HomeMy WebLinkAboutOrd 1308 - Revising Sec. 2.52.510 - Policy Against Harassment, Discrimatn, & Retaliation •
ORDINANCE NO. 1308
CITY OF PALM DESERT •
HUMAN RESOURCES DEPARTMENT 69 v� • Ol� rt Y .s
STAFF REPORT: 0 CONTINUED TO
P Q. 1�S�r��i�g����w", / °/4°
REQUEST: Adopt Ordinance No. 1308 de eting Municipal Code Sections
2.52.510 Policy Against Harassment, Discrimination and Retaliation
in its entirety, and replacing it with Section 2.52.510 Policy and
Complaint Procedure Against Harassment, Discrimination, and
Retaliation.
SUBMITTED BY: Lori Carney, Human Resources Director
DATE: September 22, 2016
CONTENTS: Ordinance No. 1308
Recommendation:
Waive further reading and pass Ordinance No. 1308 deleting
Municipal Code Sections 2.52.510 Policy Against Harassment,
Discrimination and Retaliation in its entirety, and replacing it with Section
2.52.510 Policy and Complaint Procedure Against Harassment,
Discrimination, and Retaliation.
Background:
The City's personnel policy relative to harassment, discrimination and
retaliation was last revised in November 2004. Since that time there have
been legislative changes in State and Federal Law, as well as case law
which require the policy be revised. Current law and industry best
practices require specific complaint and investigation procedures which
have been included in the proposed revision. In addition, the City
instituted an employee reporting hotline in June, which allows employees
to confidentially report issues of concern.
Staff Report
Amend Municipal Code Section 2.52.510 Policy Against Harassment, Discrimination
and Retaliation
September 22, 2016
Page 2 of 2
The policy before you has been reviewed by the City's employment law
firm, Liebert, Cassidy and Whitmore and is based on their model policy. A
draft was also provided to the Palm Desert Employees Organization Board
for comment, no comments were received. If approved, the revised policy
will be used in staff training scheduled for the end of September.
Fiscal Analysis:
There is no direct fiscal impact related to this action.
Submitted by:
CITY COUNCTEv ON
Lori Carney, an Resources Director APPR�OVVEED - .,, DENIM ,� _
RED
nti' !30 3 . f}�THER �S
Approval:
MEET DAB
AYES:k Vg11140
NOES: A/ %.. ,
ABSENT ' -e/
ABSTAIN:
\t)44. //ik BY*B _ " ...l/� S _
(Justin McCarthy, Interim Ci alter
Original on File with City CI 's Office
ORDINANCE NO. 1308
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA REVISING SECTION 2.52.510 OF THE PALM
DESERT MUNICIPAL CODE, POLICY AGAINST HARASSMENT,
DISCRIMINATION AND RETALIATION
WHEREAS, the City of Palm Desert's personnel regulations are codified as
Section 2.52 of the Palm Desert Municipal Code; and
WHEREAS, the City of Palm Desert has reached agreement and entered into a
Memorandum of Understanding with the employees represented by the Palm Desert
Employees Organization, for the period July 1, 2014, through June 30, 2017; and
WHEREAS, the subject revision is consistent with the MOU/Agreement between
the Palm Desert Employees Organization and the City of Palm Desert.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. That Section 2.52.510, Policy Against Harassment, Discrimination
and Retaliation, of the Code of the City of Palm Desert, California, be deleted in its
entirety; and
Section 2. That Section 2.52.510, Policy and Complaint Procedure Against
Harassment, Discrimination and Retaliation is hereby added to the Code of the City of
Palm Desert, California, as follows:
2.51.510 POLICY AND COMPLAINT PROCEDURE AGAINST HARASSMENT,
DISCRIMINATION, AND RETALIATION
A. Purpose
The purpose of this Policy is to: establish a strong commitment to prohibit and prevent
discrimination, harassment, and retaliation in employment; to define those terms; and to
set forth a procedure for investigating and resolving internal complaints. The employer
ORDINANCE NO. 1308
encourages all covered individuals to report — as soon as possible — any conduct that is
believed to violate this Policy.
B. Policy
The employer has zero tolerance for any conduct that violates this Policy. Conduct need
not arise to the level of a violation of law to violate this Policy. Instead a single act can
violate this Policy and provide grounds for discipline or other appropriate sanctions.
Harassment or discrimination against an applicant, unpaid intern, volunteer or employee
by a supervisor, management employee, elected or appointed official, co-worker,
member of the public, or contractor on the basis of race, religion, sex (including gender,
gender identity, gender expression, transgender, pregnancy, and breastfeeding),
national origin, ancestry, disability, medical condition, genetic characteristics or
information, marital status, age, sexual orientation (including homosexuality, bisexuality,
or heterosexuality), or any other protected classification as defined below, will not be
tolerated.
This Policy applies to all terms and conditions of employment, including, but not limited
to, hiring, placement, promotion, disciplinary action, layoff, recall, transfer, leave of
absence, compensation, and training.
