[Added 12-28-2009 by Ord. No. 19-2009]
It is the intent of the City of East Orange that no person be denied the equal protection of the laws, nor shall any person be denied the enjoyment of his or her civil rights or be discriminated against because of his or her actual or perceived race, color, religion, national origin, sex, age, height, weight, marital status, physical or mental disability, family status, sexual orientation or gender identity.
The prohibitions against discrimination as provided for in this article shall not be deemed preempted by federal or state law but are intended to supplement state and federal civil rights laws prohibiting discrimination in the areas of employment, public accommodations and housing; provided, however, that this article shall be construed and applied in a manner consistent with First Amendment jurisprudence regarding the freedom of speech and exercise of religion.
Discrimination is a form of unlawful harassment which undermines the integrity of the employment relationship. Discrimination 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.
Nothing in this article shall require preferential treatment of any person or group on the basis of sexual orientation or gender identity.
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 discrimination. The goals of this policy are to: inform City employees as to what conduct constitutes discrimination; ensure that all employees understand that discrimination 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, discrimination 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.
It is the primary responsibility of department heads, division heads and supervisory personnel to ensure that a working environment free from discrimination 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.
It is the City's policy to prohibit discrimination of an employee by another employee, management representative, supplier, volunteer or business invitee. This discrimination 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.
The City will prohibit discrimination against any person in recruitment, examination, appointment, training, promotion, retention, discipline or any other aspect of personnel administration for reasons of political or religious opinions or affiliations, because of race, color, national origin, physical disability, age (except where a specific age, sex or physical requirement constitutes a bona fide occupational qualification necessary to properly and efficiently function on the job) or any other nonmerit factor.
It is the responsibility of the City to ensure the opportunity for equal employment and to maintain a nondiscriminatory work environment.
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.
Notwithstanding anything contained in this article, the following practices shall not be violations of this article:
To engage in a bona fide effort to establish an affirmative action program to improve opportunities in employment for minorities and women consistent with applicable state and federal law.
To discriminate based on a person's age when such discrimination is required by state, federal or local law.
To refuse to enter a contract with an unemancipated minor.
To restrict any of its facilities or to restrict employment opportunities based on duly adopted institutional policies that conform to federal and state laws and regulations.
To restrict participation in an instructional program, athletic event or on an athletic team on the basis of age, sex, height or weight.
To the employment of an individual by one's family.
To the use of marital status or family status limitations in a health or pension plan if such limitations conform to federal and state laws and regulations.
As used in this article, the following words and phrases shall have the following meanings:
- Chronological age.
- CITY ADMINISTRATOR
- The City Administrator of the City of East Orange or his or her designee.
- To make a decision, offer to make a decision or refrain from making a decision based in whole or in part on the actual or perceived race, color, religion, national origin, sex, age, height, weight, marital status, physical or mental disability, family status, sexual orientation or gender identity of another person.
- Includes either of the following:
- A. An individual who is pregnant; or
- B. Husband, wife, brother, sister, parent, child or other near relative, which relative resides with the employee as part of a common household. If it shall be demonstrated to the satisfaction of the department head that an ill person not falling into the foregoing relationships nevertheless lives with and is part of the household of the employee and that, by reason of the absence of any other suitable person, the employee's presence is essential to the care of such person, then such person may be, for the purposes of this article, deemed to be a member of the family.
- FAMILY STATUS
- The state of being in a family.
- GENDER IDENTITY
- A person's actual or perceived gender, including a person's self-image, appearance, expressions or behavior, whether or not that self-image, appearance, expression or behavior is different from that traditionally associated with the person's biological sex as assigned at birth as being either female or male.
- For the purposes of this policy, "harassment" is defined as verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of his/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 (i.e., 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 toward 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) and that:
- Refers to the perception of the person who acts and not to the perception of the person for or against whom the action is taken.
- SEXUAL ORIENTATION
- Male or female homosexuality, heterosexuality or bisexuality, whether by orientation or practice. Sexual orientation does not include the physical or sexual attraction to a minor by an adult.
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 discrimination must be filed no later than 30 days after the triggering event.
Employees may address acts of discrimination as follows:
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.
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.
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 discrimination. The complaint should address:
The name and department of the complainant.
The name and department of the alleged harasser.
The nature and circumstances, in detail, of the alleged discrimination, 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.
Whether such harassment has been previously reported to a supervisor or other person and, if so, when and to whom.
Assessing the presence or absence of corroborative evidence for either party.
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.
Once filed, complaints alleging discrimination 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 discrimination 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 discrimination complaints will be thoroughly and promptly conducted.
The City will employ the following procedures when a supervisor or department head is presented with a complaint of discrimination or otherwise becomes aware of conduct that may rise to the level of discrimination:
In the event a supervisor or department head witnesses an act that could be construed as constituting discrimination, 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 § 60-128C of this article. Failure to report or adequately address such harassment is violative of this policy and will result in disciplinary action.
If a supervisor or department head is provided with a verbal complaint of discrimination 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 § 60-128C 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 a practical, submit the report to the Director of Human Resource Services, the City Administrator and the Office of the Corporation Counsel.
If the Director of Human Resource Services, City Administrator or the Office of the Corporation Counsel receives a complaint of discrimination from either a supervisor, a department head or an employee, he will be guided by the following procedures:
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.
Once the investigation is completed, a summary report shall be completed.
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.
Upon a preliminary finding that the discrimination policy has been violated, a disciplinary action shall be recommended that is commensurate with the degree of misconduct.
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.
Nothing herein shall prevent a supervisor and/or department head who has specific and credible knowledge that an event of discrimination 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.
Unclassified employees. Remedial action for employees/volunteers found in violation of the policy may include the following:
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.
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 charge of discrimination is a grave and serious one. False accusations of discrimination 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.
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.
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 discrimination, 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.
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.
Employees are encouraged to promptly report all alleged incidents of discrimination.
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 under 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 discrimination 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.
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 discrimination 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.
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.
The distribution of the policy shall consist of:
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;
Distribution to all current City employees and volunteers;
Distribution to all persons hired as City employees or volunteers subsequent to the effective date of this policy;
Issuing an annual memorandum to update all municipal employees concerning the policy of the City of East Orange against discrimination; and
Discussing the policy against discrimination during any new employee orientation meetings, seminars or training sessions held subsequent to the effective date of this policy.
The Director of Human Resource Services shall ensure compliance with this section and that all employees/volunteers are aware of the discrimination 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 discrimination. 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 discrimination 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 discrimination 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 discrimination allegation, the incident will be documented in the complainant's personnel file.
Following the decision of the Discrimination 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:
If an employee fails to follow the City's internal policies and procedures for the filing and handling of discrimination 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.