14-B
TO: Honorable Mayor and Members of the City Council
FROM: Jeffrey L. Stewart, City Manager
Karl H. Berger, City Attorney
SUBJECT: Consideration and possible action to adopt Resolution No. 23-12 – A Resolution prohibiting discrimination, harassment, and retaliation in the workplace, and superseding Resolution No. 16-17.
DATE: April 10, 2023
EXECUTIVE SUMMARY
The proposed Resolution amends, in its entirety, Resolution No. 16-17 (adopted April 11, 2016) to update the City’s Policy prohibiting harassment, discrimination, and retaliation in the workplace.
RECOMMENDATION TO CITY COUNCIL
1) Adopt Resolution No. 23-12; or
2) Alternatively, discuss and take other action related to these items.
BACKGROUND
In preparation for the City-wide training on Preventing Workplace Harassment, Discrimination and Retaliation being conducted on April 11th and 13th, the City’s labor attorneys with Liebert, Cassidy and Whitmore (“LCW”) reviewed the current policies governing these subjects. The last update to the City’s policy occurred in 2016 which was before the City retained LCW as labor counsel.
Because of changes in federal and state law, LCW and the City Attorney recommend that the City’s policies be updated as reflected in the draft resolution. In sum, the draft Resolution implements changes in the law since 2016; clarifies to whom the policy applies; establishes objective methods of investigation allegations of policy violations; and ensures that the City’s employees and other affected persons receive regular training regarding the City’s policy. The training sessions on April 11th and 13th will provide such mandatory training.
FISCAL IMPACT
None.
ATTACHMENT
Resolution No. 23-12 ....................................................................................................... 2
CITY OF BELLFLOWER
RESOLUTION NO. 23-12
A RESOLUTION PROHIBITING DISCRIMINATION, HARASSMENT, AND
RETALIATION IN THE WORKPLACE, AND SUPERSEDING
RESOLUTION NO. 16-17
THE CITY COUNCIL RESOLVES AS FOLLOWS:
SECTION 1. Purpose. This Resolution is adopted to establish a Citywide policy 1) prohibiting discrimination, harassment, and retaliation in the workplace; and 2) establishing a complaint procedure to investigate and resolve complaints of discrimination, harassment, and retaliation. The City Council finds as follows:
A. The City of Bellflower (“City”) is committed to preventing discrimination, harassment, and retaliation in the workplace.
B. The City has zero tolerance for any conduct that violates this policy.
Conduct need not violate either federal or state law to constitute a violation of this policy.
C. A single act by a City employee may constitute a violation of this policy and provide sufficient grounds for the City to discipline the employee, up to and potentially including termination of employment.
D. This Resolution establishes a complaint procedure by which the City will investigate and resolve complaints of discrimination, harassment, and retaliation by and against City covered individuals. Such an investigation will be fair, timely, and thorough. The City will provide all parties appropriate due process and reach reasonable conclusions based on the evidence collected. The City encourages all covered individuals to report any conduct they believe violates this policy as soon as possible.
E. The City expressly prohibits any retaliation against an employee because they filed or supported a complaint or because they participated in the investigation or complaint resolution process. Individuals found to have retaliated against an employee in violation of this policy will be subject to appropriate sanction or disciplinary action, up to and including termination.
SECTION 2. Covered Individuals and Scope of Policy. This policy governs the following individuals: applicants for employment at the City; City employees regardless of rank or title; elected or appointed officials of the City (which are additionally governed by Resolution No. 16- 87, adopted December 12, 2016); interns; volunteers; and contractors. This policy applies to all terms and conditions of employment, internships, and volunteer opportunities including, without limitation, selection, hiring, placement, promotion, disciplinary action, layoff, recall, transfer, leave of absence, compensation, and training. This policy prohibits harassment of a covered individual because of the individual’s actual or perceived protected classification. This policy prohibits discrimination, harassment, or retaliation because of an individual’s protected classification. This policy prohibits discrimination, harassment, or retaliation for the following reasons:
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Resolution No. 23-12
A. An individual’s protected classification;
B. The perception that an individual has a protected classification; or
C. The individual associates with a person who has or is perceived to have a protected classification.
SECTION 3. Definitions. Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this Resolution:
A. “Adverse action” may include, without limitation, the following actions: (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 or who participates in the investigation; (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.
B. “Discrimination” means treating a covered individual differently and adversely because of the individual’s actual or perceived protected classification; because the individual associates with a person who is or is perceived to be a member of a protected classification; or because the individual participates in a protected activity as defined in this policy.
C. “Harassment” includes, without limitation, the following conduct:
1. Derogatory, offensive or inappropriate speech, such as epithets, slurs or stereotypical comments, or verbal propositions made on the basis of the individual’s protected classification. This includes, without limitation, comments, stories, and jokes about appearance, dress, physical features, gender identification, and race.
2. Physical acts, such as assault, impeding or blocking movement, offensive touching, or physical interference with normal work or movement. This includes, without limitation, 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, offensive or inappropriate, posters, cartoons, emails, pictures or drawings related to a protected classification.
