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HomeMy WebLinkAbout2019-27 - Amending Resolution 2001-100, Adopting A Revised Discrimination and Harassment Prevention PolicyRESOLUTION NO. 2019-27 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 Newport Beach Municipal Code ("NBMC") provides that, upon the recommendation of the City Manager, the City Council of the City of Newport Beach ("City") shall adopt by resolution, uniform personnel policies for City employees relating to classification, compensation, leaves of absence and other conditions of employment; WHEREAS, the City Council of the City previously adopted Resolution No. 2001- 100, establishing a comprehensive set of personnel policies through the Employee Policy Manual, including certain appendices and exhibits ("Employee Policy Manual"); WHEREAS, Appendix A of the Employee Policy Manual establishes the City's policy against discrimination and harassment in the workplace; WHEREAS, on September 13, 2016, the City Council of the City previously adopted Resolution No. 2016-111 to amend Appendix A of the Employee Policy Manual; 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 the law, and as a statement of its ongoing commitment against discrimination and harassment, the City Council of the City 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 of this resolution entitled "City of Newport Beach Discrimination and Harassment Prevention Policy." Resolution No. 2016-111 is hereby repealed. Section 2: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Resolution No. 2019-27 Page 2 of 2 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. 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 not 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, Division 6, 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 26th day of March, 2019. ATTEST: c Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp City Attorney uiai is U. vi�vi i Mayor Attachment(s): City of Newport Beach Discrimination and Harassment Prevention Policy APPENDIX A CITY OF NEWPORT BEACH DISCRIMINATION AND HARASSMENT PREVENTION POLICY Section 1. Policy Statement The City of Newport Beach ("City") has a strong commitment to prohibiting and preventing discrimination, harassment and retaliation in the workplace. The City will take all reasonable steps to prevent discrimination, harassment and retaliation from occurring. The City has zero tolerance for any conduct that violates this Policy. Conduct need not rise to the level of a violation of Federal or State law to violate this Policy. The City will not tolerate any harassment or discrimination because of, or on the basis of, an individual's Protected Classification 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, or any other basis protected by applicable Federal or State laws; association with an individual who has or is perceived to have a Protected Classification; or the perception that an individual has a Protected Classification. Section 2. Covered Individuals and Scope of Policy This Policy covers 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. Section 3. Definitions The following definitions that apply to this Policy are derived from the California Fair Employment and Housing Act ("FEHA") and include, but are not limited to: Discrimination means treating covered individuals differently and adversely because of or on the basis of the individual's Protected Classification, actual or perceived; because the individual associates with a person who is member of a Protected Classification, actual 8776641.3 NE020-059 or perceived; or because the individual participates in a Protected Activity as defined in this Policy. Harassment includes, but is not limited to, the following types of behavior that are taken because of a person's actual or perceived Protected Classification: (1) Speech, such as epithets, derogatory comments or slurs, and propositioning on the basis of a protected classification. This includes inappropriate comments about appearance, dress, physical features, gender identification, or race -oriented stories and jokes; (2) Physical acts, such as assault, impeding or blocking movement, offensive touching, or physical interference with normal work or movement. This includes pinching, grabbing, patting, or making explicit or implied job threats or promises in return for submission to physical acts; (3) Visual acts, such as derogatory posters, cartoons, emails, pictures or drawings related to a protected classification; and (4) 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. Protected Activity includes making a request for an accommodation for a disability; making a request for accommodation for religious beliefs; making a complaint under this Policy; opposing violations of this Policy; or participating in an investigation under this Policy. Protected Classification means race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 and over), sexual orientation, or military and veteran status, or any other basis protected by law. This Policy prohibits discrimination, harassment and retaliation because: (1) of 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. Retaliation means adverse conduct is taken against a covered individual because of the individual's Protected Activity as defined in this Policy. "Adverse conduct" includes, but is not limited to: (1) disciplinary action; (2) counseling; (3) taking sides because an individual has reported harassment or discrimination; (4) spreading rumors about a complainant or about someone who supports or assists the complainant; (5) shunning or avoiding an individual who reports harassment or discrimination; or (6) making real or implied threats of intimidation to prevent or deter an individual from reporting harassment or discrimination. 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 APPENDIX A OF EMPLOYEE POLICY MANUAL 2 8776641.3 NE020-059 rev 02/19 that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Section 4. Harassment 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. Sexual harassment includes many forms of offensive behavior. A single incident of harassing conduct may have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment, and such conduct is prohibited under this Policy. The City considers the following conduct to represent some examples of the types of prohibited conduct. This list is neither exhaustive nor all-inclusive. Unwanted sexual advances, including verbal sexual advances, such as propositions or requests. 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 sexually suggestive, sexually demeaning, or pornographic, or possessing in the work environment any of these materials. Production, transmission, or display of any sexually explicit material electronically via fax, e-mail, through social media, or any other forms of communication. 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. APPENDIX A OF EMPLOYEE POLICY MANUAL 3 8776641.3 NE020-059 rev 02/19 7. 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. 