HomeMy WebLinkAbout18- City Attorney C I T Y OF S A N B E R N A R D I N O
INTEROFFICE MEMORANDUM PECFIVID CIT•{ rLM
TO: MAYOR and COMMON COUNCIL •r�� `�^. -� �T ;C8
FROM: DIANE CATRAN ROTH, Deputy City Attorney
DATE: February 15, 1995
RE: Harassment/Sexual Harassment Policy
COPIES: Ernie Wilson, Affirmative Action Officer; Shauna Clark,
City Administrator; Rachel Clark, City Clerk
At the last Council meeting, you were presented with a Harassment/
Sexual Harassment Policy. The item has been continued to March 6,
1995, and the City Attorney' s Office was asked to work on it
further with staff .
Subsequent to that meeting, I met with Affirmative Action Officer
Ernie Wilson, and have amended the proposed policy as a result of
that meeting. The major change is the addition of complaint
procedures in the City' s current Affirmative Action Policy which
relate to investigations of complaints by the City' s EEO Committee.
On November 22 , 1994, Council approved Resoiution No. 94-357, by
which you resolved, among other things, to:
" [ 2 . ]a. Prepare an amendment to the City' s Policy
Statement on Sexual Discrimination and Harassment for
submission to the Mayor and Council which would:
" 1 . Prohibit sexual harassment and discrimination
by an elected official;
142 . State that an employee can complain to the
employee' s supervisor, or the Affirmative Action Office,
about an elected official;
113 . State that employees will not be retaliated
against for filing a sexual harassment claim against an
elected official .
"b. Prepare an amendment to the City' s policy Statement
on Sexual Discrimination and Harassment for submission to the
Mayor and Council which would clearly state that the City will
promptly investigate, and put an end to, any acts of sexual
harassment that it knows or has reason to know of . "
TO: MAYOR and COMMON COUNCIL
DATE: February 15, 1995
RE: Harassment/Sexual Harassment Policy
PAGE: 2
Sexual harassment is a form of discrimination, per State and
Federal law, and complaints thereof are treated in State and
Federal law as discrimination complaints . Likewise, the City' s
Affirmative Action Policy treats harassment/sexual harassment
complaints as discrimination complaints .
The City' s current harassment/sexual harassment policy is currently
found piecemeal in four documents : Resolution Nos . 81-641 and 91-
330 and the policies adopted thereby. The procedure for dealing
with complaints is currently found in the complaint procedure at
the end of the City' s Affirmative Action Policy. (This Policy was
approved unanimously by the current Common Council in the fall of
1993 . )
This proposed resolution combines the relevant portions of those
five documents, including all of those areas specified to be
included in Resolution No. 94-357, and updates the policy
consistent with current law.
What is found in this proposed policy which was not in the former
documents are:
1 . Penalty guidelines for elected officials . (After
researching the issue extensively, and discussing it with
numerous city attorneys in other cities as well as private
counsel who represent government entities, I have concluded
that unless there is some other specific authority to
discipline contained in the Charter, the only penalties that
may be imposed upon elected officials by the Mayor and Council
is private or public censure. )
2 . The addresses and phone numbers of the State
Department of Fair Employment and Housing and the Federal
Equal Employment Opportunity Commission.
3 . Due process prior to any adverse employment action.
All of these rights are currently afforded classified
employees pursuant to the Charter, Civil Service Rules, case
law and the Constitution, before any adverse employment action
may be taken; however, they were not reiterated in the current
policies on harassment.
4 . A due process hearing for elected officials before an
administrative law judge or a mutually acceptable independent
hearing officer prior to any adverse action being taken. This
adds a process to provide due process which the law seems to
require, but the City' s policies and procedures currently
TO: MAYOR and COMMON COUNCIL
DATE: February 15 , 1995
RE: Harassment/Sexual Harassment Policy
PAGE: 3
lack. In addition, it provides some protection for the City
against tort claims for lefamation 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.
5 . Personnel records are by law required to be ke et
cconfidential . Harassment investigations are "p
records" under the law, both as they relate to the complainant
Therefore, the proposeolicy notifies
and the accused.harassment/sexual investigatio on are to be kept
employees that
confidential .
Everything else in the proposed poi i y withh sam as that
la con-
tained in the City' s former p ol
revisions .
Attached hereto is a copy of the proposed policy which is on the
agenda, annotated with references to the cur the P policies .c Y Also
P
attached are copies of Resolution No. 81-641, ado adopted ursuant to
P
on Sexual Discrimination and Harassment, the Policy on
Resolution No. 81-641, Resolution No. 91-330,
l Harasst ntadopted pursuant Resolution on No.
Harassment/Sexua Procedure from the City' s rent
330 , and the complai n
Affirmative Action Policy.
D ANE CATRAN ROTH
Deputy City Attorney
Attachments
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 undermines 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.t
PURPOSE:
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 expects individuals to adhere to a standard of conduct that is respectful to all
persons within the work environment.3 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.
t Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 51-641, page 1.
Resolution No. 91-330, p.1 (lines 4-8), and Policy on Harassment/Sexual
Harassment adopted pursuant to Resolution No. 91-330, p. 1 (lines 6-9).
