HomeMy WebLinkAbout05.J- Human Resources RESOLUTION (ID # 4554) DOC ID: 4554 B
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Personnel
From: Helen Tran M/CC Meeting Date: 08/01/2016
Prepared by: Pamela Velez, (909) 384-
5161
Dept: Human Resources Ward(s): N/A
Subject:
Resolution of the City of San Bernardino Adopting an Updated Non-Discrimination,
Retaliation, Workplace Harassment and Sexual Harassment Policy for Said City and
Repealing Resolution No. 2013-277. (#4554)
Current Business Registration Certificate: Not Applicable
Financial Impact:
No financial impact udpating city-wide policy.
Motion: Adopt the Resolution.
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.
On January 23, 2006, the Mayor and Common Council adopted Resolution No. 2006-
28, a Resolution of the City of San Bernardino adopting an updated Harassment/Sexual
Harassment Policy for said City, and repealing Resolution No. 95-154.
On October 7, 2013, the Mayor and Common Council adopted Resolution No. 2013-
277, a Resolution of the City of San Bernardino adopting an updated
Harassment/Sexual Harassment Policy for said City, and repealing Resolution No.
2006-28.
Background:
The City's previous policy on Non-Discrimination/Workplace Harassment was last
updated in 2013. Since that time, legal mandates have occurred that now make this
policy outdated. Therefore, the policy has been revised to remain in compliance and
include the definition and elements of abusive conduct in the workplace. The formal
complaint forms have also been combined and updated to one form.
The purpose of the policy is to confirm the City of San Bernardino's commitment to
maintain a work environment free from unlawful discrimination, retaliation and/or
harassment/sexual harassment for all current and prospective employees and to
provide a complaint procedure to resolve complaints of this nature.
Updated: 7/25/2016 by Linda Sutherland B Packet Pg.285-
4554
The Human Resources Department continues to schedule all supervisors and
managers for AB 1825 training; this mandate requires that employers with 50 or more
employees must provide two hours of sexual harassment awareness training and
education to all supervisory employees once every two years and new supervisors must
receive the training within six months of assuming a supervisory position. This updated
policy will be provided to all employees and will support the City's commitment.
City Attorney Review:
Supporting Documents:
RESOLUTION NO (DOCX)
Exhibit A (DOCX)
Updated: 7/25/2016 by Linda Sutherland B I Packet Pg. 286
5.J.a
RESOLUTION NO.
1
RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING AN UPDATE w
2 NON-DISCRIMINATION, RETALIATION, WORKPLACE HARASSMENT AN
SEXUAL HARASSMENT POLICY FOR SAID CITY AND REPEALING RESOLUTION E
3 NO. 2013-277. o
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WHEREAS, the City of San Bernardino has been and continues to be firm) x
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committed to providing employees with a work environment free from discrimination and or
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harassment on the basis of race, religious creed, color, national origin, ancestry, age,
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g sex, marital status, physical disability, mental disability, medical condition, sexual
orientation, genetic information, pregnancy, childbirth or related medical conditions, o 2
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10 any other classification protected by law; and,
11 WHEREAS, the City desires to adopt and implement a non-discrimination, o
12 retaliation, workplace harassment and sexual harassment policy which is contained in
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13 one comprehensive document; o
14 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON z
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COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
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17 SECTION 1. That the City of San Bernardino Policy on Non-Discrimination, co
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18 Retaliation, Workplace Harassment and Sexual Harassment, marked Exhibit `A' and
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19 attached hereto and incorporated herein by reference, is hereby approved and adopted. :I-
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SECTION 2. Resolution No. 2013-277 is hereby repealed. o
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1 Packet Pg.287
5.J
RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING AN UPDATE
1 NON-DISCRIMINATION, RETALIATION, WORKPLACE HARASSMENT AN
SEXUAL HARASSMENT POLICY FOR SAID CITY AND REPEALING RESOLUTION w
2 NO. 2013-277.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
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Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on x
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the day of , 2016, by the following vote, to wit:
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8 COUNCILMEMBERS: AYES NAYES ABSTAIN ABSENT 0
9 MARQUEZ 2
BARRIOS ,
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VALDIVIA
11 SHORETT °
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12 NICKEL E
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13 RICHARD y
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MULVIHILL
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Georgeann Hanna, City Clerk a.
