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HomeMy WebLinkAbout#5266 Updating Sexual Harassment Policy RESOLUTION NO. 5266 A RESOLUTION ADOPTING AN UPDATED SEXUAL HARASSMENT POLICY FOR THE CITY OF CANTON. WHEREAS, the City of Canton passed Ordinance No. 4196 on June 16, 2020 amending Chapter 28 (Sexual Harassment) of Title 1 of the City Code of the City of Canton; WHEREAS, the Illinois General Assembly has recently enacted Public Act 101-221, an Act concerning employment, which became effective January 1, 2020 (the "Act"); WHEREAS, pursuant to the Act, each governmental unit that is not subject to the jurisdiction of a State or local Inspector General shall adopt an ordinance or resolution amending its sexual harassment policy to provide for a mechanism for reporting and independent review of allegations of sexual harassment made against an elected official of the governmental unit by another elected official of a governmental unit; WHEREAS, the City Council of the City of Canton finds it to be in the best interests of the City of Canton to adopt an updated Sexual Harassment Policy to recognize this legislative amendment and to incorporate the changes set forth in Ordinance No. 4196; and WHEREAS, all prior existing sexual harassment policies of the City of Canton shall be superseded by the Sexual Harassment Policy adopted by this Resolution; and WHEREAS, should any section or provision of this Resolution or the adopted Sexual Harassment Policy be declared to be invalid, that decision shall not affect the validity of this Resolution or adopted Sexual Harassment Policy as a whole or any part thereof, other than the part so declared to be invalid; NOW, THEREFORE, be it resolved by the City Council of the City of Canton, Illinois the following: Section 1. The Recitals set forth above, and all facts and statements contained therein, are found to be true and correct and are hereby incorporated and adopted as part of this Ordinance. Section 2. The Sexual Harassment Policy, included as Exhibit A to this Resolution, is hereby adopted. Section 3. All prior existing sexual harassment policies of the City of Canton shall be superseded by the Sexual Harassment Policy adopted by this Resolution. Section 4. This Resolution shall be in full force and effect immediately upon the passage of this Resolution. PASSED THIS 16th day of June, 2020. AYES: Aldermen Ryan Mayhew, Quin Mayhew, John Lovell, Craig West, Angela Hale, Jeff Fritz Justin Nelson NAYS: None ABSENT: Alderwoman Angela Lingenfelter APPROVED THIS 16th day of June, 2020. ATT ST: Mayo City"Clerk EXHIBIT A CITY OF CANTON SEXUAL HARASSMENT POLICY I. PROHIBITION ON SEXUAL HARASSMENT The City of Canton is committed to maintaining a work environment that encourages and fosters appropriate conduct among colleague and respect for individual values and sensibilities. Accordingly, the City officers and administration are committed to enforcing its Sexual Harassment Policy at all levels within the workplace and creating an environment free from discrimination of any kind, including sexual harassment. It is unlawful to harass a person because of that person's sex. The courts have determined that sexual harassment is a form of discrimination under title VII of the U.S. Civil Rights Act of 1964, as amended in 1991. All persons have a right to work in an environment free from sexual harassment. Sexual harassment is unacceptable misconduct which affects individuals of all genders and sexual orientations. It is a policy of the City of Canton to prohibit harassment of any person by any Municipal official, Municipal agent, Municipal employee or Municipal agency or office on the basis of sex or gender. All Municipal officials, Municipal agents, Municipal employees and Municipal agencies or offices are prohibited from sexually harassing any person, regardless of any employment relationship or lack thereof. II. DEFINITION OF SEXUAL HARASSMENT (A) This chapter adopts the definition of sexual harassment as stated in the Illinois Human Rights Act. At the time of this Ordinance, "sexual harassment" means any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or 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, or (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating,hostile or offensive working environment. For purposes of this definition, the phrase "working environment" is not limited to a physical location an employee is assigned to perform his or her duties. (B) Conduct which may constitute sexual harassment includes: 1. Verbal: Sexual innuendos, suggestive comments, insults, humor, and jokes about sex, anatomy or gender-specific traits, sexual propositions, threats, repeated requests for dates,. or statements about other employees, even outside of their presence, of a sexual nature. 2. Non-verbal: Suggestive or insulting sounds (whistling), leering, obscene gestures, sexually suggestive bodily gestures, "catcalls", "smacking" or "kissing" noises. 3. Visual: Posters, signs, pin-ups or slogans of a sexual nature, viewing pornographic material or websites. 4. Physical: Touching, unwelcome hugging or kissing, pinching, brushing the body, any coerced sexual act or actual assault. 