11. Harassment & Discrimination policyHUMAN RESOURCES
CUPERTINO
CITY HALL
• 10300 TORRE AVENUE • CUPERTINO, CA 950143255
TELEPHONE: {408) 777-3227 • FAX:. (408) 777-3109
SUMMARY
Agenda Item No. C ~
SUBJECT AND ISSUE
Meeting Date: April 1, 2008
Amend the City of Cupertino's Policy Prohibiting Harassment, Discrimination and Retaliation
from Part II, Section 3 of the Rules and Regulations of the Personnel Code.
BACKGROUND
A recent California Supreme Court ruling on Miller vs. Department of Corrections significantly
expanded sexual harassment liability. The Court ruled that sexual favoritism at work may
amount to sexual harassment, even when the plaintiffs haven't been personally harassed.
Accordingly, employers have greater responsibility for ensuring that consensual sexual
relationships do not create a hostile or discriminatory work environment for other employees.
To protect the City from associated liability, the attached policy has been updated to
specifically prohibit sexual relationships between supervisors and subordinates. The City has
met and conferred with the Cupertino City Employees' Association and Operating Engineers,
Local Union No. 3, and the policy has been reviewed by the City Attorney.
RECOMMENDATION
Staff recommends that the City Council adopt Resolution No. 08-~ updating the City's
Policy Prohibiting Harassment, Discrimination and Retaliation.
Submitted by:
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Sandy Abe
Human Resources Director
Approved by:
David W. Knapp
City Manager
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RESOLUTION `OS-043
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AMENDING THE POLICY PROHIBITING WORKPLACE HARASSMENT,
DISCRIMINATION AND RETALIATION FROM PART II, SECTION 3 OF THE
RULES AND REGULATIONS OF THE PERSONNEL CODE
WHEREAS, a recent California Supreme Court ruling on Miller vs. the Department of
Corrections expanded sexual harassment liability for employers; and
WHEREAS, the City of Cupertino wishes to update its policy against sexual harassment to
reflect current case law and protect the City against associated liability;
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
amends the Policy Prohibiting Harassment, Discrimination and Retaliation from Part II, Section
3 of the Rules and Regulations of the Personnel Code as shown on Attachment A.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino
this 1st day of April 2008 by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
APPROVED:
Mayor, City of Cupertino
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Resolution No. 08-043
ATTACHMENT A
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SECTION 3 PROHIBITION AGAINST HARASSMENT, DISCRIMINATION &
RETALIATION
3.1 Polic~r Statement
The City of Cupertino is committed to providing a work environment in which employees
are treated with respect and dignity. The City has zero tolerance for harassment,
discrimination and retaliation by employees. and non-employees be it a single act or
multiple acts. 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 Zero Tolerance
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 free of harassment,, discrimination and retaliation as
defined in this Policy. The City will, respond promptly and effectively to reports of
harassment, discrimination and retaliation.
3.2. Definitions
a. The "protected classificativns" 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 ox genetic characteristics}, marital status, sex {including
gender, pregnancy, childbirth or conditions related to childbirth), age (40 or over), or
sexual orientation.
b. "Discrimination" includes decisions regarding applicants, employees, volunteers,
persons providing services pursuant to a contract or that are made on the basis of any one
or more protected classifications, or that are based upon the perception that a person has a
protected classification.
c. "Harassment" is unwelcome, annoying, disturbing or tormenting 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. To constitute harassment the conduct has the purpose, result or effect of
interfering with an individual's work performance, or creating an intimidating, hostile, or
offensive work environment.
d. "Sexual harassment" shall be defined as unwelcome sexual advances, requests for
sexual favors and other verbal, 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. Sexual
harassment includes same-sex conduct regardless of whether the conduct is based on
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Resolution No. OS-043
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gender orientation. Sexual harassment can be committed by employees or non-
employees. .
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 movements; 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 suggestive
or derogatory objects including but not limited to pictures, drawings, cartoons, posters
or calendars; 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.
5. ,Quid Pro Quo Sexual Harassment: threats of xeprisal, implying or actually withholding
support of appointments or suggesting that punitive action will be taken if requests for
sexual favors are not met.
3.3 No Retaliation
a. This Policy prohibits adverse conduct taken against a person because that person
engages in 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; assisted another to complain; refused to follow
directions that the person reasonably believes to be discriminatory; 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 refuse to follow an order reasonably believed; to be discriminatory; those who are
accused of harassment or discrimination; those who associate with an individual who is
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Resolution No. 08-043
4
involved in reporting harassment or discrimination; ~ and/or those who participate in the
complaint procedure described below.
3.4 Complaint Procedure
a. Those who believe that they are the victim of, or witness to, any form of
discrimination or harassment or retaliation must immediately report the incident to their
supervisor, department head, or the Human Resources Director. Supervisory personnel
have a duty to immediately 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: ~ '
1. 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 investigate and take effective remedial action.
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 maybe 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: 1 } the California Fair Employment and Housing
Commission (www.dfeh.ca.gov; 800-952-5210) and/or 2) the U.S. Equal Employment
Opportunity Commission (www.eeoc.gov; 800-d69-4000).
f. Upon receipt of the complaint, the Human Resources Director or his/her designee will
promptly investigate the charges including contacting the person who allegedly engaged
in the prohibited conduct. The investigation will be thorough, prompt, objective and non-
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judgmental. 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 of the conclusion of
the investigation.
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
Administrative Procedures, but not both.
