The Town of Clinton (hereinafter the "Town") is committed to maintaining a workplace free from sexual harassment. Sexual harassment is a form of workplace discrimination. All Town employees, as described in § 85-3A, are required to work in a manner that prevents sexual harassment in the workplace. This Policy is one component of the Town's commitment to a discrimination-free work environment.
All Town employees have a legal right to a workplace free from sexual
harassment and can enforce this right by filing a complaint internally
with the Town pursuant to this Policy. Town employees can also file
a complaint with a government agency or in court under federal, state
or other local anti-discrimination law.
Covered persons. This Policy applies to all Town employees, applicants
for employment with the Town, interns, whether paid or unpaid, contractors,
subcontractors, vendors, consultants, volunteers, members of Town
committees and boards and persons conducting business, regardless
of immigration status, with the Town. In this Policy, the term "employees"
refers to this collective group.
Discipline. Sexual harassment will not be tolerated. Any employee
who engages in sexual harassment or retaliation will be subject to
remedial and/or disciplinary penalties (e.g., counseling, suspension,
termination).
Retaliation prohibition. No employee shall be subject to adverse
action because the employee reports an incident of sexual harassment,
provides information, or otherwise assists in any investigation of
a sexual harassment complaint. The Town will not tolerate such retaliation
against anyone who, in good faith, reports or provides information
about suspected sexual harassment. Any employee of the Town who retaliates
against anyone involved in a sexual harassment investigation will
be subjected to disciplinary action, up to and including termination.
All employees who believe they have been subject to such retaliation
should inform the Town Supervisor. All employees who believe they
have been a target of such retaliation may also seek relief in other
available forums.
Sexual harassment is offensive, is a violation of this Policy, is
unlawful, and may subject the Town to liability for harm to targets
of sexual harassment. Harassers may also be individually subject to
liability. Employees of every level who engage in sexual harassment,
including managers and supervisors who engage in sexual harassment
or who allow such behavior to continue, will be penalized for such
misconduct.
Investigation. The Town will conduct a prompt and thorough investigation that ensures due process for all parties whenever the Town Supervisor receives a complaint about sexual harassment. The Town will keep the investigation confidential to the extent possible. Effective corrective action will be taken whenever sexual harassment is found to have occurred. All employees, including managers and supervisors, are required to cooperate with any internal investigation of sexual harassment. See § 85-6. Any employee who believes that another employee is engaging in sexual harassment may file a complaint.
Training. All employees shall complete sexual harassment prevention
training provided by the Town on an annual basis pursuant to § 201-g
of the New York State Labor Law.
All employees are encouraged to report any harassment or behaviors
that violate this Policy. Any employee who believes that another employee
is engaging in sexual harassment may file a complaint within a reasonable
period of time after the event, not to exceed 180 days. The Town will
provide all employees a complaint form for employees to report harassment
and file complaints (hereinafter the "Complaint Form"). See Appendix
A - Complaint Form.[1]
Managers and supervisors are required to report any complaint that
they receive, or any harassment that they observe or become aware
of, to the Town Supervisor.
This Policy will be provided to all employees and posted on the Town's
bulletin board located in Town Hall. Newly hired employees shall be
provided with this Policy upon commencing their employment.
Sexual harassment is a form of discrimination and is unlawful under
federal and state law as well as this Policy. Sexual harassment includes
harassment on the basis of sex, sexual orientation, self-identified
or perceived sex, gender expression, gender identity and the status
of being transgender.
Definition: "Sexual harassment" is any unwelcome conduct which is
either of a sexual nature, or which is directed at an individual because
of that individual's sex when:
Such conduct has the purpose or effect of unreasonably interfering
with an individual's work performance or creating an intimidating,
hostile or offensive work environment, even if the reporting individual
is not the intended target of the sexual harassment;
Conduct that could constitute sexual harassment includes, but is
not limited to, words, signs, jokes, pranks, intimidation or physical
violence which are of a sexual nature, or which are directed at an
individual because of that individual's sex. Sexual harassment
also consists of any unwanted verbal or physical advances, sexually
explicit derogatory statements or sexually discriminatory remarks
made by an employee which are offensive or objectionable to the recipient,
which cause the recipient discomfort or humiliation, which interfere
with the recipient's job performance.