5. Textual/electronic: "Sexting" (electronically sending messages with sexual content, including pictures and video), the use of sexually explicit language, harassment, cyber stalking and threats via all forms of electronic communication (e-mail, text/picture/video messages, intranet/on-line postings, blogs, instant messages and social network websites like Facebook and Twitter). The most severe and overt forms of sexual harassment are easier to determine. On the other end of the spectrum, some sexual harassment is more subtle and depends, to some extent, on individual perception and interpretation. The courts will assess sexual harassment by a standard of what would offend a "reasonable person". III. PROCEDURE FOR REPORTING AN ALLEGATION OF SEXUAL HARASSMENT An employee who either observes sexual harassment or believes herself/himself to be the object of sexual harassment should deal with the incident(s) as directly and firmly as possible by clearly communicating her/his position to the offending employee, and her/his immediate Supervisor. It is not necessary for sexual harassment to be directed at the person making the report. (A) Reporting: Any employee may report conduct which is believed to be sexual harassment, including the following: 1. Electronic/Direct Communication: If there is sexual harassing behavior in the workplace, the harassed employee should directly and clearly express her/his objection that the conduct is unwelcome and request that the offending behavior stop. The initial message may be verbal. If subsequent messages are needed, they should be put in writing in a note or a memo. 2. Contact With Supervisory Personnel: At the same time direct communication is undertaken, or in the event the employee feels threatened or intimidated by the situation, the problem must be promptly reported to the immediate Supervisor of the person making the report, a department head, a Director of Human Resources, an Ethics Officer, the City Clerk, or the Mayor. (a) The employee experiencing what he or she believes to be sexual harassment must not assume that the employer is aware of the conduct. If there are no witnesses and the victim fails to notify a Supervisor or other responsible officer, the Municipality will not be presumed to have knowledge of the harassment. 3. Resolution Outside Municipality: The purpose of this chapter is to establish prompt, thorough and effective procedures for responding to every report and incident so that problems can be identified and remedied by the Municipality. However, all Municipal employees have the right to contact the Illinois Department of Human Rights (IDHR) or the Equal Employment Opportunity Commission (EEOC) for information regarding filing a formal complaint with those entities. An IDHR complaint must be filed within one hundred eighty (180) days of the alleged incident(s) unless it is a continuing offense. A complaint with the EEOC must be filed within three hundred (300) days. 4. Allegations of Sexual Harassment made against an elected official of the governmental unit by another elected official of the governmental unit: In addition to the methods of reporting included above, an elected official may request an independent review of a complaint of sexual harassment by another elected official. The request shall be made to the Mayor or City Clerk. The official receiving the request shall notify the City Attorney and shall take immediate action in keeping with the procurement process of the municipality to retain a qualified individual or entity for the independent review of the allegations of sexual harassment in violation of this policy. The outcome of the independent review shall be reported to the corporate authorities. (B) Documentation: Documentation of any incident may be submitted with any report (what was said or done, the date, the time and the place), including, but not limited to, written records such as letters, notes, memos and telephone messages. (C) Allegations: All allegations, including anonymous reports, will be accepted and investigated regardless of how the matter comes to the attention of the Municipality. However, because of the serious implications of sexual harassment charges and the difficulties associated with their investigation and the questions of credibility involved, the claimant's willing cooperation is a vital component of an effective inquiry and an appropriate outcome. (D) Investigation Of Complaint: When a complaint has been reduced to writing, the immediate Supervisor or the individual informed who works in a Supervisor capacity, shall initiate an investigation of the suspected sexual harassment within five (5) working days of notification. If necessary, the immediate Supervisor shall designate another supervisory or management employee of the opposite sex to assess him/her or the alternate individual in the investigation. If the immediate Supervisor is subject of the investigation, the investigation will include an interview with the employee who made the initial report, the person(s) towards whom the suspected harassment was directed and the individual(s) accused of the harassment. (E) Report: The immediate Supervisor or designated person responsible for investigating the complaint shall prepare a written report within ten (10) working days from notification of the suspected harassment unless extenuating circumstances prevent him/her from doing so. The report shall include a finding that sexual harassment occurred. A copy of the report will be given to the employee(s) to whom the suspected harassment was directed, and the employee(s) suspected of the harassment. (F) Records; Confidentiality: Employees who report incidents of sexual harassment are encouraged to keep written notes in order to accurately record the offensive conduct. Every effort shall be made to keep all matters related to the investigation and various reports confidential, subject to the State of Illinois Freedom of Information Act. In the event of a lawsuit, however, the City advises that records it maintains and the complainant maintains