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HomeMy WebLinkAbout2016-111 - Amending Resolution No. 2001-100, Adopting a Revised Discrimination and Harassment Prevention PolicyRESOLUTION NO. 2016-111 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AMENDING RESOLUTION NO. 2001-100, ADOPTING A REVISED DISCRIMINATION AND HARASSMENT PREVENTION POLICY WHEREAS, Section 2.28.020 of the Municipal Code provides that, upon the recommendation of the City Manager, the City Council shall adopt by resolution, uniform personnel policies; WHEREAS, the City Council of the City of Newport Beach previously adopted Resolution No. 2001-100, establishing a comprehensive set of personnel policies through the Employee Policy Manual, including certain appendices; WHEREAS, Appendix A of the Employee Policy Manual establishes the City's policy against discrimination and harassment in the workplace; WHEREAS, changes in State and Federal law have redefined harassment and discrimination and expanded protections under the law; and WHEREAS, to continue to comply with law, and as a statement of its ongoing commitment against discrimination and harassment, the City Council of the City of Newport Beach desires to amend Resolution No. 2001-100 and revise Appendix A of the Employee Policy Manual. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council does hereby amend Resolution No. 2001-100 and replaces the prior Appendix A of the Employee Policy Manual with Attachment A (Discrimination and Harassment Prevention Policy). Section 2: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 3: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Resolution No. 2016-111 Page 2 of 2 Section 4: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will riot result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 5: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 13"' day of September, 2016. ATTEST: --d-1MJ-SAdWK— Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE C- Aar'on C. Harp City Attorney Diane B. Dixon Mayor Attachment: City of Newport Beach Discrimination and Harassment Prevention Policy Attachment A CITY OF NEWPORT BEACH DISCRIMINATION AND HARASSMENT PREVENTION POLICY Section 1. Policy Statement The City of Newport Beach will take all reasonable steps to prevent discrimination, harassment and retaliation from occurring. The City will not tolerate harassment or discrimination because of, or on the basis of, a protected class such as race, color, national origin, ancestry, religious creed, physical or mental disability, medical condition, marital status, military and veteran status, sex (including pregnancy), gender, gender identity, gender expression, sexual orientation, age, genetic information, association with individuals with these characteristics, or the perception that an individual has one of these characteristics or any other basis protected by applicable Federal or State laws. This prohibition of discrimination and harassment applies to job applicants as well as all Employees, including provisional, temporary and contract employees, City Council and other members of City Boards and Commissions, and volunteers, unpaid interns or apprentices. This Policy is intended to protect Employees, to the extent possible, from harassment by clients, vendors, independent contractors, or others doing business with the City. As such, Employees shall follow the procedures in this Policy as if the harasser were an Employee of the City. Employees are likewise prohibited from harassing clients, vendors, independent contractors, residents or anyone with whom an Employee deals with on the job. This Policy also protects Employees from retaliation for complaining of discrimination or harassment under this Policy. A copy of this Policy shall be provided to all persons who are subject to it, and shall be posted on City bulletin Boards in all City facilities. Section 2. Definitions The following definitions that apply to this Policy are derived from the California Fair Employment and Housing Act and include, but are not limited to: Age refers to the chronological age of any individual who has reached his or her 40th birthday. Abusive Conduct means conduct of the City or Employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to the City's legitimate business interest. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating or the gratuitous sabotage or undermining of a person's work performance. Genetic Information means information about any of the following: (1) the individual's genetic tests, (2) the genetic tests of family members of the individual, and (3) the manifestation of a disease or disorder in family members of the individual. "Genetic information" also includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual. "Genetic information" does not include information about the sex or age of any individual. Medical Condition means (1) any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer, or (2) genetic characteristics, as defined by California Government Code section 12926 (0(3)(i)(2). Mental Disability includes, but is not limited to, all of the following: (1) having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity, (2) any other mental or psychological disorder or condition that requires special education or related services, (3) having a record or history of a mental or psychological disorder or condition described herein, which is known to the employer, (4) being regarded or treated by the employer as having, or having had, any mental condition that makes achievement of a major life activity difficult, and (5) being regarded or treated by the employer as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability in the future. "Mental disability" does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. Physical Disability includes, but is not limited to, all of the following: (1) having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that limits a major life activity and affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine, (2) any other health impairment that requires special education or related services, (3) having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described above, which is known to the employer, (4) being regarded as having, or having had, any physical condition that makes achievement of a major life activity difficult, and (5) being regarded or treated by the employer as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability in the future. Religious Creed includes all aspects of religious belief, observance, and practice, including religious dress and