Borough of Maywood, NJ On-the-Job Harassment

In recognition of the dignity and worth of each person who works for the Borough, or who comes into contact with Borough employees, the Borough promulgates this policy prohibiting on-the-job harassment. Harassment must not be permitted, whether it is committed by employees or nonemployees, against employees or others who come into contact with the Borough's personnel. Harassment is illegal, is an abuse of authority, and constitutes misconduct. Harassment undermines the integrity of employment relationships, debilitates morale, and can be destructive to its victims and their associates, and therefore will not be tolerated. All employees, male and female, are entitled to work in an environment that is free from harassment.

All Borough employees are on notice that the Mayor and Council will not tolerate harassment based on sex (with or without sexual conduct); race; creed; color; religion; national origin; ancestry; age; marital status; familial status; affectional or sexual orientation; atypical hereditary cellular or blood trait of any individual; because of liability for service in the armed forces of the United States or the nationality of any individual; genetic information, or because of the refusal of the employee to submit to a genetic test or make available the results of the genetic test to an employer; disability; and protected activity (i.e., opposition to prohibited discrimination or participation in the statutory complaint process). This prohibition covers harassment by anyone in the workplace: supervisors, coworkers, or nonemployees. This mandate "comes from the top," i.e., from the Mayor and Council.

All employees are encouraged to report harassment before it becomes severe or pervasive. While isolated incidents of harassment generally do not violate law, a pattern of such incidents may be unlawful. Therefore, with your help, the Mayor and Council will stop harassment before it rises to the level of a violation of law.

Harassment, responsibilities of supervisor. In order to ensure the integrity of the work environment, supervisory personnel are required to ensure adherence to and compliance with this policy, and, upon being informed of possible harassment, are required to take appropriate immediate action in response, including informing employees of their right to file a discrimination complaint with the Administrator.

Harassment, responsibilities of employees. Employees are encouraged, whether directly or through a third party, to notify the alleged harasser that the behavior in question is offensive and unwelcome. However, failure to do so does not preclude filing a complaint. Employees are encouraged to promptly report all alleged incidents of harassment to the Administrator.

Protection against retaliation.

The Borough will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints.

All Borough supervisors should undertake whatever measures are necessary to ensure that retaliation does not occur. For example, when management investigates a complaint of harassment, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation. Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.

§ 52-15 Sexual harassment defined.

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct based on gender, when:

Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;

Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment, including but not limited to:

Gender harassment: generalized gender-based remarks and behavior.

Seductive behavior: inappropriate, unwanted, or offensive physical or verbal sexual advances;

Sexual bribery: solicitation of sexual activity or other sex-linked behavior by promise of reward;

Sexual coercion: coercion of sexual activity by threat of punishment; and

(5)

Sexual assault: gross sexual imposition, like touching, fondling, grabbing, or assault.

§ 52-16 Other forms of harassment are prohibited.

Illegal harassment is not limited to sexual harassment; instead, it may extend to a hostile work environment that is created on account of an employee's religion, creed, ethnic heritage, race, national origin, age, disability, affectional or sexual orientation, gender identity or expression, marital status, domestic partnership status, civil union status, familial status, atypical hereditary cellular or blood trait of an individual, genetic information, or because of the refusal of the employee to submit to a genetic test or make available the results of a genetic test to an employer, because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or other status that is protected by state or federal law.

[Amended 6-5-2008 by Ord. No. 15-08]

Prohibited harassment also includes harassment an employee may experience in retaliation for making a discrimination complaint.

Also prohibited is sexual harassment of a nonsexual nature. This is harassment that targets an employee because of his or her gender, even if it does not involve overtly sexual comments or conduct that would constitute sexual harassment as defined above.

Discrimination on the basis of pregnancy is expressly prohibited. The Pregnant Worker's Fairness Act (PWFA) amends the New Jersey Law Against Discrimination (LAD) and requires the Borough to provide reasonable accommodations to pregnant employees who request accommodation upon the advice of their physician unless undue hardship on the operations of the Borough would result.

[Added 4-12-2016 by Ord. No. 11-16]

The New Jersey Opportunity to Compete Act (the "Act") prohibits the Borough from inquiring about an applicant's criminal background during the initial employment application process.

[Added 4-12-2016 by Ord. No. 11-16]

§ 52-17 Procedures for resolution of complaints.

Employees of the Borough, and others who come into contact with the Borough's employees, who believe that they may have been subjected to harassment by an employee of the Borough may seek advice or file a complaint as follows:

Informal procedures.

An informal oral or written complaint may be made to a member of the Mayor and Council, the Borough Administrator, a department head, or supervisor of the alleged harasser or the complainant.

Upon receipt of a complaint, the member of the Mayor and Council, Borough Administrator, department head, or supervisor shall, within 15 days:

Interview the complainant.

Interview all potential witnesses, including those persons who may have knowledge of similar incidents.