may not be considered privileged from disclosure. Written records will be maintained for four (4) years from the date of resolution unless new circumstances dictate that the file should be kept for a longer period of time. (G) Appeals Process: If either party directly involved in a sexual harassment investigation is dissatisfied with the outcome or resolution, that individual has a right to appeal the decision. The dissatisfied party should submit his/her written comments in a timely manner to the Mayor or Chairman of the Negotiations, Grievance, and Personnel Committee. IV. PROHIBITION ON RETALIATION FOR REPORTING SEXUAL HARASSMENT ALLEGATIONS (A) No Municipal official, Municipal agent, Municipal employee or Municipal agency or office shall take any retaliatory action against any Municipal employee due to a Municipal employee's: 1. Disclosure or threatened disclosure of any violation of this chapter, 2. The provision of information related to or testimony before any public body conducting an investigation, hearing or inquiry into any violation of this chapter, or 3. Assistance or participation in a proceeding to enforce the provisions of this chapter. (B) For the purposes of this chapter, retaliatory action means the reprimand, discharge, suspension, demotion, denial of promotion or transfer, or change in the terms or conditions of employment of any Municipal employee that is taken in retaliation for a Municipal employee's involvement in protected activity pursuant to this chapter. (C) No individual making a report will be retaliated against even if a report made in good faith is not substantiated. In addition, any witness will be protected from retaliation. (D) Similar to the prohibition against retaliation contained herein, the State Officials and Employees Ethics Act provides whistleblower protection from retaliatory action such as reprimand, discharge, suspension, demotion, or denial of promotion or transfer that occurs in retaliation for an employee who does any of the following: 1. Discloses or threatens to disclose to a Supervisor or to a public body an activity, policy, or practice of any officer, member, State agency, or other State employee that the State employee reasonably believes is in violation of a law, rule, or regulation, 2. Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by any officer, member, State agency or other State employee, or 3. Assists or participates in a proceeding to enforce the provisions of the State Officials and Employees Ethics Act. (E) Pursuant to the Whistleblower Act, an employer may not retaliate against an employee who discloses information in a court, an administrative hearing, or before a legislative commission or committee, or in any other proceeding, where the employee has reasonable cause to believe that the information discloses a violation of a State or Federal law, rule, or regulation. In addition, an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of a State or Federal law, rule, or regulation. (F) According to the Illinois Human Rights Act, it is a civil rights violation for a person, or for two (2) or more people to conspire, to retaliate against a person because he/she has opposed that which he/she reasonably and in good faith believes to be sexual harassment in employment, because he/she has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under the Illinois Human Rights Act. (G) An employee who is suddenly transferred to a lower paying job or passed over for a promotion after filing a complaint with IDHR or EEOC, may file a retaliation charge - due within one hundred eighty (180) days (IDHR) or three hundred (300) days (EEOC) of the alleged retaliation. V. CONSEQUENCES OF A VIOLATION OF THE PROHIBITION ON SEXUAL HARASSMENT In addition to any and all other discipline that may be applicable pursuant to Municipal policies, employment agreements, procedures, employee handbooks and/or collective bargaining agreement, any person who violates this chapter or the Prohibition on Sexual Harassment contained in 5 Illinois Compiled Statutes 430/5-65, may be subject to a fine of up to five thousand dollars ($5,000.00) per offense, applicable discipline or discharge by the Municipality and any applicable fines and penalties established pursuant to local ordinance, State law or Federal law. Each violation may constitute a separate offense. Any discipline imposed by the Municipality shall be separate and distinct from any penalty imposed by an Ethics Commission and any fines or penalties imposed by a court of law or a State or Federal agency. Disciplinary action will be taken against any employee found to have engaged in sexual harassment of any other employee. The extent of sanctions may depend in part upon the length and conditions of employment of the particular employee and the nature of the offense. The City has the right to apply any sanction or combination of sanctions, up to and including discharge, to deal with unreasonable conduct or discrimination. Where a hostile work environment has been found to exist, the City will take all reasonable steps to eliminate the conduct creating such an environment. VI. CONSEQUENCES FOR KNOWINGLY MAKING A FALSE REPORT A false report is a report of sexual harassment made by an accuser using the sexual harassment report to accomplish some end other than stopping sexual harassment or retaliation for reporting sexual harassment. A false report is not a report made in good faith which cannot be proven. Given the seriousness of the consequences for the accused, a false or frivolous report is a severe offense that can itself result in disciplinary action. Any person