[Added 12-14-2009 by Ord. No. 17-2009]
A.
Recognition of the dignity and worth of each person in municipal
employment is vital to the public sector workplace. All employees,
regardless of sex or sexual orientation, shall be permitted to work
in an environment free from all forms of unlawful discrimination and
conduct which are sexually harassing.
B.
Sexual harassment is a form of unlawful sex discrimination which
undermines the integrity of the employment relationship. Sexual harassment
is a violation of the City's personnel policies and state and federal
laws. It debilitates morale, is offensive, interferes with work productivity
and creates a hostile and intimidating work environment.
C.
The purpose of this policy is not to regulate personal morality or
to encroach upon one's personal life, but to demonstrate a strong
commitment to maintaining a workplace free of sexual harassment. The
goals of this policy are to: inform City employees as to what conduct
constitutes sexual harassment; ensure that all employees understand
that sexual harassment will neither be condoned nor tolerated; create
a procedure to promptly, thoroughly, confidentially and respectfully
handle complaints, and ensure that retaliation against complainants
or participants in any investigation does not occur. In keeping with
these goals, sexual harassment in the workplace is strictly prohibited
by the City. All employees have the right to work in an environment
which is free from discrimination of any kind.
D.
It is the primary responsibility of department heads, division heads
and supervisory personnel to ensure that a working environment free
from sexual harassment is provided to all employees. This responsibility
pertains not only to conduct which may be undertaken by supervisory
and nonsupervisory City employees, but also to actions taken by nonemployees
conducting business with the City. To ensure all City employees are
aware of their rights and responsibilities, this policy is to be distributed
to all City employees.
A.
It is the City's policy to prohibit sexual harassment of an employee
by another employee, management representative, supplier, volunteer
or business invitee. This sexual harassment policy applies to conduct
that occurs in any location that is operated by the City or considered
a workplace of any City employee or volunteer, as well as any location
that can reasonably be regarded as an extension of the workplace,
such as at any off-site social or business function or any other non-City
facility where City business is being conducted. Further, this policy
applies to all work-related conduct, including conduct that occurs
off-duty, if such conduct may negatively affect the work environment.
B.
Consensual, romantic and/or sexual relationships between a supervisor
and any subordinate, including one not directly under the supervisor,
will compromise the City's ability to enforce its policy against harassment.
Consequently, if such relationships arise, they will be considered
carefully by the City and appropriate action will be taken. Such action
may include, but is not limited to, a change in the responsibilities
of the individuals involved in such a relationship or the transfer
of location within the City to diminish or eliminate the supervisory
relationship and workplace contact that may exist. To the extent that
such remedial actions are impracticable, one of the employees involved
in the relationship may be asked to leave his or her employment with
the City. Any employee involved in such a relationship is required
to report the relationship to the City Administrator and/or his or
her department head.
C.
This policy shall take effect on the date of adoption and apply to
all complaints made on or after that date. This policy shall continue
in force until changed and approved by the Mayor and City Council.
A.
"Sexual harassment" is defined as unwelcomed sexual advances, requests
for sexual favors and other verbal or physical conduct based on gender
when:
(1)
Submission to such conduct is made either explicitly or implicitly
a term or condition of an individual's employment;
(2)
Submission to rejection of such conduct by an individual is used
as the basis for employment decisions affecting such individual; or
(3)
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:
(a)
Gender harassment: generalized gender-based remarks and behavior,
i.e., use of stereotypes, offensive, insulting, derogatory or degrading
remarks based on gender or sexual orientation, using sexually explicit
language, gender- or sex-based pranks or jokes, and the display of
sexually suggestive objects or pictures in the workplace.
(b)
Seductive behavior: inappropriate, unwanted or offensive physical
or verbal sexual advances, i.e., unwelcomed or repeated flirtations,
propositions or advances, unwelcomed physical contact, whistling,
leering, improper gestures, tricks or horseplay.
(c)
Sexual bribery: solicitation of sexual activity or other sex-linked
behavior by promise or reward, i.e., demands for sexual favors in
exchange for favorable or preferential treatment, such as a raise
or a good performance evaluation.
