Town of Massena, NY Employment Discrimination and Harassment Policy

[1]

Editor's Note: The adopting resolution also superseded former Art. IV, Employment Discrimination and Harassment Policy, adopted 7-21-1999.

It is the policy of the Town of Massena that all employees and applicants, as well as everyone with whom we do business (including independent contractors, vendors, and consultants), should be able to enjoy a work environment free from harassment and/or discrimination based on race, color, creed, sex, age, sexual orientation, disability, religion, national origin, pregnancy, marital status, military or veteran status, gender, gender identity or expression, status as a victim of domestic violence, or any other basis protected by federal, state or local laws and regulations. The Town has a zero-tolerance policy for unlawful harassment and discrimination in any form. Anyone who believes that he/she has been the victim of unlawful harassment and/or discrimination, or has witnessed same, should promptly report such conduct in accordance with the complaint procedure set forth herein. No employee, intern or applicant for employment will be discriminated against because of age, marital status, religion, national origin, disability and/or military status, alienage, citizenship, race, color, creed, gender, gender identity or expression, disability, marital status, political affiliation/activities, sex, sexual orientation, domestic partnership, predisposing genetic characteristic, carrier status, domestic violence victim status or any other protected category under federal, state and/or local laws and regulations. For the purposes of this policy, the aforementioned terms shall have the same meaning as the terms defined in Section 292 of the Human Rights Law.[1] It is also the policy of the Town of Massena to prohibit retaliation against any employee who makes a good faith complaint/report of, testifies in the case of, or otherwise opposes discriminatory practices against any individual. This policy governs the conduct of all employees, applicants for employment, interns, whether paid or unpaid, contractors, and persons conducting business with the Town. The nondiscrimination provisions of this policy apply to all aspects of the employer-employee relationship, including, but not limited to, recruitment, selection, compensation, promotion, transfer, benefits, and termination of employment.

(1)

The Town of Massena will not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age, disability or marital status, will undertake or continue existing programs of affirmative action to ensure that minority group members are afforded equal employment opportunities without discrimination, and shall make and document its conscientious and active efforts to employ and utilize minority group members and women in its workforce on state contracts.

(2)

The Town of Massena shall state in all solicitation or advertisements for employees that in the performance of the state contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, disability or marital status.

(3)

At the request of the contracting agency, the Town shall request each employment agency, labor union, or authorized representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of this organization's obligations herein.

(4)

The contractor shall comply with the provisions of the Human Rights Law and all other state and federal statutory and constitutional nondiscrimination provisions. The contractor and subcontractors shall not discriminate against any employee or applicant for employment because of race, creed (religion), color, sex, national origin, sexual orientation, military status, age, disability, predisposing genetic characteristic, marital status or domestic violence victim status, and shall also follow the requirements of the Human Rights Law with regard to nondiscrimination on the basis of prior criminal conviction and prior arrest.

(5)

This organization will include the provisions of Subsection A(1) through (4) of this agreement in every subcontract in such a manner that the requirements of the subsection will be binding upon each subcontractor as to work in connection with the state contract.

[1]

Editor's Note: See Executive Law § 292.

B. The Town of Massena further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work. The Town of Massena agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor; that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. The Town of Massena further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the Town of Massena agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received.

Investigation of harassment/discrimination complaints.

(1)

The Town Equal Employment Opportunity (EEO) Officer, in conjunction with the appropriate supervisors/department heads or elected officials, shall be responsible for investigating all reports/complaints of alleged harassment or discrimination. If the report/complaint involves either the Town EEO Officer or others involved in the investigation, the alleged offending party shall not participate in any investigation into the matter and the Town Attorney, or his/her designee, shall participate in conducting the investigation. Investigation into a complaint/report of alleged harassment or discrimination may include, among other things, a request for written statements from the parties involved and witnesses, conducting interviews with relevant parties/witnesses, reviewing documents, and/or any other steps deemed necessary consistent with the rights of employees under relevant law and collective bargaining agreements.

(2)

The Town, at all times, reserves the right to investigate possible incidents of discrimination and/or harassment even in the absence of a complaint or report by an employee.

(3)

At the conclusion of the investigation into any complaint/report of alleged discrimination or harassment, the EEO Officer shall prepare a report and recommendation, and then, in conjunction with the Personnel Officer and/or designee, shall refer the matter to the appointing authority of the accused for consideration of remedial and/or disciplinary action, if any. In the event that the accused does not have an appointing authority, the matter will be referred to the Town Supervisor or Town Attorney for consideration of remedial and/or disciplinary action, if any. Any disciplinary action taken against an employee as a result of an investigation under this policy shall be done in compliance with applicable law and/or relevant collective bargaining agreements.

(4)

In the event that the subject of the discrimination/harassment complaint is an elected official, or another Town employee/intern such that neither the EEO Officer, Town Attorney, nor the Personnel Officer can conduct the investigation without raising concerns about the impartiality of the investigation, the Town Attorney shall select an investigator from a preapproved list adopted pursuant to Town Board resolution following a request for proposals/request for qualifications process. The Town Attorney shall select the investigator that is next on the list unless such investigator is unavailable or has a conflict of interest. At the conclusion of the investigation, the investigator shall prepare a report and recommendation and forward such report to the Town Attorney, who shall in turn forward the report to the EEO Officer and Personnel Officer.

(5)

Employees who are found to have made false complaints of harassment and/or discrimination may be subject to disciplinary action, up to and including termination of employment.

Determination/conclusion of investigation.

(1)

(Once the investigation is completed, a determination will be made as to the allegations and appropriate disciplinary action, if any. If it is determined that unlawful harassment/discrimination has occurred, prompt remedial action will be taken. This may include some or all of the following steps.

