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HomeMy WebLinkAboutReso 09-17 Anti Harassment DiscriminationRESOLUTION NO. 0917 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA ESTABLISHING POLICY PROHIBITING HARASSMENT, DISCRIMINATION AND RETALIATION AND RESCINDING RESOLUTION NO. 21-04 THE CITY COUNCIL City of Morro Bay, California WHEREAS, Morro Bay Municipal Code ("MBMC") Section 2.32.050 authorizes the City Council to adopt and amend Personnel Rules and Regulations governing the City of Morro Bay personnel system; and WHEREAS, the Policy Prohibiting Harassment, Discrimination and Retaliation have not been comprehensively reviewed or modified since 2004, and the procedure for reporting harassment requires updating and clarification; and WHEREAS, the Personnel Rules and Regulations should be updated and clarified; and WHEREAS, the City's recognized bargaining units, the Service Employees International Union ("SEIU"), the Police Officers Association ("POA"), and the Morro Bay Fire Fighters Association ("MBFFA") were provided copies of the proposed revisions, with the offer to meet and confer; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Morro Bay does hereby adopt the attached Policy Prohibiting Harassment, Discrimination and Retaliation to provide for a safe and efficient workplace free of prohibited harassment, discrimination and retaliation, and setting forth an updated reporting procedure; and BE IT FURTHER RESOLVED that Resolution No. 21-04 is hereby rescinded. PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular meeting thereof held on the 14th day of March, 20177 by the following vote: AYES: Irons, Davis, Headding, Makowetski, McPherson NOES: None ABSENT: None ABSTAIN: None ATTEST: DANA SWANSON, City Clerk 1 E L. IRONS, Mayor CITY OF MORRO BAY POLICY PROHIBITING HARASSMENT, DISCRIMINATION, AND RETALIATION I. GENERAL POLICY The City is committed to providing a work environment that is free of discrimination, harassment, and retaliation. In keeping with this commitment, the City maintains a strict policy prohibiting harassment, including sexual harassment and takes steps to promptly correct discriminatory, harassing, and retaliatory conduct. This policy prohibits harassment in any form, including verbal, physical and visual harassment by or against any employee, intern, volunteer, applicant for employment, or vendor, independent contractor, elected or appointed officials or guest. This policy applies to all of the City's activities, wages, reviews, leaves, training, benefits, and all other conditions and terms of employment. As a general guideline, harassment can be avoided if employees act professionally and treat each other with respect. II. PURPOSE OF POLICY Federal and state law expressly prohibit discrimination and harassment of employees or applicants based upon race, color, national origin, religious creed, ancestry, physical or mental disability, medical condition, breast-feeding, pregnancy, childbirth or related medical condition, age (40 and over), sexual orientation, sex, gender identity, gender expression, genetic information, military or veteran status, marital status, or any other basis protected by applicable state or federal law, including association with individuals with these protected characteristics or perception that an individual has one or more of these protected characteristics. The purpose of this policy is to establish a means to protect employees, applicants for employment, or guests from harassment. Discrimination, harassment, and retaliation constitute misconduct that can decrease work productivity, decrease morale and cause emotional and physical damage. Incidents of discrimination, harassment, or retaliation can result in serious economic implications such as high turnover, ineffective use of time during working hours, costly salaries paid for nonproductive work hours, and employee absences due to hearings and meetings related to discrimination, harassment, and retaliation complaints. The further purpose of this Policy is to define and forbid discriminatory , harassing, and retaliatory conduct, to prohibit the condoning or perpetuating of such conduct, and to provide an efficient means for reporting and resolving complaints of discrimination, harassment, or retaliation against any individual who reports discrimination, harassment, or retaliation or who participates in an investigation of such reports. III. ®EFINITION OF TERMS A. Employee. Any individual under the direction and control of the City under any appointment or contract of hire or apprenticeship, express or implied, oral or written. For purposes of this Policy only, the term "employee" includes any 2 individual who is an unpaid intern or volunteer of the City. The inclusion of any individual, including but not limited to unpaid interns and volunteers, in the definition of "employee" for purposes of this policy should not be interpreted to affect the applicability of any other policy or procedure of the City. B. Legally Protected Category/Legally Protected Characteristic. Race, color, national origin, ancestry, religious creed, sex, sexual orientation, gender identity, gender expression, marital status, religion, age (over 40), physical or mental disability, medical condition, breast-feeding, pregnancy, childbirth or related medical condition, physical or mental disability, medical condition, genetic characteristics or information, military or veteran status, or any other protected basis