CITY COUNCIL: Adopt Updated Harassment Prevention Policy

Meeting Date: February 7, 2012
Prepared by: Molly Laughlin

City Council
Agenda Item Summary

Name: Adopt updated Harassment Prevention Policy.

Description: At the direction of Council, City Attorney Don Freeman has prepared an updated draft of the City's Harassment Prevention Policy. The draft was circulated to the employee unions and at-will employees for their comments. The comments were compiled by the City Administrator.

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

Staff Recommendation: Adopt the updated Harassment Prevention Policy.

Important Considerations: None.

Decision Record: At the May 3, 2011 City Council meeting, City Attorney Don Freeman recommended that Council table consideration of an updated harassment policy until Fall 2011. City Council unanimously voted to retain the existing harassment prevention policy and requested the City Attorney and City Administrator determine how the existing policy has been working in practice.

Reviewed by:

Jason Stilwell, City Administrator Date

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

City of Carmel-by-the-Sea
City Policy No. _______
Harassment Prevention Policy

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 tolerated. The purpose of this policy is establish a strong commitment to prohibit and prevent harassment and retaliation in employment; for investigating promptly and thoroughly and resolving internal complaints; so that individuals who are found to have violated this policy will be subject 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 such actions by any employee, regardless of employment status. Employees, and elected officials, their appointees and volunteers, 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. Any and all such harassment is unlawful. Conduct need not rise to the level of a violation of law in order to violate this policy. Instead a single act can violate this policy and provide grounds for discipline or other appropriate sanctions.

All employees who initiate or participate in the investigation of a complaint are protected from retaliation from the City. Any retaliation against a person filing a complaint, or any person participating in the complaint process, is prohibited.

Individuals found to be retaliating in violation of this policy will be subject to the appropriate disciplinary action, up to and including termination.

Employees committing harassment as defined in this policy are deemed by the City to be acting outside the scope of their employment.

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.

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.

III. APPLICATION OF POLICY

This policy applies to all elected officials and their appointees, 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 persons working under contract for the City. For the purpose of this policy, an employee is defined as each of the above.

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; comments about appearance, dress or physical features; epithets; innuendos; terms of endearment; sounds; jokes; teasing or slurs related to any of the above protected categories, and/or sexual propositions or
threats
2) Physical Behaviors - For example: grabbing, leering, mimicking, taunting, 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 related to any of the above protected 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 related to any of the above protected 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.

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.

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.

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 elected officials or their appointees, officers, employees, and volunteers. 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.

VI. COMPLAINT PROCEDURE

The City of Carmel-by-the-Sea has established a convenient and 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 should 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. 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 Manager (HR Manager), the City Administrator, the City Attorney, or any member of the City Council. An employee is not required to complain first to his or her supervisor if that supervisor is the individual engaging in the unwanted behavior. ALL EMPLOYEES 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

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 if aware of any prohibited behavior 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 HR Manager 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 HR Manager. A supervisor must report to the HR Manager within 48 hours of receiving notice of the harassing behavior. Upon receiving a report, the HR Manager must discuss the nature of the
complaint with the complainant as soon as reasonably possible and in no event later than three (3) business days from receipt of the report. The HR Manager 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. The HR Manager will meet with the individual who is alleged to have committed acts of harassment within five (5) business days and inform that individual how the investigation will be handled and that individual shall be given a copy of this Harassment Policy.

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 HR Manager or, in the event the HR Manager is implicated in any way in the allegations of harassment, a person designated by the City Administrator to investigate and respond to the complaint of harassment. In the event the City Administrator, the City Attorney, or any person employed directly by the City Council is implicated in any way in the allegation of harassment the City Council may designate a person to investigate and respond to the complaint of harassment. The HR Manager 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; but in no event later than three (3) business days from the date of the Investigating Officer’s appointment.

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. That individual will be informed of the allegations being made against him or her and be given the opportunity to respond to the allegations. Any accused person 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.

4) Administrative Leave

Department management may place an employee on administrative leave with pay to provide time to investigate and evaluate the circumstances regarding a complaint of harassment. The department must consult with HR Manager 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) business days. If an extension is necessary, the department must
consult with HR Manager and the employee must be notified of the extension.

VII. MISCELLANEOUS GUIDELINES

1) 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.

2) 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).