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HomeMy WebLinkAbout2023-03-14; City Council; Resolution 2023-079RESOLUTION NO. 2023-079 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPLYING ADMINISTRATIVE ORDER 45 -EQUAL EMPLOYMENT OPPORTUNITY AND WORKPLACE CIVILITY POLICY TO ALL ELECTED CITY OFFICIALS AND ALL MEMBERS OF THE CITY'S ADVISORY BOARDS, COMMISSIONS AND COMMITTEES WHEREAS, Carlsbad Municipal Code Section 2.44.120 provides that, "All employees and applicants for employment in the city will not be subject to discrimination or harassment on any basis protected by state or federal law"; and WHEREAS, the City Manager revised, renamed and approved Administrative Order 45 -Equal Employment Opportunity and Workplace Civility Policy (EEO Policy), applicable to all city employees, contract workers, interns and volunteers, to maintain a workplace that is free from discrimination, harassment and retaliation in any form, and to foster diversity, equity, inclusion (DEi) and respect for all individuals; and WHEREAS, on November 16, 2021, City Council adopted the City Council Code of Ethics & Public Service Values that includes a commitment to embrace the diversity of the community and the city's team; and WHEREAS, the City Council wishes to apply the EEO Policy to all elected city officials and all members of the city's advisory boards, commissions and committees. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1.That the above recitations are true and correct. 2.That the EEO Policy (Attachment A) shall apply to all elected city officials and all members of the city's advisory boards, commissions and committees. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 14th day of March, 2023, by the following vote, to wit: AYES: NAYS: ABSTAIN: ABSENT: Blackburn, Bhat-Patel, Acosta, Burkholder, Luna. None. None. None. l. v KEITH BLACKBURN, Mayor SHERRY FREISINGER, City Clerk (SEAL) {Jv()J_aNJ1 Attachment A Administrative Order No. 45 {city of Carlsbad This order supersedes Administrative Order No. 45 dated February 21, 2001 Date: January 26, 2023 To: All City Departments From: Scott Chadwick, City Manager Subject: EQUAL EMPLOYMENT OPPORTUNITY (EEO) AND WORKPLACE CIVILITY POLICY REFERENCE: California Code of Regulations, Title 2, Section 11023 Senate Bill No. 523 California Code, Government Code 12920 California Assembly Bill No. 1041 Carlsbad Municipal Code Section 2.44.120 City of Carlsbad Administrative Order No. 95 I. PURPOSE In keeping with the city's vision to be a world class city and its mission to enhance the lives of all who live, work and play in Carlsbad by setting the standard for providing top quality, efficient local government services, the city is committed to maintaining a workplace that provides equal employment opportunity (EEO), is free from discrimination, harassment and retaliation in any form and fosters diversity, equity, inclusion (DEi) and respect for all individuals. Allegations of policy violations will be taken seriously, will be investigated in a prompt, thorough and objective manner appropriate to the circumstances and may result in disciplinary action. This policy outlines: 1) the behaviors, practices and activities that are expected in the workplace, 2) the responsibilities of employees, managers and supervisors and the Human Resources Department, and 3) the actions that will be taken to ensure compliance with this policy. The city is committed to ensuring that the principles of fair and equal treatment are understood, respected, and practiced throughout the workplace. Federal and state laws, and Carlsbad Municipal Code Section 2.44.120, make it unlawful for managers, supervisors, co-workers, or third parties to discriminate, harass, retaliate, or engage in abusive conduct against employees and applicants for employment on the basis of any protected classification, including: • Race • Color • Age (40 or older) City Hall 1200 Carlsbad Village Drive I Carlsbad, CA 92008 I 442-339-2820 I www.carlsbadca.gov Admininstrative Order No. 45 -EEO and Workplace Civility Policy • Religious creed, which includes religious belief, observance and practice, and dress or grooming practices • National origin • Ancestry • Physical disability • Mental disability • Medical condition, including: o any cancer-related physical or mental health impairment from a diagnosis, record or history of cancer; or o a genetic characteristic • Genetic information, including information about: o an individual's genetic tests; o family members' genetic tests; o family members' diseases or disorders; o an individual's or family member's receipt of, or request for, genetic services; and o participation by an individual or their family member in clinical research that includes genetic services • Marital status • Sex, including: o pregnancy; o childbirth; o breastfeeding or medical conditions related to breastfeeding; and o medical conditions related to pregnancy or childbirth • Gender • Gender expression, meaning a person's gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person's sex at birth • Gender identity, meaning a person's internal understanding of their gender, or the perception of a person's gender identity, which may include identification as male, female, a combination of male and female, neither male nor female, a gender different from the person's sex assigned at birth, or transgender • Sexual orientation, including heterosexuality, homosexuality, and bisexuality • Military or veteran status, including past, current or prospective service in the uniformed services • Any other