340-02
UNLAWFUL DISCRIMINATION, HARASSMENT, AND RETALIATION

POLICY & PROCEDURE

Subject:

UNLAWFUL DISCRIMINATION, HARASSMENT, AND RETALIATION

Index: Human Resources and Risk Management

Number: 340-02

Effective Date

10/1/2010

Supersedes

1/15/2010

Page

Page 1 of 12

Staff Contact

Nancy A. Carlson

Approved By

Denis Law

1.0 PURPOSE:

This policy sets forth expectations for employee and supervisor behavior for handling discrimination, harassment, and retaliation complaints, and continuous training of employees regarding this policy.

2.0 ORGANIZATIONS AFFECTED:

All departments/divisions.

3.0 REFERENCES:

City Policy and Procedure #300-04 - Employee Grievance Handling

City Policy and Procedure #300-19 - Employee Termination & Out-Process

City Policy and Procedure #300-47 - Discipline

City Policy and Procedure #330-11 - Types of Employment Pay, Benefits and Retirement

City Policy and Procedure #340-01 - Americans with Disabilities Act

City Policy and Procedure #370-06 - Hiring Process

City Policy and Procedure #700-20 - Violence Free Workplace

City of Renton Civil Service Rules

Collective Bargaining Agreements

RCW 49.60 (Discrimination)

The Equal Pay Act of 1963

Title VII of the Civil Rights Act of 1964

The Age Discrimination Employment Act of 1967

The Americans with Disabilities Act of 1990

Amended Civil Rights Act of 1991

Equal Employment Opportunity Commission (EEOC)

Washington State Human Rights Commission (WSHRC)

4.0 POLICY STATEMENT:

4.1    The City of Renton is committed to providing a work environment that encourages respect for each person in the workplace, including but not limited to freedom from any form of discrimination, sexual or other harassment, or retaliation in violation of this policy or the law.

4.2    The City of Renton has established a zero–tolerance standard for discrimination or sexual or other harassment by specific acts, inference, or omissions by or against any person. This includes actions in the form of a physical, verbal, written, visual, or psychological nature due to race, color, religion, sex, national origin, disability, age, sexual preference or any other protected characteristic under federal, state, or local law. Discipline, up to and including termination, may result from behavior found to constitute discrimination or harassment in violation of this policy or the law.

4.3    The City of Renton has also established a zero-tolerance standard for retaliation. Employees who complain of discrimination, sexual harassment, or other harassment in violation of this policy or the law, or who participate in an investigation or trial on a claim of discrimination or harassment, will not suffer retaliation for any actions taken in good faith.

4.4    The City of Renton shall follow all applicable federal, state, and local laws in prohibiting discrimination, sexual or other harassment or retaliation in the workplace or while performing work-related duties. The City of Renton defines its workplace as not being limited to a City of Renton facility; it includes all City functions (on and off-site), business travel, vendor locations, customer locations, and any other location where City of Renton business is conducted.

4.5    This policy applies to all City of Renton employees and all non-employees with whom a City of Renton employee may come into contact with during the daily performance of his/her job, including customers, visitors, suppliers, vendors, contractors, temporary employees, and/or other individuals.

5.0 DEFINITIONS:

5.1    City Employee means all regular and non-regular employees. This includes full-time, part-time, temporary, seasonal, and contract employees and supervisors. For purposes of this policy, it also means volunteers.

5.2    Complaint means a complaint of discrimination, sexual harassment, other unlawful harassment, or retaliation in violation of this policy or the law. Complaints include circumstances when a City employee hears about, learns of, discovers or otherwise becomes aware of prohibited unlawful conduct.

5.3    Discrimination under this policy and the law occurs when a City employee suffers any adverse employment action, such as discipline, termination, or unfavorable working conditions, and a substantial reason for the adverse employment action is the employee’s race, color, religion, age, national origin, ethnic group, sexual orientation, gender, marital status, disability status or any other protected class or characteristic. Discrimination can exist in the form of disparaging terms or personal conduct.

5.4    Disparaging Terms means words or terms that are used to degrade or infer a negative characteristic pertaining to race, color, religion, age, national origin, ethnic group, sexual orientation, gender, marital status or disability status or any other protected class or characteristic. Such words or terms may include slurs, insults, printed materials, visual materials, signs, symbols, posters or insignia.