3 Resolution No. 91-330, page 1 (lines 9-11).
4 New language.
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.5
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 class classification protected by law:6
1. Verbal harassment, e.g., epithets, derogatory comments or slurs;
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 specifically 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,
5 Resolution No. 91-330, Section 2, P. 1 (lines 24-28).
6 Policy on Harassment/Sexual Harassment adopted pursuant to Resolution No. 91-
330, page 1 (lines 6-15).
7 Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 81-641, page 3.
2
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.8
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 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. 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
I
another employee.
8 Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 81-641, p.2.
3
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.9
A finding of sexual harassment may be made even though the conduct occurs outside
of the workplace.10
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 corrective
action (e.g., counselling and/or training) and/or punitive action up to and including
termination from employment.12
In the case of elected officials, disciplinary actions are limited to private or public
censure, unless otherwise permitted by Charter.13
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.
9 Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 81-641, p. 3.
10 New, pursuant to current law.
11 Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 81-641, pp.1-2.
1'' Policy on Harassment/Sexual Harassment adopted pursuant to Resolution No. 91-
330, page 1 (lines 16-18).
13 New, pursuant to Charter and applicable law.
4
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.14
COMPLAINT PROCEDURE:15
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
Officer16, or to a City Equal Employment Opportunity ["City's EEO"] Counselor.17 (Any
applicant for employment who believes he/she has been harassed may file with the Affirmative
Action Officer or with a City EEO Counselor.)
2. If the employee chooses to have the matter investigated 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
14 Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 81-641, p.2.
15 All of this Complaint Procedure is currently contained in the City's Affirmative
Action Policy, approved by the Mayor and the current Common Council in October,
1993.
16 Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 81-641, p.4.
17 City's existing Affirmative Action Policy, Complaint Procedure.
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 Af firmative Action
Officer has good cause to believe that harassment/sexual harassment has occurred, the
Affirmative Action Officer shall promptly and confidentially investigate the matter.
5. The Affirmative Action Officer shall provide the accused 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 may or may not include further
hearings. The recommendation of the Committee shall be presented to all concerned persons.
8. The recommendations of the EEO Counselor,Affirmative Action OfficerorEEO
Committee shall be advisory and recommendatory only, provided that the complainant and the
employee charged with discrimination are expected to abide by their acceptance of any
disposition agreed upon by the parties.
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:
6
A. The right to a work environment free of harassment/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
for remedy as set forth in the City's Affirmative Action Complaint
Procedure.
D. The right to a full, impartial and prompt investigation through the
Affirmative Action Office.
E. The right to a timely decision after full consideration of all relevant
facts and circumstances.
F. 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.)
G. The right to be free from retaliation for filing a complaint or otherwise
participating in an investigation of harassment/sexual harassment.18
Employees may also file complaints of harassment/sexual harassment with the following
State and Federal offices:19
State Department of Fair Equal Employment
Housing and Employment (DFEH) Opportunity Commission (EEOC)
1845 S. Business Ctr. Dr., #127255 East Temple Street, 4th Floor
San Bernardino, CA 92408-3426 Los Angeles 90012
(909) 383-4711 (800) 669-4000
18 Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 81-641, p.4.
19 New.
7
2. Accused 20
Any employee who has been accused of harassment/sexual harassment 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 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 counsel or other representative at all
stages of the proceedings.
C. The right to confidentiality beyond those involved in this process who
have legitimate need to know.
D. The right to be informed of the charges in writing.
E. The right to produce witnesses, and to have them interviewed during the
course of the investigation.
F. The right to due process to which the employee would otherwise be
entitled prior to any adverse employment action being taken against him
or her (e.g., classified employees have the right to a hearing before the
Civil Service Commission.) In the case of an elected official, the right to
a hearing before an administrative law judge, or mutually acceptable
independent hearing officer.
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.
8
3. Witnesses:
Any employee who witnesses an incident of alleged harassment/sexual harassment, and
is named in a formal, written complaint as a witness, has a responsibility to provide full and
accurate information regarding the incident to the Af firmative Action Office and has the right
to be free from reprisal as a result of any such testimony.21
If the harasser is a citizen or vendor, the harassed employee and any employee
witnessing the incident have a responsibility to report the incident to the harassed employee's
supervisor. The City shall take such steps to investigate and eliminate this form of
harassment/sexual harassment as may be within its power.
`2
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.23
I
A complaint of harassment/sexual harassment is to be considered and treated as any
other confidential personnel record of the complaining and accused employee S.24
Copies of this policy shall be distributed to all employees and elected officials.
� 21
Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 81-641, p.5.
Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 81-641, page 5.
23 Policy Statement on Sexual Discrimination and Harassment, adopted pursuant to
Resolution No. 81-641, page 5.
