The City Council also sits as the Carlsbad Municipal Water District Board, Public Financing Authority Board, Community Development Commission and Successor Agency to the Redevelopment Agency. When considering items presented to the Carlsbad Municipal Water District Board, each member receives an additional $100 per meeting (max $300/month). When considering items presented to the Community Development Commission each member receives an additional $75 per meeting (max $150/month).
Special Meeting
Feb. 27, 2023, 10 a.m.
Council Chamber
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Welcome to Your City Council Meeting
We welcome your interest and involvement in the city’s legislative process. This agenda includes information about topics coming before the City Council and the action recommended by city staff. You can read about each topic in the staff reports, which are available on the city website and in the Office of the City Clerk. The City Clerk is also available to answer any questions you have about City Council meeting procedures.
How to Watch
In Person
On TV Online
City Council Chamber
1200 Carlsbad Village Drive
Watch the city’s cable channel
Spectrum 24 and AT&T U-verse 99
Watch the livestream at
carlsbadca.gov/watch
How to Participate
If you would like to provide comments to the City Council, please:
• Fill out a speaker request form, located in the foyer. • Submit the form to the City Clerk before the item begins. • When it’s your turn, the City Clerk will call your name and invite you to the podium. • Speakers have three minutes, unless the presiding officer (usually the Mayor) changes that time. • You may not give your time to another person, but can create a group. A group must select a single speaker as long as three other members of your group are present . All forms must be submitted to the City Clerk before the item begins and will only be accepted for items listed on the agenda (not for general public comment at the beginning of the meeting). Group representatives have 10 minutes unless that time is changed by the presiding officer or the City Council.
Reasonable Accommodations
Reasonable Accommodations Persons with a disability may request an agenda packet in appropriate alternative formats as required by the Americans with Disabilities Act of 1990. Reasonable accommodations and auxiliary aids will be provided to effectively allow participation in the meeting. Please contact the City Manager’s Office at 442 - 339-2821 (voice), 711 (free relay service for TTY users), 760 -720-9461 (fax) or [email protected] by 3 p.m. on the Friday before the meeting to make arrangements. City staff will respond to requests by 9 a.m. on Monday, the day of the meeting, and will seek to resolve requests before the start of the meeting in order to maximize accessibility.
More information about City Council meeting procedures can be found at the end of this agenda and in the Carlsbad Municipal Code chapter 1.20.
CITY COUNCIL
Agenda
-
Spectrum 24
AT&T U-verse 99
Feb. 27, 2023 Page 2
CALL TO ORDER: 10:02 a.m.
ROLL CALL: Blackburn, Bhat-Patel, Acosta, Burkholder, Luna.
PLEDGE OF ALLEGIANCE: Council Member Luna led the Pledge of Allegiance.
DEPARTMENTAL AND CITY MANAGER REPORTS:
1. AB 1661 TRAINING – SEXUAL HARASSMENT PREVENTION TRAINING AND EDUCATION – Council Members and staff will receive two hours of mandatory sexual harassment prevention training and education. (Staff contact: Judy Von Kalinowski, Administrative Services Department)
City Manager’s Recommendation: Receive the training.
ACTION: Council received the training.
COUNCIL COMMENTARY AND REQUESTS FOR CONSIDERATION OF MATTERS:
City Council Regional Assignments (Revised 2/15/23)
Keith Blackburn
Mayor
Buena Vista Lagoon JPC
Chamber of Commerce Liaison (alternate)
Encina Joint Powers JAC
Encina Wastewater Authority Board of Directors
Economic Development Subcommittee
North County Dispatch Joint Powers Authority (alternate) SANDAG Board of Directors (2nd alternate)
SANDAG Shoreline Preservation Work Group (alternate)
Priya Bhat-Patel
Mayor Pro Tem – District 3
City/School Committee
Clean Energy Alliance JPA
Economic Development Subcommittee
League of California Cities – SD Division (alternate)
North County Transit District
SANDAG Board of Directors (1st alternate)
Melanie Burkholder
Council Member – District 1
City Council Legislative Subcommittee
SANDAG Board of Directors
Teresa Acosta
Council Member – District 4
Chamber of Commerce Liaison
City Council Legislative Subcommittee
City/School Committee
Clean Energy Alliance JPA (alternate)
Encina Joint Powers JAC (alternate)
Encina Wastewater Authority Board of Directors (alternate) League of California Cities – SD Division
San Diego County Water Authority
Carolyn Luna
Council Member – District 2
Buena Vista Lagoon JPC
Encina Joint Powers JAC
Encina Wastewater Authority Board of Directors
North County Dispatch Joint Powers Authority
North County Transit District (alternate)
Feb. 27, 2023 Page 3
SANDAG Shoreline Preservation Work Group
ANNOUNCEMENTS:
This section of the Agenda is designated for announcements to advise the community regarding events that Members of the City Council have been invited to, and may participate in.
