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HomeMy WebLinkAboutAGENDA REPORT 2017 0201 CCSA REG ITEM 10F ITEM 10.F. CITY OF ®01 A at.CRL1 Ot MA City Council Meeting MOORPARK CITY COUNCIL of #. AGENDA REPORT ACTION,_ TO: Honorable City Council FROM: Deborah S. Traffenstedt, Assistant City Manager D5'T DATE: January 26, 2017 (CC Meeting of 02/01/2017) SUBJECT: Consider Adopting Revised Policy 2.6, Policy Against Harassment, Discrimination, and Retaliation BACKGROUND AND DISCUSSION The City's Policy Against Harassment, Discrimination, and Retaliation (Policy 2.6) was last updated with the amendment to the City Council's Policies Resolution approved on March 18, 2015. Additional amendments to Policy 2.6 are now proposed to update the language consistent with the requirements of Assembly Bill 1661, as codified in Government Code Section 53237 et seq, which requires sexual harassment prevention training for a "local agency official". The revised Policy 2.6 is attached, and the revisions are shown with the use of legislative format. In addition to the language that has been added for compliance with Government Code Section 54347 et seq., edits have been incorporated to achieve consistency with the current requirements of Government Code Section 12940 et seq.,which includes a list of categories for which discrimination is prohibited as an unlawful employment practice. The local agency official definition in Government Code Section 53237(b) is as follows: "'Local agency official' means any member of a local agency legislative body and any elected local agency official." Legislative body is defined in Section 34000 of the Government Code as follows: "As used in this title, 'legislative body' means board of trustees, city council, or other governing body of a city." Government Code Section 53237.1 includes the following training clarification for a local agency official: "If a local agency provides any type of compensation, salary, or stipend to a local agency official of that agency,then all local agency officials of that agency shall receive sexual harassment prevention training and education pursuant to this article. A local agency may also require any of its employees to receive sexual harassment prevention training and education pursuant to this article." Staff has written into the revised Policy 2.6 that the Sexual Harassment Prevention training requirement shall apply to the City Council, Planning Commission, Parks and Recreation Commission,Arts Commission, Library Board,and any local agency official receiving any type of compensation, salary, or stipend from the City of Moorpark. 69 Honorable City Council February 1, 2017, Regular Meeting Page 2 Training requirements for City supervisory employees are already included in Policy 2.6, because Government Code 12950.1 requires an employer having 50 or more employees to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees, which training must also include prevention of abusive conduct. The attached revised Policy 2.6 now also incorporates the training requirements for local agency officials. At the City Council's December 7, 2016 regular meeting,the City Council already considered and approved the scheduling of both Sexual. Harassment Prevention training and Ethics training for the City's local agency officials and management staff on February 8, 2017. The Sexual Harassment Prevention training is scheduled to begin at 5:00 p.m. and the Ethics training is scheduled to begin at approximately 7:15 p.m. Staff is requesting the Council approve revisions to Policy 2.6 at this time, so that an up-to-date Policy 2.6 may be distributed at the scheduled training on February 8. Staff,will incorporate the updated Policy 2.6 into the City Council's Policies Resolution at the time of the next comprehensive update. FISCAL IMPACT There will be additional staff time required to enforce the requirements of Policy 2.6; however, the training requirements are required by state law. The City Council has already authorized and approved the training costs for the February 8, 2017 training. STAFF RECOMMENDATION Approve revised Policy 2.6 and direct staff to incorporate the revised policy into the next comprehensive update of the City Council Policies Resolution. Attachment: Draft revised Policy 2.6 • 70 Policy 2.6: Policy Against Harassment, Discrimination, and Retaliation 1. Purpose and Policy. A. Purpose. The City of Moorpark is committed to providing a work environment which is free of harassment or discrimination because of sex;" gender; gender identity or expression; sexual orientation; genetic characteristics or information; race; color; national origin; ancestry; religion;us creed; sex; physical or mental disability; medical condition; pregnancy, childbirth or related medical conditions; marital status; military or veteran status; sexual orientation; age; victim of domestic violence, sexual assault, or stalking; or any basis protected by applicable federal, state, or local law. The City is also committed to providing a work environment free from retaliation because of opposition by an employees, e1-unpaid