5.5    Person means any City employee, and participants in any City of Renton program, activity or business transaction.

5.6    Investigation is the process by which fact-finding occurs. There are three forms of investigation:

5.6.1    Initial Assessment, which is completed by the Manager, Supervisor or Human Resources and Risk Management Administrator/Designee (hereafter HRRM Administrator/Designee) within five (5) calendar days of the reported complaint.

5.6.2    Administrative Investigation, which is conducted by the HRRM Administrator/Designee when further investigation is warranted after the initial assessment.

5.6.3    Criminal Investigation, which is conducted when a potential criminal act is involved; such an investigation is assigned to the Police Department.

5.7    Retaliation under this policy and the law occurs when a City employee suffers any adverse employment action, such as discipline, termination, or unfavorable working conditions, and a substantial reason for the adverse employment action is either the employee’s complaint of discrimination or sexual or other harassment, or cooperation in any investigation, trial, or other proceeding regarding a complaint of discrimination or sexual or other harassment.

5.8    Sexual Harassment:

5.8.1    Any unwelcome sexual advances, requests for sexual favors, or any other verbal or physical conduct of a sexual nature when 1) submission to such conduct is made either explicitly or implicitly a condition of an individual’s employment; 2) submission to, or rejection of, such conduct by an individual is used as the basis for employment decisions affecting such individual; and/or 3) such conduct is unwelcome, severe and pervasive and has the purpose, result, or effect of substantially interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive working environment. “Requests or demands for sexual favors” include subtle or blatant expectations, pressures, or requests for any type of sexual favor accompanied by an implied or stated promise of preferential treatment or negative consequences concerning an individual’s employment.

5.8.2    Sexual harassment is not gender specific. Harassers and their victims may be of the opposite sex or of the same sex.

5.9    Examples of Sexual Harassment: Below are some examples of behavior that would constitute or contribute to sexual harassment.

5.9.1    Physical examples include assault, infringing on personal space (arm’s length is one common measure of appropriate personal space); unwelcome touching (e.g. patting, hugging, kissing, putting one’s arm around another); fondling; pinching; cornering, impeding or blocking; or any other similar physical contact that is reasonably considered unwelcome and offensive by the recipient.

5.9.2    Verbal examples include unwelcome or unwanted flirtations, propositions, or advances; sexually derogatory comments, slurs, jokes, and epithets; making sexual or derogatory comments about men or women; verbal abuse or kidding that is sexually oriented and reasonably considered unwelcome and offensive by the recipient, including questions about a person’s sexual behavior, or comments about an individual’s body or appearance when such comments go beyond an isolated innocuous compliment. Verbal examples also include offensive language, off-color jokes, conversations filled with double meaning or any other sexually oriented comments, or sexual innuendoes.

5.9.3    Written/visual examples include sending letters, notes, cartoons, invitations, e-mails or audio messages of a sexually suggestive nature; downloading and displaying cartoons, pictures, video or other sexually related material; and/or gestures or displays of sexually suggestive objects or pictures, cartoons, or posters.

5.9.4    Other examples include threats of reprisal, implying or actually withholding support of appointments or suggesting that punitive action will be taken if requests for sexual favors are not met.

5.10    Other Harassment: For the purpose of this policy, “other harassment” is verbal or physical conduct that 1) denigrates or shows hostility or aversion toward an individual because of such individual’s protected status or characteristics such as his/her race, color, religion, gender, national origin, ethnic group, age, marital status, sexual orientation, or disability status; and 2) such conduct is unwelcome and offensive, and has the purpose, result, or effect of substantially interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive working environment.

5.11    Examples of Other Harassment: Below are some examples of behavior that would constitute or contribute to harassment.

5.11.1    Physical examples include assault, threatening, touching, impeding or blocking movements, intimidating, or engaging in hostile acts that relate to a protected status or characteristics such as those referred to above.

5.11.2    Verbal examples include disparaging terms and comments, slurs, pranks or jokes that are belittling or otherwise offensive, offensive language, and epithets that are negative stereotyping, degrading or insulting as they relate to a protected status.

