CITY COUNCIL: Approve Amendments to City's Revised Harassment Prevention Policy

Meeting Date: April 5, 2011
Prepared by: Molly Laughlin

City Council
Agenda Item Summary

Name: Approve amendments to the City’s revised Harassment Prevention Policy.

Description: Jon Giffen of the law firm, Kennedy, Archer & Harray has prepared a draft of the City’s new Harassment Prevention Policy. The draft was circulated to the three employee unions and the at-will employees for their comments in mid-March.

Overall Cost:
City Funds: N/A
Grant Funds: N/A

Staff Recommendation: Approve the amended Harassment Prevention Policy.

Important Considerations: None.

Decision Record: None

Reviewed by:

________________________________ _____________________
Heidi Burch, Asst. City Administrator Date

CITY OF CARMEL-BY-THE-SEA
CITY POLICY NO. __________
HARASSMENT PREVENTION POLICY
DRAFT NO. 3

TABLE OF CONTENTS
I.PURPOSE....1
II.POLICY....1
III. APPLICATION OF POLICY....2
IV. TYPES OF HARASSMENT PROHIBITED....2
1) Verbal Behaviors....2
2) Physical Behaviors....2
3) Visual Behaviors....2
4) Unwanted Sexual Behaviors....2
V. RETALIATION PROHIBITED....3
VI. COMPLAINT PROCEDURE....4
1) Employee’s Responsibility When Subjected to Harassment....4
2) Supervisor Responsibilities....5
3) Investigating Officer’s Responsibilities....5
A) Investigating Officer’s Responsibilities to Complainant....6
B) Investigating Officer’s Responsibilities to Alleged Harasser....7
C) General Investigation Guidelines....7
4) Administrative Leave....9
5) Penalties....9
VII. MISCELLANEOUS GUIDELINES....9
1) Complaints Against Volunteers or City Council Appointees.....9
2) Complaints Against Elected Officials.....10
3) Complaints Against Outside Parties (Non-Employees)....10
4) Duty of Cooperation....11
5) State and Federal Compliance Agencies....11

