. F. The Human Resources Division Manager and the City's EEO Officer 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. G. The complainant and respondent shall abide by the terms of any agreed- upon settlement. In all other respects, the recommendations of the Human Resources Division Manager and/or the City's EEO Officer 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. 7 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment IX. EMPLOYEE RESPONSIBILITIES AND RIGHTS A. Complainants Any employee who believes he/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. Employees have the following rights: 1. To work in an environment free from discrimination, harassment, sexual harassment and/or retaliation. 2. To an informal hearing by the Human Resources Division Manager and/or the City's EEO Officer. 3. To a full, impartial and prompt investigation through the Human Resources Division Manager and/or the City's EEO Officer, including the right to produce witnesses and to have them interviewed. 4. To be represented by legal counsel or other representatives, at his/her own cost, at all stages of the proceedings. 5. To a timely decision after full consideration of all relevant facts and circumstances. 6. To be advised of the results of the Human Resources Division Manager's and/or the City's EEO Officer's investigation and conclusions. (If discipline is imposed, the specific terms of the discipline will not be communicated to the complainant.) 7. 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: State Federal Department of Fair Employment Equal Employment Opportunity & Housing (DFEH) Commission (EEOC) Los Angeles Housing District Roybal Federal Building 1055 West 7th Street, Suite 1400 255 East Temple Street, 4th Floor Los Angeles, CA 90017 Los Angeles, CA 90012 8 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment Phone: 1-800-884-1684 Phone: 1-800-669-4000 Fax: 1-213-439-6715 Fax: 1-213-894-1118 TTY: 1-800-700-2320 TTY: 1-800-669-6820 www.dfeh.ca.gov www.eeoc.gov B. Respondent Any employee who has been accused of discrimination, harassment, sexual harassment and/or retaliation ("Respondent") has the responsibility to cooperate with the investigation by the Human Resources Division Manager and/or the City's EEO Officer and also has the following rights: 1. To an attempt at an informal resolution of the complaint with the Human Resources Division Manager and/or the City's EEO Officer prior to the institution of any formal process. 2. To be represented by legal counsel or 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 Human Resources Division Manager and/or the City's EEO Officer. A complaint of discrimination, harassment, sexual harassment and/or retaliation is to be considered and treated as any other confidential record of the complaining and responding employees. X. AFFORDABLE CARE ACT (ACA) RETALIATION An employment action is considered retaliatory under the ACA if it discriminates against any employee wih respect to compensation, terms, conditions, or other privileges of employment. "Retaliation" can include termination, demotion, denial of overtime, denial of promotion or other benefits, failure to hire or rehire, intimidation, reassignment, discipline, blacklisting, and the reduction of pay or hours. The ACA's anti-retaliation provisions prohibit an employer from retaliating against an employee who: 1. Receives a health insurance tax credit or subsidy through Covered California (aka the "Marketplace" or "exchange"). 2. Reports potential violations of protections afforded under Title I of the Act, which provides guaranteed availability protections among other things. 3. Testifies in a proceeding concerning such violation. 9 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment 4. Assists or participates in a proceeding concerning a violation; or 5. Objects to, or refuses to participate in, any activity, policy, practice, or assigned task that the employee reasonably believes to be in violation of any provision of Title I of the Act. Enforcement The Department of Occupational Safety and Health Administration (OSHA) will enforce the ACA's anti-retaliation provisions. An employee who believes he/she has been retaliated against pursuant to the ACA must complain within 180 days by an in-person visit or telephone call to a local OSHA office, or by sending a written complaint to the OSHA office. Employee's Remedies for Retaliation Under the ACA Remedies include reinstatement, affirmative action to abate the violation, back pay with interest, front pay, compensatory damages, and an award of up to $1,000 for attorney's fees. Copies of this policy shall be distributed to all employees and elected officials. 10 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation,Workplace Harassment, and Sexual Harassment ACKNOWLEDGMENT OF MANDATORY COMPLIANCE WITH CITY OF SAN BERNARDINO POLICY ON NON-DISCRIMINATION, RETALIATION, WORKPLACE HARASSMENT AND SEXUAL HARASSMENT I hereby acknowledge that I have received a copy of the City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment and 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. I have read and understand this policy and agree to comply with its provisions. I understand that if I have questions regarding this policy, I can discuss these issues with my supervisor or the Human Resource Department. DATE Employee Signature Employee Name (Print) Department *** Please sign and return to the Human Resources Department no later than 30 days from the receipt of this acknowledgement. *** 11 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment CITY OF SAN BERNARDINO COMPLAINT OF DISCRIMINATION (Please Print or Type) 1. Name: Address: City: State: Zip: 2. Are you currently employed by the City of San Bernardino? Yes ❑ No ❑ Department: Job Title: 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: ❑ Sex ❑ Marital Status ❑ Age ❑ Physical Disability ❑ Mental Disability ❑ Medical Condition ❑ Race n Religious Creed ❑ Color ❑ National Origin n Ancestry ❑ Sexual Orientation ❑ Genetics Information ❑ Other ❑ 5. Date or period the alleged discrimination occurred: 6. Did the discrimination occur while on duty? Yes ❑ No ❑ If yes,where did it occur? 7. Have you discussed the discrimination with your Supervisor? Yes ❑ No ❑ 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: 12 (Revised 8/28/13) 2013-277 City of San Bernardino Policy on Non-Discrimination, Retaliation, Workplace Harassment, and Sexual Harassment CITY OF SAN BERNARDINO COMPLAINT OF HARASSMENT/SEXUAL HARASSMENT Your Full Name: Address: City: State: Zip: Home Phone: Work Phone: Your Job Title: Dept.: Name of Alleged Harasser: Dept.: Form of Harassment(circle one): Race: ❑ Sex ❑ Marital Status n Age ❑ Physical Disability ❑ Mental Disability ❑ Medical Condition ❑ Religious Creed ❑ Color El National Origin El Ancestry ❑ Sexual Orientation El Genetics Information El Other El Date of Occurrence: Have you discussed the harassment with your Supervisor? Yes El No El Description of harassment(attach additional pages, if necessary): What corrective action do you want taken on your behalf regarding this complaint? Signature: Date: 13 (Revised 8/28/13)