CITY MANAGER COMMENTS:
CITY ATTORNEY COMMENTS:
ADJOURNMENT: 11:48 a.m.
City Council Meeting Procedures (continued from page 1)
Written Materials
Written materials related to the agenda that are submitted to the City Council after the agenda packet has been published will be available for review prior to the meeting during normal business hours at the City Clerk’s office, 1200 Carlsbad Village Drive and on the city website. To review these materials during the meeting, please see the City Clerk.
Visual Materials
Visual materials, such as pictures, charts, maps or slides, are allowed for comments on agenda items , not general public comment. Please contact the City Manager’s Office at 442-339-2820 or [email protected] to make arrangements in advance. All materials must be received by the City Manager’s Office no later than noon the day before the meeting. The time spent presenting visual materials is included in the maximum time limit provided to speakers. All materials exhibited to the City Council during the meeting are part of the public record. Please note that video presentations are not allowed.
Decorum
All participants are expected to conduct themselves with mutual respect. Loud, boisterous and unruly behavior can interfere with the ability of the City Council to conduct the people’s business. That’s why it is illegal to disrupt a City Council meeting.
Following a warning from the presiding officer, those engaging in disruptive behavior are subject to law enforcement action.
City Council Agenda
The City Council follows a regular order of business that is specified in the Carlsbad Municipal Code. The City Council may o nly make decisions about topics listed on the agenda.
Presentations
The City Council often recognizes individu als and groups for achievements and contributions to the community. Well-wishers often fill the chamber during presentations to show their support and perhaps get a photo. If you don’t see an open seat when you arrive, there will likely be one once the presentations are over.
Consent Items
Consent items are considered routine and may be enacted together by one motion and vote. Any City Council member may remove or “pull” an item from the “consent calendar” for a separate vote. Members of the public may pull an item from the consent calendar by requesting to speak about that item. A speaker request form must be submitted to the clerk prior to the start of the consent portion of the agenda.
Public Comment
Members of the public may speak on any city related item that does not appear on the agenda. State law prohibits the City Council from taking action on items not listed on the agenda. Comments requiring follow up will be referred to staff and, if appropriate, considered at a future City Council meeting. Members of the public are also welcome to provide comments on agenda items during the portions of the meeting when those items are being discussed. In both cases, a request to speak form must be submitted to the clerk in advance of that portion of the meeting beginning.
Public Hearing
Certain actions by the City Council require a “public hearing,” which is a time within the regular meeting that has been set aside and noticed according to different rules.
Departmental Reports
This part of the agenda is for items that are not considered routine and do not require a public hearing. These items are usually presented to the City Council by city staff and can be informational in nature or require action. The staff report about each item indicates the purpose of the item and whether or not action is requested.
Feb. 27, 2023 Page 4
Other Reports
At the end of each meeting, City Council members and the City Manager, City Attorney and City Clerk are given an opportunity to share inform ation. This usually includes reports about recent meetings, regional issues, and recent or upcoming meetings and events.
City Council Actions
Resolution
A resolution is an official statement of City Council policy that directs administrative or legal action or embodies a public City Council statement. A resolution may be introduced and adopted at the same meeting. Once adopted, it remains City Council policy until changed by subsequent City Council resolution.
Ordinance
Ordinances are city laws contained in the Carlsbad Municipal Code. Enacting a new city law or changing an existing one is a two-step process. First, the ordinance is “introduced” by city s taff to the City Council. If the City Council votes in favor of the introduction, the ordinance will be placed on a subsequent City Council meeting agenda for “adoption.” If the City Council votes to adopt the ordinance, it will usually go into effect 30 days later.