interns, or volunteer's opposition to unlawful harassment or discrimination or because of participation in an employment discrimination or harassment investigation, proceeding, or hearing. In keeping with this commitment, this Policy strictly prohibits harassment, discrimination, and retaliation of this nature. Behavior or actions which result in or establish an environment of such harassment, discrimination, or retaliation are strictly prohibited. B. Policy. This policy applies to all employees, unpaid interns, and volunteers of the City and hereinafter, the use of the word "employee" in this policy is intended to also include an unpaid intern or volunteer. The training requirements of this policy are also intended to apply to local agency officials as required by Government Code Section 53237 et seq. The City maintains a strict policy prohibiting all types of harassment or discrimination because of sex; gender; gender identity or expression; sexual orientation; genetic characteristics or information; race; color; national origin; ancestry; religion;us creed; sex; physical or mental disability; medical condition; pregnancy, childbirth or related medical conditions; marital status; military or veteran status; sexual orientation; age; victim of domestic violence, sexual assault, or stalking; or any basis protected by applicable federal, state, or local law. The City also maintains a strict policy prohibiting retaliation because of an employee's opposition to unlawful harassment or discrimination or participation in an employment discrimination or harassment investigation, proceeding, or hearing. All such harassment, discrimination, or retaliation is prohibited." This policy applies to all employees involved in the operations of the City and prohibits harassment by any employee of the City including supervisors, co-workers, volunteers, local agency officials as defined by Government Code Section 53237(b), and by anyone doing business with the City. If harassment or alleged harassment occurs on the job by someone not employed by the City, the applicable procedures in this policy should be followed as if the harasser were an employee of the City. 71 Page 2 2. Definitions. A. Discrimination. Discrimination is any action or conduct by which an employee is treated differently or less favorably than other employees similarly situated to him/her for the sole reason that he/she is a member of a legally protected category, such as sex; gender; gender identity or expression; sexual orientation; genetic characteristics or information; race; color; national origin; ancestry; religious creed; sex; physical or mental disability; medical condition; pregnancy, childbirth or related medical conditions; marital status; military or veteran status;_se u^cGal-orientatiiani age; victim of domestic violence, sexual assault, or stalking; or any basis protected by applicable federal, state, or local law. For example, it would be discrimination for an individual to be denied employment or terminated from employment because that individual has a disability or is 40 years of age or older. B. Harassment: Harassment is unwelcome verbal, visual, or physical conduct that creates an intimidating, offensive, or hostile work environment or that • interferes with work performance when such conduct is based on an employee's sex; gender; gender identity or expression; sexual orientation; genetic characteristics or information; race; color; national origin; ancestry; religion creed; sex; physical or mental disability; medical condition; pregnancy, childbirth or related medical conditions; marital status; military or veteran status; sexual orientation; age; victim of domestic violence, sexual assault, or stalking; or any basis protected by applicable federal, state, or local law. Such conduct constitutes harassment when: 1) Submission to the conduct is made either an explicit or implicit condition of 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 or creates an intimidating, hostile, or offensive work environment. C. Harassment Examples. 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 sex; gender; gender identity or expression; sexual orientation; genetic characteristics or information; race; color; national origin; ancestry; religions- creed; sex; physical or mental disability; medical condition; pregnancy, childbirth or related medical conditions; marital status; military or veteran status; sexual orientation; ag.e; victim of domestic violence, sexual assault, or stalking; or any basis protected by applicable federal, state, or local law. 72 Page 3 D. Sexual Harassment. 1) Sexual harassment is unwanted sexual advances; requests for sexual favors; or visual, verbal or physical conduct of a sexual nature when: a) Submission to such conduct is made a term or condition of employment; or b) Submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual; or c) 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. 