City of Carmel-by-the-Sea
City Policy No. _______
Harassment Prevention Policy
(DRAFT NO. 3)
I. PURPOSE
The policy of the City of Carmel-by-the-Sea is that harassment in any form in the workplace is
unacceptable and will not be condoned or tolerated. The purpose of this policy is to provide
working conditions free of any form of harassment; to establish a procedure by which
individuals who feel they have been harassed in any manner can bring their complaint(s) to an
appropriate authority without fear of retaliation; to establish a procedure by which complaints of
harassment are promptly, thoroughly and fairly investigated; and to ensure that individuals who
are found to have violated this policy will be subjected to disciplinary action that is
commensurate with the severity of the offense.
II. POLICY
The City of Carmel-by-the-Sea prohibits any form of harassment and will not tolerate, condone
or trivialize such actions by any employee, regardless of employment status. Employees,
applicants for employment, and others are to be free from harassment on the basis of race,
religion, color, national origin, ancestry, handicap, physical or mental disability, medical
condition, marital status, registered domestic partner status, sexual orientation, sex, pregnancy,
childbirth or related medical conditions, age (40 or older), or for asserting family care leave
rights, or for any other basis protected by law. Employees are also protected if they associate
with a person who is, or is perceived to be, in one of those classifications. Any and all such
harassment is unlawful.
All employees who initiate or participate in the investigation of a complaint are protected from
retaliation from any employee. Retaliation will be considered a serious act of misconduct.
The City will take disciplinary action, up to and including termination, against any employee
who violates this policy.
Employees committing harassment as defined in this policy are deemed by the City to be acting
outside the scope of their employment.
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III. APPLICATION OF POLICY
This policy applies to all officers and employees of the City of Carmel-by-the-Sea, including, but
not limited to, full-time and part-time employees, permanent and temporary employees,
employees covered or otherwise exempted from personnel rules or regulations, and employees
working under contract for the City. For the purpose of this policy, Aemployee@ is defined as
each of the above.
This policy also applies to elected officials, their appointees and volunteers.
IV. TYPES OF HARASSMENT PROHIBITED
The City’s policy prohibits harassment on the basis of race, color, national origin, sexual
orientation, religion, physical or mental disability, age, military veteran status, or any other
characteristic protected by applicable law. The City will not tolerate an employee engaging in
any of the following behaviors:
1) Verbal Behaviors - For example: suggestive, insulting or derogatory comments,
epithets, innuendos, terms of endearment, sounds, jokes, teasing or slurs based on any of the
above categories, and sexual propositions or threats.
2) Physical Behaviors - For example: assault, impeding or blocking movement, or any
unwanted physical contact or interference with normal work or movement, including touching,
pinching, brushing with the body, impeding or blocking movement, contact or assault when
directed at an individual because of any of the above categories.
3) Visual Behaviors - For example: derogatory posters, pictures, photographs, emails,
suggestive objects, notices, bulletins, cartoons, letters, drawings or gestures; also such actions as
leering, whistling or obscene gestures based on any of the above categories.
4) Unwanted Sexual Behaviors - any unwanted sexual advances; threats or demands to
submit to sexual requests, or visual, verbal or physical conduct of a sexual nature when:
Χ submission to such conduct is made a term or condition of employment; or
Χ submission to or rejection of such conduct is used as a basis for employment
decisions affecting such individual; or
Χ such conduct has the purpose or effect of unnecessarily interfering with an
employee’s work performance or creating an intimidating, hostile or offensive
working environment because of the persistent, severe or pervasive nature of the
conduct.
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In order to ensure that the behaviors prohibited by the City’s policy do not rise to the level of
behavior which is illegal, the City has a zero-tolerance policy toward even a single instance of
any such behavior which by itself or when repeated would constitute harassment. An employee
engaging in such behavior will be subject to appropriate disciplinary action, up to and including
termination of employment, regardless of whether the employee engages in the prohibited
behavior only once or multiple times. In addition, any employee who engages in any
inappropriate conduct based on or directed at a person’s gender will be subject to appropriate
disciplinary action, up to and including termination of employment.
Sexual harassment can occur between employees of the same sex. The City’s policy prohibits
males from sexually harassing females or other males, and females from sexually harassing
males or other females.
The victim of harassment need not be just the employee who is the target of harassment. Other
employees who observe or learn about the harassment can also be the victims of that harassment
and can report the harassing behavior. Anyone who is affected by the harassing behavior can
complain of harassment.
There is a clear line in most cases between mutual attraction and a consensual exchange on the
one hand, and unwelcome behavior or pressure for an intimate relationship on the other hand. A