Motion
A motion is used to propose City Council direction related to an item on the agenda. Any City Council member may make a motion. A motion must receive a “second” from another City Council member to be eligible for a City Council vote.
Liebert Cassidy Whitmore
Preventing Workplace Harassment,
Discrimination and Retaliation
Presented By:
Stephanie J. Lowe / February 9, 22 & 27, 2023
Liebert Cassidy Whitmore
Agenda
• Overview of Laws and Policies Related to
Discrimination, Harassment, and Retaliation
• Protected Classifications
• What is Unlawful Discrimination, Harassment,
and Retaliation?
• Types of Unlawful Harassment
• Bullying/Abusive Conduct in the Workplace
• Duties of a Supervisor
• Addressing Unlawful Discrimination,
Harassment, and Retaliation in the Workplace
Liebert Cassidy Whitmore
Preventing Workplace Discrimination,
Harassment and Retaliation Training
Why Are We Doing
This Training?
Liebert Cassidy Whitmore
Administrative Order No. 45 ‐ EEO
and Workplace Civility Policy
• “[T]he city is committed to maintaining a
workplace that provides equal employment
opportunity (EEO), is free from discrimination,
harassment and retaliation in any form and fosters
diversity, equity, inclusion (DEI) and respect for all
individuals.”
Liebert Cassidy Whitmore
Unlawful Harassment
Unfortunately Still Takes Place….
Liebert Cassidy Whitmore
Preventing Workplace Discrimination,
Harassment and Retaliation Training
Should You Want To Be
at This Training?
Liebert Cassidy Whitmore
Preventing Workplace Discrimination,
Harassment and Retaliation Training
So, What Do We Need to Know?
&
What Can We Do to Prevent It?
Liebert Cassidy Whitmore
True or False?…
Harassment can be based upon any
protected classification.
TRUE
Liebert Cassidy Whitmore
True or False?…
Anti‐harassment laws do not apply to
volunteers and interns.
FALSE
Liebert Cassidy Whitmore
True or False?…
Employees who report harassment
must put their complaint in writing.
FALSE
Liebert Cassidy Whitmore
True or False?…
Unlawful discrimination generally
does not occur when a supervisor
applies work rules uniformly.
TRUE
Liebert Cassidy Whitmore
True or False?…
If an employee’s religious beliefs preclude
the employee from working with any gay,
lesbian, or transgender employees, the
employer has to reasonably
accommodate the employee.
FALSE
Liebert Cassidy Whitmore
True or False?…
If the employer is investigating a
claim of harassment and the
harassment stops, the employer may
discontinue the investigation?
FALSE
Overview of Laws and Policies Related to
Discrimination, Harassment, and
Retaliation
Liebert Cassidy Whitmore
Sources of Law
• Federal Law
Equal Pay Act of 1963
Title VII of the 1964 Civil Rights Act
Age Discrimination in Employment Act (ADEA)
Americans with Disabilities Act (ADA)
42 U.S.C. §§ 1981 and 1983
• California Law
Fair Employment and Housing Act (FEHA)
California Equal Pay Act
Liebert Cassidy Whitmore
Administrative Agencies
• U.S. Equal Employment Opportunity Commission
(EEOC)
Federal Agency Administering Title VII, ADA, and ADEA Employment Discrimination Laws
• Civil Rights Department of the State of California
https://calcivilrights.ca.gov
State Agency Administering FEHA Employment
Discrimination Laws
Liebert Cassidy Whitmore
City Policy
• The City’s Policy Against Harassment, Discrimination and Retaliation
Prohibits employees and non‐employees from discriminating, harassing and retaliating based on any protected status (all must be listed) Protects applicants, volunteers, independent contractors and employees from being subject to prohibited conduct
Provides a complaint procedure for employees to report violations for the City to Investigate
Identifies Civil Rights Department (formerly the Department of Fair Employment and Housing)/EEOC resources including website or link to training
Provides confidentiality to extent possible
Appropriate remedies for sustained violations
Liebert Cassidy Whitmore
City Policy
• Zero Tolerance
Single violation of City’s policy can subject employee to appropriate disciplinary action even if violation would not establish liability or be a violation of state/federal law • Distribution of Policy
Review with and provide to new and current employees with acknowledgement form to ensure receipt
Post in the workplace/intranet
Update policy when appropriate and notify employees of update
Protected Classifications and
Bullying/Abusive Conduct
Liebert Cassidy Whitmore
Unlawful Harassment?