grooming practices. `Religious dress" is construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. "Religious grooming" is construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed. APPENDIX A OF EMPLOYEE POLICY MANUAL 2 9/16 Sex includes: (1) pregnancy or related medical conditions, (2) childbirth or related medical conditions, (3) breastfeeding or related medical conditions, (4) gender, (5) gender identity, and (6) gender expression. "Gender" means sex, and includes a person's gender identity and gender expression. "Gender expression" means a person's gender -related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth. Sexual Orientation includes heterosexuality, homosexuality, and bisexuality. Supervisor means any individual having the authority, in the interest of the employer, 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 effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Section 3. Sexual Harassment Federal and State laws consider sexual harassment to be one form of unlawful discrimination. Sexual harassment includes unwelcome sexual advances, requests for sexual favors or other visual, verbal or physical conduct of a sexual nature when: 1. Submission to such conduct is made either explicitly or implicitly a term or condition of employment, or 2. Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting that individual, or 3. Such conduct is so severe or pervasive it has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. The definition of sexual harassment includes many forms of offensive behavior. The City considers the following conduct to represent some examples of the types of prohibited conduct. This list is neither exhaustive nor all-inclusive. 1. Unwanted sexual advances. 2. Offering employment benefits in exchange for sexual favors. 3. Making or threatening reprisals after a negative response to sexual advances. 4. Physical conduct: touching, pinching, patting, or coerced sexual conduct. 5. Visual or non-verbal conduct: whistling, leering, ogling, making suggestive or insulting sounds, making sexual gestures, or displaying pictures, posters, cartoons, calendars, objects, reading materials, or other materials that are APPENDIX A OF EMPLOYEE POLICY MANUAL 3 9/16 sexually suggestive, sexually demeaning, or pornographic, or possessing in the work environment any of these materials. 6. Verbal conduct: making or using derogatory comments, epithets, slurs, sexually explicit jokes, sexual innuendo and insults, comments about an employee's body or dress. 7. Verbal sexual advances, propositions or requests. 8. Verbal abuse of a sexual nature, including graphic verbal commentary or communications about an individual's body or sexual activities, using sexually degrading words or names to describe an individual, or sending suggestive or obscene letters, e-mails, texts, communication or posts via social media, notes, invitations, or other forms of communication. 9. Production, transmission, or display of any sexually explicit material electronically via fax, e-mail, through social media, or any other forms of communication. It is unlawful for male Employees to sexually harass female Employees or other male Employees, and for female Employees to sexually harass male Employees or other female Employees. Harassment on the job is unlawful whether it involves co-worker harassment, harassment by a supervisor or manager, or harassment by persons doing business with or for the City. Other conduct that has the purpose or effect of unreasonably interfering with an Employee's work performance or working conditions on the basis of gender, pregnancy, gender identity and gender expression may also constitute sexual harassment and is, therefore, prohibited. Section 4. Harassment (Other Than Sexual Harassment) In addition to sexual harassment described above, harassment of Employees based on other protected classes, such as race, color, national origin, ancestry, religious creed, physical or mental disability, medical condition, marital status, military and veteran status, sexual orientation, age, genetic characteristics, association with individuals with these characteristics or the perception that an individual has one of these characteristics is prohibited by this Policy. Such harassment includes visual, verbal or physical conduct based on any of the above protected classes when such conduct is so severe or pervasive it has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. It may also include conduct that constitutes gratuitous sabotage or undermining of a person's work performance. Section 5. Discrimination Prohibited discrimination under this Policy includes refusing to hire or employ a person, APPENDIX A OF EMPLOYEE POLICY MANUAL 4 9/16 refusing to select a person for a training program leading to employment, to bar or to discharge a person from employment or from a training program leading to employment, or to treat an individual differently in compensation or in the terms, conditions or privileges of employment based on the protected classes identified above in Section 1. Section 6. Complaint Procedure for Reporting Discrimination and Harassment 1. An Employee who believes he or she has been harassed or discriminated against on the basis of a protected class shall provide a written or verbal complaint ("Complaint') to his or her immediate supervisor, or any other supervisor, the Human Resources Director or the City Manager as soon as possible. The Complaint should include details of the incident(s), names of individuals involved, and the names of any witnesses. Supervisors and managers must immediately refer all Complaints to the Human Resources Director. The City will investigate all allegations of harassment or discrimination that are reported. The Human Resources Director shall notify the City Attorney of the Complaint and shall undertake or direct a fair, timely, and thorough investigation of the Complaint that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected. The Human Resources Director or his or her designee shall: a. Meet with the Employee(s) alleging harassment or discrimination, discuss the incident(s), obtain any relevant information, confirm that an investigation will be initiated and advise the Employee(s) to report any possible retaliation. b. In consultation with the City Attorney, initiate a prompt investigation to determine all the facts surrounding the incident. The investigation will be conducted in as confidential manner as possible subject to the need to conduct a thorough investigation. c. Conclude the investigation in a reasonable period of time and communicate the results of the investigation to the Employee(s) who complained, the accused harasser(s), the Director of the Department in which the Employee works and the City Manager. d. Ensure that appropriate disciplinary and/or corrective action is initiated and implemented where conduct in violation of this Policy is found to have occurred. 