under state or federal law, including association with individuals with these protected characteristics or perception that an individual has one or more of these protected characteristics. C. Discrimination. Discrimination is any action or conduct by which an employee is treated differently or less favorably than other employees similarly situated for the sole reason that the employee is a member of a Legally Protected Category. D. Harassment. Harassment is any verbal, visual, or physical conduct based on an employee's membership in a Legally Protected Category that creates an intimidating, hostile or otherwise offensive working environment. Such conduct constitutes harassment when: 1. Submission to the conduct is made either an explicit or implicit condition OT employment; 2. Submission to or rejection of the conduct is used as the basis for an employment decision; or 3. The harassment unreasonably interferes with an employee's work performance. Harassing conduct can take many forms and includes, but is not limited to, slurs, jokes, statements, gestures, pictures, computer images, or cartoons regarding an employee's Legally Protected Characteristic. Harassment on the job is prohibited whether it involves co-worker harassment, harassment by a supervisor or manager, or harassment by third parties doing business with or for the City. E. Sexual Harassment. Unwelcome sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature all may constitute sexual harassment when: (1) submission to such conduct is made a term or condition of employment; or Submission lU Ur rejectio l of such condUUI i5 useU as basis IUf employment decisions affecting the individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile or offensive working environment. 3 F. This definition includes potential forms of offensive behavior, such as the following: 1. Unwanted sexual advances. 2. Visual conduct, such as leering, making sexual gestures, displaying of sexually explicit jokes, derogatory images, and comments about an employee's body or dress. 3. Verbal sexual advances or propositions. 4. Verbal abuse of a sexual nature, graphic verbal commentary about an individual's body, sexually degrading words to describe an individual, suggestive or obscene letters, notes, or invitations. 5. Physical conduct, such as touching, assault, impeding, or blocking movements. 6. Retaliation for reporting harassment or threatening to report harassment. Sexual harassment includes many forms of offensive behavior and may include harassment of a person of the same or opposite sex as the harasser. Sexual harassment need not be motivated by sexual desire. Sexual harassment on the job is prohibited whether it involves co-worker harassment, harassment by a supervisor or manager, harassment by a subordinate, or harassment by third parties doing business with or for the City. Retaliation. Taking adverse action against any employee because of (1) the employee's opposition to a practice the employee reasonably believes to constitute employment discrimination, harassment, or retaliation or (2) because of the employee's participation in an employment discrimination, harassment, or retaliation investigation, proceeding, or hearing. or (3) because of such opposition or participation by a family member or close associate of the employee. 1. Protected Opposition Protected opposition to perceived discrimination, harassment, or retaliation includes, but is not limited to, threatening to file a discrimination, harassment, or retaliation complaint with any federal or state agency, or court, or complaining or protesting about alleged discrimination, harassment, or retaliation to a supervisor, manager, co- worker, or other official. Protected opposition also includes a complaint cr protest made on behalf of another employee or made by the employee's representative. The City also prohibits retaliation against somebody closely related to or associated with the employee exercising such rights. Opposition not made in good faith, or made in a manner which disrupts the workplace, or which constitutes an unlawful activity, or which includes badgering or threatening of employees or supervisors is not protected. 2. Protected Participation. Protected participation includes, but is not limited to, filing a charge, testifying, assisting, or participating in any manner in an investigation under this Policy, or in a proceeding, hearing or litigation under federal or state discrimination, harassment, or retaliation statutes, at other hearings regarding protected employee rights, such as unemployment compensation proceedings, and making requests for reasonable accommodation of a Legally Protected Characteristic. Adverse actions include, but are not limited to, the following acts: disciplinary actions, negative performance evaluations, undesirable transfer, undesirable assignments, negative comments, unwarranted criticism, actions that harm the employee outside the workplace, undesirable change in benefits, undesirable change in work schedule, unwarranted exclusion from meetings trainings, or events, or undesirable change in work duties. G. Supervisor. Any individual having the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct other employees, or to adjust their grievances, or to effectively recommend such action, if the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Employees who have questions regarding these definitions or are uncertain what constitutes discrimination, harassment, sexual