What is Unlawful Harassment?
Is There Such a Thing as Lawful
Harassment?
Liebert Cassidy Whitmore
Protected Classifications
• Sex/Gender/Gender
Identity/Gender Expression
• Sexual Orientation
• Race/National Origin/Color
• Disability/Medical Condition
• Genetic
Information/Characteristics
• Religious Creed
• Marital Status
• Military/Veteran Status
• Age (40 Years of Age and
Older)
• Opposition to
Discrimination/Harassment
• Association/Perception
• Reproductive Health
Decision making (new)
Liebert Cassidy Whitmore
Gender Identity / Expression
Employers Must:
Permit employees to use the restroom that corresponds to the employee’s gender identity/expression
Refer to employees using the employee’s preferred
name, gender, and pronouns
Designate single occupancy facilities using gender‐
neutral signage
Liebert Cassidy Whitmore
Gender Identity / Expression
Employers Must Not:
Enforce dress codes more harshly against an employee
based on their gender identity/expression
Discriminate against an applicant for failing to
designate a gender or designating a gender that is
inconsistent with the applicant’s sex assigned at birth Inquire about or require documentation or proof of an individual’s sex or gender
What is Unlawful Discrimination,
Harassment, and Retaliation?
Liebert Cassidy Whitmore
Unlawful Discrimination,
Harassment and Retaliation
Discrimination
Retaliation
Harassment
Liebert Cassidy Whitmore
Unlawful Discrimination
Elements of Unlawful Discrimination
• An adverse employment action taken based on a
protected classification
Adverse Employment Action =
• Action taken within the course and scope of employment Hiring, firing, demotion, failure to promote, assignment of job duties, etc.
Liebert Cassidy Whitmore
Unlawful Harassment
• Harassment is NOT within the course and scope of
employment
• Verbal, visual, or physical actions that are
unwelcome and directed to or related to an
employee’s protected classification
• Includes actions by/towards employees,
independent contractors, vendors, and other non‐
employees
Liebert Cassidy Whitmore
Unlawful Retaliation
Elements of Unlawful Retaliation
• Protected activity –b r o a d standard
Reporting discrimination or harassment
Participating in an investigation
Refusing to follow order reasonably believed to be
discriminatory
• Adverse action –b r o a d standard
• Causal connection
Liebert Cassidy Whitmore
Case Study
Jody files a sexual harassment claim against her co‐worker Don.
While the Agency investigates Jody’s allegations, Don is upset about the complaint and tells the other employees in the department that Jody is a “no good liar” and tells their supervisor that she has a “poor work ethic,” resulting in Jody’s demotion to a lower position.
Has Jody been subjected to unlawful retaliation?
What if Don instead ignores Jody at work following the harassment complaint and leaves the room when she comes in because he does not want her to accuse him of anything else?
Liebert Cassidy Whitmore
What If You Are Accused?
• Refer the accuser to a superior, human resources, or upper management
• Report the accusation to your supervisor and to human resources • Refrain from ANY action that could be interpreted as retaliation • Seek constructive counseling from human resources/upper management
• Cooperate in the investigation
• Follow the City’s policy
Types of Unlawful Harassment
Liebert Cassidy Whitmore
Two Types of Harassment
1. Quid Pro Quo
(“Economic”)
2. Hostile Work
Environment
(“Environmental”)
Liebert Cassidy Whitmore
Quid Pro Quo Sexual Harassment
(“Economic” Harassment)
Classic Example:
“Sleep with me and I'll make sure you get
that promotion… ”
Liebert Cassidy Whitmore
Quid Pro Quo Sexual Harassment
(“Economic” Harassment)
Elements of “Economic” Harassment:
• Job benefits promised;
• Explicitly or implicitly;
• In exchange for:
Sexual favors; or
Denied if sexual favors are not given
Liebert Cassidy Whitmore
Case Study
Sonya is the Finance Manager and oversees Accountant Leo among others at the Agency. Leo’s current assignment includes preparing department budgets – a highly coveted duty that involves overtime. At one time, Sonya and Leo briefly dated, but Leo ended the relationship because they have to work together . Sonya still regularly flirts with Leo in the workplace and makes comments to him that they should “get back together.” Irritated by the flirting, Leo confronts Sonya and tells her to stop. Sonya tells Leo she’ll just reassign him to the less desirable job duties of audits at the Agency (which has no overtime) if he does not “chill out.”
