CC Resolution No. 8592
RESOllJTIW ID. 8592
A RESOllJTIW OF THE CITY CXXJNCIL OF THE CITY OF aJPERI'IID
ADOPl'nG A DISABILITY DISCRIMINATIW POLICY
AND <XMPIAINT PROCEOORE
WHEREAS, the City of CUpertino is required to be in cx:upliance with
Title I of the AIœricans with Disabilities Act (ADA) effective January 26,
1992; and
WHEREAS, in order to croply with inrnediate requirements of the ADA the
City ßUlSt (1) find reasonable aCu.aIllUÙdtions whenever possible to a¡ploy
the disabled 'NOrker or the qualified individual with a disability applying
for alployment, (2) designate a exmpliance officer and (3) adopt a
croplaint procedure; and
WHEREAS, the Disability Discrimination Policy and eœplaint Procedure,
attached hereto as Exhibit "An and made part hereof by reference meets the
requirerænts to put the City of CUpertino into exmpliance with ADA;
NCM, THEREFORE, BE IT RESOLVED, that the City Council of the City of
CUpertino hereby adopts the Disability Discrimination Policy and eœplaint
Procedure .
PASSED AND AOOPl'ED at
City of CUpertino this
following vote:
vote Manbers of the City Council
a regular neeting of the City Council of the
3rd day of Februarv, 1992, by the
AYES: Dean, Goldman, Szabo, Sorensen
NOES: None
ABSENT: Koppel
ABSTAIN: None
ATlEST: APPRO\IED:
/s/ Dorothv Cornelius
City Clerk
/s/ Lauralee Sorensen
Mayor, City of CUpertino
DISABILITY DISCRIMINATIOO FOLlCY
AND a::MPIAINl' PROCEI:XJRE
I. FURFOSE
'Ihe pw:pose of this policy is:
to prohibit am elbninate any discrbnination in enployment
against a qualified in:lividual with a disability;
to define what constitutes "disability";
to define who is a "qualified in:lividual with a disability";
to define discrbnination on the basis of disability; am
to establish a procedure for investigatin;J am resolvin;J
intemal disability discrbnination CCIIplaints.
II. FOLlCY
Discrbnination on the basis of disability against an applicant or
an enployee who is a qualified in:lividual with a disability, by a
supervisor, management enployee, or coworker is not conloned am
will not be tolerated. 'Ibis policy applies to the job application
process and to all terms am corx:litions of enployment including,
but not limited to, hirin;J, plaoerœnt, pI'Cll'OOtion, disciplinaJ:y
action, layoff, recall, transfer, leave of absence, ccttpeI'1Sðtion
am training.
All complaints of discrbnination on the basis of disability will be
pronq:>t1y am objectively investigated.
Disciplinary action up to and inc:ludin;J termination will be
instituted for behavior described in the definition of
discrbnination on the basis of disability set forth below.
Arrr retaliation against a person for filin;J a discrbnination charge
or making a discrbnination CCIIIplaint is proh.ibited.
III. DEFINITIONS
A. Disability
~IDisability" is: (1) a physical or mental iJTIpai.nœnt that
substantially limits one .or mre major life activity; or (2)
havin;J a record of such an iJTIpainnent; or (3) bein;J regarded as
havin;J such an iJTIpai.nœnt.
"EXHIBIT A"
Disability Discrimination Policy am CoI1tJlaint Procedure
Page 2
1. Physical or Mental Impainnents
Physical or mental ilrpa.inœnts include, but are not limited
to: vision, speech am hearing ilrpainnents; ellDtional
disturbance am mental illness; seizure disorders; mental
retardation; orthopedic and neuromotor disabilities;
learning disabilities; diabetes; heart disease; nervous
conditions; cancer; asthma; Hepatitis B; HIV infection; am
drug addition if the addict has successfully CCIlTpleted or
is participating in a rehabilitation program am no lo~er
uses illegal drugs.
The following conditions are not physical or mental
ilrpainnents: transvestism; illegal drug use; horrosexuality
and bisexuality; compulsive gambling, kleptomania;
pyromania; pedophilia; exhibitionism; and voyeurism;
pregnancy; height; weight; eye color; hair color;
left-handedness; po'{erty; lack of education; a prison
record; am poor judgment or quick tenper if not symptams
of a mental or physiological disorder.
2. SUbstantial Limitation of Major Life Activities
An irdividual is disabled if he or she has a physical or
mental ilrpainnent that (a) rerxiers him or her unable to
perfonn a major life activity, or that (b) substantially
limits the condition, manner or duration under which he or
she can perform a particular major life activity in
camparison to other people.
Major life activities are functions such as caring for
oneself, perfol1llÌIq manual tasks, walkirq, seeing, hearing,
speaking, breathing, learning am workirxJ.