(d)
Sexual coercion: coercion of sexual activity by threat of punishment,
i.e., threatening to take or taking adverse employment actions, such
as a discharge, demotion or reassignment, if sexual favors are not
granted.
(e)
Sexual assault: gross sexual imposition like touching, fondling,
grabbing or assault.
B.
While not exhaustive, the following types of conduct may rise to
the level of sexual harassment:
(1)
Wolf whistles.
(2)
Discussion of one's partner's sexual inadequacies.
(3)
Sexual innuendo.
(4)
Comments about a man's or a woman's body.
(5)
Brushing or rubbing the sexual parts of another person's body.
(6)
Tales of sexual exploitation.
(7)
Graphic descriptions of pornography.
(8)
Pressure for dates.
(9)
Sexually explicit gestures.
(10)
Unwelcome touching or hugging.
(11)
Sexual sneak attacks (e.g., grabbing breasts, buttocks or genitals).
(12)
Sexist jokes, cartoons or graffiti.
(13)
Obscene phone calls.
(14)
Displaying pornographic material in the workplace.
(15)
Insisting that workers wear revealing clothes.
(16)
Stalking.
(17)
Indecent exposure.
(18)
Sexual assault.
(19)
Pressing or rubbing up against the victim.
(20)
Inappropriate gifts (e.g., lingerie).
(21)
Soliciting sexual services.
(22)
Deliberate humiliation or intimidation based on one's gender.
(23)
Speculation about sexual experiences.
(24)
Deliberate physical interference with or restriction of another's
movements.
C.
Other harassment defined. For the purposes of this policy, "other
harassment" is defined as verbal or physical conduct that denigrates
or shows hostility or aversion toward an individual because of his
or her race, creed, color, national origin, ancestry, age, religion,
gender, disability, marital status, affectional or sexual orientation,
veteran status, domestic partner status, genetic information, atypical
hereditary cellular or blood trait or any other legally protected
classification, and that:
D.
Examples of other harassment include using epithets or slurs; mocking;
ridiculing or mimicking another's culture, accent, appearance or customs;
threatening, intimidating or engaging in hostile or offensive acts
that focus on an individual's race, creed, color, national origin,
ancestry, age, religion, gender, including gender identity or expression,
disability, marital status, affectional or sexual orientation, veteran
status, domestic partner status, genetic information, atypical hereditary
cellular or blood trait or any other legally protected classification,
including jokes and pranks; the displaying on walls, bulletin boards
or elsewhere on City premises, or circulating in the workplace, written
or graphic material that denigrates or shows hostility or aversion
towards a person or group because of race, creed, color, national
origin, ancestry, age, religion, gender, disability, marital status,
affectional or sexual orientation, veteran status, domestic partner
status, genetic information, atypical hereditary cellular or blood
trait or any other legally protected classification.
A.
Quid pro quo sexual harassment ("this for that"). This type of sexual
harassment occurs when a supervisor or someone else with authority
over the subordinate employee makes a "put out or get out" demand
(i.e., "Submit to my sexual request or you will be fired, demoted,
intimidated, passed over for promotion or in some other way made miserable
on the job.").
B.
Hostile environment sexual harassment. This type of harassment, while
not necessarily sexual in nature, occurs when the sexually- or gender-based
conduct (words or deeds) of a supervisor, coworker or someone else
with whom the employee comes in contact on the job unreasonably interferes
with an employee's work performance or creates an intimidating, hostile
or offensive working environment. This conduct does not need to be
directed to a particular person or to any person at all.
C.
Third-party sexual harassment.
(1)
A third-party sexual harassment claim may occur when either:
(a)
Conduct directed at one employee is sufficiently severe or pervasive
to alter the conditions of employment and thus create a hostile working
environment for another employee; or
(b)
An employee is able to claim that he or she was denied job benefits
as an implicit quid pro quo that had become a general condition of
employment.
(2)
An employee may be able to claim that he or she was denied job benefits
based on the unlawful sex-based coercion of the favored employee.