who intentionally makes a false report alleging a violation of any provision of this chapter shall be subject to discipline or discharge pursuant to applicable Municipal policies, employment agreements, procedures, employee handbooks and/or collective bargaining agreements. In addition, any person who intentionally makes a false report alleging a violation of any provision of the State Officials and Employees Ethics Act to an Ethics Commission, an Inspector General, the State Police, a State's Attorney, the Attorney General, or any other law enforcement official is guilty of a Class A misdemeanor. An Ethics Commission may levy an administrative fine of up to five thousand dollars ($5,000.00) against any person who intentionally makes a false, frivolous or bad faith allegation. VII. EDUCATION/TRAINING Education and training for employees at each level of the work force are critical to the success of the City's policy against sexual harassment. This Sexual Harassment Policy will be sent to all current employees and said employees will be asked to sign a receipt for and read the policy. As part of general orientation, each recently hired employee will be given a copy of and requested to sign a receipt for and read the City's sexual harassment policy so that they are on notice of the standards of behavior expected. The City Clerk shall cause sexual harassment prevention training to be provided to all City employees at least once per year. The sexual harassment prevention training shall be consistent with and meet the standards of any training required by Illinois law, including without limitation, the Illinois Human Rights Act. All employees shall participate on City time, at least annually, in any sexual harassment prevention training required by the City or other discrimination and harassment prevention training as required by law. Employees with supervisory authority over other employees, and all employees, and all employees working in a managerial capacity, may receive further training on duties of supervisory personnel. VIII. LEGAL RIGHTS UNDER LAW Any employee who believes s/he has been subjected to sexual harassment has the right to file a complaint with the Illinois Department of Human Rights, 100 West Randolph Street, Chicago, Illinois 60601; 312-814-6245 and/or the Equal Employment Opportunity Commission, 500 West Madison, Suite 2800, Chicago, Illinois 60661; 312-353-2713. The Illinois Human Rights Act provides that complaints of harassment must be filed within one hundred eighty (180) days of the alleged incident. A complaint with the EEOC must be filed within three hundred (300) days of the alleged incident. It is also a violation of section 6-101 of the Illinois Human Rights Act to retaliate against an employee for opposing or complaining about conduct believed to be a violation of the Act. IX. CITY DISCLOSURES (A) As required by the Illinois Human Rights Act and in the event the City had any adverse judgments or administrative rulings (as defined in 775 ILCS 5/2-108) during the preceding year,then beginning July 1, 2020, and by each July 1 thereafter,the City Clerk, on behalf of the City of Canton, shall disclose annually to the Illinois Department of Human Rights the following information: (1) the total number of adverse judgments or administrative rulings during the preceding year; (2) whether any equitable relief was ordered against the employer in any adverse judgment or administrative ruling described in paragraph(1); (3) how many adverse judgments or administrative rulings described in paragraph (1) are in each of the following categories: (a) sexual harassment; (b) discrimination or harassment on the basis of sex; (c) discrimination or harassment on the basis of race, color, or national origin; (d) discrimination or harassment on the basis of religion; (e) discrimination or harassment on the basis of age; (f) discrimination or harassment on the basis of disability; (g) discrimination or harassment on the basis of military status or unfavorable discharge from military status;- (h) discrimination or harassment on the basis of sexual orientation or gender identity; and (i) discrimination or harassment on the basis of any other characteristic protected under the Illinois Human Rights Act. (B) In the event the Illinois Department of Human Rights requests the City to submit the total number of Settlements entered into during the preceding five (5) years, or less at the direction of the Illinois Department of Human Rights, pursuant to 775 ILCS 5/2-108(C), then the City Clerk shall cause the necessary settlement information to be provided to the Illinois Department of Human Rights pursuant to the Illinois Human Rights Act. (C) Neither the City Clerk nor the City shall disclose the name of a victim of an act of alleged sexual harassment or unlawful discrimination in any disclosures required by 775 ILCS 5/2-108. NOTE: THE CITY RESERVES THE RIGHT TO AMEND THE POLICY FROM TIME TO TIME. EMPLOYEE/CITY COUNCIL ACKNOWLEDGEMENT This will acknowledge that I have been given a copy of the City of Canton's "Sexual Harassment Policy." I understand that it is my responsibility and obligation to read and review this policy carefully, to direct questions about the policy and to report alleged violations of the policy to my Immediate Supervisor, except as otherwise set forth in the Sexual Harassment Policy, and to be in full compliance with this Sexual Harassment Policy at all times. I understand my department may have a more specific policy on this matter and this city-wide policy is in addition to, not a replacement of, a department-specific policy. Name: Date: