Sexual harassment is defined as unwelcome sexual
advances, requests for sexual favors, and other verbal or physical
conduct based on gender, when:
A. Submission to such conduct is made either explicitly
or implicitly a term or condition of an individual's employment;
B. Submission to or rejection of such conduct by an individual
is used as the basis for employment decisions affecting such individual;
or
C. Such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an intimidating,
hostile, or offensive working environment, including but not limited
to:
(1) Gender harassment: generalized gender-based remarks
and behavior.
(2) Seductive behavior: inappropriate, unwanted, or offensive
physical or verbal sexual advances;
(3) Sexual bribery: solicitation of sexual activity or
other sex-linked behavior by promise of reward;
(4) Sexual coercion: coercion of sexual activity by threat
of punishment; and
(5) Sexual assault: gross sexual imposition, like touching,
fondling, grabbing, or assault.
Employees of the Borough, and others who come
into contact with the Borough's employees, who believe that they may
have been subjected to harassment by an employee of the Borough may
seek advice or file a complaint as follows:
A. Informal procedures.
(1) An informal oral or written complaint may be made
to a member of the Mayor and Council, the Borough Administrator, a
department head, or supervisor of the alleged harasser or the complainant.
(2) Upon receipt of a complaint, the member of the Mayor
and Council, Borough Administrator, department head, or supervisor
shall, within 15 days:
(a)
Interview the complainant.
(b)
Interview all potential witnesses, including
those persons who may have knowledge of similar incidents.
(c)
Interview the charged party and advise the charged
party of the right to be represented by an attorney of his or her
choice.
(d)
Review municipal files for similar incidents
involving the complainant and the charged party.
(e)
Assess the presence or absence of corroborative
evidence for either party.
(f)
Evaluate needs of victim, if possible.
(g)
Provide information concerning the complainant's
rights, and/or
(h)
Provide information concerning the complainant's
rights to file a formal complaint.
(3) If the complaint is not resolved on an informal basis,
and the complainant wishes to proceed, the Borough Administrator,
department head, or supervisor will assist in the preparation of a
formal complaint with the Mayor and Council, as outlined below.
B. Formal procedures.
(1) A formal written complaint may be filed with the Mayor
and Council. Upon the receipt of a written formal complaint, the Borough
Clerk, within five working days, shall provide a copy of the complaint
to the party against whom the complaint is made. That party shall
be given seven working days to respond either orally or in writing
to the Borough Clerk. The contents of the oral or written response
shall be provided to the complainant within three working days.
(2) The Mayor and Council, or its designee, shall conduct
an investigation forthwith and issue findings and conclusions to the
parties within 30 calendar days of the filing of the formal complaint.
In those findings, the Mayor and Council may dismiss the complaint
or take any other action that is found appropriate.
(3) If the Mayor and Council find that a hearing is warranted,
the hearing shall be held in closed session, in accordance with the
Open Public Meetings Act.
(4) Although not required, both the complaining party
and the person against whom the complaint is filed have the right
to be represented by an attorney of their choice.
C. Confidentiality.
(1) The Borough will protect the confidentiality of harassment
allegations to the extent possible. An employer cannot guarantee complete
confidentiality, because it cannot conduct an effective investigation
without revealing certain information to the alleged harasser and
potential witnesses. Information about the allegation of harassment
will be shared only with those who need to know about it. Records
relating to harassment complaints shall be kept confidential on the
same basis.
(2) A conflict between an employee's desire for confidentiality
and the employer's duty to investigate may arise if an employee informs
a supervisor about alleged harassment but asks him or her to keep
the matter confidential and take no action. While it may seem reasonable
to let the employee determine whether to pursue a complaint, the employer
must discharge its duty to prevent and correct harassment whenever
a report is made.
(3) Complainants may request to remain anonymous, but
complete confidentiality restricts options and may make it difficult
to resolve the problem. Disclosure may be necessary under certain
circumstances. Inquiries and complaints will nevertheless be kept
confidential to the fullest extent practicable. The sexual harassment
investigative proceedings will be conducted in a manner to protect
the confidentiality of the complainant, the alleged harasser, and
all witnesses.