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17 The foregoing Resolution is hereby approved this of °
18 2016.
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20 R. Carey Davis, Mayor z
City of San Bernardino 0
21 Approved as to form:
Gary D. Saenz, City Attorney 0
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23 By. E
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2 Packet Pg.288'
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EXH/BI T A
CITY OF SAN BERNARDINO
POLICY ON
NON-DISCRIMINATION, RETALIATION, WORKPLACE HARASSMENT
AND SEXUAL HARASSMENT
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I. PURPOSE a
Discrimination and workplace harassment, including sexual harassment, are
violations of State and Federal laws. Discrimination and harassment can cause x
emotional, physical and economic damage to its victims and undermine the cn
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 o
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 0
discrimination, harassment, sexual harassment and/or retaliation for all current
and prospective City employees. 2
This Policy:
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• Defines discrimination, harassment, sexual harassment and retaliation o
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for purpose of this policy; M
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• Confirms the City's commitment to prohibit and prevent unlawful y
discrimination, harassment, sexual harassment and retaliation in a
employment; o
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• Provides a complaint and investigation procedure to resolve 2
complaints of alleged discrimination, harassment, sexual harassment °a
and retaliation in violation of law or this policy. °
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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 LO
harassment and/or retaliation on the basis of race, religious creed, color, national Q
origin, ancestry, age, sex, marital status, physical disability, mental disability, r
medical condition, sexual orientation, genetic information, pregnancy, childbirth X
or related medical conditions of any female employee, or any other classification w
protected by law.
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Therefore, the City of San Bernardino will not tolerate any form of discrimination,
harassment, sexual harassment and/or retaliation and expects individuals to a
adhere to a standard of conduct that is respectful to all persons within the work
environment. This policy is intended to allow the City to resolve complaints of
discrimination, harassment, sexual harassment and/or retaliation internally.
Packet Pg.289
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EXHIBIT A
The City of San Bernardino further acknowledges and understands that in order
to implement this non-discrimination/non-harassment policy, 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 N
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.
III. SCOPE W
This policy applies to all officers, agents, employees and elected officials of the a
City of San Bernardino (collectively called "employees" herein), as well as third o
parties (e.g., vendors, contractors, members of the public) regularly entering the
work environment. _
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IV. DEFINITIONS
A. Discrimination, as used in this policy, is defined to include but is not limited
to:
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1. Basing an employment decision, e.g., decision to hire, promote, transfer, c
terminate, etc. on a job applicant's or employee's protected status, e.g., E
race, religious creed, color, national origin, ancestry, age, sex, marital N
status, physical disability, mental disability, medical condition, sexual
orientation, genetic information or any other classification protected by z
law.
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2. Treating an applicant or employee differently with regard to any aspect of a.
employment because of his/her protected status. y
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3. Engaging in harassment and/or sexual harassment as more specifically
defined below.
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B. Harassment when based upon race, religious creed, color, national origin,
ancestry, age, sex, marital status, physical disability, mental disability, a
medical condition, sexual orientation, genetic information or any other
classification protected by law includes, without limitation, the following x
examples: `.".