5.11.3    Written/visual examples include disparaging terms, derogatory letters, notes, cartoons, invitations, e-mails or audio messages/recordings and other written materials that are negative stereotyping, degrading or insulting as they relate to a protected status; visual displays of objects or pictures, cartoons, or posters; and/or circulating in the workplace written or graphic material that denigrate or show hostility or aversion toward a person or group because of a protected characteristic.

5.11.4    Other examples include threats of reprisal; and/or implying or actually withholding support of appointments or suggesting that punitive action will be taken when the conduct is motivated by or related to a protected status or characteristic(s) of the victim.

6.0 PROCEDURE:

6.1    Employee’s Responsibilities

6.1.1    Employees are responsible for conducting themselves with the highest level of integrity, honesty and candor in all matters related to this policy, and are responsible for maintaining a work environment free from unlawful discrimination, sexual harassment, and other unlawful harassment. Employees who engage in unlawful discrimination, sexual harassment or other unlawful harassment will be subject to discipline, up to and including termination.

6.1.2    Any employee who finds remarks or other behavior of another individual offensive should promptly inform the individual, in a direct but courteous manner, that the particular behavior is offensive and unwelcome, and should stop immediately. This section includes employees to whom the remarks and behavior were directed, as well as other employees who witness the offensive remarks or behavior.

6.1.3    If the employee is unable or unwilling to confront the individual directly, or if the offensive behavior continues after doing so, the employee shall promptly notify his/her manager/supervisor (hereafter supervisor) at the first level outside his/her bargaining unit regarding these offensive remarks or behavior. The employee may also contact the HRRM Administrator/Designee directly. This section includes employees to whom the remarks and behavior were directed, as well as other employees who witnessed the offensive remarks or behavior.

6.1.4    Once reported, the matter will be investigated in the manner set forth below.

6.2    Supervisor’s Responsibilities

6.2.1    Supervisors are responsible for conducting themselves with the highest level of integrity, with honesty and candor in all matters related to this policy, and will be held to a higher standard of conduct regarding their actions or their failure to act regarding complaints. Supervisors who engage in unlawful discrimination, sexual harassment or other harassment will be subject to discipline, up to and including termination. Sexual harassment can destroy an efficient, productive work environment and places the City at risk of substantial financial exposure, litigation costs and lost work time.

6.2.2    Supervisors shall take all appropriate actions to maintain a harassment-free environment, avoid compromising or morally questionable situations, and report concerns or complaints so that the City may respond appropriately.

6.2.3    If a supervisor receives a complaint of unlawful discrimination or harassment, he or she is responsible for keeping complaints confidential, and disclosing names and information only to the HRRM Administrator/Designee and to the supervisor’s own Department Administrator. Procedures to pursue and investigate complaints are provided in the Investigation Process (Section 7) of this policy. All supervisors are obligated to follow the investigative procedures listed in the Investigation Process (Section 7) of this policy.

6.2.4    If information about unlawful discrimination or harassment is shared “in confidence” with a supervisor, the employee should be informed that the supervisor has a duty to report the matter to the HRRM Administrator/Designee regardless of the employee’s wishes.

6.2.5    Supervisors are responsible for insuring that the HRRM Administrator /Designee is advised of all complaints as soon as possible or within three (3) business days of learning of the complaint.

6.2.6    Supervisors who fail to report complaints in accordance with this policy shall be subject to disciplinary action, up to and including termination.

6.2.7    Supervisors are to take reasonable measures to prevent retaliation against those reporting complaints, and shall not take part in any form of retaliation. The supervisor will otherwise be subject to discipline, up to and including termination.

6.3    Reporting Complaints: Should any person believe he/she has been unlawfully discriminated against sexually or otherwise harassed, or retaliated against, the person shall take one or more of the steps listed below:

6.3.1    The person shall document all incidents, as it may be possible, in order to provide a basis for an investigation. “Documents” include any notes taken by the person, and any notes, drawings, photographs, magazines or periodicals received by the person. All written messages, and e-mail or voice mail must be saved.

6.3.2    Persons other than City employees shall report any discrimination, harassing or sexually harassing behavior to the HRRM Administrator/Designee.

6.3.3    Anonymous complaints received by or learned of by a supervisor will be investigated as directed by the Human Resources and Risk Management Administrator/Designee.

6.3.4    City employees shall report all incidents in violation of this policy to their supervisor at the first level outside their bargaining unit, within twenty-four (24) hours of learning the information so that steps can be taken to protect the employee or person from further harassment or discrimination, and to conduct an immediate investigation.

6.3.5    If the employee chooses, the employee may file his/her complaint directly with the Department Administrator, or the HRRM Administrator/Designee. The employee does not need to follow the normal chain of supervision when reporting complaints covered by this policy.

6.3.6    Any person may consult with the HRRM Administrator/Designee prior to reporting a complaint in order to obtain information regarding this policy and the procedures for making a complaint.

6.3.7    Any employee may file a discrimination, harassment, sexual harassment or other unlawful harassment complaint directly with an appropriate outside agency, such as the Federal Equal Employment Opportunity Commission or the Washington State Human Rights Commission. Employees and other persons are strongly encouraged to report all discrimination, unlawful harassment, or sexual harassment to their supervisor, or the HRRM Administrator/Designee in order to stop the behavior as soon as possible and allow for other corrective action.

6.3.8    Complaints regarding the Human Resources and Risk Management Administrator shall be reported directly to the City Attorney.

6.4    Documentation by Supervisors: All supervisors receiving complaints shall establish a written record of all discussions and retain all evidence bearing on any complaint. The duty to document includes 1) all information concerning warning given by one person to an employee, and 2) all agreements reached between persons regarding offensive behavior. At the time of documenting any information pursuant to this section, the supervisor shall contact all concerned parties to confirm the relevant information. Documentation of warnings between parties created pursuant to this paragraph shall not be placed in any employee’s personnel file unless there is subsequent disciplinary action.

6.5    Retaliation: There shall be no retaliation against any person for making a complaint in good faith, or for cooperating in the investigation, hearing, or trial of a complaint made by another. Any employee or supervisor engaging in retaliation against a person for making any complaint, assisting in an investigation of a complaint, or testifying in any matter relating to a complaint, shall be subject to discipline, up to and including termination.

7.0 INVESTIGATION PROCEDURES

7.1    Duty to Investigate: Supervisors are obligated as a condition of employment to pursue complaints of behavior in violation of this policy. Investigation of complaints in the Police Department shall be conducted by the investigating unit of the Police Department. The first level of review must be completed by a supervisor outside the bargaining unit. All allegations must be reported to the HRRM Administrator/Designee as soon as possible but no later than three (3) business days of receipt.

7.2    Duty to Make an Initial Assessment of Complaints: Supervisors shall act to complete an initial assessment of all complaints within five (5) calendar days of learning of the complaint. Below are the steps they shall take.

7.2.1    The first level of review must be completed by a supervisor outside the bargaining unit.

7.2.2    The supervisor shall initially determine whether the complaint falls within this policy.

7.2.3    When a supervisor learns of a warning between an employee and another person, the matter shall be documented and a determination made as to whether further investigative action is warranted.

7.2.4    When further investigation is warranted, the matter shall be referred to the HRRM Administrator/Designee for administrative investigation.

7.2.5    If the supervisor determines that violence, assault or physical contact may have occurred, the matter shall be referred to the Police Department for criminal investigation. If the Police Department or the City Attorney determines that criminal prosecution is not appropriate, the matter shall be returned to the supervisor and investigated pursuant to this policy.

7.2.6    An initial assessment is completed when the following occurs: A determination that the reported behavior does not fall within the scope of this policy; documentation of a warning between parties; referral for administrative investigation; or referral for criminal prosecution.

7.2.7    The supervisor shall document all activities related to the initial assessment and shall preserve all materials relating to the initial assessment. All documentation shall be delivered to the HRRM Administrator/Designee for follow-through or investigation.

7.3    Referral for Investigation: After completion of the initial assessment the supervisor shall contact the HRRM Administrator/Designee, with all relevant documentation for all follow through and/or investigation within (5) calendar days after the supervisor learned of the complaint.

7.4    Initial assessment by HRRM Administrator/Designee: If the HRRM Administrator/Designee is completing the initial assessment, he or she shall act to complete the initial investigation of all complaints, whether referred by a department or filed directly by the complainant, within five (5) calendar days of learning of the complaint. Throughout the process, the HRRM Administrator/Designee shall document all activities related to the assessment and shall preserve all materials relating to the assessment. Below are the steps that the HRRM Administrator/Designee shall follow.