Disciplinary action or other appropriate sanction up to and including termination will be
instituted for prohibited behavior as defined below.
Any retaliation against a person for filing a complaint or participating in the complaint
resolution process is prohibited. Individuals found to be retaliating in violation of this
Policy will be subject to appropriate sanction or disciplinary action up to and including
termination.
C. Definitions
1. Protected Classifications: This Policy prohibits harassment or discrimination
because of an individual's protected classification. "Protected Classification"
includes race, religion, color, sex (including gender, gender identity, gender
expression, transgender, pregnancy, and breastfeeding), sexual orientation
(including heterosexuality, homosexuality, and bisexuality), national origin,
ancestry, citizenship status, marital status, pregnancy, age, medical condition,
genetic characteristics or information, military and veteran status, and physical or
mental disability.
Page 2 of 8
ORDINANCE NO. 1308
2. Policy Coverage: This Policy prohibits the employer, elected or appointed
officials, officers, employees, or contractors from harassing or discriminating
against applicants, officers, officials, employees, unpaid interns, volunteers, or
contractors because of: 1) an individual's protected classification; 2) the
perception that an individual has a protected classification; or 3) the individual
associates with a person who has or is perceived to have a protected
classification.
3. Discrimination: This policy prohibits treating individuals differently because of the
individual's protected classification as defined in this Policy.
4. Harassment may include, but is not limited to, the following types of behavior that
is taken because of a person's protected classification. Note that harassment is
not limited to conduct that employer's employees take. Under certain
circumstances, harassment can also include conduct taken by those who are not
employees, such as elected officials, appointed officials, persons providing
services under contracts, or even members of the public:
a) Speech, such as epithets, derogatory comments or slurs, and propositioning
on the basis of a protected classification. This might include inappropriate
comments on appearance, including dress or physical features, or dress
consistent with gender identification, or race -oriented stories or jokes.
b) Phvsical acts, such as assault, impeding or blocking movement, offensive
touching, or any physical interference with normal work or movement. This
includes pinching, grabbing, patting, propositioning, leering, or making explicit
or implied job threats or promises in return for submission to physical acts.
c) Visual acts, such as derogatory posters, cartoons, emails, pictures, or
drawings related to a protected classification.
d) Unwanted sexual advances, requests for sexual favors and other acts of a
sexual nature, where submission is made a term or condition of employment,
where submission to or rejection of the conduct is used as the basis for
employment decisions, or where the conduct is intended to or actually does
unreasonably interfere with an individual's work performance or create an
intimidating, hostile, or offensive working environment.
Page 3 of 8
ORDINANCE NO. 1308
5. Guidelines for Identifying Harassment: To help clarify what constitutes
harassment in violation of this Policy, use the following guidelines:
a) Harassment includes any conduct which would be "unwelcome" to an
individual of the recipient's same protected classification and which is taken
because of the recipient's protected classification.
b) It is no defense that the recipient appears to have voluntarily "consented" to
the conduct as issue. A recipient may not protest for many legitimate reasons,
including the need to avoid being insubordinate or to avoid being ostracized.
c) Simply because no one has complained about a joke, gesture, picture,
physical contact, or comment does not mean that the conduct is welcome.
Harassment can evolve over time. The fact that no one is complaining now
does not preclude anyone from complaining if the conduct is repeated in the
future.
d) Even visual, verbal, or physical conduct between two employees who appear
to welcome the conduct can constitute harassment of a third applicant, officer,
official, employee, or contractor who observes the conduct or learns about the
conduct later. Conduct can constitute harassment even if it is not explicitly or
specifically directed at an individual.
e) Conduct can constitute harassment in violation of this Policy even if the
individual engaging in the conduct has no intention to harass. Even well-
intentioned conduct can violate this Policy if the conduct is directed at, or
implicates a protected classification, and if an individual of the recipient's
same protected classification would find it offensive (e.g. gifts, over attentions,
endearing nicknames).
6. Retaliation: Any adverse conduct taken because an applicant, employee, or
contractor has reported harassment or discrimination, or has participated in the
complaint and investigation process described herein, is prohibited. "Adverse
conduct" includes but is not limited to: taking sides because an individual has
reported harassment or discrimination, spreading rumors about a complaint,
shunning and avoiding an individual who reports harassment or discrimination, or
real or implied threats of intimidation to prevent an individual from reporting
harassment or discrimination. The following individuals are protected from
retaliation: those who make good faith reports of harassment or discrimination,
Page 4 of 8
ORDINANCE NO. 1308
and those who associate with an individual who is involved in reporting
harassment or discrimination or who participates in the compliant or investigation
process.
D. Complaint Procedure
1. An employee, job applicant, unpaid intern, volunteer, or contractor who believes
he or she has been harassed may make a complaint verbally or in writing with
any of the following. There is no need to follow the chain of command:
a) Immediate supervisor;
b) Any supervisor or manager within or outside of the department;
c) Department head;
d) Director of Human Resources; or
e) Confidential Employee Reporting Hotline.
2. Any supervisor or department head who receives a harassment complaint should
notify the Director of Human Resources immediately.