friendly interaction between two persons who are receptive to one another is not considered
unwelcome or harassing behavior. Employees are free to form social relationships of their own
choosing. However, when one employee pursues or forces a relationship upon another who does
not like or want it, regardless of friendly intentions, the behavior is unwelcome sexual behavior.
An employee confronted with these actions by a co-employee should inform the harasser that
such behavior is unwelcome and tell the harasser to stop. An employee should assume that
sexual comments are unwelcome unless the employee has clear, unequivocal indications to the
contrary. In other words, one employee does not have to tell the other employee to stop for that
conduct to constitute harassment. If one employee advises another employee that certain
behavior is offensive, the offending employee must immediately stop the behavior, regardless of
whether the offending employee agrees with the victim’s perceptions of the offending
employee’s intentions.
V. RETALIATION PROHIBITED
All employees are assured that they may make reports of harassment and participate in any
subsequent investigation without fear of retaliation by the City, department management, their
immediate supervisor, or any other employee. Retaliation will be considered a serious act of
misconduct. Anyone found to have committed any act(s) of retaliation will be subject to the
applicable disciplinary process, up to and including termination. Examples of retaliation may, in
accord with state and federal law, include, but are not limited to, the following examples:
Χ Transferring the employment position of the complainant or witness against his or
her will;
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Χ Ignoring or shunning the complainant or witness;
Χ Spreading rumors and innuendos about the complainant or witness;
Χ Changing work assignments of the complainant or witness without a valid workrelated
rationale;
Χ Sabotaging the tools, materials or work of the complainant or witness; and
Χ Withholding work-related information from the complainant or witness.
This policy does not in any way alter or affect the right of any person to make a charge of
discrimination with any state or federal agency with jurisdiction over such claims, file a
grievance under a collective bargaining agreement, or consult a private attorney.
VI. COMPLAINT PROCEDURE
The City of Carmel-by-the-Sea has established a convenient, confidential and reliable
mechanism for reporting incidents of harassment and/or retaliation. Employees are encouraged
and have an obligation to promptly report what they believe to be harassing or retaliatory
behavior.
1) Employee’s Responsibility When Subjected to Harassment
Any employee who believes he or she has been subjected to harassment prohibited by this policy
is encouraged to immediately tell the harasser to stop his/her unwanted behavior. The purpose of
immediately communicating to a harasser that the behavior is unwelcome is to stop the
harassment before it becomes more serious. The communication to stop the harassing behavior
will also support a claim that the harassment did occur. Failure to notify the harasser that
behavior is unwelcome does not prevent the employee from otherwise reporting the harassment,
and the employee is encouraged to report the harassment regardless of whether or not they
communicate to the harasser that the behavior is unwelcome.
Any employee who believes he or she has been subjected to harassment prohibited by this policy
is required to immediately report that behavior to any one of the following individuals: his or
her supervisor; the City’s Human Resources Personnel Officer (“Personnel Officer”); the City
Administrator; or the Mayor or Vice Mayor. An employee is not required to complain first to his
or her supervisor if that supervisor is the individual engaging in the unwanted behavior.
Immediately reporting the harassing behavior is important because the sooner the allegations can
be investigated, the sooner appropriate steps can be taken to end the harassment. ALL
EMPLOYEES AND APPLICANTS ARE ASSURED THAT THEY MAY MAKE SUCH
REPORTS WITHOUT FEAR OF RETALIATION BY THE CITY, DEPARTMENT
MANAGEMENT, THEIR IMMEDIATE SUPERVISOR OR ANY OTHER EMPLOYEE.
2) Supervisor Responsibilities
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Supervisors are responsible for enforcing the City’s Harassment Prevention Policy and must
ensure that all employees are aware of the City’s policy through open discussions of the policy at
staff meetings and by posting the policy in a conspicuous location accessible to all staff
members. Supervisors should be cognizant of employees’ behavior and must not permit any
employee under his/her authority to be subject to, or to engage in any conduct prohibited by the
City’s policy. Supervisors who receive complaints or who observe conduct prohibited by this
policy must immediately inform the offending employee to cease the conduct and further advise
the Personnel Officer of the incident. The City will take disciplinary action, up to and including
termination, against any supervisor who fails in his or her responsibility to take immediate action
in response to an employee’s complaint of harassment, or to stop harassing conduct committed in
his or her presence, or to stop harassing conduct about which the supervisor has knowledge.
Supervisors have a mandatory obligation to document in writing any harassing behavior that
they observe or are made aware of, and to promptly provide that report to the Personnel Officer.
A supervisor must report to the Personnel Officer within 48 hours of receiving notice of the
harassing behavior. Upon receiving a report, the Personnel Officer must discuss the nature of
the complaint with the complainant as soon as reasonably possible and in no event later than 48