2) This definition includes many potential forms of offensive behavior. The following is a list of some examples: a) Unwanted sexual advances. b) Offering employment benefits in exchange for sexual favors. c) Making or threatening reprisals after a negative response to sexual advances. d) Visual conduct: leering, making sexual gestures, or displaying of sexually explicit jokes. e) Verbal sexual advances or propositions. f) Verbal abuse of a sexual nature, graphic verbal commentary about an individual's body or dress, sexually degrading words to describe an individual, suggestive or obscene letters, notes or invitations. g) Physical conduct: touching, assault, impeding or blocking movements. h) Retaliation for threatening to or reporting harassment. i) Sexual harassment can occur between members of the same or opposite sex. Sexual harassment on the job is unlawful whether it involves co-worker harassment, harassment by a supervisor or manager, harassment by a local agency official, or harassment by anyone doing business with or for the City. 73 Page 4 E. Supervisor. Any employee having authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or to effectively recommend that action, if, in connection with the foregoing, the exercise of that authority is not merely of a routine or clerical nature, but requires the use of independent judgment. 3. Mandatory Training. A. All Employees. A copy of this Policy will be given to all employees of the City on the first day of employment, and acknowledgment will be required as described in Section 10 of this Policy. This Policy shall be redistributed to all employees following any amendment action, and acknowledgment will be required as described in Section 10. B. Supervisory Employees. 1) All supervisors will be trained once every two (2) years, as scheduled by the City's Human Resources/Risk Management Division, on matters relating to the prevention, reporting, and investigation of harassment, discrimination, and retaliation. Further, individuals appointed to supervisory positions from a non-supervisory position or as a new employee shall receive training within six (6) months of their hiring or assumption of the supervisory position. 2) Supervisory training will last for a minimum of two (2) hours. 3) Supervisory training will be conducted in a classroom or other interactive setting and will, at a minimum, cover the following topics: a) Information and practical guidance regarding federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment; b) Information about the remedies available to victims of sexual harassment in employment; c) Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination,and retaliation; and d) Information on prevention of abusive conduct as defined in Section 12950.1(g)(2) of the Government Code. C. Local Agency Officials 1) Consistent with Government Code Section 53237.1, if a local agency provides any type of compensation, salary, or stipend to a local agency official of that agency, then all such local agency officials of 74 Page 5 that agency shall receive sexual harassment prevention training and education pursuant to the requirements of Section 53237 et seq. For the City of Moorpark, this sexual harassment prevention training requirement applies to the City Council, Planning Commission, Parks and Recreation Commission, Arts Commission, Library Board, and any local agency official receiving any type of compensation, salary, or stipend from the City of Moorpark. 2) Each local agency official shall receive at least two (2) hours of sexual harassment prevention training and education within the first six months of taking office or from the date of appointment, as applicable, and every two (2) years thereafter. Training may be scheduled more frequently than required by Government Code Section 53237 et seq., as may be approved by the City Council to facilitate group training arrangements. The training curricula shall satisfy the requirements of Government Code Section 53237.1. 3) The City Clerk shall provide a written recommendation to each local agency official on training available to meet the requirements of Government Code Section 53237 et seq. prior to a local agency official assuming a new position and every two years thereafter. The City Clerk shall maintain the training records required by Government Code Section 53237 et seq. Appointed local agency officials who fail to complete the sexual harassment prevention training as required by law and this policy shall be disqualified for their appointed position, and the City Clerk shall schedule an agenda item for City Council consideration of revoking the appointment and authorizing recruitment to fill the vacancy, if an appointed official is more than 30 days late on completing the required training and providing proof of participation and completion. 4) Supervisory employees may attend the local agency official sexual harassment prevention training at the discretion of the City Manager, if the training curricula is consistent with the supervisory employees training required by law and as described in Section 3.B of this policy. 