All employees are encouraged to report discrimination and/or
harassment if they believe they are being harassed or if they observe
the harassment of another. Employees are encouraged, whether directly
or through a third party, to notify the alleged harasser that the
behavior in question is offensive and unwelcome. However, failure
to do so does not preclude filing a complaint. All employees have
the right, and supervisors have a duty, to formally or informally
report any and all statements, acts or behavior by a co-employee or
supervisory personnel which are deemed or perceived by the affected
employee to be an improper employment practice or to be a violation
of this policy. At the latest, complaints of sexual harassment must
be filed no later than 30 days after the triggering event.
Employees may address acts of sexual harassment as follows:
A.
An employee should clearly inform the person engaging in the harassment
that his or her behavior is offensive and unwelcome and tell him or
her to immediately refrain from such conduct. As soon as possible,
an employee should then report the incident(s) to his or her immediate
supervisor. However, if an employee is uncomfortable with reporting
this matter to his or her immediate supervisor, for whatever reason,
or if the complaint stems from behavior engaged in by the employee's
immediate supervisor, the employee may report the behavior to the
head of his or her department. If an employee is uncomfortable with
reporting this matter to the head of his or her department, for whatever
reason, or if the complaint stems from behavior engaged in by the
head of the employee's department, the employee should report the
behavior to the City Administrator, Director of Human Resource Services
or the Office of the Corporation Counsel.
B.
If a complaint is directed against the City Administrator or the
Director of Human Resource Services, the functions assigned to those
persons by this policy will be transferred to a person or entity selected
by the Office of the Corporation Counsel.
C.
While a complaint may be filed verbally, employees are urged to put
their complaints in writing. If the complaint is made orally, the
department head, division head, City Administrator, Director of Human
Resource Services or the Office of the Corporation Counsel shall reduce
the complaint to a written document which shall, if it is deemed accurate,
be signed by the complainant. When filing a complaint, an employee
is required to provide a specific and detailed account of any and
all acts that the employee believed constituted sexual harassment.
The complaint should address:
(1)
The name and department of the complainant.
(2)
The name and department of the alleged harasser.
(3)
The nature and circumstances, in detail, of the alleged sexual 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.
(4)
Whether such harassment has been previously reported to a supervisor
or other person and, if so, when and to whom.
(5)
Assessing the presence or absence of corroborative evidence for either
party.
D.
Nothing in this section shall prevent the complainant from providing
other information or documents he or she believes are essential to
the fair disposition of his or her complaint.
E.
Once filed, complaints alleging sexual harassment may not be withdrawn,
and the complaining person is required to cooperate fully in the investigation
of his or her claim(s). The failure or refusal to cooperate fully
in an investigation may result in the dismissal of the claim.
All complaints of sexual harassment will be taken seriously
and investigated discreetly, impartially, thoroughly and promptly.
While a procedure is set forth for conducting investigations, this
policy is not rigid. It may vary from case to case depending on a
variety of circumstances. But in all instances, internal investigations
of sexual harassment complaints will be thoroughly and promptly conducted.
A.
The City will employ the following procedures when a supervisor or
department head is presented with a complaint of sexual harassment
or otherwise becomes aware of conduct that may rise to the level of
sexual harassment:
(1)
In the event a supervisor or department head witnesses an act that could be construed as constituting sexual harassment, he or she is to immediately direct the person who is engaging in the conduct to cease the conduct. As soon as practical, the supervisor or department head is to report the matter to the Director of Human Resource Services, the City Administrator and the Office of the Corporation Counsel for further action. When reporting the matter, the supervisor or department head must do so in a writing that addresses the factors set forth in § 60-106C of this article. Failure to report or adequately address such harassment is violative of this policy and will result in disciplinary action.
(2)
If a supervisor or department head is provided with a verbal complaint of sexual harassment by an employee, the supervisor or department head will conduct an initial interview of the complaining party. The interview should elicit the information that is set forth in § 60-106C of this article. At the conclusion of the interview, the supervisor or department head shall reduce this information to writing, have the complaining party sign the document memorializing the verbal complaint and then, as soon as practical, submit the report to the Director of Human Resource Services, the City Administrator and the Office of the Corporation Counsel.
B.
