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G-831 - 02/27/2007 - PERSONNEL - Ordinances Supporting Documents"EM 109 8* 4) AGENDA ITEM Regular Board of Trustees Meeting of February 13, 2007 SUBJECT: Harassment and Retaliation Policy FROM: Jeffrey P. Moline, Assistant Village Manag BUDGET SOURCE /BUDGET IMPACT: N/A RECOMMENDED MOTION: I move to Approve Ordinance G -831, an Ordinance Amending Section 7.01 (Sexual Harassment Policy) of Article VII (Miscellaneous Policies) of the Personnel Rules and Regulations of the Village of Oak Brook to include Harassment, Sexual Harassment, and Anti - Retaliation. Background /History: Attached is a proposed ordinance amending the current Oak Brook Sexual Harassment Policy under the Village Personnel Manual. The revisions to this policy include expanding harassment to all forms of harassment, not just sexual harassment, and further detailing prohibited activity and conduct, complaint and appeal process and discipline for harassers and retaliators. In addition, the prohibition of retaliation has been developed into a separate section and broadened to comply with applicable laws and the standards set by IRMA. These sections have been further defined using standard language from the Equal Employment Opportunity Commission model policies and the draft has been reviewed by corporate counsel from IRMA and by Village Attorney Barbara Gosselar. In addition, the policy now will include an endorsement of understanding and compliance to be signed by all employees of the Village and by officials, elected and appointed, of the Village. Fil rther, these policies are required to be adhered to by contractors doing business with the Village. Note, being that the policy to be approved specifically applies to employees of the Village, the ordinance has been drafted to apply the policy to officials of the Village as well. Training will be conducted for all employees and elected officials will also be notified of the trainings. If you have any questions or concerns, please advise. Last saved by administrator J \My Documents\ASSISTANT MANAGER FILES\ WORDDOC \PERSONNE\Policies\AGENDA ITEM Harassment Policy mm doc Last punted 2/9/2007 3 42 PM Recommendation: Staff recommends the Village Board approve Ordinance G -831, thereby amending Section 7.01 (Sexual Harassment Policy) of Article VII (Miscellaneous Policies) of the Personnel Rules and Regulations of the Village of Oak Brook to include Harassment, Sexual Harassment, and Anti - Retaliation. Last saved by administrator J \My Documents \ASSISTANT MANAGER FILES\ WORDDOC \PERSONNE\Policies\AGENDA ITEM Harassment Policy mm doc Last printed 2/9/2007 3 42 PM ORDINANCE 2007 -PL- HARAS -G -831 AN ORDINANCE AMENDING SECTION 7.01 (SEXUAL HARASSMENT POLICY) OF ARTICLE VII (MISCELLANEOUS POLICIES) OF THE PERSONNEL RULES AND REGULATIONS OF THE VILLAGE OF OAK BROOK WHEREAS, the corporate authorities of the Village of Oak Brook, DuPage and Cook Counties, Illinois (Village), deem an amendment to the sexual harassment policy in the Personnel Rules and Regulations of the Village of Oak Brook to be advisable, and WHEREAS, the corporate authorities of the Village deem the passage of this ordinance and amendment to the Personnel Rules and Regulations to be in the best interest of employment relations for the Village of Oak Brook; and WHEREAS, the corporate authorities of the Village further deem it necessary that a copy of this policy shall be provided to all officers, appointed and elected, and employees of the Village, and that all officers, appointed and elected, and employees of the Village be required to complete the Certification on the last page of the amendment below NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS, as follows Section 1 That the provisions of the preamble hereinabove set forth are hereby adopted as though fully set forth herein. Section 2 That Section 7 01, entitled "Sexual Harassment Policy', of Article VI I, entitled "Miscellaneous Policies ", of the Personnel Rules and Regulations of the Village of Oak Brook is deleted in its entirety and the amended Policy is attached hereto and made a part hereof as Exhibit A Section 3 All ordinances or parts thereof in conflict with the provisions of this ordinance are hereby repealed to the extent of such conflict APPROVED THIS 13th day of February, 2007 Kevin Quinlan Village President PASSED THIS 13th day of February, 2007 Ayes Nays Absent Ordinance 2007 -PL- HARAS -G -831 Amending Sex Harassment Policy of Personnel Rules & Regs Page 2 of 2 ATTEST Linda K Gonnella, CMC Village Clerk ARTICLE VII EXHIBIT A MISCELLANEOUS POLICIES 7.01 PROHIBITION OF HARASSMENT, SEXUAL HARASSMENT AND RETALIATION POLICY Statement of Policy The Village of Oak Brook (hereinafter referred to as "the Village ") is committed to maintaining a work environment that encourages and fosters appropriate conduct among employees and respect for individual values and sensibilities. The Village prohibits harassment of any kind. Accordingly, the Village intends to enforce its Harassment Policy at all levels within the workplace in order to facilitate an environment free from harassment. The Village also prohibits retaliation, that is, an adverse action taken against a covered individual because he or she engaged in a protected activity. All officers and employees of the Village are expected to become familiar with the contents of this Policy and to abide by its requirements. A. Sexual Harassment: According to the Equal Employment Opportunity Commission and the Illinois Department of Human Rights, and for purposes of this Policy, Sexual Harassment consists of unwelcome advances, requests for favors, or other verbal, non - verbal, or physical acts of a sex -based or derogatory nature, where: 1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or 2. an employment decision affecting an employee is based on that individual's acceptance or rejection of such conduct; 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. B. Harassment: Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (AREA), and the Americans with Disabilities Act of 1990, (ADA). 