24 New, pursuant to State law.
9
1
RESOLUTION NO, 32_041
2 RESOLUTION OF THE CITY i AMENDMENT TO THE AFFZR'r1ATIVEOACTAN BERNARDINO ADOPTING AN
3 OPPORTUNITY FOR SAID CITY; AND PROVIDING AOPOLQCAALp
HARASSMENT. EMPLOYMENT
4 I N SEXUAL,
WHEREAS , it is the oolicy of the City to provide
s a work
environment free f.om unwelcome sexual overtures, advances
6 and
' coercion; and
7
s 11 WHEREAS, employees are expected to adhere to a standard of
( conduct that is respectful to all persons within the work
9
10 I
environment; and
'
WHEREAS , the City will not tolerate any form of sexual
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12 !harassment or reprisal ,
13 VOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
14 (COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
13 SECTION 1 . That the Amendment to the City of San Bernardino
16 Affirmative Action Plan for Equal Employment Opportunity, marked
IExhibit "A" , attached hereto and incorporated herein by reference,
17 -
Isetting forth a policy statement cn 'sex discrimination and
18
harassment is hereby approved and adopted.
19
I HEREBY CERTIFY that the foregoing resolution was duly
20
adopted by the Mayor and Common Council of the City of Srn
21
'Bernardino at a meeting thereof, held
22
on the 21st day of 7. ece7rer 1981, by the following
23
'vote, to wit :
24
AYES : Council Members C13tanecla, ?ei11l•, Hernandez ,
25
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NAYS : ''cre
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1 Th, 'oregoing resolution is hereby approved Pproved th'
'- iot December day
1981 .
4 y �� Y of San Bernardino
Approved as ��rm:
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7 City A orney
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. 1
AMENDMENT TO THE CITY
. SAN BERNARDIN4
AFFIRMATIVE ACTION PLAN FOR
EQUAL EMPLOYMENT OPPORTUNITY
e �
?OLiCY STATEMENT�TEMENT ON SEXUAL pISCRIMINATION
A.VD HARASSMENT
S I STATEMENT OF 1MI;'uEVT
6 It is the cvlicy the City of San Bernardino to provide a
7 iwork environment ::ee °nom unwelcome sexual overtures, advances
8 and coercion. =:meloyees are expected to adhere to a standard of
9 ' conduct that is respectful to all persons within the work
10 environment. T`ie City will not tolerate any form of sexual
I
11 ; harassment or reprisal . to this end, this policy is established.
I
12 POTENTIAL CONSEQUENCES OF SEXUAL HARASSMENT:
13 Sexual harassment is a violation of a person' s privacy and
14 ' dignity. It can cause emotional , physical and economic problems
15 ' for its victims. In addition to the anxiety these demands may
A (cause, there may be an underlying message that non-compliance will
17 ( lead to reprisals . These reprisals could include escalation of
18 the harassment, poor work assignments, sarcasm, unsatisfactory
19 evaluations , threatened demotions, transfers, poor job references,
t
20 slander , gossip, blackmail and other forms of retribution.
21 Sexual harrassment -indermines the integrity of the employment
22 (relationship. Sexual harassment can result in economic loss to
23 '(both the employer and employee, excessive absenteeism and
24 turnover, loss of morale, polarization of staff, sabotaged work, a
decrease in management credibility and a decrease in productivity.
23
26 7ENALTY GUICr'LIN°S :
I
27 The City of San Bernardino will seek to impose appropriate
nd in violation of this
28
punitive ac_ cn against any employee fou
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I policy. Additionally, there is the sibility of civil liability
2 being imposed by the courts for both the violator and
the City of
3 ISan Bernardino.
' i
4 ! CITY RESPONSI�p'__r �TY;
s
The City relieves that prompt, a
� PPropriate action should be '
6 taken to avoid or zinimize sexual harassment and liability to the
7 'City. The Cit'J wili pursue every possible preventive measure to
8 , insure employees are not subject to sexual harassment. The City
9 will take appropriate disciplinary action against any employee(s)
t
10 ; found to be in violation of this policy.
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11 DEFINITION CF SEXUAL HARASSMENT: `
I �
12 I Sexual 'harassment is defined as any unwarranted, unsolicited
13 ' sexual attention/demands received from any person in a position of
14 authority who rakes compliance with these demands as condition of
13 employment , as well as from a fellow employee in the work
16 environment. his includes sexual favors and other verbal ,
17 (physical or
visual conduct of a sexual nature which occurs under
13 any one of *these circumstances .
19 1 . Submission is made either explicitly or implicitly as a
20 term or condition of employment.
21 2. Submission or rejection by an employee is used as a
22
basis for employment decisions affecting the employee.
23 I 3 . Any conduct which has the potential of affecting an
24 I employee' s work performance negatively and/or creating
25 an intimidating, hostile or otherwise offensive working
26 env i ron,nent .
_7 I
For the curpose of further clarification, sexual harassment
28 i ncludes , =ut is not limited to:
-2-
i
I I . raking unsolicited written, verbal, h
P ysical or visual
contact with sexual overtones.
(Written examples:
3 suggestive or obscene letters, notes,Visual examples : invitations.
leerin
g, gestures, display of sexually
S suggestive objects or
pictures, cartoons or postcards.
6 Physical examples : touching in a sexually-suggestive
7 I manner, or touching of the
i private parts of another for
8 i sexual 3ratification. )
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9 2. Continuing to express sexual interest after being
f
10 informed that the interest is unwelcome. (Reciprocal
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11 attraction is not considered sexual harassment.)