characteristic protected under applicable federal, state or local law. These classifications are the "Protected Categories" covered under this policy and will be referred to as "Protected Categories." These protections include being perceived or regarded as, or associated with, any Protected Categories. All city employees, contract workers, interns and volunteers ("covered individuals"} are required to adhere to the standards of conduct this policy establishes and to support and adhere to the principles of EEO and DEi as stated in this policy. Managers and supervisors must understand the 2 Admininstrative Order No. 45 -EEO and Workplace Civility Policy importance of these standards and principles, enforce them, and work towards providing a work environment free of discrimination, harassment, retaliation and abusive conduct. City supervisors and managers will be held accountable for ensuring that EEO and DEi practices are adhered to in their work units. This policy will be distributed to all covered individuals annually, and to new hires in a format requiring their review and acknowledgement. This policy will also be posted on the Human Resources intranet page for all employees to access. The city is also committed to maintaining a workplace that respects all employees, promotes civility and eliminates abusive conduct. Abusive conduct in the workplace is unlawful if it is motivated by discriminatory or retaliatory bias that the law specifically prohibits. Even when it is not unlawful, it violates this policy. The city is committed to ensuring that all employees are treated with dignity and respect and will take action under this policy as necessary and appropriate to prevent and address such behavior. II. EQUAL TREATMENT/PROTECTED CLASSIFICATIONS The city will ensure fair and equal treatment in all employment-related actions (e.g., pre- employment inquiries, hiring and firing, promotions, discipline, transfers, job rotations, work assignments, training, overtime, merit increases and rewards) and other terms, conditions, and privileges of employment without regard to an individual's Protected Category. Ill. WORK ENVIRONMENT FREE FROM DISCRIMINATION, HARASSMENT, AND RETALIATION All city employment processes, interviews and selections shall be job-related and conducted in a non-discriminatory manner. Interview questions and selection materials must be based on job- relevant criteria and carefully designed to not discriminate or have an adverse impact on applicants based on Protected Categories. All city employees are entitled to a work environment free from discrimination, harassment, and retaliation. This policy strictly prohibits discrimination and harassment on the basis of a Protected Category. In addition, retaliation against a city employee who reports, complains of, or makes statements regarding an act of discrimination, or harassment in violation of this Policy · is prohibited and will not be tolerated. Discrimination occurs when a person's Protected Category is a substantial motivating reason for an adverse employment action. Examples of adverse employment actions include termination of employment, discipline, negative performance evaluation, denial of promotion, demotion, or reduction in pay. Harassment includes any unwelcome, unsolicited, or unwanted conduct because of a person's Protected Classification that offends, demeans, humiliates, embarrasses, intimidates, or otherwise causes the person emotional distress. Harassment creates a negative work atmosphere, which reduces work productivity and morale, undermines the integrity of the workplace, and destroys professionalism. Examples of harassment include derogatory comments, slurs, demeaning jokes, threats, unwanted touching, offensive pictures, cartoons or posters, or sexual advances. 3 Admininstrative Order No. 45-EEO and Workplace Civility Policy Retaliation includes a threat, intimidation, or adverse employment action because a person has reported an alleged violation of this policy, filed or assisted another with a complaint under this policy, participated in an investigation of a complaint under this policy, requested accommodation for a disability or religious belief or observance, or otherwise opposed discrimination, harassment, or retaliation under this policy. Supervisors and managers are reminded that employees have a right to report any act or conduct that they believe violates this policy. In addition, other more minor forms of retaliation (e.g., unwarranted change in work assignment or location, unreasonable denial of leave request, or uncooperativeness) will not be tolerated. Good faith employment actions do not constitute unlawful discrimination, harassment, or retaliation. Good faith employment actions taken by a supervisor, manager, or appointing authority, such as offering constructive feedback or criticism, holding employees accountable, or providing discipline, where appropriate, do not constitute, and should not be mistaken for, discrimination, harassment, or retaliation. These employment actions are aimed at enhancing workplace productivity or addressing work performance or conduct and are within the responsibilities and obligations of city supervisors and managers. The city will respond to all reports of discrimination, harassment, or retaliation in the workplace, conduct a fair, timely, and thorough investigation (as needed), and take appropriate action (as needed). The city's action may range from informal counseling to disciplinary action, up to and including discharge, even if it is the first time such conduct has