4. Preventing Harassment and Discrimination. The City's complaint procedure provides for a prompt, thorough and objective investigation of every harassment or discrimination claim, appropriate disciplinary action against one found to have engaged in unlawful harassment or discrimination, and appropriate remedies to any victim of harassment or discrimination. Employees should follow the following procedure to notify the City of alleged harassment and/or discrimination: A. Submitting a Complaint. Employees who believe they have been harassed or discriminated against on the job, including by local agency officials or persons doing business with or for the City, must provide a verbal or written complaint to his/her supervisor, department head, Personnel Officer, Senior 75 Page 6 Human Resources Analyst, Human Resources Analyst, or the City Manager as soon as possible. If the reported conduct involves a person in the employee's direct chain of command or if for any reason the employee feels uncomfortable making a report to his/her direct supervisor or department head, the report must be made to the Personnel Officer, Senior Human Resources Analyst, Human Resources Analyst, or the City Manager. If the complaint involves the City Manager, the complaint should be reported to the Personnel Officer or in his/her absence, directly to the City Attorney. Complaints regarding the City Manager will be forwarded by the Personnel Officer or City Attorney to the City Council for consideration during closed session. Complaints regarding a member of the City Council or other local agency official must be reported to the City Manager or the City Attorney. The complaint should include details of the incident(s), names of individuals involved, and the names of any witnesses. Supervisors and/or department heads must immediately refer all harassment and discrimination complaints to the Personnel Officer, Senior Human Resources Analyst, Human Resources Analyst, or City Manager. - B. Investigation of Complaints. All incidents of alleged harassment and discrimination that are reported must be investigated. The City will undertake and/or direct a prompt, thorough, and objective investigation of the harassment or discrimination allegations. The City Manager will determine who will conduct the investigation on behalf of the City, unless this. decision is delegated to the City Attorney. The investigation will be completed and a determination regarding the harassment or discrimination alleged will be made and communicated to the employee(s) who complained and the accused harasser(s). If the City determines that harassment or discrimination has occurred, the City will take effective remedial action commensurate with the circumstances. Appropriate action will also be taken to deter any future harassment or discrimination. If a complaint of harassment or discrimination is substantiated for an employee, appropriate disciplinary action will be taken, up to and including termination of employment, will be taken. The City Attorney will advise the City Council on the appropriate action if a complaint of harassment or discrimination is substantiated for a local agency official. The City will also take appropriate action to remedy any loss to the employee resulting from the harassment or discrimination. The City Attorney's office will notify the complainant in writing regarding action taken against the person responsible for the harassment or discrimination. The City Attorney's office will also instruct the complainant to immediately report recurring or continuing harassment, discrimination, or retaliation. C. Employees may be placed on a paid administrative leave during an investigation until the conclusion of discrimination or harassment investigation. 76 Page 7 D. 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. E. If a complaint is found to be a malicious false accusation, the employee who brought forth the complaint will be subject to disciplinary action. 5. Confidentiality. The City will take all reasonable steps available to maintain the confidentiality of all complaints of harassment and discrimination as well as all information gathered during the investigation; however, the City cannot guarantee absolute confidentiality as disclosure of information is necessary to complete the investigation. All employees involved in the investigation of harassment or discrimination complaints will be admonished to keep all information related to the investigation confidential, and that revealing such information is grounds formas result in discipline. Anonymous complaints will be taken seriously and investigated; however, the ability to investigate or the extent of the investigation may be limited by the inability to follow-up with the complaining party. A person other than the person(s) who- was (were) the target of the alleged harassment or discrimination may make a complaint. 