If the Director of Human Resource Services, City Administrator or
the Office of the Corporation Counsel receives a complaint of sexual
harassment from either a supervisor, a department head or an employee,
he will be guided by the following procedures:
(1)
The City Administrator, the Director of Human Resource Services and
the Corporation Counsel, or their designees, shall conduct one or
more interviews with the complainant. Said interview(s) shall be conducted
and completed within 30 days. From the outset of the initial interview,
the employee shall be advised that all information contained in the
complaint shall be treated confidentially but will be used for investigation
purposes and will result in an interview of the alleged harasser,
which may cause him or her to become aware of the matter.
(2)
Once the investigation is completed, a summary report shall be completed.
C.
Antiharassment Officer. The City Administrator, or his designee,
is hereby designated as the Antiharassment Officer. Persons who, by
reason of circumstances, are uncomfortable directing a complaint to
the City Administrator may report a complaint to the Director of Human
Resource Services, his or her department head and/or any supervisor
with whom the employee feels comfortable making the complaint, who
will then bring the complaint to the appropriate authorities.
A.
Upon a preliminary finding that the sexual harassment policy has
been violated, a disciplinary action shall be recommended that is
commensurate with the degree of misconduct.
B.
Any and all discipline meted out shall be in accordance with any
collective bargaining agreement(s) and/or rules and regulations of
the New Jersey Department of Personnel.
C.
Nothing herein shall prevent a supervisor and/or department head
who has specific and credible knowledge that an event of sexual harassment
did in fact take place from taking immediate and appropriate remedial
action. If the alleged harassment involves any types of physical threats
or takes the form of a sexual assault, the alleged harasser shall
be immediately suspended, without pay, pending the outcome of the
administrative hearing. Any discipline meted out under this provision
shall be in accordance with the applicable civil service rules and/or
all other applicable court rules.
A.
Unclassified employees. Remedial action for employees/volunteers
found in violation of the policy may include the following:
B.
Classified employees. The above section is applicable along with
any other disciplinary action in accordance with New Jersey civil
service rules and regulations, including existing collective bargaining
unit agreements.
C.
All remedies shall be implemented in a timely manner, and a summary
of the complaint and the action taken shall be furnished to the parties
by the City Administrator or his/her designee. Where harassment has
been found to have occurred, a summary will be placed in the harasser's
personnel file. The City shall keep a record of all proceedings in
a separate, confidential file.
A.
A charge of sexual harassment is a grave and serious one. False accusations
of sexual harassment are, and will be treated as, a disciplinary offense
and shall result in a level of punishment appropriate for a person
actually engaging in such behavior.
B.
A person who knowingly and/or recklessly and/or maliciously fails
to give a truthful statement or complaint, obstructs an investigation
or withholds disclosing relevant information, or encourages others
to do so, may be deemed to have made a false accusation or statement
and may be subject to discipline up to and including termination.
A.
In order to ensure the integrity of the work environment, supervisory
personnel are required to ensure adherence to and compliance with
this policy and, upon being informed of possible sexual harassment,
are required to take appropriate, immediate action in response, including,
but not limited to, informing employees of their right to file a complaint
with the City Administrator, or his designee, and taking any possible
preliminary action designed to protect the interest of the complainant,
the alleged harasser and the City, without same being any admission
of wrongdoing or liability of any party.
B.
Employees are encouraged, whether directly or through a third party,
to notify the alleged harasser that the behavior in question is offensive
and unwelcome. At the very least, employees should refuse to participate
in such behavior.
C.
Employees are encouraged to promptly report all alleged incidents
of sexual harassment.
To the extent possible, all harassment complaints and investigations
will be conducted in a manner to protect the confidentiality of the
complainant, the alleged harasser and all witnesses. All parties involved
in the proceedings will be advised to maintain strict confidentiality,
from the initial meeting to the final decision, to safeguard the privacy
and reputation of all involved. However, anonymity and confidentiality
cannot always be guaranteed if a proper investigation is to be carried
out and, where appropriate, action is to be taken against the alleged
harasser.
It shall be a violation of this policy for any employee to take
reprisals against any person because he or she has filed a complaint,
testified or assisted in any proceedings in this policy. Threats,
other forms of intimidation and/or retaliation against the complainant
or any other party based on involvement in the complaint process may
be cause for disciplinary action. There will be no discrimination
or retaliation against any individual who files a good-faith harassment
complaint pursuant to this policy, even if the investigation ultimately
produces insufficient evidence to support the complaint. A complaint
of retaliation shall be reported to the City Administrator and/or
his designee, who shall investigate the complaint in the same manner
as a sexual harassment complaint.