1. Harassment: Harassment is unwelcome conduct that is based on race, color, sex, religion, national origin, disability, and/or age. Harassment becomes unlawful when enduring the offensive conduct becomes a condition of continued employment, or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality, but nonetheless, are not appropriate conduct in the workplace. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people. Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put- downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following: a) The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co- worker, an elected or appointed official, or a non - employee; b) The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct. Unlawful harassment may occur without economic injury to, or discharge of, the victim. The Village will take the appropriate steps to prevent and correct unlawful harassment; unwelcome harassing conduct will not be tolerated. Employees are encouraged to inform the harasser directly that the conduct is unwelcome and must stop. Employees should also report harassment to their direct supervisor or management, when unwelcome or harassing conduct occurs. Harassment can occur between men and women, or members of the same gender and within all levels of the organization. This behavior is unacceptable in the workplace itself and in other work - related settings such as business trips and business - related social events. 2. Prohibited Conduct: Prohibited acts of harassment can take a variety of forms ranging from unwelcome harassing conduct, sexual harassment, subtle pressure for activity or contact, including physical contact, or harassment stemming from discriminatory or violent behavior. At times the offender may be unaware that his or her conduct is offensive or harassing to others. One example of harassment is where a qualified individual is denied employment opportunities and benefits that are, instead, awarded to an individual who submits (voluntarily or under coercion) to advances or favors. Another example is where an individual must submit to unwelcome conduct in order to receive an employment opportunity or to maintain employment. Other examples of conduct which could be considered harassment include: a) persistent or repeated unwelcome flirting, pressure for dates, propositions, comments or touching; b) sexually suggestive jokes, innuendoes, comments, gestures or sounds (e.g., whistling, "catcalls ", "smooching" or "kissing" noises) directed toward another, or sexually oriented or degrading comments about another; humor and jokes about sex, anatomy or gender- specific traits; obscene gestures; leering; C) preferential treatment of an employee, or a promise of preferential treatment to an employee, in exchange for dates or conduct; or the denial or threat of denial of employment, benefits or advancement for refusal to consent to advances; d) Derogatory remarks, jokes, innuendoes, comments, or gestures based on race, color, sex, religion, national origin, disability, sexual preference and/or age directed toward an individual or group; e) the open display of pictures, posters, slogans or other material offensive to others; f) retaliation against an individual because an individual has made a charge, filed a complaint, testified, assisted, or participated in an investigation or hearing under the Illinois Human Rights Act, or the Equal Employment Opportunity Act, for reporting or complaining about harassing conduct. The most severe and overt forms of harassment are easier to determine. On the other end of the spectrum, some harassment is more subtle and depends to some extent on individual perception and interpretation. An example of the most subtle form of sexual harassment is the use of endearments. The use of terms such as "honey", darling and "sweetheart" is objectionable to many men and women who believe that these terms undermine their authority. Another example is the use of compliments that could potentially be interpreted as sexual in nature. Below are three statements that might be made about the appearance of a woman in the workplace. • "That's an attractive dress you have on." • "That's an attractive dress. It really looks good on you." • "That's an attractive dress. You really fill it out well." The first statement appears to be simply a compliment. While the second statement could be perceived with some question, the last is the most likely to be perceived as sexual harassment, depending on the individual's perceptions and values. To avoid the possibility of offending an employee, it is best to follow a course of conduct above reproach, or to err on the side of caution. 