hours from receipt of the report. The Personnel Officer will meet with the complainant to verify
the nature of the complaint and to inform the complainant as to how the complaint is being
handled, including providing the complainant with a copy of this Harassment Prevention Policy.
If for any reason the Personnel Officer is implicated in the alleged harassment or is otherwise
unavailable to respond to the complaint, then the supervisor must report the harassing behavior
to either the City Administrator, the Mayor or the Vice Mayor instead of the Personnel Officer.
In those instances, either the City Administrator, Mayor or Vice Mayor will be responsible for
meeting with the complainant as specified in the preceding paragraph. They will also cause the
City Council to be notified and to be convened as soon as reasonably possible to determine who
will investigate and respond to the complaint of harassment. The person designated by the City
Council to investigate and respond to the complaint of harassment will have all the
responsibilities that the Personnel Officer would otherwise have for investigating and responding
to the complaint of harassment.
3) Investigating Officer’s Responsibilities
All complaints of harassment will be investigated immediately and will commence no later than
ten (10) days from the date an incident is reported. The “Investigating Officer” will either be the
Personnel Officer or, in the event the Personnel Officer is implicated in any way in the
allegations of harassment, a person designated by the City Council to investigate and respond to
the complaint of harassment. The Personnel Officer also has at his or her discretion the right to
designate an independent third party to be the Investigating Officer. The Investigating Officer
will discuss the nature of the complaint with the complainant as soon as reasonably possible and
in no event longer than three weeks from the date the complaint is made. The Investigating
Officer will have the duty to immediately bring all harassment and/or retaliation complaints to
the confidential attention of the City Administrator, the Mayor or Vice Mayor.
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Only those who have an immediate right to know, including the Investigating Officer, the
alleged target of harassment and/or retaliation, witnesses to the harassing behavior, and the
alleged harasser will or may find out the identity of the complainant. All individuals contacted in
the course of the investigation will be advised that all retaliation or reprisal will constitute a
separate actionable offense for which penalties may be implemented under this policy. All
investigations will be handled with discretion, sensitivity and due concern for the dignity of
those involved. All persons contacted or interviewed during the investigation will be instructed
not to discuss the subject matter of the investigation in order to protect the privacy of all those
participating in the investigation.
The investigation will be as extensive as required, based upon the nature of the allegations. All
persons named as potential witnesses by the complainant will be contacted during the course of
the investigation, and those witnesses who have information relevant to the issues of the
complaint will be interviewed. The individual who is alleged to have committed acts of
harassment will be contacted during the investigation. That individual will be informed of the
allegations being made against him or her and be given the opportunity to respond to the
allegations including the opportunity to identify witnesses. Any accused employee has the option
to be represented during investigation by a support person of his or her choice.
The complainant may expect a timely resolution of the complaint. The complainant will be kept
apprised of the status of the complaint on a regular basis by the Investigating Officer.
A) Investigating Officer’s Responsibilities to Complainant
The Investigating Officer has the following responsibilities to the complainant:
1. Meet with the complainant as soon as mutually convenient and ideally no more than
two weeks from the date the report is received;
2. Inform the complainant about the City’s Harassment Prevention Policy and inform the
complainant that he or she is guaranteed to be safe from retaliation. Inform the complainant that
he or she is required to immediately report any retaliation, purported retaliation, or ongoing
harassment he or she may experience. Review with the complainant the City’s complaint
procedures and answer any questions that the complainant may have regarding the City’s
Harassment Prevention Policy;
3. Inform the complainant about the other available legal options, including but not
limited to filing a written complaint with state and federal compliance agencies;
4. Inform the complainant that while every reasonable effort will be made to protect the
confidentiality and privacy of the individuals involved, the conduct of the investigation requires
that the alleged harasser be informed of the allegations, and that witnesses be interviewed;
5. Ask the complainant to tell the entire story in his or her own words. Listen to the
complainant’s allegations and document the relevant facts such as dates, times, situations,
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witnesses and any other relevant facts. Discuss the actions complained of with discretion,
sensitivity and due concern for the dignity of everyone involved;
6. Ask the complainant what remedies he/she feels will resolve the complaint;
7. Advise the complainant that the meeting will be documented in writing and filed in
the Harassment Complaint File under the security of the Personnel Officer or appropriate
personnel.