(a)

Providing the complaining employee with any lost terms, condition or benefits of employment; and/or

(b)

Taking disciplinary action against the harassing/discriminating employee, including, but not limited to, seeking termination of employment.

(2)

After the completion of the report and recommendation, the complainant and the subject of the investigation shall be informed, in writing, by the Town Attorney that the investigation has been completed and whether the allegations were substantiated, unsubstantiated, or substantiated but not constituting a violation of this policy.

Nonretaliation. The Town has zero tolerance for any form of retaliation. Retaliation of any kind against an individual who makes a good-faith report of harassment or discrimination or who participates in an investigation into a complaint is strictly prohibited. Follow-up interview(s) with a complainant or witness may be conducted for an appropriate period of time to ensure that the harassment/discrimination has not resumed and that no retaliatory action has been taken.

Employee rights. Nothing contained in this policy and procedure shall be construed to limit or otherwise abrogate the rights of any employee under federal or state law or applicable collective bargaining agreements. The filing of a complaint pursuant to this policy/procedure does not, in any way, relieve any complainant from complying with applicable time limitations for filing of complaints as required under any federal or state law or applicable collective bargaining agreements.

Legal protections and external remedies.

(1)

Unlawful harassment/discrimination is not only prohibited by the Town, but it is also prohibited by state, federal, and, where applicable, local law.

(2)

Aside from the internal process described in this policy, employees may also choose to pursue legal remedies with the following governmental entities at any time:

(a)

New York State Division of Human Rights (DHR).

[1]

The Human Rights Law (HRL)[2] applies to employers in New York State with regard to sexual and other forms of unlawful harassment and protects employees, paid or unpaid interns and nonemployees regardless of immigration status. A complaint alleging violation of the Human Rights Law may be filed either with DHR or in New York State Supreme Court.

[2]

Editor's Note: See Executive Law § 290 et seq.

[2]

Complaints of sexual harassment may be filed with DHR anytime within three years of the alleged harassment. If an individual did not file at DHR, they can sue directly in state court under the Human Rights Law within three years of the alleged sexual harassment. Complaints of other forms of harassment or discrimination may be filed with the DHR within one year of the alleged harassment or discrimination. An individual may not file with DHR if they have already filed a Human Rights Law complaint in state court. Complaining internally to the Town does not extend your time to file with DHR or in court.

(b)

United States Equal Employment Opportunity Commission (EEOC). The EEOC enforces federal antidiscrimination laws, including Title VII of the 1964 federal Civil Rights Act. An individual can file a complaint with the EEOC anytime within 300 days of the alleged unlawful harassment/discrimination. If an employee believes that he/she has been harassed, he/she can file a "charge of discrimination" with the EEOC. There is no cost to file a charge with the EEOC.

Unlawful harassment. It is the policy of the Town that all employees and applicants, as well as everyone with whom the Town does business (e.g., outside vendors, consultants, members of the public, contractors), should be able to enjoy a work environment free from harassment based on age, race, creed, religion, color, sex, national origin, disability, marital status, ancestry, citizenship, pregnancy, sexual orientation, veteran status, or any other basis protected by federal, state or local law, including the Town Code. Harassment which violates this policy will not be tolerated.

Sexual harassment.

(1)

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, or visual, verbal or physical conduct of a sexual nature when:

(a)

Submission to the conduct is made either explicitly or implicitly a term or condition of an individual's employment; or

(b)

Submission to, or rejection of, such conduct is used as the basis for employment decisions affecting such individuals; or

(c)

Such conduct has the purpose or effect of interfering unreasonably with the individual's work performance or creating an intimidating, hostile or offensive work environment that is, or would be, offensive to a person of reasonable sensitivity and sensibilities.

(2)

This definition includes many forms of offensive behavior. It makes no difference if the harassment is "just joking" or "teasing" or "playful." The following is a partial list of examples of sexually harassing conduct:

(a)

Unwanted sexual advances;

(b)

Offering employment benefits in exchange for sexual favors;

(c)

Making or threatening reprisals after a negative response to sexual advances;

(d)

Visual conduct such as leering; making sexual gestures; or displaying sexually suggestive or degrading objects, pictures, cartoons, posters, or computer or television broadcasts;

(e)

Verbal conduct such as making or using derogatory comments; sexual propositions, sexually explicit jokes or jokes concerning gender-specific traits; sexually explicit comments about an individual's body or clothing; comments about an individual's sexual desirability; sexually degrading words to describe an individual; suggestive or obscene letters, notes or invitations; or playing radio or television broadcasts in the workplace that contain sexually suggestive or degrading conversation; or

(f)

Physical conduct such as touching, petting, pinching, impeding or blocking movements, or assault.

(g)

It is unlawful for males to sexually harass females or other males, and for females to sexually harass males or other females. Sexual harassment on the job is unlawful, whether it involves coworker harassment, harassment by a supervisor or member of management, or harassment by persons doing business with or for the Town.

Other forms of harassment. Prohibited harassment on the basis of other protected class status includes behavior similar to sexual harassment. It makes no difference if the harassment is "just joking" or "teasing" or "playful." Following is a partial list of examples of harassing conduct:

(1)

Visual conduct based on membership in a protected class, such as derogatory posters, photographs, cartoons, drawings, gestures, or computer or television broadcasts;

(2)

Verbal conduct based on membership in a protected class, such as racial, ethnic or religious jokes, or derogatory comments, slurs, innuendoes, epithets or threats (including those uttered over radio or television broadcasts); or

(3)

Physical conduct such as touching, blocking movements or assault because of membership in a protected class.