occurred. Prior incidents may be considered when assessing the facts and circumstances of a complaint. Every city employee is expected to support and enforce this policy. A supervisor who observes or is aware of discrimination, harassment, or retaliation and fails to take corrective action may be disciplined even if the conduct did not take place in the supervisor's work unit. Job performance assessments for supervisors and managers should include a review of their support ofthis policy. IV. SEXUAL HARASSMENT Sexual harassment is harassing conduct that creates an intimidating, hostile, or offensive working environment on the basis of sex. Sexual harassment is unprofessional and detrimental to a high- performing work environment. California law provides that sexual harassment is unlawful and includes verbal, physical, and visual harassment, as well as unwanted sexual advances. An employer may be liable for sexual harassment even when the harassing conduct was not motivated by sexual desire. A person alleging sexual harassment is not required to sustain a loss of tangible job benefits in order to establish harassment. Sexually harassing conduct may be either "quid pro quo" or "hostile work environment" sexual harassment: • "Quid pro quo" ("do this to get that") sexual harassment is characterized by explicit or implicit conditioning of a job benefit, such as a raise or promotion, or the avoidance 4 Admininstrative Order No. 45-EEO and Workplace Civility Policy of a job detriment, such as a pay cut or demotion, on an applicant's or employee's submission to sexual advances or other conduct based on sex. • Hostile work environment sexual harassment occurs when unwelcome comments or conduct based on sex unreasonably interfere with an employee's work performance or create an intimidating, hostile, or offensive work environment. To be unlawful, the harassment must be severe or pervasive such that it alters the conditions of the victim's employment and creates an abusive working environment. A single, unwelcomed act or incident of harassment may be sufficiently severe so as to create an unlawful hostile work environment, if the harassing conduct unreasonably interferes with the employee's work performance. To be unlawful, the harassment must be both subjectively and objectively offensive. In determining whether conduct was severe or pervasive, the totality of the circumstances is considered, including any or all of the following: • The nature of the conduct; • How often and over what period.of time the conduct occurred; • The circumstances under which the conduct occurred; • Whether the conduct was physically threatening or humiliating; • The extent to which the conduct unreasonably interfered with an employee's work performance. Sexually harassing conduct can be verbal, physical, visual, or written, and can occur between people of the same or opposite sex. Sexual harassment can occur in any working relationship, such as between peers, supervisor to subordinate, subordinate to supervisor, by a member of the public toward an employee, within or across departments, as well as in other situations. Verbal examples of sexual harassment may include derogatory, demeaning, or sexual comments, insults, slurs, threats, obscene language, or sexual jokes; graphic comments about a person's appearance or physique; conversations or comments with sexual undertones; recounting one's sexual exploits or inquiring about a person's sex life; starting or spreading rumors about the sex life of an employee; or remarks or jokes about a person's ability to do a job because the person is male or female. Physical examples of sexual harassment may include unwelcome touching, hugging, kissing, groping, or massaging; sexually suggestive or explicit leering or gestures; physically blocking, cornering, or impeding movement; or revealing parts of the body when such exposure violates common decency. Visual or written examples of sexual harassment may include derogatory, sexually suggestive, offensive, or explicit objects or pictures, including cartoons, posters, drawings, or computer graphics; or letters, notes, e-mails, text messages, electronic messaging, tweets, social media status updates, or invitations, including social media invitations, which may be perceived as 5 Admininstrative Order No. 45 -EEO and Workplace Civility Policy sexually suggestive, demeaning, offensive, or obscene. Other examples of sexual harassment may include: • Job actions taken to pressure a person into accepting sexual advances; or • In some circumstances, repeatedly asking a person for a date after being turned down. Sexual harassment by supervisors and managers can include a statement or insinuation that a refusal to provide sexual favors, or a rejection of sexual favors, will cause reprisal, lack of support for appointments, promotions or transfers, failure of probation, change of assignment, poor performance rating, or some other adverse employment action. Sexual favoritism can also create a hostile work environment under certain circumstances. "Sexual favoritism" means that an employee has received preferential treatment with regard to promotion, work hours, assignments, or other significant employment benefits or opportunities because of a sexual relationship with a supervisor who was in a position to grant those preferences. Whether alleged conduct constitutes sexual harassment is determined on a case-by-case basis by assessing the entire situation and the totality of the circumstances. Factors such as the nature of the conduct and the context in which the