B) Investigating Officer’s Responsibilities to Alleged Harasser
The Investigating Officer has the following responsibilities to the alleged harasser:
1. Inform him or her of the basis of the complaint and the right to be represented by an
individual of his or her choice throughout the process;
2. Give him or her an opportunity to respond to the complaint, and afford him or her the
same listening and respectful approach that was accorded the person who filed the complaint and
the other witnesses.
3. Caution him or her that no retaliation is permitted, regardless of the outcome of the
investigation and that he or she may not in any way treat the employee who filed the complaint
differently than any other employee.
C) General Investigation Guidelines
The following general Investigation Guidelines apply to all investigations:
1. Investigations will be timely and as extensive as required, based on the nature of the
allegations. All persons named as potential witnesses and those who may have information
relevant to the issues of the complaint will be contacted and interviewed during the course of the
investigation. Every reasonable effort must be made to complete the investigation and take
remedial action as soon as reasonably possible following the initial report of harassing behavior.
2. The Investigating Officer may involve an outside facilitator such as legal counsel or
an independent investigator to assist in the investigation procedure, including conducting
interviews with employees who may be more comfortable speaking candidly to an objective
outsider.
3. All investigations must be documented in writing and will be handled with discretion,
sensitivity and due concern for the dignity of those involved. Every reasonable effort will be
made to restrict information on the specifics of the complaint to those who are participating in
the investigation: the complainant, the alleged harasser, witnesses, and department management.
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4. All persons contacted or interviewed during the investigation will be requested not to
discuss the subject matter of the investigation in order to protect the privacy of all those
participating in the investigation.
5. If during the course of the investigation, the alleged harassment is reported to be
continuing, the Investigating Officer must notify the City Administrator, the Mayor or Vice
Mayor who will take such emergency or immediate action as may be necessary or appropriate
under the circumstances.
a. It is the policy of the City of Carmel-by-the-Sea that if the alleged
harasser is the complainant’s supervisor, the complainant must be
removed from direct supervision of that employee and that supervisor
must not participate in performance reviews of the employee pending the
outcome of the investigation. This action will not be considered a punitive
measure, but will be considered a protective measure for all involved.
6. At the conclusion of the investigation, the Investigating Officer must prepare a written
report of his/her findings as soon as reasonably possible but in no event later than 30 days from
completion of the investigation. If, at the conclusion of the investigation, it is found that
harassment has occurred, the Investigating Officer must forward his or her written findings,
along with any recommendations to the City Administrator, Mayor or Vice Mayor for
implementation of the disciplinary process, if any.
a. The type of disciplinary action recommended will be commensurate with
the severity of the offense and in accordance with the City’s approved
disciplinary action procedures, and must result in prompt and effective
remedial action.
b. Disciplinary action is subject to the applicable appeals process.
7. At the conclusion of the investigation, the Personnel Officer will advise the
complainant of the findings of the investigation. If the findings reveal that harassment has
occurred, the Personnel Officer will notify the complainant of the following:
a. Steps taken to correct the harassment. However, the specific manner of
discipline imposed may not be communicated to the complainant.
b. Action the complainant should take if the harassing behavior recurs.
8. Supervisory and management personnel must conduct follow-up inquiries with the
involved employee to determine if the alleged conduct has stopped or has resumed. These
inquiries must be documented in writing.
4) Administrative Leave
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Department management may place an employee on administrative leave with or without
pay to provide time to investigate and evaluate the circumstances regarding a complaint of
harassment. The department must consult with Human Resources prior to any administrative
leave action and obtain express approval from the City Administrator. In the event any
employee is placed on administrative leave in response to a complaint, the investigation should
be conducted immediately and a decision rendered within twenty-one (21) calendar days. If an
extension is necessary, the department must consult with Human Resources and the employee
must be notified of the extension. The City also reserves the right to sever its employment
relationship with an employee during the period of administrative leave.
5) Penalties
In determining the penalty in cases of harassment, the nature and severity of the claimed
misconduct, along with any other relevant factors, will be reviewed by management. City
management has the discretion to enact a more severe penalty against an accused harasser than
as set forth below.
If the investigation leads to a determination that the allegations of harassment are true, then the
City of Carmel-by-the-Sea will apply the following disciplinary consequences:
1. An employee may be immediately discharged for any act in which conduct is proven