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. Sexual harassment 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 constitute prohibited sexual harassment. Harassment (Other Than Sexual Harassment) In addition to sexual harassment described above, harassment of Employees based on other Protected Classifications is also expressly prohibited by this Policy. Such harassment may include visual, verbal or physical conduct based on any Protected Classification. A single incident of harassing conduct may have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment, and such conduct is prohibited under this Policy. Conduct based on any Protected Classification that constitutes gratuitous sabotage or undermining of a person's work may also be considered Harassment under this Policy. Section 5. Discrimination Federal and State laws consider discrimination based on an individual's Protected Classification to be unlawful. The City considers the following conduct to represent some examples of the types of prohibited Discrimination when based on the individual's Protected Classification. This list is neither exhaustive nor all-inclusive. 1. Refusing to hire or employ a person. 2. Refusing to select a person for a training program leading to employment. 3. Treating an individual differently in compensation or in the terms, conditions or privileges of employment. APPENDIX A OF EMPLOYEE POLICY MANUAL 4 8776641.3 NE020-059 rev 02/19 Section 6. Retaliation Federal and State laws consider adverse conduct based on an individual's Protected Activity to be unlawful. The City considers the following adverse conduct to represent some examples of the types of prohibited Retaliation when based on the individual's Protected Activity. This list is neither exhaustive nor all-inclusive. 1. Real or implied threats of intimidation to attempt or prevent an individual from reporting alleged wrongdoing. 2. Refusing to hire an individual because of Protected Activity. 3. Denying promotion to an individual because of Protected Activity. 4. Taking any form of disciplinary action because of Protected Activity. 5. Altering work schedules or work assignments because of Protected Activity. Section 7. Procedure for Reporting and Processing Discrimination, Harassment, and Retaliation Complaints 1. An Employee who believes he or she has been harassed or discriminated against on the basis of a Protected Classification, or retaliated against on the basis of his or her participation in a Protected Activity may provide a written or verbal complaint ("Complaint") to any Supervisor. 2. The Supervisor shall immediately notify his/her Department Director and the Human Resources Director. 3. The Human Resources Department shall complete or delegate the following steps: a. Notify the City Attorney of the complaint in order to initiate an investigation of the incident. b. Meet with the Employee(s) alleging harassment or discrimination. c. Take reasonable steps to protect the complainant from further harassment, discrimination and retaliation. d. Authorize and supervise the investigation of the complaint and/or investigate the complaint. e. Review the factual information gathered during the investigation to determine whether the alleged conduct violates this Policy. f. Report a summary of the determination to the appropriate persons. APPENDIX A OF EMPLOYEE POLICY MANUAL 5 8776641.3 NE020-059 rev 02/19 g. Ensure that appropriate disciplinary and/or corrective action is initiated and implemented where conduct in violation of this Policy is found to have occurred. 4. 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, discrimination, or retaliation by a City Employee. 5. Every effort will be made to assure the confidentiality of Complaints made under this Policy to the greatest extent allowed by law. Complete confidentiality cannot occur, however, due to the need to fully investigate and the duty to take effective remedial action. An Employee who is interviewed during the course of an investigation is prohibited from attempting to influence any potential witness while the investigation is ongoing. An Employee may discuss his or her interview with a designated representative. The City 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. Section 8. Violation of Policy Any Employee who violates any provision of this Policy is subject to discipline or remedial action as warranted, up to and including termination. Section 9. Personal Liability for Harassment or Retaliation In certain circumstances, an Employee who engages in harassment and/or retaliation may be held personally liable for monetary damages associated with prohibited conduct. Section 10. Supervisor Responsibilities All Supervisors are responsible for ensuring a workplace free from discrimination, harassment, and retaliation as defined in this Policy. Supervisors shall be responsible for the following: Completing the training requirements for Supervisors. 2. 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, harassment, or retaliation. Any verbal report shall be followed up by a written report documenting the incident. 3. Ensuring that appropriate action is taken in response to the Supervisor's report of discrimination, harassment, or retaliation. APPENDIX A OF EMPLOYEE POLICY MANUAL 6 8776641.3 NE020-059 rev 02/19 4. Ensuring that: a. All Employees that they supervise are provided a Department of Fair Employment and Housing (DFEH) informational pamphlet regarding sexual harassment and retaliation prevention. b. All Employees that they supervise attend and complete training requirements regarding prevention of sexual harassment and retaliation. c. All Employees that they supervise receive a copy of, and opportunity to discuss and ask questions about this Policy. d. Materials that violate this Policy are not circulated, presented, transmitted, or openly displayed within the workplace. e. All Employees they supervise are informed of their rights to report discrimination, harassment or retaliation and of the assistance available under this Policy. Section 11. Employee Responsibilities All Employees are responsible for ensuring a workplace free from discrimination and harassment as defined in this Policy. Employees shall be responsible for completing training requirements required by the City and by State law, and reviewing the DFEH informational packet and this Policy. Section 12. Employee's Rights The goal of this Policy is to identify and prevent discrimination, harassment and retaliation. Employees are encouraged to make use of the process described in this Policy. However, any Employee also has the right to report discrimination, harassment and retaliation directly to DFEH and/or the Federal Equal Employment Opportunity Commission ("EEOC"). Employees may contact DFEH at the following telephone number or website: Los Angeles: (213) 439-6799 http://www.dfeh.ca.gov/ Employees may contact the EEOC at the following telephone number or website: Los Angeles: (213) 894-1000 http://www.eeoc.gov/employees APPENDIX A OF EMPLOYEE POLICY MANUAL 7 8776641.3 NE020-059 rev 02/19 The City maintains Employee work sites, agencies. posted Notice regarding harassment and discrimination at all which contains additional information about how to contact these Adopted by Council: 3/26/19 APPENDIX A OF EMPLOYEE POLICY MANUAL 8 8776641.3 NE020-059 rev 02/19 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. 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; the foregoing resolution, being Resolution No. 2019-27 was duly introduced before and adopted by the City Council of said City at a regular meeting of said Council held on the 26th day of March, 2019; and the same was so passed and adopted by the following vote, to wit: AYES: Council Member Brad Avery, Council Member Joy Brenner, Council Member Duffy Duffield, Council Member Jeff Herdman, Council Member Kevin Muldoon, Mayor Pro Tem Will O'Neill, Mayor Diane Dixon NAYS: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 27th day of March, 2019. 6 4j. Leilani I. Brown City Clerk Newport Beach, California