Sexual harassment also occurs when a person in authority tries to
trade job benefits for sexual favors. This can include hiring, promotion,
continued employment or any other terms, conditions or privileges
of employment.
Requests for sexual favors accompanied by implied or overt threats
concerning the target's job performance evaluation, a promotion
or other job benefits or detriments;
Sexual or discriminatory displays or publications anywhere in the
workplace, including displaying pictures, posters, calendars, graffiti,
objects, promotional material, reading materials or other materials
that are sexually demeaning or pornographic. This includes such sexual
displays on workplace computers or cell phones and sharing such displays
while in the workplace.
Sexual harassment also includes hostile actions taken against an
individual because of that individual's sex, sexual orientation,
gender identity and the status of being transgender, such as:
Interfering with, destroying or damaging a person's workstation,
tools or equipment, or otherwise interfering with the individual's
ability to perform the job;
Sexual harassment is not limited to the physical workplace itself.
It can occur while employees are traveling for business or at employer-sponsored
events or parties. Calls, texts, emails, and social media usage by
employees can constitute sexual harassment under this Policy, even
if they occur away from the workplace premises, on personal devices
or during non-work hours.
Definition. "Retaliation" is any action that could discourage a worker
from coming forward to make or support a sexual harassment claim.
The adverse action need not be job-related or occur in the workplace
to constitute retaliation.
Retaliation is unlawful under federal and state law as well as this
Policy. The New York State Human Rights Law[1] and this Policy protects any individual who has engaged in "protected activity" as described in § 85-5C.
Opposed sexual harassment by making an oral or informal complaint
to the Town Supervisor, or by simply informing a supervisor or manager
of harassment;
Even if the alleged harassment does not turn out to rise to the level
of a violation of this Policy or state or federal law, the individual
who reported the alleged harassment is protected from retaliation
if the person had a good faith belief that the conduct constituted
sexual harassment.
This provision is not intended to protect persons making intentionally
false charges of harassment and shall not be construed in such a manner.
A person who intentionally makes false charges or sexual harassment
may be subject to disciplinary proceedings.
Reporting. Reports of sexual harassment may be made orally or in
writing to the Town Supervisor or to an employee's immediate
manager or supervisor. A copy of the Complaint Form that shall be
used for the submission of written complaints, annexed hereto as Appendix
A,[1] is available in the office of the Town Supervisor and
the office of the Town Clerk. All employees are encouraged to use
this Complaint Form. Employees who are reporting sexual harassment
on behalf of other employees must use the Complaint Form and note
that it is on another employee's behalf.
All department supervisors and managers who receive a complaint or
information about suspected sexual harassment, observe what may be
sexually harassing behavior or for any reason suspect that sexual
harassment is occurring, are required to report such suspected sexual
harassment to the Town Supervisor utilizing the Complaint Form.
In addition to being subject to discipline if they engaged in sexually
harassing conduct themselves, supervisors and managers will be subject
to discipline for failing to report suspected sexual harassment or
otherwise knowingly allowing sexual harassment to continue.
All complaints or information about sexual harassment will be investigated
by the Town Supervisor, or a person designated by the Town Supervisor
in the event that the Town Supervisor is unable to discharge that
duty, whether that information was reported in oral or written form.
The Town Supervisor may not designate the Town Clerk or a member of
the Town Board to conduct an investigation pursuant to this section.
Investigations will be conducted in a timely manner.
An investigation of any complaint, information or knowledge of suspected
sexual harassment will be prompt and thorough, commenced immediately
and completed within 30 days or a reasonable time thereafter. The
investigation shall be kept confidential to the extent possible.
Upon receipt of complaint, the Town Supervisor or an individual
designated by the Town Supervisor, will conduct an immediate review
of the allegations, and take any interim actions (e.g., instructing
the alleged harasser to refrain from communications with the individual
who reported the complaint), as appropriate. If the complaint is oral,
the Town Supervisor or the manager or supervisor receiving the complaint
must encourage the individual to complete the Complaint Form, in writing.