alleged conduct occurred will be considered in assessing the allegations and in determining the resolution. Whether harassment occurred depends not on whether the conduct was intended to cause harm, but rather the impact of the conduct on an individual's employment or work environment. For example, a person who teases in a sexual manner or tells sexual jokes may create an offensive work environment for another worker even though the person intended such comments or actions merely to be "in good fun." This applies to all types of job classifications and work environments. If one's conduct is harassing to an individual or group of individuals, it does not matter that the actor failed to recognize the conduct as harassing. This policy does not prohibit mutually consensual social relationships between employees. Persons involved in consensual relationships must exercise caution, however, to prevent the development of harassing conduct or the use of authority inappropriately. For example, if the consensual relationship changes and is no longer mutual, conduct once welcomed by both individuals may become offensive to one. Per Administrative Order No. 95, should someone in the position of supervision develop a relationship with a subordinate employee, the supervisor should immediately bring this to the attention of their management and Human Resources to ensure transparency and equity is maintained. Normally a supervisor should not be in a relationship with a subordinate employee. Accordingly, once a relationship is established between a supervisor and subordinate employee, an alternative reporting structure and/or job assignment must be implemented so that the relationship does not negatively impact either the employee or the supervisor. See Administrative Order No. 95 for the city's policy on familial and personal relationships in the workplace. 6 Admininstrative Order No. 45 -EEO and Workplace Civility Policy V. PERSONS WITH DISABILITIES The Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA) are the federal and state laws that protect employees with disabilities. Under these laws, the city will provide reasonable accommodation to a qualified applicant or employee with a disability, unless doing so would cause undue hardship. The city determines reasonable accommodations through timely, good faith interactive processes involving the Human Resources Department, the employee's supervisor or designee, and the employee in need of a reasonable accommodation. Additionally, the city will engage in a timely, good faith interactive process with qualified job applicants who request accommodation. VI. FAMILY AND MEDICAL LEAVE ACT (FMLA) /CALIFORNIA FAMILY RIGHTS ACT (CFRA)/ PREGNANCY DISABILITY LEAVE (PDL) The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide that employees who have worked at least half-time during the previous 12 months and have worked for the city at least one year shall be allowed to request up to 12 weeks of unpaid, job-protected leave per year to care for their own serious health condition; care for the serious health condition of a spouse, domestic partner, parent, child (minor or adult), domestic partner's child, grandparent, grandchild, sibling, or designated person; or to bond with a new child (by birth, adoption, or foster placement). A designated person is an individual related to the employee by blood, or whose association with the employee is the equivalent of a family relationship, who is identified at the time the employee requests leave. An employee may not take family care and medical leave for more than one designated person per each 12-month period. An employee's leave may be extended beyond 12 weeks as a form of reasonable accommodation, consistent with the ADA and FEHA. For pregnancy, California law allows up to four months, or 17 and 1/3 weeks, of unpaid, job-protected leave per pregnancy to an employee disabled by pregnancy, childbirth, or related medical conditions. The FMLA and CFRA also provide leave rights related to military service. Eligible employees are entitled to up to 12 weeks of unpaid, job-protected leave during the normal 12-month period established for FMLA/CFRA leave, because of any qualifying requirement arising out of a covered family member being on, or having been notified of, an impending call to active duty to support a contingency operation. The FMLA additionally provides leave rights of up to 26 weeks of unpaid, job-protected leave in a single 12-month period to an eligible employee for the care of a covered family member recovering from a serious illness or injury sustained in the line of duty. It is unlawful, and is a violation of this policy, to interfere with, restrain, or deny the exercise of any right provided under these laws. An employee who exercises rights under any of these laws shall not be subjected to discrimination, harassment, or retaliation. 