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1. Verbal harassment, e.g., epithets, derogatory comments, lewd E
propositioning, sexual remarks, or slurs; Y
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2 (Revised August 2016)
Packet Pg.290 ';
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EXHIBIT
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,
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3. Visual harassment, e.g., leers, gestures, or derogatory posters,
cartoons or drawings. N
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4. Repeated infliction of verbal abuse, such as insults or names. _
5. Sabotage or undermining of a person's work performance. a
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6. Verbal or physical conduct that a reasonable person would find
threatening or humiliating. 4)
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C. Workplace Harassment includes a work environment that is permeated o
with talk, innuendo insults or abuse not relevant to the subject matter of 3:
the job. A hostile environment can arise from an unwarranted focus on o
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. The determination of whether an environment is hostile is based on
the totality of the circumstances, including the frequency of the conduct, 2
the severity of the conduct, whether the conduct is humiliating or
physically threatening, and whether the conduct unreasonably interferes
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with an individual's work. n
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D. Sexual Harassment includes unwelcome sexual advances, requests for z
sexual favors, and other verbal or physical conduct of a sexual nature
when:
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1. Submission to such conduct is made either explicitly or implicitly as a
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term or condition of an individual's employment;
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2. Submission to or rejection of such conduct by an individual is used as D
a basis for employment decisions affecting the individual; or,
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3. Such conduct has the purpose or effect of substantially interfering with a
an individual's work performance or creating an intimidating, hostile
or otherwise offensive working environment. x
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4. Unwanted sexual advances, even if the complainant is not the target of
the sexual advances but reasonably believes that engaging in sexual s
conduct or solicitations is a prerequisite to fair treatment.
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5. For the purpose of this policy, sexual harassment includes, but is not
limited to the following examples:
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Packet Pg. 291
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EXHIIBI T A
a. 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, sexual
remarks, or slurs. Visual examples: leering, gestures, display of N
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.) X
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b. Continuing to express sexual interest, or repeated offensive sexual
flirtations, advances, or propositions after being informed that the
interest is unwelcome. a
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c. Making reprisals, threats of reprisal, or implied threats of reprisal
following a negative response. (Example: either implying or actually o
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 E
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to occasional compliments of a socially-acceptable nature.) y
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e. Offering favors or employment benefits, such as promotions, 0
favorable performance evaluations, assigned duties or shifts,
recommendations, reclassifications, etc., in exchange for sexual .o
favors. °-
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f. Granting employment benefits because of sexual favor; other
qualified persons who are denied the benefits may be considered to be Q
victims of sexual harassment.
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g. Widespread sexual favoritism that is severe or pervasive enough to v
alter the complainant's working conditions and create a hostile work a
environment.
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h. Sexual harassment may occur even though the conduct takes place W
outside of the workplace.
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E. Retaliation, as used in this policy, prohibits reprisal against a person who
files a discrimination, harassment or sexual harassment complaint; reports a
discrimination, harassment or sexual harassment; or assists in a
discrimination, harassment or sexual harassment investigation. Retaliation
4 (Revised August 2016)
Packet Pg.292
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EXHIBIT A
includes threats, intimidation and/or adverse actions related to
employment. An adverse employment action may include, but is not
limited to, a decrease in pay, change in hours, reduction in authority and
responsibility, or an unfavorable job reference which would otherwise not
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be warranted. Retaliation constitutes a violation of this policy. 0)
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V. PENALTY GUIDELINES L
The City of San Bernardino will undertake all appropriate, necessary actions =
against any employee found to be in violation of this policy. Appropriate 3
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 and/or a harassment or sexual harassment charge; for
participating in an investigation; and/or for reporting discrimination, harassment a
or sexual harassment conduct shall be subject to disciplinary action up to and o
including termination.
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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 2
responding to discrimination, harassment, sexual harassment and/or retaliation
who knew or should have known about the discrimination, harassment, sexual E
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harassment and/or retaliation and took no action to stop it or failed to report the N
aforesaid prohibited conduct may also be subject to disciplinary action.
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VI. DUTIES a
A. City's Responsibility o
The City shall take prompt, appropriate action to avoid or minimize n.
discrimination, harassment, sexual harassment, retaliation, and liability to N
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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, M
harassment, sexual harassment, retaliation, and all instances in which it
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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 a
policy.
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B. Director of Human Resources and/or City's Equal Employment w
Opportunity (EEO) Officer =
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The Director of Human Resources and/or the City's EEO Officer shall be E
responsible for:
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1. Ensuring that this policy and complaint procedures are
disseminated to all employees.
5 (Revised August 2016)
Packet Pg.293
EXHIBIT A
2. Providing training and support to department heads, supervisors
and employees in preventing and addressing discrimination,
harassment, sexual harassment and retaliation as needed and
upon request.