harassment, retaliation, or other prohibited conduct under the City's policy should contact the Personnel Officer, Human Resources, or a Department Head, IV. MAKING DISCRIMINATION, HARASSMENT, OR RETALIATION COMPLAINTS A. In General. The City's complaint procedure provides for an immediate, thorough, impartial, and objective investigation of every discrimination, harassment, or retaliation claim, appropriate disciplinary action against one found to have engaged in prohibited discrimination, harassment, or retaliation, and appropriate remedies to any victim of discrimination, harassment, or retaliation. The City encourages reporting of all perceived incidents of discrimination, harassment, or retaliation. B. Complaint Procedure. The City cannot resolve discrimination, harassment, or retaliation unless the City is aware of the situation. The City relies upon its employees to bring those 5 concerns to the attention of the City so that the necessary steps can be taken to correct the situation, and all employees are encouraged to do so. Accordingly, any employee who believes he or she has been harassed, discriminated or retaliated against should promptly report the facts of the incident/incidents and the name(s) of the individual(s) involved to his/her immediate supervisor, any supervisor, the Personnel Officer, or Human Resources. The complaint should be as detailed as possible, and must include details of the incident(s), names of individuals involved, and the names of any witnesses. Any supporting documentary evidence should be attached to the complaint. Notification to the City is essential. Employees may be assured that they will not be penalized in any way for filing a good faith complaint of potential discrimination, harassment, or retaliation. ALL EMPLOYEES SHOULD NOTE THAT THE FAILURE TO USE THE CITY'S COMPLAINT PROCEDURE MAY HAVE AN ADVERSE EFFECT ON ANY CLAIM UNDER THIS POLICY IF SUCH CLAIMS ARE LITIGATED. C. Reporting Obligations. 1. Supervisory Employees. Any supervisor who receives a complaint of discrimination, harassment, or retaliation; witnesses discrimination, harassment, or retaliation; or has any reason to believe that discrimination, harassment, or retaliation may have occurred in the workplace is required to report the conduct immediately to Human Resources. A supervisor will be subject to discipline for failing to report offensive conduct that potentially constitutes discrimination, harassment, or retaliation if the supervisor knew or should have known of the offensive conduct. 2. Non -Supervisory Employees. All other employees who observe or are advised about the discrimination, harassment, or retaliation involving another employee are encouraged to report the conduct to a supervisor or to Human Resources, D. The City's Response to Reports or Complaints. 1. Investigation of Complaints. All incidents of discrimination, harassment, or retaliation that are reported must be investigated appropriately by the City so that corrective and preventive actions can be promptly taken if warranted. The City will promptly undertake or direct an effective, thorough, impartial, and objective investigation of the allegations, which will by conducted by qualified personnel C� 2. Intermediary Measures. Employees may be placed on a leave of absence, or subject to other intermediary measures, until the conclusion of the investigation. 3. Cooperation with the Investigation. All employees involved in a workplace investi harassment, discrimination, or retaliation truthfully cooperate with the investigation. cooperate with the investigation is grounds and including termination. C! 5 gation are required Failure to fully for disciplinary into alleged to fully and and truthfully action, up to The City prohibits retaliation against any employee because of the employee's opposition to a practice the employee reasonably believes to constitute employment discrimination or harassment or because of the employee's participation in an employment discrimination investigation, proceeding, or hearing. Any retaliatory adverse action because of such opposition or participation will not be tolerated, and may also be unlawful. City Determination and Corrective Action. a. The City will make its determination based on the findings of the investigation and communicate that determination to the complaining employee, and to the accused. Except where required by law or court order, parties are not entitled to copies of any notes or other written materials regarding the investigation, as these are considered to be confidential documents. b. If the City determines that discrimination, harassment, or retaliation has occurred, the City will take effective remedial action commensurate with the circumstances. Appropriate action will also be taken to deter any future discrimination, harassment, or retaliation. If a complaint of discrimination, harassment, or retaliation is substantiated, appropriate disciplinary action, up to and including discharge, will be taken. The City will also take appropriate action to remedy improper adverse action, if any, to the employee resulting from the discrimination, harassment, or retaliation. In addition, as part of the City's efforts to remedy the complaining employee's concerns, the complaining employee may be informed in general terms regarding any remedial measures and disciplinary actions imposed against the violator. c. The information and definitions set forth in Section III, above, are based on the