In determining whether physical or mental ilrpainnent
substantially limits the condition, manner or duration
under which an irdividual can perfonn a particular major
life activity in camparison to other people, the following
factors shall be considered:
a. the nature am seVerity of the ilrpainnent;
b. the duration or ~ duration of the ilrpainnent;
am
c. the pennanent or 10n:J-tenn ilrpact (or ~ ilrpact)
of or resulting fran the ilrpainnent.
Disability Discrimination R>1icy an:1 Conplaint Procedure
Page 3
In deteD1Ù.ning whether a physical or mental iIrpai.J:1nent
substantially limits an iIxtividual with respect to the
major life activity of ''work:irq'', the following factors
should be considered:
a. the geographical area to which the iIxtividual has
reasonable a=ess';
b. the job from which the individual has been
disqualified because of an iIrpai.J:1nent an:1 the number
and types of jobs within that geographical area
utilizing similar training, knowledge, skills or
abilities from which the individual is also
disqualified because of the iIrpai.J:1nent; arrljor
c. the number and types of other jobs within that
geographical area not utilizing similar training,
knowledge, skills or abilities (to the jab fran which
disqualified) from which the individual is also
disqualified because of the iIrpai.J:1nent (broad range of
jobs in various classes).
3. Having a Record of I1Tplirment
An iIxtividual is disabled if he or she have a history of
having an impairment that substantially limits the
performance of a major life activity; or has been
diagnosed, correctly or incorrectly, as having such an
iIrpaiment.
4. Regarded as Having a Disability
An iIxtividual is disabled if he or she is treated or
perceived as having an iIrpaiment that substantially limits
major life activities, although no such iIrpaiment exists.
B. Qualified Irrlividual with a Disability
A "qualified iIxtividual with a disability" is a person who
(1) satisfies the job related requirements for the
position, an:1 (2) can perform the "essential functions" of
the position despite their disability, or who (3) with
"reasonable accommodation" can perform the essential
functions of the position.
Disability Discrllnination Policy arx:1 Calrplaint Procedure
. Page 4
1. satisfied Job-Related Requirements
The first step is to determine whether the disabled
in:lividual satisfied the job-related requirelœnts of the
position. Satisfyirq. the job-related requirelœnts of the
position means that the disabled in:lividual possesses the
appropriate educational backgrourrl, employment experience,
skills, arx:1 license required for the position.
2. Essential Factors
'!he secon:l step is to detennine whether the in:lividual can
perform the essential functions of the position despite
their disability. Essential functions are the fun:1amental
duties of a position. Marginal or peripheral functions of
a position are not essential functions.
A function may be essential because:
a. the reason the position exists is to perform that
function;
b. of the limited number of employees available among
whom the perfonnance of that job function can be
distributed; arx:1
c. it is highly f;õpecialized and requires specific
expertise or skill to perfonu.
'!he follCMirq factors shall be considered in deteJ:1nining
whether a function is essential: the agency's judgement as
to which functions are essential; written job descriptions;
the amount of time spent on the job perfoJ:1!lin;J the
function; the consequences of not requirirq the perfonnance
of the function; the teIms of a collective bargaining
agreeIæl1t or MJU; arx:1 the work experience of past arx:1
present incumbents in the position.
3. ~,.,ólation
If the in:lividual cannot perfonu the essential functions
despite their disability, the third step is to determine
whether reasonable accommodation would enable the
individual to perform the essential functions of the
position.
Disability Discrimination Policy am Complaint Pr=edure
. Page 5
~,",Ldation is any c:han;¡e in the work enviromnent or in
the way things are customarily done that enables a disabled
individual to enjoy equal employment opportunities.
Accomm::rlation JTeanS JOOdifications or adjustJænts:
a. to a job application process to enable an individual
with a disability to be amsidered for the position;
b. to the work environment in which a position is
perfo:med so that a disabled person can perform the
essential functions of the position; am
c. that enable disabled individuals to enjoy equal
benefits and privileges of employment as other
similarly situated employees without disabilities
enjoy.
Accommodation includes making existing facilities am
equipment used by employees readily accessible to am
usable by individuals with disabilities.
Accomm::rlation applies to:
all employment decisions am to the job application
process ;
all seJ:Vices am programs provided in connection with
employment;
non-work facilities provided by the agency to all
employees; am
k:nown disabilities only.
~1",.:.Jð.tion is not required if:
it eliminates essential functions of a position fran
the disabled individual's job; or
adjustJænts or JOOdifications requested are prilnarily
for the benefit of the disabled individual.
Disability Discriroination Policy and COITplaint Procedure
. Page 6
4. Urrlue Hardship
Agency will not provide an a...........'.,....Jation that :iJrposes an
"undue hardship" on the operation of the agency's
business. Urrlue hardship maans significant difficulty or
expense incurred in the provision of a=rnroodation. Urrlue
hardship includes but is not limited to financial
difficulty. Undue hardship refers to any a=rnroodation
that would be un:iuly costly, extensive, substantial or
disruptive, or that would fun:1amentally alter the nature or
operation of the business.