Is Sonya liable for quid pro quo sexual harassment?
Liebert Cassidy Whitmore
Case Study
Jack and Jill Begin Work at the Same Time as Entry
Level Administrative Assistants at the Agency. Jill
Turns to Jack on Their Second Day of Work and
Says “Sleep With Me and I’ll Make Sure You Get
That Promotion.”
Has Jill Engaged in Quid Pro Quo Sexual
Harassment?
Liebert Cassidy Whitmore
Case Study
Program Analyst Mary finds sexually offensive language
on the wall in the unisex restroom at the office. Mary is immediately offended and complains to her supervisor .
Is this quid pro quo sexual harassment?
If not, could this still constitute unlawful harassment in the workplace?
Liebert Cassidy Whitmore
Hostile Work Environment
(“Environmental” Harassment)
Elements of “Environmental” Harassment:
• Protected Classification
• Physical, Verbal, or Visual Conduct
• Objectively and Subjectively Offensive (Unwelcome)
• Severe or Pervasive
Single Incident May Establish Liability Under FEHA
• Unreasonably Interferes With Work
Liebert Cassidy Whitmore
Hostile Work Environment
(“Environmental” Harassment)
2019 Changes to California Law:
• Decline in productivity not required to establish harassment –i t is sufficient that the conduct “so altered working conditions as to make it more difficult to do the job.”
• A single incident of harassing conduct may be sufficient to create a hostile work environment
• Totality of the circumstances matter, including “stray remarks” by non‐decisionmakers
• Standards do not vary by workplace
• Rarely determinable “on paper” alone
Liebert Cassidy Whitmore
Physical Conduct
Obvious Examples:
• Criminal conduct
Rape
Sexual assault
Touching/groping
• Physical intimidation
Liebert Cassidy Whitmore
Physical Conduct
Less Obvious:
• Massage
• Hugs
Liebert Cassidy Whitmore
Case Study – Verbal Conduct
Although Georgette was assigned at birth as a male, she recently began presenting as a female, consistent with her gender identity.
She notified her co‐workers of her new changed presentation as she previously presented as male, named George. Rick and John refuse to refer to Georgette by her name or female pronouns and still call her “George” and frequently ask “him” why “he” uses the Women’s Restroom and wears skirts.
Have Rick and John created a hostile work environment?
Liebert Cassidy Whitmore
Verbal Conduct
• Sexual comments
• Jokes
• Mocking accent
• Teasing
• Slurs
Liebert Cassidy Whitmore
Case Study – Visual Conduct
Ron arrives to work and finds a noose hanging in his
office’s doorway, with his co‐workers and supervisor in the hallway looking at it and doing nothing. As an
African‐American, Ron is extremely offended and also
embarrassed in front of his co‐workers.
Has Ron been subjected to a hostile work environment?
Liebert Cassidy Whitmore
Visual Conduct
Posters
Calendars
Magazines
Emails
Racial or Religious
Cartoons
Sexual Conduct /
Affection Between Other
Employees at Work
Gestures
Staring / Leering
Liebert Cassidy Whitmore
“Gray” (Borderline) Areas
• “Private” and “consensual” relationships between supervisors and subordinates? (Warning: not for long!)
• Off‐duty conduct
• Invitations to lunch, drinks or dinner
• References to appearance or dress
• Casual touching of non‐intimate body parts
Hands on shoulders
Hands on waist
Hand on arm or leg
Bullying/Abusive Conduct
Liebert Cassidy Whitmore
Bullying/Abusive Conduct?
What About Bullying and Abusive
Conduct in the Workplace?
Liebert Cassidy Whitmore
Bullying/Abusive Conduct Is
Improper In The Workplace
• “Bullying/abusive conduct”
Conduct in the workplace with malice that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests
Includes verbal abuse, derogatory remarks/insults,
threatening/intimidating/humiliating physical or verbal conduct, or undermining of a person’s work performance
• Bullying/abusive conduct issues are generally covered by the agency’s standards of conduct rules and such rules
should be enforced
Liebert Cassidy Whitmore
Bullying v. Unlawful Harassment
Both unlawful harassment and bullying
consist of offensive conduct that is either
pervasive or severe, and thus goes beyond
mere incivility...