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 this Policy and for taking the steps necessary to set a positive example of
conduct consistent with this Policy.
d. Every supervisor is responsible for taking immediate and appropriate corrective action
upon the observation of any incident of harassment, discrimination, or retaliation or upon
receipt of an oral or written report of any occurrence of harassment, discrimination or
retaliation. In addition, supervisors are responsible for reporting potential policy
violations to the Human Resources Department and for conducting themselves
consistently with this Policy.
e. Every employee, volunteer, applicant, elected or appointed official or person providing
services pursuant to a contract is responsible for reporting any act he or she
reasonably believes to be a violation of this Policy to the immediate supervisor,
department head, or Human Resources Director; treating all City -affiliated persons
with dignity and respect; responding fully and truthfully to all questions posed during
an investigation; and not disclosing the substance of any investigatory interview.
3.6 Penalties
Violation of this policy shall generally constitute just and reasonable cause for discipline,
up to and including termination. In addition, an individual maybe found to be personally
liable when they engage in or take no action to prevent harassment or retaliation.
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Resolution No. 08-043
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SEXUAL RELATIONSHIPS BETWEEN SUPERVISORS AND SUBORDINATE
s ... _;.
EMPLOYEES ARE PROHIBITED. ' `' ~`
4.0 Policy Statement
This policy is intended to avoid conflicts of interest between work-related and personal/family
obligations; reduce favoritism or even the appearance of favoritism; prevent personal/family
conflicts from affecting the workplace; and decrease the likelihood of sexual harassment and/or
gender discrimination in the workplace. As a result, the City of Cupertino prohibits sexual
relationships between supervisors and subordinate employees, as defined in this Policy.
4.1 Definitions
....~
The following definitions apply to each section of this Policy.
a. Asexual relationship" exists when two City employees become personally involved with
each other to the point that there is any of the following: sexual intimacy, marriage, or
domestic partnership.
b. "Departments" are defined as: Administrative Services,;City Attorney's Office, City
Manager's Office, Community Development, Parks & Recreation, and Public Works.
c. "Supervisor" is defined as any person who has the discretion and authority to direct others
as to the performance of City work. The definition of "Supervisor" includes those who
periodically serve as acting supervisors. As related to supervision, to "direct" is defined as
the. giving of orders by an employee to another employee for which failure to follow the
orders is grounds for discipline.
4.2 Policy/Procedure
a. Public trust, safety and City morale require that supervisory employees avoid the
appearance of a conflict between their professional responsibilities and any involvement
that they may have in a sexual relationship with other City employees. In order to promote
efficient operation of the City and to avoid misunderstandings, complaints of favoritism,
other problems of supervision, security, morale, and possible claims of sexual harassment
andlor gender based discrimination, sexual relations between supervisors and subordinate
employees are prohibited.
In the event that a relationship exists between a supervisor and a subordinate employee, the
supervisor has the affirmative obligation to disclose the relationship to his/her supervisor.
Failure to disclose the relationship by the supervisory employee in the relationship is
separate grounds for discipline^
b. Enforcement
The City reserves the right to reasonably investigate situations in the workplace to determine
whether there is a possible violation of this Policy. If the City determines that a Policy violation
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Resolution No. 08-043 7
exists, prior to discipline, the City will make every effort to resolve the situation administratively.
If an administrative remedy is impractical or otherwise inappropriate, remedial and/or
disciplinary measures may be utilized to mitigate issues that arise relevant to the enforcement of
this Policy.
1. The City retains the right to refuse to place employees engaged in sexual relationships
prohibited by this Policy in the same Department if the placement has the potential for
creating an adverse impact on supervision, safety, security, morale or involves potential
conflicts of interest.
2. In the event of a prohibited sexual relationship, the City will attempt to transfer one of the
affected employees to a similar classified position in another City Department, should such
a position exist, be available, and should the eriiployee possess the skills and qualifications
necessary to perform the essential duties of the position. Although the wishes of the
involved parties as to who will be transferred will be given consideration by the City, the
controlling factor will be the positive operation and efficiency of the City. If any such
transfer results in a reduction in salary or compensation, applicable and legally required due
process procedures shall be applied.
In lieu of a transfer from one department to another, or in situations in which no similar
counterpart classification exists the affected employees may continue to be employed
within the same City Department subject to approval by the Department Director and the
City Manager or his/her designee. However, any such continuing employment is predicated
upon both subject employees not reporting to the same imxnediate supervisor; not being
supervised by each other; not working the-same shift at the same work site; or, otherwise
becoming involved in a work environment having the potential for adverse impact on
supervision, safety, security or morale.
4. If continuing employment of employees engaged in sexual relationships prohibited by this
Policy cannot be accommodated consistent with the City's interest in promotion of safety,
security, morale and efficiency, then the City retains sole discretion to discipline one of the
employees. Prior to discipline, the City will make every effort to resolve the situation
administratively.
The provisions of this Policy are not applicable to individuals employed by the City on or before
the date of adoption of this Policy in their current state of sexual relationship. However in the
event that a relationship exists between a supervisor and a subordinate employee, the supervisor
has the affirmative obligation to disclose the relationship to his/her supervisor. hl addition, any of
the following after the effective date of this Policy, even as to current employees, will result in
the applicability of the Policy: a) a new sexual relationship; b) a change in marital status; or c) a
change in status that makes an employee a supervisor or acting supervisor.
Furthermore, employees in existing sexual relationships are subject to any and all employment-
related actions by the City, pursuant to existing City policies and procedures to address conduct,
and which negatively impact the work environment.
Revised 04/08
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