6. Employee's Duty to Disclose Benefits Received. Employees are hereby informed that no supervisor, manager, or officer of the Citylocal agency official, 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 consent to any sexual demand. To the contrary, all employees are instructed that they must refuse such demands and report them promptly either to his/her supervisor, department head, Personnel Officer, Senior Human Resources Analyst, Human Resources Analyst, or City Manager. Any employee who is found to have obtained any benefit from the City because he/she submitted to an unreported sexual demand will be disciplined appropriately, and may be subject to reimbursing the City for the value of any benefits received. Any employee making such a demand will also be subject to discipline. 7. Anti-Retaliation Policy. 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 or harassment investigation, proceeding, or hearing. Any retaliatory adverse action because of such opposition or participation will not be tolerated; and may also be unlawful. A. Examples of Opposition. Opposition to perceived harassment or discrimination includes, but is not limited to, threatening to file or filing harassment and/or discrimination complaint with the Equal Employment Opportunity Commission ("EEOC"), the Department of Fair Employment and Housing ("DFEH"), union or court, or complaining or protesting about alleged harassment or discrimination to a supervisor, manager, co-worker 77 Page 8 or other official. Opposition also includes a complaint or protest made on behalf of another employee or made by the employee's representative. B. Examples of Participation. The City will not tolerate retaliation against any individual because he/she has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, hearing or litigation under federal or state harassment or discrimination statutes or at other hearings regarding protected employee rights, such as an application for unemployment benefits. The City also prohibits retaliation against somebody closely related to or associated with the employee exercising such rights. C. Examples of Adverse Actions. For purposes of this Policy, an adverse action can include, but is not limited to, the following acts, when the act is taken because of the employee's opposition to harassment or discrimination, or because of the employee's participation in an employment discrimination or harassment investigation, proceeding, or hearing: 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 or events, or undesirable change in work duties. D. The City's Complaint Procedure. The City's complaint procedure provides for a prompt, thorough and objective investigation of any claim of retaliation because of opposition to alleged discrimination or harassment, or participation in a proceeding regarding alleged discrimination or harassment. Employees who believe that they have been retaliated against because of their opposition to an employment practice which they reasonably believe to be discriminatory harassing, or because of their participation in a hearing or proceeding regarding alleged harassment or discrimination should follow the following procedure to notify the City of retaliation: 1) Submitting a Complaint. Employees who believe they have been retaliated against because of opposition to alleged discrimination or harassment, or participation in a proceeding regarding alleged discrimination or harassment, must provide a verbal or written complaint to his/her supervisor, department head, Personnel Officer, Senior Human Resources Analyst, Human Resources Analyst, or the City Manager as soon as possible. If the reported conduct involves a person in the employee's direct chain of command, or if for any reason the employee feels uncomfortable making a report to his/her supervisor or department head, the report must be made to the Personnel Officer, Senior Human Resources Analyst, Human Resources Analyst, or the City Manager. If the complaint involves the City Manager, the complaint should be reported to the Personnel Officer,_ or in his/her absence, directly to the City Attorney. 78 Page 9 Complaints regarding the City Manager will be forwarded by the Personnel Officer or City Attorney to the City Council for consideration during closed session. Complaints regarding a member of the City Council or other local agency official must be reported to the City Manager or the City Attorney. The complaint should include details of the incident(s), names of individuals involved, and the names of any witnesses. Supervisors and/or department heads must immediately refer all retaliation complaints to the Personnel Officer, Senior Human Resources Analyst, Human Resources Analyst, or City Manager. 2) Investigation of Complaints. All complaints of prohibited retaliation which are reported to the City will be investigated. The City will undertake and/or direct a prompt, thorough and objective investigation of the retaliation allegations. The City Manager will determine who will conduct the investigation on behalf of the City, unless this decision is delegated to the City Attorney. The investigation will be completed and a determination regarding the alleged retaliation will be made and communicated to the employee who complains and to the person(s) accused of retaliation. 