If he or she refuses, the Town Supervisor or the manager or supervisor
receiving the complaint will prepare a Complaint Form based on the
oral reporting.
The Town Supervisor or the individual designated by the Town
Supervisor shall obtain and preserve any evidence relevant to the
allegations including documents, emails, phone record, text messages
and interview all parties and relevant witnesses.
At the conclusion of the investigation the Town Supervisor or
the individual designated by the Town Supervisor shall create a written
investigative report detailing the following:
The investigative report shall be filed with the Town Clerk and be kept in a confidential location. The Town Clerk shall serve a copy of both the complaint and the investigative report upon the accused employee, the individual who reported the complaint and all persons the Town Clerk deems necessary parties within 15 days of filing the investigative report or a reasonable time thereafter. The individual who reported the complaint shall also be informed of their right to file a complaint or charge externally as outlined in § 85-8.
All complaints of sexual harassment shall be adjudicated by a Town
Justice, or a hearing officer designated by a Town Justice in the
event that no Town Justice is able to discharge that duty. The hearing
officer shall not be the Town Supervisor, the Town Clerk or a member
of the Town Board.
Upon receipt of the completed investigative report, the Town Justice
or the individual designated by the Town Justice shall conduct an
administrative hearing at which the investigative report shall be
presented and considered. The Town Supervisor or the Town Supervisor's
designee, who may include the Town Attorney or the Attorney to the
Town, shall present the investigative report and otherwise prosecute
the allegations of sexual harassment in the administrative hearing.
Hearings shall be conducted before a court reporter empowered to take
testimony under oath. The court reporter shall require all witnesses
to provide testimony under oath and shall prepare a verbatim transcription/recording
of the proceedings which shall serve as the official record of the
hearing.
The accused employee shall be notified, in writing, at least 15 days
before the hearing of the complaint and the underlying allegations.
The accused employee may request one postponement of the hearing upon
receipt of the notice in order to obtain legal counsel; however, the
delay occasioned by such request shall not exceed 30 days from the
date of receipt of the notice by the accused employee. The accused
employee may waive his or her right to a hearing upon written notice
to the Town Justice or hearing officer.
The accused employee shall be entitled to attend the hearing and
testify in his or her own behalf and shall be entitled to confront
and cross-examine the individual who filed the complaint and all other
witnesses against him or her. In the event that the accused employee
fails to answer the complaint and/or appear at the hearing, the Town
Justice or hearing officer may enter a default judgment, and the hearing
shall proceed on the evidence in support of the complaint. Such default
judgment may be set aside only for good cause shown upon equitable
terms and conditions. In the event that the individual who reported
the complaint elects not to attend the administrative hearing and
upon objection from the accused to that individual's absence,
the complaint shall be dismissed and the accused deemed innocent of
the allegations.
The accused employee shall be entitled to call witness in his or
her behalf and to introduce evidence which bears upon the issue presented
by the complaint and investigative report.
The Town Justice or hearing officer shall make findings concerning
the innocence or guilt of the employee accused of the offense of sexual
harassment within 20 days of the conclusion of the hearing or a reasonable
time thereafter. The Town Justice shall then file the final determination
with the Town Clerk within 10 days of rendering the final determination
or a reasonable time thereafter.
The Town Clerk shall serve the final determination along with a notice
that an appeal may be requested pursuant to this section on the accused
employee within 10 days of the final determination being filed with
the Town Clerk or a reasonable time thereafter. Any employee aggrieved
by the final determination of the Town Justice or hearing officer
shall be entitled to an appeal before the Town Board, which shall
review the record of the hearing for material mistakes of law or fact.
The aggrieved employee must request said appeal, in writing, to the
Town Board within 10 days of the date the aggrieved employee is served
with the final determination and notice under this section. If an
appeal is requested, the Town Board shall schedule an appeal hearing
within 30 days of receipt of the request or a reasonable time thereafter
and the Town Clerk shall give the aggrieved employee and other interested
parties at least 10 days' notice of the appeal hearing.