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12 3 . Making reprisals, threats of reprisal, or implisyd ,
13 threats of reprisal following a negative response. For
114 example, either implying or actually withholding support
15 for an appointment, promotion, or change of assignment;
,6 suggesting a poor performance report will be prepared,
17 or suggesting probation will be failed.
18 4. Engaging in implicit or explicit coercive sexual
19 behavior which is used to control , influence, or affect
20 the career, salary or work environment of another
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21 employee.
22 5. Offering favors or employment benefits, such as
23 promotions , favorable performance evaluations, favorable
24 i assigned duties or shifts , recommendations,
25 reclassifications , etc . , in exchange for sexual favors.
26 EMPLOYEES ' NIGHTS _�7D RESPONSISILITIES :
- 27 ?,ny employee who believes he or she has been sexually
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harassed or asked to perform a sexual favor should take immediate
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I action to assure that the situation does not persist. The
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2 employe• has the right to file a complaint through the CiL
3 Bernardino' s ffirmative Action Complaint Procedure. y of San
4 If the alleced harasser is the employee' s supervisor, the
5 ' employee should report the incident to the next
level supervisor
6 !land the Affirmative kction Office, or to the Affirmative Action
7 ( Office alone i° the employee prefers.
$ 7h e City of San Bernardino provides the following guarantee
9 ;; of rights to employees :
►� j 1 . The right to a work environment free of sexual
it harassment .
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12 2. The right to an informal, confidential hearing by an EEC
13 counselor .
14 I 3 . The right to have sexual harassment complaints kept
15 confidential until such time as he/she gives the
16 counselor permission to do otherwise, in order to bring
17 the complaint to the appropriate authority for remedy a:
18 set forth in the City' s Affirmative Action Complaint
19 Procedure .
20 4. The right to a full , impartial and prompt investigation
21 through the Affirmative Action Complaint Procedure, upo
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22 submission of a formal , written complaint.
23 ; 5 • ."he right to review all relevant information developed
24
and discovered during the course of the inquiry into th
25 ,-ratter .
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o . 'he right ~o a t ; mely decision after full consi. atioc
�7 of all relevant `acts and circumstances .
7 , -he right *o ce free From reprisals after filing a
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t compla. C.
Any employee who witnesses an incident of alleged sexual
2 harassment, and is named in a formal , written complaint
plaint as a
4 ' witness, has a responsibility to testify fully and accurately
S regarding the incident and has the right to be free from reprisal
6 as a result �Df any such testimony.
7 I If the harasser is a citizen or vendor, the harassed employe
8 and any employee witnessing the incident have a responsibility to
9 ( report the incident to the harassed employees supervisor. The
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10 City shall take such steps to investigate and eliminate this fora
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11 of sexual harassment as may be within its power.
12 It shall be the responsibility of any supervisor or other
13 employee to whom alleged sexual harassment has been reported to
14 maintain such report as a matter of strict confidence until such
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15 time as a formal , written complaint has been filed. Such report
16 may be discussed only with the Department/Division Head or other,
in the chain of command and the 17 I Affirmative Action Officer prior
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to that time.
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RESOLUTION NO. 91-110
—
RESOLL _ON OF THE CITY OF SAN BERNARDINO ADOPTING A SECOND
3 AMENDMENT TO THE AFFIRMATIVE ACTION PLAN FOR EQUAL EMPLOYMENT
4
OPPORTUNITY FOR SAID CITY; AND PROVIDING A POLICY ON HARASSMENT.
WHEREAS, the City of San Bernardino is fully y committed to
providing employees with a work environment free from harassment
7 religion,due to sex, age, race, color, ion
g national
origin, physical handicap, marital status, political affiliation
8 o or belief, or any other category protected by law; and
9 WHEREAS, employees are expected to adhere to a standard o
10 f
conduct that is respectful to all persons within the work
11 environment; and
12 WHEREAS, the City will not tolerate any form of harassment
13 or reprisal;
14 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
15 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
� 16
SECTION 1. That the Second Amendment to the City of
17 San Bernardino Affirmative Action Plan for Equal Employment
18 Opportunity, marked Exhibit "A", attached-hereto and incorporated
19 herein by reference, setting forth a Policy on Harassment and
20 Sexual Harassment, is hereby approved and adopted.
21 SECTION 2. That the City of San Bernardino Affirmative
22 Action Plan for Equal Employment Opportunity, adopted by
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23 Resolution No. 15039, including amendments thereto, adopted by
24 Resolution No. 81-641, and this Resolution, shall apply to
25 discrimination against and harassment of City employees and
26 applicants, by City employees, elected or appointed officials,
27 commission and board members, vendors, and independent
28 contractors.