3) If the City determines that an individual has suffered adverse action in retaliation for opposition to alleged harassment or discrimination, or participation in a proceeding related to alleged harassment or discrimination, the City will take effective remedial action appropriate to the circumstances. The City will also take action to deter any future retaliation. If a complaint of unlawful retaliation is substantiated for an employee, appropriate disciplinary action will be taken, up to and including termination of employment, will be taken. The City Attorney will advise the City Council on the appropriate action if a complaint of harassment, discrimination, or retaliation is substantiated for a local agency official. The City Attorney's office will notify the complainant in writing regarding action taken against the person responsible for the retaliation. The City Attorney's office will also instruct the complainant to immediately report recurring or continuing harassment, discrimination, or retaliation. 4) Employees may be placed on a paid administrative leave during an investigation until the conclusion of a retaliation investigation. 5) 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. 6) If a complaint is found to be a malicious false accusation, the employee who brought forth the complaint will be subject to disciplinary action. 79 Page 10 E. Confidentiality. The City will take all reasonable steps available to maintain the confidentiality of all complaints of retaliation as well as all information gathered during the investigation; however, the City cannot guarantee absolute confidentiality as disclosure of information is necessary to complete the investigation. All employees involved in the investigation of retaliation complaints will be admonished to keep all information related to the investigation confidential, and that revealing such information is greunds formay result in discipline. Anonymous complaints will be taken seriously and investigated; however, the ability to investigate or the extent of the investigation may be limited by the inability to follow-up with the complaining party. A person other than the person(s) who was (were) the target of the alleged harassment or discrimination may make a complaint. 8. Additional Enforcement Information. In addition to the City's internal complaint procedure, employees should also be aware that the EEOC and the DFEH investigate and prosecute complaints of harassment, discrimination, and/or retaliation in employment. You can contact the EEOC as follows: Los Angeles District Office, 255 East Temple, 4th Floor, Los Angeles, California 90012; 800- 669-4000. You can contact the DFEH as follows: Los Angeles Office, 611 West Sixth Street, Suite 1500, Los Angeles, California 91117; 800-884-1684. Additional information can be found on the EEOC's website (www.eeoc.gov) and/or the DFEH's website (www.dfeh.ca.gov). 9. Documentation. All harassment, discrimination, and retaliation complaint investigations and corrective actions shall be documented by the Human Resources/Risk Management Division and/or City Attorney. The documentation shall include a summary of the investigation and an explanation of the appropriateness of the corrective actions. All related files shall be retained by the Human Resources/Risk Management Division until such time as file destruction is approved by the City Council in accordance with records retention requirements. A record of a harassment complaint will not be included in an employee's personnel file if the complaint is found to be unwarranted or a false accusation after conducting an investigation. 10. EmployeeNolunteer/Local Agency Official/Contractor Acknowledgment of Receipt of Policy against Harassment, Discrimination, and Retaliation. All employees shall be given a copy of this Policy on the first day of employment, shall be given the time to read the Policy during their new employee orientation meeting, and shall be required to sign a form acknowledging the following: I acknowledge receipt of the City of Moorpark Policy against Harassment, Discrimination, and Retaliation. I understand that it is my responsibility to read and comprehend its contents. If I have any questions, I shall submit any questions in writing to the Personnel Officer Senior Human Resources Analyst, or Human Resources Analyst within seven (7) days of receipt of the Policy and signing the e acknowledgment form. 80 Page 11 All local agency officials shall be provided a copy of the City of Moorpark Policy against Harassment, Discrimination, and Retaliation by the City Clerk and shall be required to sign and return to the City Clerk a form acknowledging that the Policy has been received and read within two (2) weeks following election certification or appointment as applicable. The City Manager or his/her designee may determine that certain volunteers and contractors shall also be required to receive, read, and acknowledge receipt of the City of Moorpark Policy against Harassment, Discrimination, and Retaliation. This Policy shall be redistributed to all employees, unpaid interns, local agency officials, and applicable volunteers and contractors following any amendment, and no less than once every two (2) years, with reading and receipt acknowledgment required as described above. • 81