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HomeMy WebLinkAboutORD 1308ORDINANCE 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: 2.51.520 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) Physical 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 6 of 8 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 13th day of October 2016, by the following vote, to wit: AYES: HARNIK, TANNER, WEBER, and SPIEGEL NOES: JONATHAN ABSENT: NONE ABSTAIN: NONE ATTEST: _.4Pg �a� f -• Page 8 of 8