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.
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5. Conduct that is not intended as to harass. Conduct may violate this policy if the conduct is directed at or implicates a protected classification and the recipient finds the conduct to be offensive or inappropriate, even if it is well-intentioned conduct (e.g., gifts, over- attention, endearing nicknames, and hugs).
6. Conduct to which the recipient appears to have consented. The City does not recognize as a defense that the recipient appeared to have consented to the conduct at issue by failing to protest about the conduct. A recipient may not protest offensive or inappropriate conduct for many legitimate reasons, including, without limitation, the need to avoid being perceived as insubordinate or to avoid being ostracized or subjected to retaliation.
7. Conduct about which no employees previously complained. The fact that no employee previously complained about the same or substantially similar conduct does not mean that the conduct is inoffensive or appropriate nor does that fact preclude an employee from complaining about such conduct if it is repeated.
8. Conduct witnessed by a third party or about which a third party learns, even if they did not witness such conduct. Visual, verbal, or physical conduct between two people who do not find such conduct to be offensive or inappropriate may constitute harassment if a third party witnesses such conduct or learns about the conduct later and finds the conduct to be offensive or inappropriate. Conduct can constitute harassment even if it is not explicitly or specifically directed at a particular individual.
9. Conduct can constitute harassment even if the individual has no intention to harass. Conduct that may be well-intentioned conduct (e.g., gifts, over-attention, endearing nicknames, and hugs) may nevertheless constitute harassment if the conduct is directed at, or implicates a protected classification, and if the individual finds such conduct inappropriate or offensive.
10. Harassment includes conduct that another individual who is a member of the protected classification would find unwelcome or unwanted.
D. “Protected classification” includes race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decisionmaking, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 and over), sexual orientation, or veteran or military status, or any other basis protected by law.
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E. “Protected activity” includes, without limitation, the following activity: (1) making a request for an accommodation for a disability; (2) making a request for accommodation for religious beliefs; (3) making a complaint under this policy; (4) opposing violations of this policy; or (5) participating in an investigation under this policy. This policy prohibits discrimination, harassment, and retaliation because of an individual’s protected activity.
F. “Retaliation” occurs when an employer takes adverse action against a covered individual because of the individual’s protected activity as defined in this policy.
SECTION 4. Proactive Approach. The City takes a proactive approach to potential policy violations and will conduct an investigation if its supervisory or management employees become aware that harassment, discrimination, or retaliation occurred or may be occurring, regardless of whether the recipient or third party reports a potential violation.
SECTION 5. Complaint Procedure. A covered individual who believes they have been subjected to discrimination, harassment, or retaliation may make a complaint, either orally or in writing, to any supervisor, manager, department head, or to the Personnel Officer, without regard to any chain of command. Any supervisory or management employee who receives a complaint under this policy must immediately notify the Personnel Officer. Upon receiving notification of a complaint regarding discrimination, harassment, or retaliation, the Personnel Officer will complete and/or delegate the following steps:
A. Authorize and supervise the investigation of the complaint and/or investigate the complaint. The investigation will usually include interviews with the following individuals: (1) the complainant; (2) the accused (i.e., the subject of the investigation); (3) witnesses to the conduct at issue in the complaint; and (4) other persons who have relevant knowledge concerning the allegations in the complaint.
B. Review the factual information gathered during the investigation to determine whether the alleged conduct violated this policy 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.
C. Prepare a summary report of the determination as to whether the conduct violated this policy and provide such report to the City Manager, or designee. If discipline or sanctions are imposed, the level of discipline or sanctions will not be communicated to the complainant or to any other individual who does not have a legitimate need to know the information.
D. If conduct in violation of this policy occurred, take or recommend to the City Manager prompt and effective remedial action. The remedial action will be commensurate with the severity of the offense.
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E. Take reasonable steps to protect the complainant from further harassment, discrimination, or retaliation.
F. If the Personnel Officer is accused, or is a witness to the events at issue, an individual with higher authority will complete and/or delegate the above enumerated steps.
G. If the City Manager is accused, or is a witness to the events at issue, the complaint may be filed with the City Attorney or the Mayor; if the City Attorney is accused, or is a witness to the events at issue, the complaint may be filed with the City Manager or the Mayor.
SECTION 6. Right to File Report with Outside Administrative Agencies.
An individual possesses the right to report workplace discrimination, harassment, or retaliation to the federal Equal Employment Opportunity Commission ("EEOC”) and/or the state Civil Rights Department (“CRD”). These administrative agencies provide a complaint process as well as certain legal remedies if the applicable agency determines that a violation of the law occurred. The nearest EEOC and CRD offices are listed on the internet. Employees may also check the posters that are located on City bulletin boards for EEOC and CRD office locations and telephone numbers.
SECTION 7. Confidentiality. The City will make every effort to ensure the confidentiality of complaints made under this policy to the greatest extent allowed by law.