3. The City will take effective disciplinary or remedial action as warranted, up to and including termination if it is found that harassment or discrimination has occurred. Due to employee privacy issues, if discipline is imposed on the Employee accused of harassment or discrimination, the discipline will not be communicated to the Complainant. APPENDIX A OF EMPLOYEE POLICY MANUAL 5 4. The City will take reasonable steps to protect the Complainant from further harassment. If appropriate, the City will take action to remedy the victim's job loss, if any, which resulted from the harassment or discrimination. 5. Clients, independent contractors, vendors, or others doing business with the City shall be required to use the Complaint procedure outlined in this Policy for any claim of harassment or discrimination by a City Employee. Section 7. Retaliation In accordance with applicable law, this Policy prohibits any retaliation (i.e., Adverse Action) against any person for engaging in a legally protected activity, such as filing a Complaint about conduct that the person reasonably believes constitutes harassment or discrimination. This Policy also prohibits retaliation against any person because of his or her participation in an investigation, proceeding or hearing related to an alleged violation of this Policy or for associating with the alleged harasser or victim. Any Complaint alleging retaliation in violation of this Policy shall be processed in the same manner as a Complaint alleging harassment or discrimination. The City will promptly, thoroughly and objectively investigate any claim of retaliation. If the City determines that retaliation has occurred, the City will take effective disciplinary or remedial action as warranted, up to and including termination. Adverse Action may include, but is not limited to, any of the following: Real or implied threats of intimidation to attempt or prevent an individual from reporting alleged wrongdoing; refusing to hire an individual because of protected activity; denying promotion to an individual because of protected activity; taking any form of disciplinary action because of protected activity; or altering work schedules or work assignments because of protected activity. Section 8. Management Responsibilities All Supervisors are responsible for ensuring a workplace free from discrimination or harassment as defined in this Policy. Supervisors shall be responsible for the following: Promptly filing a report with the Department Director and Human Resources Director whenever the Supervisor receives information about or observes an incident that he or she knows or reasonably suspects could constitute discrimination or harassment. The report shall be filed even if the Employee(s) who allege(s) discrimination or harassment request(s) that no action be taken. The report shall not be filed with the Department Director if the Department Director is alleged to have participated in the discrimination or harassment. Any verbal report shall be followed up by a written report documenting the incident. 2. Ensuring that appropriate action is taken in response to the Supervisor's report of discrimination or harassment. 3. Ensuring that: APPENDIX A OF EMPLOYEE POLICY MANUAL 9116 a. All Employees they supervise attend any and all required training designed to prevent harassment, discrimination, abusive conduct and retaliation. b. All Employees they supervise receive a copy of, and opportunity to discuss and ask questions about, this Policy. c. Materials that violate this Policy (such as sexually suggestive objects, pictures, posters or cartoons) are not circulated, presented, transmitted, or openly displayed within the workplace. d. All Employees they supervise are informed of their rights to report discrimination, harassment or retaliation and of the assistance available under this Policy. Section 9. Violation of Policy An Employee who violates any provision of this Policy is subject to discipline or remedial action as warranted, up to and including termination. Supervisors shall be held to a higher standard of conduct and may be subject to a higher level of discipline if found to have engaged in discrimination, harassment or retaliation in violation of this Policy. Section 10. Personal Liability for Harassment or Retaliation An Employee who engages in harassment or retaliates against an Employee who complains of harassment, including any Supervisor or manager who knew about the harassment and took no action to stop it, may be held personally liable for monetary damages if the Employee complaining of harassment or retaliation files a legal action. Section 11. Employee's Rights The goal of this Policy is to identify and prevent discrimination, harassment or retaliation. If problems or concerns arise, Employees are encouraged to make use of the process described in this Policy. However, any Employee also has the right to go directly to the California Department of Fair Employment and Housing or the Federal Equal Employment Opportunity Commission for assistance. The California Department of Fair Employment and Housing may be contacted at the following telephone number or website: Los Angeles: (213) 439-6799 http://www.dfeh.ca.-gov/ The Federal Equal Employment Opportunity Commission may be reached at the APPENDIX A OF EMPLOYEE POLICY MANUAL 7 9/16 following telephone number or website: Los Angeles: (213) 894-1000 http://www.eeoc.gov/employees/charge.cfm The City maintains a posted Notice regarding harassment and discrimination at all Employee work sites, which contains additional information about how to contact these agencies. Proposed Revisions: 9/13/16 APPENDIX A OF EMPLOYEE POLICY MANUAL 9/16 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2016-111 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 13th day of September, 2016, and that the same was so passed and adopted by the following vote, to wit: AYES: Council Member Duffield, Council Member Selich, Council Member Petros, Mayor Pro Tem Muldoon, Mayor Dixon NAYS: Council Member Peotter ABSENT: Council Member Curry IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 14�h day of September, 2016. dAmk- J. hMVK,,, Leilani I. Brown, MMC' City Clerk Newport Beach, California (Seal)