DCR/dys/affact.res 1 June 13, 1991
` RESOLUTION . . . ADOPTING A SECOND
AMENDMENT
2 ACTION PLAN FOR EQUAL EMPLOYMENT 0 POP ITY FORTS AFFIRMATIVE
PROVIDING A 3LICY ON HARASSMENT. SAID CITY; AND
3
'
4 I HEREBY CERTIFY that the foregoing resolution
ution was duly
adopted by the Mayor and Common Council of the City of
6 San Bernardino at a regular meeting thereof, held on the
7 15th
day of July 1991, by the following vote, to wit:
8 Council Members:
AYES NAYS ABSTAIN
9 ASSENT
' ESTRADA x
10 REILLY
x
' 11 HERNANDEZ
x
12 MAUDSLEY
x
13 MINOR
x
14 POPE-LUDLAM
' x
15 MILLER
_
16 Z
17
City Clerk —'
1 18 The foregoing resolution is hereby approved this 16th day
19 of July 1991.
24 _
21 W. R. Holcomb, Mayor
' 22 Approved of San Bernardino
Approved as to
23 form and legal content:
JAMES F. PENMAN,
24 City Attorney
25
26 By:
27
28
DCR/dys/affact.res 2 June 13, 1991
I SECOND .-MENDMENT TO THE CITY OF SAN BERNARDIMO'S
2 AFFIRMATIVE ACTION PLAN FOR EQUAL EMPLOYMENT
3 POLICY ON HARASSMENT/SEXUAL HARASSMENT.
4 Equal Employment Opportunity Committee
City --', San Bernardino
5'
6 The City of in Bernardino is fully committed to providing
- employees with a =k environment free from harassment due to sex,
8 age, race, color . ethnicity, religion, national origin or any
9 other category pr- =acted by law. All employees are required to
10 take care that -ne dignity of others is not abused through
11 physical altercate=r.s, slurs, insults, derogatory or objectionable
12 and cffensive behavior in this regard. With respect to sexual
13 harassment, objectionable • and offensive behavior includes'
14I unwelcome sexual zi:ivances, requests for sexual favors and other.
15iverbal , visual or physical conduct of a sexual nature. Any
16i employee found to have engaged in conduct which is contrary to
th=s policy will be subject to disciplinary action up to and
17! -
lgil Including termination of employment.
EMPLOYEE RIGHTS AND RESPONSIBILITIES
1911
As an employee of City of San Bernardino you have the right
201
211 ar. the responsibility to report violations of the equal
22� employment opportunity and Harassment/Sexual Harassment policies
appropriate supervisor without fear of retaliation. Upon
231 to the app ro p
report of a violation an investigation will be conducted,
which
241
wil '_ include interviews with the employee( s) voicing e
2511 other persons who may have '
complaint , the accused and any
261 in question, or who may have teen )
witnessed the inci3en�( s )
?i; have information !
subjected to similar activity, or who may
`s ,;une 17, 1991
I
DCR/dys/ affact . 2am
_• aH. EXHIBIT "�►"
•
1 concerning s- e aspect of the occurrenc 3 ) . Upon investigation
2 completion, a determination will be made as to whether or not
3
unlawful activity did occur. The employee( s ) voicing the
4 complaint will to notified in writing of the determination made
5 and of the disc:c_ :nary action taken. Retaliation against any
6 employee voic:.r.= a - =mplaint, or against any employee
� participating in -"e investigatory is grounds for immediate
8 disciplinary act-: . .
9 If you feel _ ::r any reason, it is inappropriate to report
10 violations relating to the above policies to your Supervisor or.
11 the next higher revel of management, you may report them to an
12 Equal Employment Opportunity Counselor or directly to the
13 Affirmative Action Officer ( Mayor' s Office) .
14
lei
161
li
18I
191
201
21
22
23
24
25
261 1
2i; I
2811 2 June 17, 1991
cR/dys/affact . 2am
i -19C- r
COMPLAINT PROCEDURE
WHO MAY FILE•
1) Any City Employee or applicant for employment with the City,
who believes that there has been an act of discrimination
against him/her because of race, age, color, religion, sex,
national origin or disability caused by a City officer,
employee, or agent, may file a complaint through a City EEO
Counselor of his/her choosing.
2) A group complaint by two or more City Employees or
applicants for employment with the City who believe
themselves to be aggrieved by the foregoing kinds of alliged
discrimination caused by a City officer, employee, or agent
may be filed with an EEO Counselor of their choosing;. or
such Counselor may consolidate two or more complaints that
are substantially similar, provided that this procedure
facilitates a prompt and fair investigation and resolution
of the complaint. Likewise, a Counselor may divide a group
complaint into separate complaints.
HOW TO FILE:
1) Said employee or applicant who believes that he or she has
been aggrieved by discrimination because of race, color,
religion, sex, national origin, disability or any other
category protected by law shall have a right to
consult with an EEO Counselor.
29
1
The EEO Counselor, shall make an investigation or inquiry
into the matter when requested t
o do so by the employee or
applicant in order to seek an informal solution; counsel the
aggrieved party concerning the merits of his/her case; keep
a record of counselor's activities so as to brief the
Affirmative Action Officer on those activities; and, when
advised that a complaint of discrimination has been accepted
from an aggrieved person, submit a written report to the
City Affirmative Action Officer with a copy to the aggrieved
person summarizing his/her actions.