7 Admininstrative Order No. 45 -EEO and Workplace Civility Policy VII. PREVENTION OF ABUSIVE CONDUCT IN THE WORKPLACE The city values respectfulness, collaboration, and teamwork in the workplace and any employee who engages in abusive conduct may be subject to disciplinary action up to and including discharge. Abusive conduct includes malicious conduct that a reasonable person would find hostile, offensive, and unrelated to legitimate business interests. It may also include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance. Generally, a single act will not constitute abusive conduct unless it is especially severe. To ensure that the city maintains a respectful workplace, free of abusive conduct, an employee may report abusive conduct pursuant to the procedures set forth in Section IX below. The Human Resources Department will determine whether an investigation is appropriate and if so, the investigation will be conducted as set forth in Section IX and may recommend that appropriate action be taken. VIII. TRAINING -SEXUAL HARASSMENT AND ABUSIVE CONDUCT PREVENTION In accordance with California Law, at least once every two years (and within six months of the start of their employment) all non-managerial employees will be provided with a minimum of one hour oftraining and all managers, supervisors and elected and appointed officials will be provided with a minimum of two hours of training on Sexual Harassment and Abusive Conduct Prevention. The city is fully committed to ensuring a safe and healthy workplace free of sexual harassment and abusive conduct and reinforces this commitment by providing all employees a minimum of two hours of training at hire and once every two years. Additional no-cost training is available through the state Department of Fair Employment and Housing at: https:/ /www.dfeh.ca.gov/shpt/. IX. REPORTING A VIOLATION AND INVESTIGATIONS This policy is to ensure that all city employees know of their rights and responsibilities in order to create and maintain a high-performing work environment at the city, free from discrimination, harassment, or retaliation as well as to maintain a work environment free from abusive conduct. Any city employee who believes this policy has been, or is being, violated, should promptly bring the matter to the attention of any of the individuals or offices listed below so that the complaint can be resolved quickly and fairly: • Department Director • Any manager or supervisor (it is not necessary to follow the chain of command) • Human Resources Department 8 Admininstrative Order No. 45 -EEO and Workplace Civility Policy Any manager or supervisor who receives an employee complaint must immediately notify the Human Resources Department. Complaints may be submitted orally or in writing. The Human Resources Department shall be responsible for determining if any interim action is needed while the matter is pending. In addition, city employees may file a complaint directly with the following external agencies: California Department of Fair Employment and Housing (DFEH) (800) 884-1684; or United States Equal Employment Opportunity Commission (EEOC) (800) 669-4000. Employees should be aware that there are time limits for filing these external complaints and can contact those agencies directly for additional information. City employees may also seek confidential personal counseling from the city's Employee Assistance Program (EAP) at (844) 266-0708. Counseling through the EAP is intended for the personal benefit of the individual and offers a setting where various options can be explored. For an emergency, please call 911. When responding to a report of a violation of this policy, the city will strive to protect the privacy of all individuals involved. However, anonymity and confidentiality cannot be guaranteed once a complaint is made, or when inappropriate conduct is made known. While an individual's expressed desire regarding confidentiality will be considered, this must be weighed against the responsibility of the city to investigate possible violations of this policy and to take corrective and preventive action where appropriate. Information pertaining to complaints will be maintained in confidence to the fullest extent permitted by law. When the Human Resources Department receives an employee complaint that comes under this policy, whether directly from an employee or from a manager or supervisor, the Human Resources will take prompt action to: • Determine whether additional information is needed from the complaining party. • When there is sufficient information, determine whether the complaint comes under this policy and o If it does, conduct or arrange for the conducting of a fair, timely and thorough investigation suitable to the circumstances that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected; or o If it does not, then inform the complainant why it does not and determine if it violates any other city, state or federal policies or laws. • During the investigation, as needed, the investigator will meet with the complainant, the respondent and all witnesses the investigator deems to have relevant information and receive documents from the parties, witnesses and anyone else relevant to the determination. • The parties and the witnesses will be admonished to maintain the confidentiality of the information shared to the extent possible in order to maintain the integrity of the investigation. 9 Admininstrative Order No. 45 -EEO and Workplace Civility Policy This • The investigator shall make findings regarding the alleged conduct to the Human Resources Manager and the department head/manager of the subject. • The parties will be informed of the conclusion of the investigation. • Every effort will be made to complete this process in a timely manner. • Remedial action will be taken, as necessary and appropriate. • Employees found to have been dishonest or not fully forthcoming during an investigation made pursuant to this policy may be subject to disciplinary action up to and including discharge. • The Human Resources Director may modify and/or clarify this policy to be consistent with current legal requirements and best practices. istrative Order is effective immediately. 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