So, what’s the difference?
Liebert Cassidy Whitmore
Bullying v. Unlawful Harassment
Protected
Classification
Liebert Cassidy Whitmore
Difference Between Unlawful
Harassment and Bullying
• Unlawful harassment is directed at membership in a protected classification
Therefore, it is unlawful
• Bullying is NOT necessarily directed at membership in a protected classification
Therefore, bullying is NOT unlawful
• While not necessarily unlawful, bullying/abusive conduct towards employees in the workplace is entirely inappropriate and should not be tolerated
.
BULLY
FREE
ZONE _ .
Duties of a Supervisor
Liebert Cassidy Whitmore
Who is a “Supervisor”?
• Anyone who has any responsibility or discretion to
lead others
Government Code Section 12926(t)
Liebert Cassidy Whitmore
Supervisor’s Duty to Respond
•“Harassment… Shall be Unlawful if the Entity, or its Agents or Supervisors, Knows or Should Have Known of This
Conduct and Fails to Take Immediate and Appropriate
Corrective Action.
”
Government Code Section 12940(j)(1)
Supervisors have an obligation to report harassment,
discrimination, and retaliation of which they become
aware.
Liebert Cassidy Whitmore
Case Study
Margaret supervises a team of five employees, four of
whom are male, and one of whom is female. Today,
Margaret overheard the male employees standing around
the water cooler speculating on how their female
colleague must be “in bed.” The female colleague was
not in the office and did not overhear the discussion.
Does Margaret have an obligation to take action even
though the female employee was not there to overhear
the discussion?
Liebert Cassidy Whitmore
Supervisor’s Duty to Respond
• Report observed/overheard conduct
• Forward complaints/issues to management and Human
Resources promptly, including:
Third‐party complaints
Verbal complaints
Rumors
Remember:
The word “harassment” need not be used to trigger your
duty to act
Liebert Cassidy Whitmore
Supervisor’s Duty to Respond
Don’t Ignore the Response!
• Take immediate action and report/ follow‐up on any
harassment, discrimination, or retaliation complaints
received
• Cooperate in the investigation
• Prevent further harassment
• Assure no retaliation
Addressing Unlawful Discrimination,
Harassment, and Retaliation in the
Workplace
Liebert Cassidy Whitmore
What Can the City Do?
• Appropriate corrective action
Conduct prompt and thorough investigation
o (Confidentiality is limited)
Keep the victim informed
Discipline perpetrator appropriately
Preventative training to prevent future violations
Re‐publish/update City policy
Liebert Cassidy Whitmore
Options for Resolution
• Follow the City’s harassment policy complaint
procedure
• The alleged victim can also take the following
actions:
Report to the U.S. Equal Employment Opportunity
Commission (EEOC)
Report to the Civil Rights Department of the State of California https://calcivilrights.ca.gov
Lawsuits in State or Federal Court
Liebert Cassidy Whitmore
Consequences –E m p l o y e r Liability
• The Employer is liable for:
The conduct of supervisors who engage in unlawful
harassment, discrimination, or retaliation
Failing to take all reasonable steps necessary to
prevent harassment from occurring
Liebert Cassidy Whitmore
Consequences – Personal
Liability
• ALL employees can be personally liable for
engaging in unlawful harassment
• Supervisors can also be personally liable for
condoning unlawful harassment or failing to act in
response to an unlawful harassment complaint
Liebert Cassidy Whitmore
Consequences – Damages
Damages Can Include:
• Back pay
• Emotional distress
• Punitive damages (individual employees)
Liebert Cassidy Whitmore
Prevention
• Never play favorites
• Report all complaints immediately
• Take all complaints seriously
• Monitor the workplace
• Follow the City’s policy
• Be a good role model!
The Ultimate Goal is to Establish a
Workplace Defined By Courtesy,
Sensitivity, and Respect
Liebert Cassidy Whitmore
Stephanie J. Lowe
Senior Counsel | San Diego
619.481.5900| [email protected]
www.lcwlegal.com/people/stephanie‐lowe/
Thank You!