2) The EEO Counselor shall perform his/her duties in a `
fair, impartial, and objective manner. Any person who
attempts to influence an EEO Counselor by means of any
threat, intimidation, persuasion, or assurance of any
Pecuniary or other advantage, may he subject to
prosecution. -
3) After being advised of his/her rights to file a
complaint, the complainant or his/her chosen
representative shall submit the complaint in writing
within fifteen (15) calendar days thereafter. The
Complaint of Discrimination will be used to formally
record the charge of alleged discrimination.*
* See Appendix "B"
30
4) Aftei d formal complaint has been filed, the
Affirmative Action Officer shall provide the
complainant an opportunity for an informal adjustment
in the matter. If the complainant requests such
informal adjustment, the Affirmative Action Officer
shall notify the complainant of the proposed
disposition of his/her complaint by the informal
adjustment procedure. If the complainant is
not
satisfied with the proposed disposition recommended by
the Affirmative Action Officer, the complainant may
request the Affirmative Action Officer to present the
formal complaint to the EEO Committee. '
5) The EEO Committee shall notify the complainant and the
j
City Officer, employee or agent charged with the
alleged discrimination of the time and place of a
hearing concerning such matter; shall provide such
officer, employee or agent with a copy of the formal
complaint; shall review the written report of the
Affirmative Action officer concerning such matter; and
may conduct an independent investigation into the
matter. The decision of the Committee shall be
presented to all concerned persons.
31
i
6) : complainant does not request the Affirmative
Action Officer to present the complaint to the EEO
Committee within seven (7) calendar days following
his/her rejection of the disposition of the complaint
by the Affirmative Action Officer, the EEO Committee
may adopt, modify, or reject such proposed disposition
after conducting its own independent investigation.
7) The foregoing procedures are intended to provide the
complainant with a remedy to informally obtain relief
for alleged acts of discrimination against him/her and _
does not forestall or obviate the seeking or obtaining =
of any other relief or remedies. The informal
solution, informal adjustment, disposition or decision
of the EEO Counselor, Affirmative Action Officer or EEO
Committee shall be advisory and recommendatory only,
provided that the complainant and the officer, employee
or agent charged with discrimination are expected to
abide by their acceptance of any disposition agreed
upon by the parties.
32
i
I CITY OF SAN BERNARDINO POLICY
2 ON HARASSMENT/SEXUAL HARASSMENT
3 Harassment, including sexual harassment, in employment is a
4 violation of State and Federal law as well as a violation of a
5 person's privacy and dignity. It can cause emotional, physical
6 and economic damage to its victims . It undermines the integrity
7 of the employment relationship. It can result in economic loss to
8 both the employer and employee, excessive absenteeism and turn-
9 over, loss of morale, polarization of staff, sabotaged work, a
10 decrease in management credibility and a decrease in productivity.
11 PURPOSE:
12 It is the policy of the City of San Bernardino to provide a
13 work environment free from harassment on the basis of race,
14 religious creed, color, national origin, ancestry, age, sex,
15 marital status, physical disability, mental disability, medical
16 condition or any other classification protected by law, and
17 unwelcome sexual overtures, advances and coercion.
18 Therefore, the City will not tolerate any form of harassment,
19 sexual harassment, or reprisal, and expects individuals to adhere
20 to a standard of conduct that is respectful to all persons within
21 the work environment. This policy is intended to allow the City
22 to resolve complaints of harassment and sexual harassment
23 internally. It is meant to supplement, not replace any applicable
24 State and Federal remedies .
25 SCOPE:
26 This policy applies to all officers, agents, employees and
27 elected officials of the City of San Bernardino (collectively
28 called "employees" herein) , as well as third parties (e.g. ,
EXHIBIT "A" A8
I vendors, contractors, members of the public) regularly entering
2 the work environment.
3 DEFINITION•
4 A. Harassment includes the following when based upon race,
5 religious creed, color, national origin, ancestry, age, sex,
6 marital status, physical disability, mental disability, medical
7 condition or any other class classification protected by law:
8 1 . Verbal harassment, e. g. , epithets, derogatory
9 comments or slurs;
10 2 . physical harassment, e.g. , unwelcome or unconsented
11 touching, impeding or blocking movement, or any
12 interference with normal work or movement; and,
13 3 . Visual harassment, e. g. , leers, gestures, or
14 derogatory posters, cartoons or drawings .
15 For the purpose of this policy, harassment also specifically
16 includes sexual harassment.
17 B. Sexual Harassment includes unwelcome sexual advances,
18 requests for sexual favors, and other verbal or physical conduct
19 of a sexual nature when:
20 1 . Submission to such conduct is made either
i 21 explicitly or implicitly as a term or condition of
22 an individual ' s employment;
23 2 . Submission to or rejection of such conduct by an
24 individual is used as a basis for employment
25 decisions affecting the individual; or,
26 3 . Such conduct has the purpose or effect of
27 substantially interfering with an individual 's work
28
2
1 performance or creating an intimidating, hostile or
2 otherwise offensive working environment.
3 For the purpose of further clarification sexual harassment
4 includes but is not limited to:
5 1 . Making unsolicited written, verbal, physical or
6 visual contact with sexual overtones . (Written
7 examples: suggestive or obscene letters, notes,
8 invitations . Visual examples : leering, gestures,
9 display of sexually suggestive objects or pictures,
10 cartoons or postcards . Physical examples :
11 touching in a sexually-suggestive manner, or
12 touching of the private parts of another for sexual
13 gratification. )
14 2 . Continuing to express sexual interest after being
15 informed that the interest is unwelcome.
