05. Personnel Code amendment
City Hall
10300 TotTe Avenue
Cupertino, CA 95014-3255
Telephone, (408) 777-3227
Fa" (408)777-3109
CITY OF
CUPEIQ1NO
HUMAN RESOURCES
SUMMARY
Agenda Item No. S
Meeting Date: November 1,2005
SUBJECT AND ISSUE
Adopt a resolution amending Part II, Section 3 of the Administrative Rules and
Regulations of the Personnel Code in compliance with current State and Federal law
pertaining to harassment, discrimination and retaliation.
BACKGROUND
Section 3 of the Personnel Code contains the City's policy against sexual harassment.
Consistent with current case law, the proposed amendment expands the policy to prohibit
not only sexual harassment but also harassment in general (i.e. any unwelcome conduct
based upon an individual's race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age or sexual
orientation)_ In addition, the policy prohibits discrimination and retaliation for protected
activities including filing a complaint or testifying during an investigation.
The City has met to discuss the amendment with the City Employees' Association and
with Operating Engineers, Local Union No.3. Members from both negotiations teams
concur with the proposed revisions.
RECOMMENDA nON
Staff recommends that the City Council adopt Resolution No. 05-_ amending Part II,
Section 3 of the Administrative Rules and Regulations of the Personnel Code to establish
a more comprehensive policy against harassment, discrimination and retaliation.
Submitted by:
Approved by:
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-Sandy )j;e
Human Resources Director
~
David W. Knapp
City Manager
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DRAFT
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 ofthe 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:
ATTEST:
APPROVED:
Mayor, City of Cupertino
City Clerk
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Resolution No. 05-178
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"Exhibit A"
ADMINISTRATIVE RULES AND REGULATIONS OF THE PERSONNEL CODE,
PART II CITYWIDE POLICIES
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 free 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 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.
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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, 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 agaim¡t 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
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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:
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.
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, helshe has the choice of submitting the complaint to his/her
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 and/or 2) the U.S. Equal Employment Opportunity Commission.
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 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.
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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.
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 individual may be found to be personally
liable when they engage in or take no action to prevent harassment or retaliation.
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