Whether a particular· a~loJation will ÍI\1;JOSe an undue
hardship is detennined on a case-by-case basis. '!he
follow:in;J factors will be considered in det:enninirq whether
an accomm:x1ation would create an undue hardship: the
nature and cost of the acconunodation: the f:i11ancial
resources of the agency: the number of employees: and the
type of operations of the agency, includi.ng the composition
and functions of its workforce.
5. Det:enninirq the Appropriate A...u.Ju.,odation
If a qualified individual with a disability requests the
provisi~ of a reasonable a.............,oJation, the agency shall
engage ~n an infonnal, interactive process with the
disabled person which identifies the precise limitations
resulting from the disability and the potential
a=rnroodations that could overcane those limitations.
The acconunodation process shall generally involve five
steps. First, the agency shall analyze the particular job
at issue and detennine its purpose and essential
functions. Second, the agency shall consult with the
disabled individual to ascertain the precise job-related
limitations inposed by the individual's disability. 'Ihird,
the agency shall consult with the disabled individual to
identify potential a.............,odations. Fourth, the agency
shall assess the effectiveness of each potential
acc::amrodation with regard to enabl:in;J the individual to
perform the essential functions of the position. Finally,
the agency shall consider the preference of the individual
to be accommodated and select and implement the
acconunodation that is most appropriate for both the
employee and the agency.
Disability Discrimination Policy arrl Complaint Procedure
Page 7
C. Discrimination on the Basis of Disability
Discrimination on the basis of disability n-eans:
to limit, segregate, or classify a job applicant or
employee in a way that may adversely affect
opportunities or status because of the applicant's or
enployee's disability;
to participate in a contract which could subject an
applicant or employee with a disability to
discrimination;
to use any standards, criteria or method of
administration which could have the effect of
discriminating on the basis of disability;
to deny equal jobs or benefits because of a
disability ;
to fail to make reasonable aCCCl!1ll'Qdations to known
physical or mental limitations of an otherwise
qualified irdividual unless it can be shown that the
au..;u¡I.......Jation would impose an W'Xiue hardship;
to use a selection criteria which exclude disabled
person unless the criteria is jOb-related and
consistent with business necessity; arrl
to fail to use enployment tests in a manner that
ensures that the test results accurately reflect the
applicant's or enployee's skills or aptitude for a
particular job.
N. o::MPI.AJNl'
1. A job applicant or enployee who believes he or she has been
discriminated against on the basis of disability may make a
written complaint as soon as possible after the incident to:
(a) complainant's immediate supervisor; (b) complainant's
depart¡rent head; or (c) the Assistant to the City Manager who
has been designated to coordinate agency's efforts to comply
wi th federal and state laws concerning employment
discrimination on the basis of disability.
In order to facilitate the investigation, the complainant is
encouraged to submit the complaint within 30 days of the
alleged incident(s). Where reasonable circumstances prevent
the filing of the complaint within this time period, complaints
received after this time period may be accepted.
Disability Discrilnination Policy arrl eonplaint Procedure
Page 8
2. '!he conplaint shall include:
a description of the offen:lin:J behavior(s) or violations;
date(s), t:iroe(s) arrl location(s) of incident(s);
name(s) of alleqed offen:ier(s);
name(s) of witnesses, if any; arrl
remedy desired.
3. Complainant's inunediate supervisor or deparbnent head shall
refer all conplaints received to the Assistant to the City
Manager .
4. Upon receipt of a conplaint, the Assistant to the City Manager
shall investigate all charges. '!he investigation shall include
interviews with: (a) the conplainant; (b) the person(s)
alleqedly engaged in discrilnination, arrl (c) any other person
believed to have relevant knowledge concemirg the conplaint.
5. Upon conpletion of the investigation, the Assistant to the City
Manager shall review the infoI1Ilation gathered through the
investigation to detennine whether the alleged conduct
=nstitutes discrilnination, givin;¡ =nsic1eration to all factual
infoI1Ilation, the totality of the circumstances, includin;J the
nature of the alleged discrilninatory =rr:iuct arrl the =ntext in
which the alleged incidents cx::curred.
6. '!he Assistant to the City Manager shall then prepare a written
report settin;¡ forth the results of the investigation and the
detennination as to whether discrilnination cx::curred. '!he
results of the investigation shall be =nveyed to appropriate
persons includin;J to the ·conplainant, the person(s) alleqedly
engaged in discrilnination, the supervisor, arrl the deparbnent
head.
7. If it is determined that discrilnination cx::curred, swift arrl
appropriate disciplinary action will be cammensurate with the
severity arx:!¡or frequency of the offense.
8. Reasonable steps shall be taken to protect the victim arrl other
potential victiIns fran further discrilnination.
9. Reasonable steps shall be taken to protect the victim from
retaliation as a result of c:cmum.micatin;¡ the conplaint.
disbitypolicy(Iœ-2)