Withdrawal of complaint. At any time during the investigation and/or
adjudication process, the individual who reported the complaint may
withdraw the complaint by so notifying all parties involved in the
process in writing, including the investigator and hearing officer.
In the event the complaint is withdrawn the sexual harassment charges
against the accused employee shall be dismissed.
If an employee is found guilty of committing sexual harassment in
violation of this Policy such finding shall be grounds for the imposition
of penalties against the guilty employee. The Town Board, excluding
the Town Supervisor if the Town Supervisor rather than his designee
has conducted the investigation, prepared the investigative report
or prosecuted the sexual harassment case, shall then issue one or
more of the following penalties:
If an appeal is not requested pursuant to § 85-6D(8), the Town Board shall impose one or more of the above referenced penalties within 30 days after the accused employee's ten-day period to request an appeal has expired or a reasonable time thereafter. If an appeal is requested pursuant to § 85-6D(8), the Town Board shall impose one or more of the above referenced penalties within 30 days of the conclusion of the appeal hearing or a reasonable time thereafter.
In imposing a penalty, the Town Board shall consider individual facts
of the case, the severity and nature of the conduct, and the employment
record of the employee found guilty. In the event that enough members
of the Town Board are unable to discharge this duty such that a quorum
cannot be reached, the Town Board may designate a third-party entity
to discharge that duty (such as an independent arbitrator). The Town
Board shall file the penalty with the Town Clerk within 10 days of
imposing the penalty.
The Town Clerk must serve the issued penalty on the guilty employee
within 10 days of the Town Board issuing the penalty. The penalty
shall become effective when it is served upon the employee who has
been adjudicated guilty.
The Town Clerk shall promptly notify the individual who reported the complaint about the result of the proceedings provided in § 85-6 including penalties imposed under this section, if any.
Sexual harassment is not only prohibited by the Town pursuant to
this Policy but is also prohibited by state, federal, and, where applicable,
local law.
Aside from the Town's internal process provided in this Policy,
employees may also choose to pursue legal remedies with the following
governmental entities. While a private attorney is not required to
file a complaint with a governmental agency, an employee may seek
the legal advice of an attorney.
The Human Rights Law (HRL), codified as NY Executive Law, Art.
15, § 290 et seq., applies to all employers in New York
State with regard to sexual harassment, and protects employees, paid
or unpaid interns and nonemployees, regardless of immigration status.
A complaint alleging violation of the Human Rights Law may be filed
either with the DHR or in New York State Supreme Court.
Complaints with DHR may be filed any time within one year (three
years beginning August 12, 2020) of the harassment. If an individual
did not file at DHR, they can sue directly in state court under the
HRL, within three years of the alleged sexual harassment. An individual
may not file with DHR if they have already filed a HRL complaint in
state court.
Complaining internally to the Town does not extend an individual's
time to file with DHR or in court. The one year or three years is
counted from date of the most recent incident of harassment.
DHR's main office contact information is: NYS Division
of Human Rights, One Fordham Plaza, Fourth Floor, Bronx, New York
10458. You may call (718) 741-8400 or visit www.dhr.ny.gov.
Contact DHR at (888) 392-3644 or visit dhr.ny.gov/complaint
for more information about filing a complaint. The website has a complaint
form that can be downloaded, filled out, notarized and mailed to DHR.
The website also contains contact information for DHR's regional
offices across New York State.
An employee alleging discrimination at work can file a "Charge
of Discrimination." The EEOC has district, area, and field offices
where complaints can be filed. Contact the EEOC by calling 1-800-669-4000
(TTY: 1-800-669-6820), visiting their website at www.eeoc.gov or via
email at info@eeoc.gov.
If an individual filed an administrative complaint with DHR,
DHR will file the complaint with the EEOC to preserve the right to
proceed in federal court.
Many localities enforce laws protecting individuals from sexual
harassment and discrimination. An individual should contact the county,
city or town in which they live to find out if such a law exists.
If the harassment involves unwanted physical touching, coerced physical
confinement or coerced sex acts, the conduct may constitute a crime.
Contact the Dutchess County Sheriff's Office.