3. What to do if you are harassed. The Governor's Executive Order 7 (1992) provides this advice about what to do if you are harassed: "If you are being harassed or sexually harassed, here is what to do. Let the harasser know you are not receptive. If you are harassed a second time, politely and firmly (do not be subtle) let that person know you are not interested. If you are not comfortable confronting the harasser directly, immediately notify your supervisor, or other supervisor to have the matter addressed. Write down what happened to you... when it happened, who was there, what was said by both of you. If you let the harasser know you are not interested in his or her suggestions and the suggestions continue, you are being victimized. Keep records of subtle or overt job related promises or threats. Talk to other people in your department whom you trust. Many times a harasser will bother different people at different times. Give your supervisor the facts about the incidents. If your supervisor is the harasser, see his or her supervisor. If the Harasser is the Village Manager, see the Assistant Village Manager /Personnel Director." 4. Individuals Covered Under the Policy This policy covers all officers, appointed and elected, and all employees of the Village and, as such, all officers and employees must verify their understanding and receipt of this policy by signing the Certificate of Receipt included as 7.01 (c). The Village will not tolerate, condone or allow harassment, whether engaged in by fellow employees or officers, or anyone doing business with the Village. The Village supports and encourages reporting of all incidents of harassment, regardless of who the offender may be, and will promptly investigate all reported incidents. A. Responsibility of Individual Employees: 1) Each individual employee has the responsibility to refrain from harassment in the workplace. 2) Any harassing employee will be subject to corrective action including discipline up to and including discharge in accordance with the Village's policy. 3) An employee who either observes or believes herself/himself to be the object of harassment is responsible for reporting the incident(s) to his or her supervisor, or if the employee is uncomfortable reporting the incident to his or her supervisor, he /she should report the incident to any supervisor in the Village. B. Responsibility of Supervisory Personnel: 1) Each supervisor is responsible for maintaining the workplace free of any form of harassment. This is accomplished by promoting a professional environment and by dealing with harassment as one would deal with other forms of employee misconduct. 2) Specifically, the supervisor must address an observed incident of harassment or a complaint with seriousness, document the details of the incident, and immediately report it to the Assistant Village Manager or Village Manager, who will take prompt action to have the complaint investigated. This also applies to cases where an employee tells the supervisor about behavior considered harassment but does not want to make a formal complaint. 3) The supervisor must report all incidents or complaints of harassment to the Department Head or Village Manager on the date of the alleged occurrence, or on the very next business day. 4) In addition, the supervisor must ensure that no retaliation will result against an employee making a harassment complaint, assisting in filing a complaint or participating in the investigation of a complaint. 5) Any supervisor in need of information regarding his or her obligations under this Policy or the procedures to be followed upon receipt of a complaint should contact the Village Manager or Assistant Village Manager. ARTICLE VII MISCELLANEOUS POLICIES 7.01(a) ANTI- RETALIATION POLICY Statement of Policy In accordance with Anti- discrimination laws, the Village prohibits harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws. The Village prohibits any form of harassment or retaliation against employees or non - employees meant to harass, threaten, intimidate, or abuse any individual or group. This policy applies to all employees and appointed and elected officials. The Village will not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. In addition to the protections against retaliation that are included in all of the laws enforced by EEOC, the Americans with Disabilities Act (ADA) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else's exercise of rights granted by the ADA. There are three main terms that are used to describe retaliation. Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity. These three terms (Adverse Action, Covered Employee, and Protected Activity) are described below. A. Adverse Action - Adverse Action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include: 1. employment actions such as termination, refusal to hire, demotion, and denial of promotion; 2. other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, increased surveillance, and any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights. Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful. For example, it is unlawful for a worker's current employer to retaliate against him for pursuing an EEO charge against a former employer. Employees are not excused from continuing to perform their jobs or following their company's legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination. B. Covered Individuals - Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals. For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation. C. Protected Activate - Protected activity includes: 1. Opposition to a practice believed to be unlawful discrimination. Opposition is informing an employer that you believe that he /she is engaging in prohibited discrimination. Opposition is protected from retaliation as long as it is based on a reasonable, good -faith belief that the complained of practice violates anti - discrimination law; and the manner of the opposition is reasonable. a) Examples of protected opposition include: 1) Complaining to anyone about alleged discrimination against oneself or others; 2) Threatening to file a charge of discrimination; 3) Picketing in opposition to discrimination; or 4) Refusing to obey an order reasonably believed to be discriminatory. b) Examples of activities that are NOT protected opposition include: 1) Actions that interfere with job performance so as to render the employee ineffective; or 2) Unlawful activities such as acts or threats of violence. 2. Participation in an employment discrimination proceeding. Participation means taking part in an employment discrimination proceeding. Participation is protected activity even if the proceeding involved claims that ultimately were found to be invalid. a. Examples of participation include: 1) Filing a charge of employment discrimination; 2) Cooperating with an internal investigation of alleged discriminatory practices; or 3) Serving as a witness in an Human Rights Department or EEO investigation or litigation. 3. Reasaonable Accomodation - A protected activity can also include requesting a reasonable accommodation based on religion or disability. The Village will not in any way retaliate or allow retaliation against an individual or group who makes a report of harassment, assists in filing a complaint, or participates in the investigation of a complaint, or permit any officer or employee to do so. Retaliation is a serious violation of this policy and should be reported immediately. Any person found to have retaliated against another individual will be subject to disciplinary action up to and including discharge. ARTICLE VII MISCELLANEOUS POLICIES 7.01(b) COMPLAINT AND REMEDY PROCESS FOR CLAIMS OF SEXUAL HARASSMENT, HARASSMENT AND RETALIATION While the Village encourages individuals who believe they are being harassed or retaliated against to firmly and promptly notify the offender that his or her behavior is unwelcome, the Village also recognizes that power and status disparities between an alleged offender and a target may make such a confrontation impossible. In the event that such informal, direct communication between individuals is either ineffective or impossible, or even when such communication has occurred, the following steps should be taken to report a harassment complaint. A. An employee (the "Complainant ") who either observes or believes herself /himself to be the object of harassment or retaliation should deal with the incident(s) as directly and firmly as possible by clearly communicating her/his position to the Complainant's supervisor. If reporting to the Complainant's supervisor should prove uncomfortable for any reason, or if the offender is the Complainant's supervisor, the Complainant should directly contact any supervisor in the Village. It is not necessary for harassment to be directed at the person making the complaint. The following steps may also be taken: document or record each incident (what was said or done, the date, the time, and the place). Documentation can be strengthened by written records, such as letters, notes, memos, and telephone messages. All such documentation, once prepared, shall be immediately transmitted to the supervisor. No one making a complaint will be retaliated against for making the complaint, even though it may ultimately not be substantiated. In addition, any witness will be protected from retaliation. B. Investigation of Complaint: When a complaint has been reduced to writing, the Village Manager, or his or her designee, will initiate an investigation of the suspected harassment or retaliation. The investigation will be initiated as soon as possible, and when possible, within ten (10) days of the report. The investigation will include an interview with the Complainant and the employee(s) who made the initial report (if different than the Complainant), the person(s) toward whom the suspected harassment was directed and the individual(s) accused of the harassment. Any other person who may have information regarding the alleged harassment shall also be interviewed. In the event the complaint directly involves the Village President, a member of the Board of Trustees, or other official of the Village, the report should be reported to the Village Manager. In the event that the complaint directly involves the Village Manager, the report should be reported to the Assistant Village Manager /Personnel Director. With complaints involving the Village Manager or other Village Official, an independent investigator, without the discretion of the involved party, will be retained to conduct the investigation. The independent investigator must not be an employee, official, corporate counsel, or a