D. Prohibition against retaliation. Retaliation in any
form against any person who complains of harassment or who assists
in the investigation of such complaints is expressly prohibited. A
charge of retaliation may be raised at any step of the complaint procedures
or may form the basis of a new complaint. Retaliation may be the basis
for a charge of misconduct even though the complaint of harassment
has been dismissed.
E. Other complaint procedures.
(1) Complainants may choose to use both the Borough complaint
procedures and external procedures available under federal or state
law. The time periods within which complaints may be filed with state
or federal civil right agencies are short (within 180 days for the
New Jersey Division on Civil Rights and within a maximum of 300 days
under most circumstances for the U.S. Equal Employment Opportunity
Commission), although suits under the New Jersey Law Against Discrimination
filed in Superior Court must be filed within two years of the events
complained of. Use of the Borough complaint procedures does not stop
those time periods from running.
(2) These deadlines in state and federal law run from
the last date of the unlawful harassment, not from the date that the
complaint to the employer is received or resolved.
F. Harassment complaints.
(1) The complaint filed must include the following information:
(a)
The name and department of the complainant.
(b)
The name and department of the charged party.
(c)
The nature and circumstances, in detail, of
the alleged harassment, including but not limited to, the injuries
or consequences suffered by the complainant, the names of any witnesses
to such actions and the duration of the actions in question.
(d)
Whether the harassment has been previously reported
to a supervisor or other person, and if so, when and to whom.
(2) Nothing in this section shall prevent complainants
from providing other information or documents they believe are essential
to the fair adjudication of their case.
(3) The initial complaint may be made orally or in writing.
If the complaint is made orally, the Administrator shall reduce same
to a written document that shall, if it is deemed accurate, be signed
by the complainant.
G. Action pending an investigation. It may be necessary
to undertake intermediate measures before completing the investigation
to ensure that further harassment does not occur. Examples of such
measures are: making scheduling changes so as to avoid contact between
the parties; transferring the alleged harasser; or placing the alleged
harasser on nondisciplinary leave with pay pending the conclusion
of the investigation. The complainant should not be involuntarily
transferred or otherwise burdened, because such measures could constitute
unlawful retaliation.
The individual who conducts the investigation
will objectively gather and consider the relevant facts. The alleged
harasser should not have supervisory authority over the individual
who conducts the investigation and should not have any direct or indirect
control over the investigation. Whoever conducts the investigation
should be well-trained in the skills that are required for interviewing
witnesses and evaluating credibility.
A. Questions to ask parties and witnesses.
(1) When detailed fact-finding is necessary, the investigator
should interview the complainant, the alleged harasser, and third
parties who could reasonably be expected to have relevant information.
Information relating to the personal lives of the parties outside
the workplace would be relevant only in unusual circumstances. When
interviewing the parties and witnesses, the investigator should refrain
from offering his or her opinion.
(2) The following are examples of questions that may be
appropriate to ask the parties and potential witnesses. Any actual
investigation must be tailored to the particular facts.
(a)
Questions to ask the complainant:
Who, what, when, where, and how: Who committed
the alleged harassment? What exactly occurred or was said? When did
it occur and is it still ongoing? Where did it occur? How often did
it occur? How did it affect you?
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How did you react? What response did you make
when the incident(s) occurred or afterwards?
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How did the harassment affect you? Has your
job been affected in any way?
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Are there any persons who have relevant information?
Was anyone present when the alleged harassment occurred? Did you tell
anyone about it? Did anyone see you immediately after episodes of
alleged harassment?
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Did the person who harassed you harass anyone
else? Do you know whether anyone complained about harassment by that
person?
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Are there any notes, physical evidence, or other
documentation regarding the incident(s)?
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How would you like to see the situation resolved?
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Do you know of any other relevant information?
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(b)
Questions to ask the alleged harasser:
What is your response to the allegations?
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If the harasser claims that the allegations
are false, ask why the complainant might lie.
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Are there any persons who have relevant information?
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Are there any notes, physical evidence, or other
documentation regarding the incident(s)?