16 (Reciprocal attraction is not considered sexual
17 harassment. )
18 3 . Making reprisals, threats of reprisal, or implied
19 threats of reprisal following a negative response.
20 For example, either implying or actually
21 withholding support for an appointment, promotion,
22 or change of assignment; suggesting a poor
23 performance report will be prepared, or suggesting
24 probation will be failed.
25 4 . Engaging in implicit or explicit coercive sexual
26 behavior which is used to control, influence, or
27 affect the career, salary or work environment of
28 another employee.
3
1 5 . Offering favors or employment benefits, such as
2 promotions, favorable performance evaluations,
3 favorable assigned duties or shifts,
4 recommendations, reclassifications, etc. , in
5 exchange for sexual favors .
6 6 . When employment benefits are granted because of
7 sexual favors, other qualified persons who are
8 denied the benefits may be considered to be victims
9 of sexual harassment.
10 A finding of sexual harassment may be made even though the
11 conduct occurs outside of the workplace.
12 PENALTY GUIDELINES:
13 The City of San Bernardino will undertake all appropriate
14 necessary action against any employee found to be in violation of
15 this policy to prevent further harassment, including sexual
16 harassment, and retaliation. Appropriate necessary action may
17 include corrective action (e.g. , counselling and/or training)
18 and/or punitive action up to and including termination from
19 employment.
20 In the case of elected officials, disciplinary actions are
21 limited to private or public censure, unless otherwise permitted
22 by Charter.
23 In the case of a citizen, contractor or vendor the City shall
24 take such actions to prevent further harassment as may be within
25 its power.
26 CITY RESPONSIBILITY:
27 The City shall take prompt, appropriate action to avoid or
28 minimize harassment/sexual harassment and liability to the City.
4
1 The City will pursue every possible preventive measure to insure
2 employees are not subject to harassment/sexual harassment; will
3 investigate all complaints of harassment/sexual harassment and all
4 instances which it has good cause to believe to have occurred; and
5 will take appropriate disciplinary action against any employee(s )
6 found to be in violation of this policy.
7 COMPLAINT PROCEDURE:
8 1 . Any employee who believes that he/she has been
9 harassed/sexually harassed may report the incident to the
10 employee' s supervisor or department head, to the Affirmative
11 Action Officer, or to a City Equal Employment Opportunity [ "City's
12 EEO" I Counselor. (Any applicant for employment who believes
13 he/she has been harassed may file with the Affirmative Action
14 Officer or with a City EEO Counselor. )
15 2 . If the employee chooses to have the matter investigated
16 by a City EEO Counselor, the Counselor shall follow the City' s EEO
17 Committee's Complaint Procedure, found in the City's Affirmative
18 Action Plan, and submit a written report to the Affirmative Action
19 Officer at the conclusion of the investigation.
20 3 . The Affirmative Action Officer and the City' s EEO
21 Counselors shall perform their duties in a fair, impartial, and
22 objective manner. Any person who attempts to influence the
23 Affirmative Action Officer or a City EEO Counselor by means of any
24 threat, intimidation, persuasion, or assurance of any pecuniary or
25 other advantage, may be subject to prosecution and/or penalties as
26 provided herein.
27 4 . Upon the filing of a written complaint, or at such time
28 as the Affirmative Action Officer has good cause to believe that
5
1 harassment/sexual harassment has occurred, the Affirmative Action
2 Officer shall promptly and confidentially investigate the matter.
3 5 . The Affirmative Action Officer shall provide the accused
4 an opportunity for an informal resolution of the matter, and shall
5 notify the complainant of the proposed disposition of his/her
6 complaint by the informal adjustment procedure.
7 6 . If the matter cannot be resolved informally by the
8 Affirmative Action Officer, he/she shall present the complaint to
9 the City' s EEO Committee.
10 7 . The City's EEO Committee shall notify the complainant
11 and the employee charged with the alleged harassment of the time
12 and place of a hearing concerning such matter; shall provide such
13 employee with a copy of the formal complaint or written charges;
14 shall review the written report of the Affirmative Action officer
15 concerning such matter; and may conduct an independent
16 investigation into the matter which may or may not include further
17 hearings . The recommendation of the Committee shall be presented
18 to all concerned persons .
19 8 . The recommendations of the EEO Counselor, Affirmative
20 Action Officer or EEO Committee shall be advisory and
21 recommendatory only, provided that the complainant and the
22 employee charged with discrimination are expected to abide by
23 their acceptance of any disposition agreed upon by the parties .
24 EMPLOYEES ' RIGHTS AND RESPONSIBILITIES:
25 1 . Complainants :
26 Any employee who believes he or she has been
27 harassed/sexually harassed has the responsibility to take
28 immediate action to assure that the situation does not persist.
6
I Employees have the following rights :
2 A. The right to a work environment free of
3 harassment/sexual harassment.