3. Upon receiving notification of a harassment complaint, the Director of Human
Resources shall:
1. Authorize and supervise the investigation of the complaint and/or investigate
the complaint. The investigation will include interviews with: 1) the
complainant; 2) the accused harasser; and 3) other persons who have
relevant knowledge concerning the allegations in the complaint.
2. Review the factual information gathered through the investigation to
determine whether the alleged conduct constitutes harassment,
discrimination, or retaliation giving consideration to all factual information, the
totality of the circumstances, including the nature of the conduct, and the
context in which the alleged incidents occurred.
3. Report a summary of the determination as to whether harassment occurred to
appropriate persons, including the complainant, the alleged harasser, the
supervisor, and the department head. If the discipline is imposed, the level of
discipline will not be communicated to the complainant.
Page 5 of 8
ORDINANCE NO. 1308
4. If conduct in violation of this Policy occurred, take or recommend to the
appointing authority prompt and effective remedial action. The remedial action
will be commensurate with the severity of the offense.
5. Take reasonable steps to protect the complainant from further harassment,
discrimination, or retaliation.
6. Take reasonable steps to protect the complainant from retaliation as a result
of communicating the complaint.
4. The employer takes a proactive approach to potential Policy violations and will
conduct an investigation if its officers, supervisors, or managers become aware
that harassment, discrimination, or retaliation may be occurring, regardless of
whether the recipient or third party reports a potential violation.
5. Option to report to outside administrative agencies: An individual has the option
to report harassment, discrimination, or retaliation to the U.S. Equal Employment
Opportunity Commission (EEOC) or the California Department of Fair
Employment and Housing (DFEH). These administrative agencies offer legal
remedies and a complaint process. The nearest offices are listed in the
government section of the telephone book or employees can check the posters
that are located on employer bulletin boards for office locations and telephone
numbers.
E. Confidentiality
Every possible effort will be made to assure the confidentiality of complaints made
under this Policy. Complete confidentiality cannot occur, however, due to the need to
fully investigate and the duty to take effective remedial action. As a result, confidentiality
will be maintained to the extent possible. An individual who is interviewed during the
course of an investigation is prohibited from discussing the substance of the interview,
except as otherwise directed by a supervisor or the Human Resources Director. Any
individual who discusses the content of an investigatory interview will be subject to
discipline or other appropriate sanction. The employer will not disclose a completed
investigation report except as it deems necessary to support a disciplinary action, to
take remedial action, to defend itself in adversarial proceedings, or to comply with the
law or court order.
Page 6of8
ORDINANCE NO. 1308
F. Responsibilities
Managers and Supervisors are responsible for:
1. Informing employees of this Policy.
2. Modeling appropriate behavior.
3. Taking all steps necessary to prevent harassment, discrimination, or retaliation
from occurring.
4. Receiving complaints in a fair and serious manner, and documenting steps taken
to resolve complaints.
5. Monitoring the work environment and taking immediate appropriate action to stop
potential violations, such as removing inappropriate pictures or correcting
inappropriate language.
6. Following up with those who have complained to ensure that the behavior has
stopped and that there are no reprisals.
7. Informing those who complaint of harassment or discrimination of his or her
option to contact the EEOC or DFEH regarding alleged Policy violations.
8. Assisting, advising, or consulting with employees and the Human Resources
Director regarding this Policy and Complaint Procedure.
9. Assisting in the investigation of complaints involving employee(s) in their
departments and, if the complaint is substantiated, recommending appropriate
corrective or disciplinary action in accordance with employer Personnel Rules, up
to and including discharge.
10. Implementing appropriate disciplinary and remedial actions.
11. Reporting potential violations of this Policy of which he or she becomes aware,
regardless of whether a complaint has been submitted, to the Human Resources
Department of the department head.
12. Participating in periodic training and scheduling employees for training.
Each employee or contractor is responsible for:
1. Treating all employees and contractors with respect and consideration.
2. Modeling appropriate behavior.
3. Participating in periodic training.
4. Fully cooperating with the employer's investigations by responding fully and
truthfully to all questions posed during investigation.
5. Maintaining the confidentiality of any investigation that the employer conducts by
not disclosing the substance of any investigatory interview, except as directed by
the department head or Human Resources Director.
Page 7 of 8
ORDINANCE NO. 1308
6. Reporting any act he or she believes in good faith constitutes harassment,
discrimination, or retaliation as defined in this Policy, to his or her immediate
supervisor, or department head, or Human Resources Director.
G. Dissemination of Policy
All employees shall receive a copy of this Policy when they are hired. The Policy may
be updated from time to time and redistributed.
Section 3. That the City Clerk shall certify to the passage and adoption of this
ordinance and shall cause the same to be published once in The Desert Sun, a
newspaper of general circulation, printed and published in the County of Riverside and
circulated within the City of Palm Desert.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm
Desert, California, at its regular meeting held this 22nd day of September, 2016,
by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
ROBERT SPIEGEL, MAYOR
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
Page 8 of 8