member of the Village Attorney's office. C. Report: The person responsible for investigating the complaint shall prepare a written report as soon as practicable, and when possible, within ten (10) days following his or her completion of the investigation. The report shall include a finding concerning whether harassment or retaliation has occurred, harassment or retaliation did not occur, or the evidence is inconclusive as to whether harassment or retaliation occurred. D. Records; Confidentiality: Employees who report incidents of harassment or retaliation 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 to the extent practicable, provided that the nature of the charge may be disclosed during the investigation to the party charged and any witnesses interviewed. In the event of a lawsuit, however, records maintained by the Village and the Complainant may not be considered privileged from disclosure. E. Time Frame for Reporting Complaint: The Village encourages a prompt report of complaints so that rapid response and appropriate action may be taken. However, due to the sensitivity of these problems and because of the emotional toll such misconduct may have on the individual, harassment and/or retaliation complaints should be reported within thirty (30) days after the complained of conduct. Delayed reporting of complaints will not in and of itself preclude the Village from taking remedial action. F. Protection Against Retaliation: It is a violation of this policy to retaliate in any way against anyone who has complained about harassment, discrimination, or other acts of retaliation, assisted in filing a complaint, or participated in the investigation of a complaint, whether that concern relates to harassment of or discrimination against the individual raising the concern or against another individual. It is a violation of this policy to retaliate in any way against anyone who opposes an act which that person believes to be harassment, or in which that person was engaged in a protected activity, or against an individual who has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding or hearing under the Illinois Human Rights Act. (See also section 7.02) G Appeals Process: If either party directly involved in a harassment investigation is dissatisfied with the outcome or resolution, that individual has the right to appeal the decision. The dissatisfied party should submit his or her written appeal and position in support thereof in a timely manner to the Village Manager, but in no event later than ten (10) days after receipt of the outcome or resolution of the investigation. H. Corrective Action/Sanctions: Corrective action including discipline up to and including discharge will be taken against any employee found to have engaged in harassment or retaliation against any other employee. The extent of sanctions may depend in part upon the length and condition of employment of the particular employee and the nature of the offense. The Village has the right to apply any sanction or combination of sanctions, up to and including termination. Where harassment or retaliation has been found to exist, the Village will take all reasonable steps to eliminate the conduct. I. Recourse, Investigative and Complaint Process through Illinois Department of Human Rights and the Illinois Human Rights Commission: It is hoped that most harassment and or retaliation complaints and incidents can be resolved through the Village's internal complaint process established above. However, an employee has the right to contact, file a complaint with, request an investigation by, and/or seek recourse through the Illinois Department of Human Rights (the "Department ") or the Equal Employment Opportunity Commission ( "EEOC "). Any complaint to the Department or EEOC must be filed within 180 days of the incident of harassment or of the incident of unlawful retaliation. The exact rules, procedures and other information regarding filing a complaint with, requesting an investigation by and/or securing recourse from, the Department or the EEOC (including the nature and extent of such recourse) can be obtained by contacting the Department or the EEOC as follows: If the Department: Illinois Department of Human Rights 100 W. Randolph Street Suite 10 -100 Chicago, IL 60601 (312) 814 -6200 or (312) 263 -1579 - TDD If the EEOC: Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, Illinois 60661 1(800) 669 -4000 or 1(800) 669 -6820 -TTY J. Copies of Policy: A copy of this policy shall be provided to each employee and shall also be provided to the Department at its request. ARTICLE VII MISCELLANEOUS POLICIES 7.01(c) CERTIFICATION OF RECEIPT OF THE OAK BROOK PROHIBITION OF HARASSMENT, SEXUAL HARASSMENT AND RETALIATION POLICY (please print) certify that I have received a copy of the Village of Oak Brook's Prohibition of Harassment, Sexual Harassment, and Retaliation Policy. I further acknowledge that I have read the Village of Oak Brook's Prohibition of Harassment, Sexual Harassment, and Retaliation Policy which was approved by the Village Board on February 13, 2007 and understand the policy. I understand the Policy is effective and agree to fully comply with all provisions and requirements of this policy and understand this policy applies to me in all aspects of my employment and or service with the Village of Oak Brook. Printed Name Signature Date