or otherwise demonstrated to the satisfaction of the Investigative Officer and/or management.
2. Acts of harassment which are proven to be non-pervasive (limited in scope and
nature) will generally result in a warning and/or suspension upon the first offense and discharge
upon the second offense.
VII. MISCELLANEOUS GUIDELINES
1) Complaints Against Volunteers or City Council Appointees
This policy applies equally to volunteers, appointees of the City Council, and others, including
members of Boards, Commissions and Committees, the City Administrator, the City Attorney,
the City Engineer, and the City Treasurer.
Employees who believe they have been harassed by any of the above must follow the complaint
procedure previously specified including immediately reporting that behavior to any one of the
following individuals: his or her supervisor; the City’s Human Resources Personnel Officer; the
City Administrator; or the Mayor.
An investigation will then be undertaken by the Personnel Officer as previously specified. In
addition to those procedures, the completed investigation report will be distributed as follows:
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1. If the alleged harasser is a volunteer: the report must be forwarded to the
appropriate management employee in charge of supervising the volunteer who
must take appropriate action.
2. If the alleged harasser is a member of a Board, Commission, or Committee, or is
the City Attorney, the City Engineer, or City Treasurer: the report must be given
to the Mayor, the Vice Mayor and the City Administrator. The Mayor or Vice
Mayor will oversee implementation of appropriate disciplinary action.
3. If the alleged harasser is the City Administrator: the report must be given to the
Mayor or Vice Mayor. The Mayor or Vice Mayor must review the findings and
make recommendations accordingly to the entire City Council.
2) Complaints Against Elected Officials
This policy applies equally to the Mayor, the Vice Mayor and members of the City Council.
Employees who believe they have been harassed by an elected official must follow the complaint
procedure previously specified including immediately reporting that behavior to any one of the
following individuals: his or her supervisor; the Personnel Officer; the City Administrator; or
the Mayor or Vice Mayor.
An investigation will then be undertaken by the Personnel Officer as previously specified.
Any employee who files a complaint against an elected official is assured of protection against
retaliation by that official under City policies, as well as by state and federal regulations.
If it becomes clear that an allegation against an elected official has substance and an internal
resolution is not possible, the complainant will be notified and referred to the state and federal
compliance agencies set forth below. This referral will be made because the City has no
administrative control over elected officials. Consequently, if remedial action is found to be
appropriate, the City would be unable to provide an effective remedy to the complainant.
3) Complaints Against Outside Parties (Non-Employees)
If the complaint is against an outside party or other non-employee not previously addressed in
this policy, then the complainant must follow the complaint procedure previously specified
including immediately reporting that behavior to any one of the following individuals: his or her
supervisor; the Personnel Officer; the City Administrator; or the Mayor or Vice Mayor.
An investigation will then be undertaken by the Personnel Officer as previously specified. The
extent of the City’s control and any other legal responsibility which the City may have with
respect to the conduct of the non-employee will be considered.
If the investigation finds the harassment occurred during the course and scope of work of the
non-employee, this information must be forwarded to his or her employer for corrective action.
If the non-employee has no employer affiliation, such as a private citizen, appropriate action will
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be taken to prevent a recurrence. Such action may include modification of assignments to ensure
no future contact, provide or add security, and the like.
Each case for non-employees must be handled on an individual basis to determine the most
effective remedy to stop the harassment.
4) Duty of Cooperation
An effective harassment policy requires support of all of the City of Carmel-by-the-Sea’s
personnel. Anyone who engages in harassment and/or retaliation or who fails to cooperate with
any City of Carmel-by-the-Sea sponsored investigation may be disciplined by suspension or
termination from employment. Any City of Carmel-by-the-Sea official who refuses to
implement remedial measures, who obstructs remedial efforts, or who retaliates against
complainants, witnesses or the alleged harasser may be disciplined by suspension or termination
from employment.
5) State and Federal Compliance Agencies
Nothing in this policy will be interpreted so as to deny the right of any employee who believes
he or she has been harassed to file a complaint with the state and or federal compliance agency
and/or bring suit in state or federal court. However, time limits for filing complaints with
compliance agencies vary and employees should check directly with those agencies for specific
information.
The state and federal compliance agencies may be contacted at the following addresses:
(State) Department of Fair Employment and Housing
111 North Market Street, #810
San Jose, CA 95113-1102
(408) 227-1264
(Federal) Equal Employment Opportunity Commission
901 Market Street, Suite 500
San Francisco, CA 94103
(415) 744-6500 or
1-800-669-3362

VIII. EFFECTIVE DATE
Passed and adopted by resolutions of the City Council on ____________________ (date).