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Do you know of any other relevant information?
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(c)
Questions to ask third parties:
What did you see or hear? When did this occur?
Describe the alleged harasser's behavior toward the complainant and
toward others in the workplace.
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What did the complainant tell you? When did
s/he tell you this?
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Do you know of any other relevant information?
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Are there other persons who have relevant information?
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B. Credibility determinations.
(1) If there are conflicting versions of relevant events,
the employer will have to weigh each party's credibility. Credibility
assessments can be critical in determining whether the alleged harassment
in fact occurred. Factors to consider include:
(a)
Inherent plausibility: Is the testimony believable
on its face? Does it make sense?
(b)
Demeanor: Did the person seem to be telling
the truth or lying?
(c)
Motive to falsify: Did the person have a reason
to lie?
(d)
Corroboration: Is there witness testimony (such
as testimony by eyewitnesses, people who saw the person soon after
the alleged incidents, or people who discussed the incidents with
him or her at around the time that they occurred) or physical evidence
(such as written documentation) that corroborates the party's testimony?
(e)
Past record: Did the alleged harasser have a
history of similar behavior in the past?
(2) None of the above factors are determinative as to
credibility. For example, the fact that there are no eyewitnesses
to the alleged harassment by no means necessarily defeats the complainant's
credibility, since harassment often occurs behind closed doors. Furthermore,
the fact that the alleged harasser engaged in similar behavior in
the past does not necessarily mean that he or she did so again.
C. Reaching a determination.
(1) Once all of the evidence is in, interviews are finalized,
and credibility issues are resolved, management should make a determination
as to whether harassment occurred. That determination could be made
by the investigator, or by a management official who reviews the investigator's
report. The parties should be informed of the determination.
(2) In some circumstances, it may be difficult for management
to reach a determination because of direct contradictions between
the parties and a lack of documentary or eyewitness corroboration.
In such cases, a credibility assessment may form the basis for a determination,
based on factors such as those set forth above.
(3) If no determination can be made because the evidence
is inconclusive, the Borough will undertake further preventive measures,
such as training and monitoring.
D. Assurance of immediate and appropriate corrective
action.
(1) The Borough will undertake immediate and appropriate
corrective action, including discipline, whenever it determines that
harassment has occurred in violation of the employer's policy.
(2) Remedial measures will be designed to stop the harassment,
correct its effects on the employee, and ensure that the harassment
does not recur. These remedial measures need not be those that the
employee requests or prefers, as long as they are effective.
(3) To balance the competing concerns, disciplinary measures
should be proportional to the seriousness of the offense. If the harassment
was minor, such as a small number of "off-color" remarks by an individual
with no prior history of similar misconduct, then counseling and an
oral warning might be all that is necessary. On the other hand, if
the harassment was severe or persistent, then suspension or discharge
may be appropriate.
(4) Remedial measures should not adversely affect the
complainant. Thus, for example, if it is necessary to separate the
parties, then the harasser should be transferred (unless the complainant
prefers otherwise). Remedial responses that penalize the complainant
could constitute unlawful retaliation and are not effective in correcting
the harassment.
(5) Remedial measures also should correct the effects
of the harassment. Such measures should be designed to put the employee
in the position s/he would have been in had the misconduct not occurred.
(a)
Examples of measures to stop the harassment
and ensure that it does not recur:
Oral or written warning or reprimand;
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Transfer or reassignment;
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Demotion;
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Reduction of wages;
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Suspension;
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Discharge;
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Training or counseling of harasser to ensure
that s/he understands why his or her conduct violated the employer's
antiharassment policy; and
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Monitoring of harasser to ensure that harassment
stops.
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(b)
Examples of measures to correct the effects
of the harassment:
Restoration of leave taken because of the harassment;
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Expungement of negative evaluation(s) in employee's
personnel file that arose from the harassment;
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Reinstatement;
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Apology by the harasser;
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Monitoring treatment of employee to ensure that
s/he is not subjected to retaliation by the harasser or others in
the workplace because of the complaint; and
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Correction of any other harm caused by the harassment
(e.g., compensation for losses).
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