It will be the responsibility of the City Administrator and/or
his designee to receive and collect data regarding complaints filed
under this policy. It shall be maintained under lock and key, separate
from all other employee personnel files.
Harassment of any employee in connection with his/her work by
a nonemployee, i.e., volunteer, vendor, supplier or business invitee,
may also violate this policy. Any employee who experiences harassment
by a nonemployee, or who observes harassment of an employee by a nonemployee,
should report such harassment in accordance with this policy. Appropriate
action will be taken against the nonemployee if the complaint is substantiated
following an investigation.
A.
All management and supervisory employees of the City, as well as
all elected officials of the City, shall undergo training in one or
more sessions on sexual harassment in the workplace with a person
trained to lead or implement such training. They also shall receive
training or updated materials on an ongoing basis, at least once every
year, in order to provide or discuss any significant changes or developments
in the law and/or to operate as a refresher on the subject.
B.
All other employees of the City shall also undergo similar training,
led by a person trained to lead such sessions, to raise their awareness
and understanding of impermissible behavior, the consequences of such
behavior and to reduce confusion about which actions or conduct are
acceptable and which are not. These employees shall also be required
to undergo this training once a year, with regular updates thereafter.
A.
The distribution of the policy shall consist of:
(1)
Posting this policy, together with any necessary signage, in a prominent
location within all of the City's buildings and in each department,
division or agency located outside a City-owned building;
(2)
Distribution to all current City employees and volunteers;
(3)
Distribution to all persons hired as City employees or volunteers
subsequent to the effective date of this policy;
(4)
Issuing an annual memorandum to update all municipal employees concerning
the policy of the City of East Orange against sexual harassment; and
(5)
Discussing the policy against sexual harassment during any new employee
orientation meetings, seminars or training sessions held subsequent
to the effective date of this policy.
B.
The Director of Human Resource Services shall ensure compliance with
this section and that all employees/volunteers are aware of the sexual
harassment reporting procedures.
The City of East Orange is committed to maintaining a heightened
awareness of the personal dignity of others by fostering a work environment
free of sexual harassment. This policy shall not be construed as abrogating
any rights or remedies established under the laws, rules or regulations
of New Jersey or the United States.
Upon completion of an investigation, the entire file regarding
the sexual harassment investigation shall be kept confidential by
the Department of Human Resource Services in a location separate from
all other personnel records and/or files; although, in the event an
allegation of sexual harassment is substantiated, the incident will
be documented in the offender's personnel file. If an allegation is
not substantiated, no formal record will be kept in the alleged harasser's
personnel file. If a person is found to have filed a willfully false
sexual harassment allegation, the incident will be documented in the
complainant's personnel file.
Following the decision of the Sexual Harassment Review Committee,
a complainant may then continue with further action at his/her own
expense if he/she wishes to do so. While one seeking such relief is
encouraged to retain an attorney, should he/she wish to pursue this
matter on his/her own, he/she should contact one of the following
agencies to seek further guidance:
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New Jersey Department of Law and Public Safety
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Division on Civil Rights
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140 E. Front Street, 6th Floor
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P.O. Box 089
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Trenton, New Jersey 08625
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Phone: (609) 292-4605
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Division of EEO/AA
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New Jersey Department of Personnel
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Three Station Plaza, CN 315
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Trenton, New Jersey 08625
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Phone: (609) 520-0299
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U.S. Equal Employment Opportunity Commission
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1801 L Street, N.W.
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Washington, D.C. 20507
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Phone: (202) 663-4900
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If an employee fails to follow the City's internal policies
and procedures for the filing and handling of sexual harassment claims
as set forth herein, and the employee, or his or her representative,
heir or spouse thereafter institutes an administrative or legal action
against the City or any officer, agent or employee thereof, the City
or any officer, agent or employee thereof shall have the right to
assert, as the law permits, the employee's failure to exhaust his
or her administrative remedies as a defense to the action.
Any questions about this policy may be directed to the Director
of Human Resource Services. Any and all questions must be put in writing.