However, complete confidentiality may not be possible because of the City’s need to investigate the complaint and provide the subject of the complaint their due process rights, which include providing the subject of the investigation a copy of the complaint after the initial investigatory interview, if requested.
A. The City expressly prohibits an employee who is interviewed during the course of an investigation from attempting to influence other employees, including employees who may have witnessed the underlying conduct at issue, while the investigation is open and ongoing.
B. An employee may discuss their interview with a designated representative from the employee’s employee organization and/or the employee’s legal 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. Responsibilities.
A. Each non-supervisor or non-manager is responsible for the following:
1. Treating all individuals in the workplace or on City worksites with respect and consideration.
2. Modeling behavior that conforms to this policy.
3. Participating in periodic trainings on personnel matters.
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4. Cooperating with the City’s investigations pursuant to this policy by responding fully and truthfully and in a timely manner to all questions posed during the investigation.
5. Taking no actions to influence the complainant or any potential witness while the City’s investigation is ongoing.
6. Reporting any act they believe in good faith constitutes harassment, discrimination, or retaliation as defined by this policy, to their immediate supervisor or manager, department head, or to the Human Resources and Risk Manager.
B. In addition to the responsibilities listed above, each supervisor and manager is also responsible for:
1. Informing employees under their supervision of this policy.
2. Taking all steps necessary to prevent harassment, discrimination, and retaliation from occurring, including, but not limited to, monitoring the work environment and taking immediate and appropriate action to stop violations (e.g., removing inappropriate pictures of correcting inappropriate language).
3. Receiving and responding to complaints in a uniformly fair and serious manner.
4. Documenting the steps taken to resolve such complaints.
5. Following up with those who have complained to ensure that the offensive conduct about which they complained has stopped and that there have been no reprisals or retaliation or threats of reprisals or retaliation.
6. Informing those who complain about harassment and/or discrimination of their option to contact the EEOC or CRD and file a complaint about such activity.
7. Assisting and/or advising employees regarding this policy.
8. Assisting in the investigation of complaints involving subordinate employee(s).
9. Where a complaint is substantiated, assisting in the development of a recommendation concerning an appropriate corrective or disciplinary action in accordance with these policies.
10. Implementing appropriate corrective or disciplinary actions.
11. Reporting potential violations of this policy to the Personnel Officer, regardless of whether an employee complained about such conduct.
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12. Participating in periodic training and scheduling employees for training.
SECTION 9. Mandatory Training. The City requires that all of its supervisory employees receive at least two hours of training on the contents of this policy and that all other employees receive at least one hour of training on the contents of this policy.
Employees will receive this training within six months of being hired, and at least once every two years thereafter. Temporary and seasonal employees hired to work for less than six months will receive training on this policy within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first. The City will schedule training sessions and attendance at the training will be documented. The CRD provides free online training courses on preventing sexual harassment and abusive conduct in the workplace, which are available at the following link: https://calcivilrights.ca.gov/shpt/ .
SECTION 10. Dissemination of Policy. Each employee, volunteer, and intern is responsible for knowing, understanding, and fully complying with the provisions of this policy.
A. A copy of this policy will be provided to each new employee, volunteer, and intern on their first day of work and each will sign a form acknowledging receipt of the policy, which will be placed in their individual personnel file.
B. A copy of this policy will be provided to each employee, volunteer, and intern who was employed by or providing services to the City as of April 3, 2023, and each will sign a form acknowledging receipt of the policy, which will be placed in their individual personnel file.
C. Copies of this policy will be posted on employee bulletin boards throughout the City.
SECTION 11. Ongoing Enforcement. This Resolution does not affect any penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties for any violation occurring before, this Resolution’s effective date. Any such amended part will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Resolution.
SECTION 12. Severable. If any part of this Resolution or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Resolution are severable.
SECTION 13. Supersession. To the extent that Resolution No. 16-17 (adopted April 11, 2016), any other resolution pertaining to prohibiting discrimination, harassment, and retaliation in the workplace is incorporated into this Resolution, it is superseded in its entirety.
SECTION 14. Administrative Policies and Procedures. The City Manager is authorized to promulgate administrative policies and procedures, in a form approved by the City Attorney, to implement this Resolution.
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SECTION 15. Electronic Signatures. This Resolution may be executed with electronic signatures in accordance with Government Code §16.5. Such electronic signatures will be treated in all respects as having the same effect as an original signature.
SECTION 16. The Mayor, or presiding officer, is hereby authorized to affix their signature to this Resolution signifying its adoption and the City Clerk, or their duly appointed deputy, is directed to attest hereto.
SECTION 17. This Resolution will become effective immediately upon adoption.
PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF BELLFLOWER THIS 10th DAY OF APRIL, 2023.
______________________________
Sonny R. Santa Ines, Mayor
ATTEST:
________________________________
Mayra Ochiqui, City Clerk
APPROVED AS TO FORM:
________________________________
Karl H. Berger, City Attorney