3. Investigating, resolving and making findings and recommendations L
on complaints of unlawful discrimination, harassment, sexual =
harassment and retaliation.
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C. Department Heads
Department heads shall be responsible for:
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1. Assisting the Director of Human Resources and/or the City's EEO a
Officer by disseminating this policy and ensuring that the workplace o
remains void of discrimination, harassment, sexual harassment
and/or retaliation. o
2. Coordinating and cooperating with the Director of Human
Resources and/or City's EEO Officer in resolving complaints
involving employees in their respective departments; and, when =
discrimination, harassment, sexual harassment and/or retaliation 2
has occurred, taking:
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a) Prompt and appropriate remedial action against the y
perpetrator/harasser. °
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b) Reasonable steps to protect the complainant from further
discrimination, harassment, sexual harassment and/or .o
retaliation. °-
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c) Action to remedy the effects of discrimination, harassment, 0
sexual harassment and/or retaliation. a
D. Employees Ln
Employees shall cooperate fully with all investigations of discrimination,
harassment, sexual harassment and retaliation; implementation of a
remedial measures; and shall not retaliate against complainants or
witnesses.
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VII. COMPLAINT PROCEDURE
A. Any employee who believes that he/she has been discriminated against, E
harassed, sexually harassed, retaliated against or has reason to believe
that someone else has been the subject of discrimination, harassment, a
sexual harassment and/or retaliation has the obligation to notify the
employee's supervisor or department head, the Director of Human
6 (Revised August 2016)
Packet Pg.294
5.J.b
EXHIBIT A
Resources 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 Director of Human
Resources and/or the City's EEO Officer.)
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B. The Director of Human Resources and/or the City's EEO Officer shall be N
responsible for ensuring that all complaints of discrimination, harassment, L
sexual harassment and retaliation are investigated thoroughly and are =
responded to in a timely fashion.
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C. The Director of Human Resources and/or the City's EEO Officer shall be
responsible for arranging periodic training for employees.
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D. The Director of Human Resources and/or the City's EEO Officer shall a
perform his/her duties in a fair, impartial, and objective manner. Any o
person who attempts to influence the Director of Human Resources and/or 3:
the City's EEO Officer by means of any threat, intimidation, persuasion, or o
assurance of any financial or other advantage, may be subject to
prosecution and/or penalties as provided herein.
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E. Upon the filing of a written complaint (see attached forms) or at such time
as the Director of Human Resources and/or the City's EEO Officer have
good cause to believe that discrimination, harassment, sexual harassment =
and/or retaliation has occurred, the Director of Human Resources and the
City's EEO Officer shall promptly and confidentially investigate the N
complaint and keep it confidential to the extent practicable within the
context of the investigation. 0
F. The Director of Human Resources and the City's EEO Officer shall 2
provide the respondent an opportunity for an informal resolution of the n.
matter, and shall notify the complainant of the proposed disposition of
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his/her complaint by the informal adjustment procedure.
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G. The complainant and respondent shall abide by the terms of any agreed- 0
upon settlement. In all other respects, the recommendations of the
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Director of Human Resources and/or the City's EEO Officer shall be
advisory only. a
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VIII. LIABILITY FOR SEXUAL HARASSMENT x
Any employee who engages in unlawful sexual harassment or retaliation, w
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. E
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EXHIBIT A
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 immediately report the conduct to the City's Human
Resources Department and/or the City's EEO Officer to assure that the =
situation does not persist. The Human Resources Department and/or the 3
City's EEO Officer will review with the employee the allegations and will d
initiate immediate and appropriate action, including without limitation, an
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impartial and prompt investigation,
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Employees may also file complaints of discrimination, harassment, sexual Q
harassment and/or retaliation with the following State and Federal Offices: o
State Federal o
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, 41h Floor
Los Angeles, CA 90017 Los Angeles, CA 90012 °
Phone: 1-800-884-1684 Phone: 1-800-669-4000 E
Fax: 1-213-439-6715 Fax: 1-213-894-1118 E
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TTY: 1-800-700-2320 TTY: 1-800-669-6820 v
www.dfeh.ca.gov www.eeoc.gov
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B. Respondent
Any employee who has been accused of discrimination, harassment, •o
sexual harassment and/or retaliation ("Respondent") has the responsibility °-
to cooperate with the investigation by the Director of Human Resources
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and/or the City's EEO Officer and also has the following rights:
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1. To an attempt at an informal resolution of the complaint with the
Director of Human Resources and/or the City's EEO Officer prior to
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the institution of any formal process. v
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2. To be represented by legal counsel or other representative, at his/her
own cost, at all stages of the proceedings.