4 B. The right to an informal, confidential hearing by
5 the Affirmative Action Officer and/or a City EEO
6 counselor.
7 C. The right to have harassment/sexual harassment
8 complaints kept confidential until such time as
9 he/she gives the counselor permission to do
10 otherwise, in order to bring the complaint to the
11 appropriate authority for remedy as set forth in
12 the City' s Affirmative Action Complaint Procedure.
13 D. The right to a full, impartial and prompt
14 investigation through the Affirmative Action
15 Office.
16 E. The right to a timely decision after full
17 consideration of all relevant facts and
18 circumstances .
19 F. The right to be advised of the results of the
20 Affirmative Action Officer' s investigation and
21 conclusions . ( If discipline is imposed, the
22 specific terms of the discipline will not be
23 communicated to the complainant. )
24 G. The right to be free from retaliation for filing a
25 complaint or otherwise participating in an
26 investigation of harassment/sexual harassment.
27 Employees may also file complaints of harassment/sexual
28 harassment with the following State and Federal offices :
7
I State Department of Fair Equal Employment
2 Housing and Employment (DFEH) Opportunity Commission (EEOC)
1845 S. Business Ctr. Dr., #127255 East Temple Street, 4th Floor
3 San Bernardino, CA 92408-3426 Los Angeles 90012
(909) 383-4711 (800) 669-4000
4 2 . Accused:
5 Any employee who has been accused of harassment/sexual
6 harassment has a responsibility to cooperate with the
7 investigation by the Affirmative Action Officer and also has the
8 following rights:
9 A. The right to an attempt at an informal resolution
10 of the complaint with the Affirmative Action
11 Officer prior to the institution of any formal
12 process .
13 B. The right to be represented by legal counsel or
14 other representative at all stages of the
15 proceedings .
16 C. The right to confidentiality beyond those involved
17 in this process who have legitimate need to know.
18 D. The right to be informed of the charges in writing.
19 E. The right to produce witnesses, and to have them
20 interviewed during the course of the investigation.
21 F. The right to due process to which the employee
22 would otherwise be entitled prior to any adverse
23 employment action being taken against him or her
24 (e.g. ,. classified employees have the right to a
25 hearing before the Civil Service Commission. ) In
26 the case of an elected official, the right to a
27 hearing before an administrative law judge, or
28 mutually acceptable independent hearing officer.
8
1 3 . Witnesses :
2 Any employee who witnesses an incident of alleged
3 harassment/sexual harassment, and is named in a formal, written
4 complaint as a witness, has a responsibility to provide full and
5 accurate information regarding the incident to the Affirmative
6 Action Office and has the right to be free from reprisal as a
7 result of any such testimony.
8 If the harasser is a citizen or vendor, the harassed employee
9 and any employee witnessing the incident have a responsibility to
10 report the incident to the harassed employee's supervisor. The
11 City shall take such steps to investigate and eliminate this form
12 of harassment/sexual harassment as may be within its power.
13 It shall be the responsibility of any supervisor or other
14 employee to whom alleged harassment/sexual harassment has been
15 reported to maintain such report as a matter of strict confidence.
16 such report may be discussed only with the Department/Division
17 Head or others in the chain of command and the Affirmative Action
18 Officer prior to the investigation.
19 A complaint of harassment/sexual harassment is to be
20 considered and treated as any other confidential personnel record
21 of the complaining and accused employees .
22 COPIES OF THIS POLICY SHALL BE DISTRIBUTED TO ALL
23 OFFICERS, EMPLOYEES AND ELECTED OFFICIALS.
24
25
26
27
28
9
, SAN BERM DINO REQUEST FC"l COUNCIL ACTION
�.+.�TY OF
rom James F. Perm«n, City Attorney Subject: SexualtHaras mentnpolicy and
et: City Attorney Repealing Resolutions Nos. 81-641
p and 91-330 .
ate: January 30 , 1995
ynopsis of Previous Council action:
November 22, 1994 - Council approved Resolution No. 94-357
resolving to amend the City' s sexual
harassment policy.
Recommended motion:
Adopt Resolution.
Signature
Contact person: Diane C. Roth
Phone: 5162
Ward:
Supporting data attached:
FUNDING REQUIREMENTS: Amount:
Source: Acct. No.
Acct. Description)
Finance:
C cil Notes:
-
Agenda Item No._
75-0262
CITY OF SAN BERL iRDINO - REQUEST _ JR COUNCIL ACTION
STAFF REPORT
The City' s sexual harassment policy is currently found in two
policy statements adopted by Resolution Nos . 81-641 and 91-330, and
in those resolutions themselves . Since the last amendment to the
City' s sexual harassment policy there have been some changes in the
law which should be included therein.
In addition, although Resolution No. 91-330 states that the
sexual harassment policy applies to "City employees, elected or
appointed officials, commission and board members , vendors, and
independent contractors, " the policy itself does not specifically
state to whom it applies .
On November 22, 1994, the Mayor and Common Council approved
Resolution No 94-357 , resolving to amend the City' s sexual
harassment policy to include, among other things, that it applies
to elected officials .
Attached is a resolution adopting a new sexual harassment
policy which accomplishes all of the above.
75-0264