iegai definitions of discrimination, harassment, and retaliation. In light of the City's duty to prevent the unlawful conduct defined in Section III, and in light of the City's desire to have a professional and productive work environment, the City reserves the right to take appropriate corrective action when an 7 V. employee engages in inappropriate conduct that does not fully rise to the legal standards or definitions set forth in Section III of this Policy. For example, the City may take appropriate corrective action for inappropriate conduct, even if such conduct was not subjectively unwelcome or offensive to another employee of the City, or did not involve a legally protected characteristic. E. Evidence and Finding of Intentionally False Complaints. While the City vigorously defends its employees' right to work in an environment free of discrimination, harassment, and retaliation it also recognizes that false accusations of discrimination, harassment, or retaliation can have serious consequences. Accordingly, any employee who is found, through the City's investigation, to have deliberately and falsely accused another person of discrimination, harassment, or retaliation may be subject to appropriate disciplinary action, up to and including termination. F. Anonymity and Confidentiality. 1. While the City will investigate anonymous complaints, the City strongly discourages anonymous complaints. EMPLOYEES CHOOSING TO FILE A COMPLAINT ANONYMOUSLY MUST BE AWARE THAT ANONYMITY IN THE COMPLAINT PROCEDURE MAY COMPROMISE THE CITY'S ABILITY TO COMPLETE A THOROUGH INVESTIGATION. Employees should also be aware that should the City learn of the identity of an anonymous complainant, the City cannot guarantee that his/her identity will remain confidential, if the City determines in its discretion that disclosure is necessary to complete the investigation. 2. The City will take all reasonable steps available to maintain the confidentiality of all complaints of discrimination, harassment, or retaliation, as well as all information gathered during an investigation. However, the City retains sole discretion to determine whether disclosure of information is necessary to complete the investigation. 3. All employees involved in the investigation of discrimination, harassment, or retaliation complaints as either investigator(s), complainant(s), witness(es), or accused are required to keep all information related to the investigation confidential. Revealing such information is grounds for disciplinary action, except as expressly permitted by law, such as in discussion with a legal or labor union representative. EMPLOYEE'S DUTY TO DISCLOSE BENEFITS RECEIVED Employees are hereby informed that no supervisor, manager, or officer of the City, or other person or entity doing business with the City, is authorized to expressly or impliedly condition the receipt or denial of any benefit, compensation, or other term or condition of employment on an employee's acquiescence to any sexual demand. To the contrary, all .employees are instructed to refuse such demands and report them promptly either to their immediate supervisor or to Human Resources. Any employee VII who is found to have accepted any benefit from the City because he/she submitted to an unreported sexual demand will be disciplined appropriately. If such employee received a gift of public funds, the City shall be entitled to immediate reimbursement. Any employee making such a demand will be similarly disciplined, up to and including termination. In addition to the City's internal complaint procedure, employees should also be aware that the Equal Employment Opportunity Commission ("EEOC") and the Department of Fair Employment and Housing ("DFEH") investigate and prosecute complaints of discrimination, harassment, and/or retaliation in employment. Employees can contact the EEOC and the DFEH as follows: EEOC DFEH 800-669-4000 ( 800-669-6820 (TTY) 800-884-1684 ( 800-700-2320 (TTY) www.eeoc.gov I I www.dfeh.ca.gov San Francisco District Office 450 Golden Gate Avenue 5 West, P.O Box 36025 San Francisco, CA 94102-3661 Los Angeles District Office 255 East Temple Street, 4th Floor Los Angeles, CA 90012 Bay Area Regional Office 39141 Civic Center Drive, Suite 250 Fremont, CA 94538 Los Angeles Regional Office 320 West 4th Street, 10th Floor Los Angeles, CA 90013 Fresno Local Office Fresno Regional Office 2300 Tulare Street, Suite 215 1277 East Alluvial Avenue, Suite 101 Fresno, CA 93721 Fresno, CA 93720 TRAINING AND POLICY DISSEMINATION All employees who are hired by the City will be given a copy of this Policy, and will receive guidance from the City on its provisions and the City's commitment to provide a workplace free from discrimination, harassment, and retaliation. In addition, all supervisors will be trained in accordance with applicable requirements of the Fair Employment and Housing Act (Government Code § 12950.1) and implementing regulations. Non -supervisory employees may also receive training, at the discretion of the City. (J CITY OF III U BAY. ;Lill 11111 Lill% I .kill_1111 1 ,F, By my signature below, I acknowledge that I have received, read, and understood the City of Morro Bay's Policy Prohibiting Harassment, Discrimination, and Retaliation, and I will abide by its terms. I understand that failure to fully comply with all terms set forth in the Policy may lead to disciplinary action, up to and including termination. Employee's Name (PLEASE PRINT) Employee's Signature Date 10