Step 1.    The HRRM Administrator/Designee shall assess and confirm that the complaint falls within this policy.

Step 2.    If the complaint falls within the policy, the HRRM Administrator/Designee may consult with the mayor, the city attorney, and other resources regarding an appropriate investigator and the proper scope of the investigation. See Section 7.5.

Step 3.    The complaining employee(s) and the accused employee(s) will be advised of the commencement of the investigation by the HRRM Administrator/Designee.

7.5    Administrative Investigation: After completion of the initial assessment, or if the complaint is filed directly with the HRHM Administrator/Designee, and if it is determined that a violation of this policy may exist, the following steps will be followed:

Step 1.    The Administrative investigation will commence within five (5) calendar days after the HRRM Administrator/Designee learned of the complaint or received the initial assessment.

Step 2.    The HRRM Administrator/Designee will interview the complaining employee(s), the accused employee(s), and relevant witnesses identified by both. The HRRM Administrator/Designee will conduct follow-up interviews if he or she believes that a person who was previously interviewed should have the opportunity to address a new allegation or defense.

Step 3.    The HRRM Administrator/Designee will review all relevant documents, such as memos, emails, notes, and journals, provided by the parties and witnesses.

Step 4.    The HRRM Administrator/Designee will draft a report that contains a summary of his/her investigation and the factual findings, if any.

7.6    Referral for Criminal Prosecution: If the HRRM Administrator/Designee determines that any violence, assault, physical contact, or criminal conduct may be involved, the matter shall be immediately referred to the Renton Police Department for investigation. Criminal conduct may include any inappropriate touching, or any use of force toward another person. The investigation may include having discussions with customers, restraining orders and/or other legal remedies to prevent future prohibited conduct. If the Police Department or the City Attorney determines that criminal prosecution is not appropriate, the matter shall be returned to the supervisor, or the HRRM Administrator/Designee, for an administrative investigation pursuant to this policy.

7.7    Appeals: Employees who disagree with the disposition of the complaint may file a complaint with the EEOC or WSHRC within applicable guidelines.

8.0 RIGHT TO REPRESENTATION:

Any employee contacted in the course of an initial assessment or full investigation pursuant to this policy may be accompanied by a personal representative. A “Personal Representative” means a union representative, an attorney, or other person who may attend any meeting. No personal representative may disrupt any meeting; however, the employee may consult with the personal representative during the meeting. Arrangements for a personal representative shall not extend beyond three (3) business days following the initial contact. An employee who is covered by a collective bargaining agreement will be represented in accordance to his or her applicable Agreement. If represented by a Union, refer to the Union contract.

9.0 RESPONSIBILITY FOR REMEDIAL ACTION

9.1    Based on a review of the findings, the HRRM Administrator/Designee will determine whether the findings merit reassignment of personnel or imposition of discipline on any party, and shall implement any reassignments or disciplinary action as deemed appropriate. Normal disciplinary procedures shall be followed.

9.2    The complaining employee(s), accused employee(s) and witnesses will be debriefed on the investigation and findings, though certain information may be withheld at the discretion of the City in accordance with the law.

9.3    When an investigation determines that a non-employee has engaged in conduct prohibited by this policy, the HRRM Administrator/Designee shall take all appropriate actions to remedy the conduct. Remedial actions may include referral for criminal prosecution, termination of a contract with a vendor, appropriate warnings and discussions with customers, and/or restraining orders and other legal remedies to prevent future prohibited conduct.

9.4    If the investigation is investigated by someone other than the HRRM Administrator/Designee, the investigator will review his or her findings with the HRRM Administrator/Designee within ten (10) calendar days following receipt of the factual findings.

10.0 TRAINING AND POLICY REVIEW AND DISSEMINATION:

The City will train all employees in the use of this policy. A copy of this policy and procedure shall be distributed to each new employee at initial orientation, and he or she will sign documentation of receipt that will kept in his or her personnel file. Each supervisor will review the policy and expectations of employee behavior annually with each employee in his or her area of supervision, and the employee will sign documentation of receipt that will be kept in the employee’s personnel file.