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CC Resolution No. 05-178 RESOLUTION NO. 05-178 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING PART II, SECTION 3 OF THE ADMINSTRATIVE RULES AND REGULATIONS OF THE PERSONNEL CODE WHEREAS, the City of Cupertino is updating its policy on the prohibition of workplace harassment, discrimination and retaliation in accordance with current State and Federal law, and WHEREAS, the amended policy is included in Part II, Section 3 of the Administrative Rules and Regulations of the Personnel Code. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino does hereby amend Part II, Section 3 of the Administrative Rules and Regulations of the Personnel Code as described in Exhibit A. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of November, 2005 by the following vote: VOTE MEMBERS OF THE CITY COUNCIL AYES: NOES: ABSENT: ABSTAIN: Kwok, Lowenthal, Sandoval, Wang, James None None None . µ ~ ATTEST: Resolution No. 05-178 2 "Exhibit A" ADMINISTRATIVE RULES AND REGULATIONS OF THE PERSONNEL CODE, PART 1I CITYWIDE POLIClES SECTION 3: PROHIBITION AGAINST HARASSMENT, DISCRIMINATION & RETALIATION 3,1 Policy Statement The City of Cupertino is committed to providing a work environment in which employees are treated with respect and dignity. The City prohibits all forms of harassment, discrimination and retaliation on the basis of protected classifications or activities that occur on the job or in the work site, including acts of employees and non- employees, Violations of this Policy will not be tolerated and perpetrators will be subject to sanction or disciplinary action up to and including discharge. All employees share in the responsibility of ensuring a working environment fTee of harassment, discrimination and retaliation as defined in this Policy. 3.2. Definitions a. The "protected classifications" this Policy references are: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition (meaning any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer or genetic characteristics), marital status, sex (including gender), age, or sexual orientation. b. "Discrimination" includes decisions regarding applicants, employees, volunteers, or persons providing services pursuant to a contract that are made on the basis of anyone or more protected classifications, or that are based upon the perception that a person has a protected classification. c. "Harassment" in general, is any unwelcome conduct which is based upon either the fact or the perception that an applicant, employee, volunteer, or person providing services has a protected classification or is perceived to have a protected classification. Depending upon the circumstances, a single act of harassment, as defined in this Policy, can violate this Policy, d. "Sexual harassment" shall be defined as unwelcome sexual advances, requests for sexual favors and other yerbal, visual or physical conduct of a sexual nature when such conduct is made explicitly or implicitly a term or condition of employment, is used as a basis for employment decisions, or has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. Sexual harassment includes making a threat or insinuation that a lack of sexual favors will result in reprisal or the withholding of support. Resolution No. 05-178 3 e. Examples of harassment include the following: 1, Written Harassment: suggestive, threatening, demeaning, or obscene words; letters; notes; invitations. which are based on or relate to a protected classification or the perception that a protected classification is present. 2. Verbal Harassment: derogatory or demeaning comments; slurs; jokes; inappropriate comments regarding appearance, dress (including dress that is consistent with gender identity), or physical features; making threats; spreading rumors; epithets; propositioning, or otherwise offensive words which are based on, or relate to a protected classification or the perception that a protected classification is present. 3, Physical Harassment: assault; touching; impeding or blocking moyements; or any physical interference with normal work; pinching; patting; grabbing; or inappropriate gestures which are based on or relate to a protected classification or the perception that a protected classification is present. 4, Visual Harassment: leering; sexually oriented gestures; or display of sexually suggestiye or derogatory objects, pictures, cartoons, or posters; derogatory, prejudicial, stereotypical, or offensive displays which are based on or relate to a protected classification or the perception that a protected classification is present. 3,3 No Retaliation a. This Policy prohibits adverse conduct taken against a person because that person takes any of the following "protected activities": initiated or pursued a complaint under this Policy; filed a complaint of discrimination or harassment with any outside agency; testified in an investigation; or provided information or otherwise assisted in an investigation, "Adverse conduct" includes: taking sides because an individual has reported harassment or discrimination; spreading rumors about a complaint; shunning or avoiding an individual who reports harassment or discrimination; or real or implied threats of intimidation to prevent an individual from reporting harassment or discrimination. b, The following individuals are protected from retaliation as defined in this Policy: those who make good faith reports that harassment or discrimination has occurred; those who are accused of harassment or discrimination; those who associate with an individual who is involved in reporting harassment or discrimination; and/or those who participate in the complaint procedure described below, 3.4 Complaint Procedure a. Employees who are the victim of, or witness to, any form of discrimination or harassment must report the incident to their supervisor, department head, or the Human Resolution No. 05-178 4 Resources Director, Supervisory personnel have a duty to report violations that come to their attention and to take appropriate action. b. Confidentiality will be maintained to the fullest extent possible, taking into account the following: I, The City recognizes that confidentiality is important to all parties involved in an investigation, Complete confidentiality cannot occur; however, due to the need to fully inyestigate and take effectiye remedial action. 2. An individual who is interviewed during the course of an investigation is prohibited from discussing the substance of the interview with others, except as otherwise directed by a supervisor or the Human Resources Director. Any individual who discusses the content of an investigatory interview in violation of this Policy will be subject to discipline. 3. 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 a court order. The Human Resources Director will retain investigation reports in a confidential manner for at least five years after the date of completion. c, In order to proceed under this complaint procedure, the basis of the complaint must be behavior, practice or action that is believed to have been taken because of the victim's protected classification or because the activity is prohibited by this policy. Examination of the nature and circumstances of each complaint will determine whether the alleged acts or practices constitute discrimination, harassment, or retaliation. d. Complaints may be submitted in writing or verbally and may include a suggested method of resolution and corrective action, e. The person complaining need not report his or her complaint through any chain of command. Instead, he/she has the choice of submitting the complaint to hislher supervisor, department head, or the Human Resources Director. A person also has the option to file a complaint with: I) the California Fair Employment and Housing Commission and/or 2) the U.S. Equal Employment Opportunity Commission. f. Upon receipt ofthe complaint, the Human Resources Director or hislher designee will promptly investigate the charges including contacting the person who allegedly engaged in the prohibited conduct. The investigator will inform the accused person of the basis of the complaint and provide him/her an opportunity to respond. g, Upon completion of the investigation, the Department Head, in consultation with the Human Resources Director, will determine what, if any, disciplinary action will be recommended to the City Manager. If inappropriate behavior is found, action will be taken to end the inappropriate behavior. Both parties will be notified ofthe conclusion of the inyestigation, Resolution No. 05-178 5 h. If it is determined that prohibited conduct occurred, sanctions or disciplinary action up to and including discharge will be taken. Disciplinary action taken under this procedure may be appealed consistent with provisions within Memoranda of Understanding or the Administratiye Procedures, 3.5 Responsibilities a, The City Manager is responsible for enforcing this policy, b. The Human Resources Director is responsible for ensuring that all complaints of harassment are investigated in a confidential, thorough, and prompt manner, including presentation of recommendations for any necessary action to the City Manager. c. Every Department Head is responsible for informing all employees, including supervisors, of the city policy against harassment and for taking the steps necessary to set a positive example in the prevention of harassment. d. Every supervisor is responsible for taking immediate and appropriate corrective action upon the observation of any incident of harassment or upon receipt of an oral or written report of any occurrence of harassment. e. Every city employee is responsible for reporting any act of harassment to the immediate supervisor, department head, or Human Resources Director. 3,6 Penalties Violation of this policy shall generally constitute just and reasonable cause for discipline, up to and including termination. In addition, an indiyidual may be found to be personally liable when they engage in or take no action to prevent harassment or retaliation,