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C. It shall be the responsibility of any supervisor or other employee to whom
alleged discrimination, harassment, sexual harassment and/or retaliation E
has been reported to maintain such report as a matter of strict confidence.
Such report may be discussed only with the Director of Human Resources a
and/or the City's EEO Officer.
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EXHIBIT
AF A 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.
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X. AFFORDABLE CARE ACT (ACA) RETALIATION d
An employment action is considered retaliatory under the ACA if it discriminates N
against any employee with 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: a
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1. Receives a health insurance tax credit or subsidy through Covered 3:
California (aka the "Marketplace" or "exchange"). o
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.
4. Assists or participates in a proceeding concerning a violation; or
5. Objects to, or refuses to participate in, any activity, policy, practice, or .2
assigned task that the employee reasonably believes to be in violation of =
any provision of Title I of the Act.
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Enforcement °
The Department of Occupational Safety and Health Administration (OSHA) will 0
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 .o
by an in-person visit or telephone call to a local OSHA office, or by sending a a.
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written complaint to the OSHA office. N
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Employee's Remedies for Retaliation Under the ACA Q
Remedies include reinstatement, affirmative action to abate the violation, back D
pay with interest, front pay, compensatory damages, and an award of up to
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$1,000 for attorney's fees.
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Copies of this policy shall be distributed to all employees and elected officials.
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EXHIBIT
ACKNOWLEDGMENT OF MANDATORY COMPLIANCE WITH
CITY OF SAN BERNARDINO POLICY ON
NON-DISCRIMINATION, RETALIATION, WORKPLACE HARASSMENT
AND SEXUAL HARASSMENT
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1 hereby acknowledge that I have received a copy of the City of San Bernardino Policy L
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.
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DATE Employee Signature
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Employee Name (Print) 0
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Department Q
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*** Please sign and return to the Human Resources Department no later than 30 w
days from the receipt of this acknowledgement. ***
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EXHIBIT A
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CITY OF SAN BERNARDINO
COMPLAINT OF HARASSMENT/SEXUAL HARASSMENT/ DISCRIMINATION
(Please Print or Type)
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1. Name: N
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Address: cc
City: State: Zip: 10
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2. Are you currently employed by the City of San Bernardino? Yes ❑ No ❑ in
Department: Job Title:
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3. City Employee/Agent you believe violated policy against you:
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Name:
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Department/Division the individual is employed within: 3:
Address: City: State: 0
4. What is the basis on which you believe you were harassed/discriminated? Race: ❑
Sex ❑ Marital Status ❑ Age ❑ Physical Disability ❑ Mental Disability ❑ re
Medical Condition ❑ Race ❑ Religious Creed ❑ Color ❑ o
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National Origin ❑ Ancestry ❑ Sexual Orientation ❑ Genetics Information ❑
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5. Date or period the alleged harassment/discrimination occurred:
6. Did the harassment/discrimination occur while on duty? Yes ❑ No ❑ If yes, o
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where did it occur? z°
7. Have you discussed the harassment/discrimination with your Supervisor?
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Yes ❑ No ❑ n.
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8. Provide a detailed description of the harassment/discrimination (attach additional pages, Cn
if necessary): Q
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9. What corrective action do you want taken on your behalf in the resolution of this Q
complaint(attach additional pages, if necessary):
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Signature: Date:
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