Interview the charged party and advise the charged party of the right to be represented by an attorney of his or her choice.

(d)

Review municipal files for similar incidents involving the complainant and the charged party.

(e)

Assess the presence or absence of corroborative evidence for either party.

(f)

Evaluate needs of victim, if possible.

(g)

Provide information concerning the complainant's rights, and/or

(h)

Provide information concerning the complainant's rights to file a formal complaint.

If the complaint is not resolved on an informal basis, and the complainant wishes to proceed, the Borough Administrator, department head, or supervisor will assist in the preparation of a formal complaint with the Mayor and Council, as outlined below.

Formal procedures.

A formal written complaint may be filed with the Mayor and Council. Upon the receipt of a written formal complaint, the Borough Clerk, within five working days, shall provide a copy of the complaint to the party against whom the complaint is made. That party shall be given seven working days to respond either orally or in writing to the Borough Clerk. The contents of the oral or written response shall be provided to the complainant within three working days.

The Mayor and Council, or its designee, shall conduct an investigation forthwith and issue findings and conclusions to the parties within 30 calendar days of the filing of the formal complaint. In those findings, the Mayor and Council may dismiss the complaint or take any other action that is found appropriate.

If the Mayor and Council find that a hearing is warranted, the hearing shall be held in closed session, in accordance with the Open Public Meetings Act.

Although not required, both the complaining party and the person against whom the complaint is filed have the right to be represented by an attorney of their choice.

Confidentiality.

The Borough will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality, because it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. Information about the allegation of harassment will be shared only with those who need to know about it. Records relating to harassment complaints shall be kept confidential on the same basis.

A conflict between an employee's desire for confidentiality and the employer's duty to investigate may arise if an employee informs a supervisor about alleged harassment but asks him or her to keep the matter confidential and take no action. While it may seem reasonable to let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment whenever a report is made.

Complainants may request to remain anonymous, but complete confidentiality restricts options and may make it difficult to resolve the problem. Disclosure may be necessary under certain circumstances. Inquiries and complaints will nevertheless be kept confidential to the fullest extent practicable. The sexual harassment investigative proceedings will be conducted in a manner to protect the confidentiality of the complainant, the alleged harasser, and all witnesses.

Prohibition against retaliation. Retaliation in any form against any person who complains of harassment or who assists in the investigation of such complaints is expressly prohibited. A charge of retaliation may be raised at any step of the complaint procedures or may form the basis of a new complaint. Retaliation may be the basis for a charge of misconduct even though the complaint of harassment has been dismissed.

Other complaint procedures.

Complainants may choose to use both the Borough complaint procedures and external procedures available under federal or state law. The time periods within which complaints may be filed with state or federal civil right agencies are short (within 180 days for the New Jersey Division on Civil Rights and within a maximum of 300 days under most circumstances for the U.S. Equal Employment Opportunity Commission), although suits under the New Jersey Law Against Discrimination filed in Superior Court must be filed within two years of the events complained of. Use of the Borough complaint procedures does not stop those time periods from running.

These deadlines in state and federal law run from the last date of the unlawful harassment, not from the date that the complaint to the employer is received or resolved.

Harassment complaints.

The complaint filed must include the following information:

The name and department of the complainant.

The name and department of the charged party.

The nature and circumstances, in detail, of the alleged harassment, including but not limited to, the injuries or consequences suffered by the complainant, the names of any witnesses to such actions and the duration of the actions in question.

(d)

Whether the harassment has been previously reported to a supervisor or other person, and if so, when and to whom.

Nothing in this section shall prevent complainants from providing other information or documents they believe are essential to the fair adjudication of their case.

The initial complaint may be made orally or in writing. If the complaint is made orally, the Administrator shall reduce same to a written document that shall, if it is deemed accurate, be signed by the complainant.

Action pending an investigation. It may be necessary to undertake intermediate measures before completing the investigation to ensure that further harassment does not occur. Examples of such measures are: making scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on nondisciplinary leave with pay pending the conclusion of the investigation. The complainant should not be involuntarily transferred or otherwise burdened, because such measures could constitute unlawful retaliation.

§ 52-18 Procedures in investigations.

The individual who conducts the investigation will objectively gather and consider the relevant facts. The alleged harasser should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.

Questions to ask parties and witnesses.

When detailed fact-finding is necessary, the investigator should interview the complainant, the alleged harasser, and third parties who could reasonably be expected to have relevant information. Information relating to the personal lives of the parties outside the workplace would be relevant only in unusual circumstances. When interviewing the parties and witnesses, the investigator should refrain from offering his or her opinion.

The following are examples of questions that may be appropriate to ask the parties and potential witnesses. Any actual investigation must be tailored to the particular facts.

Questions to ask the complainant:

Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?

How did you react? What response did you make when the incident(s) occurred or afterwards?

How did the harassment affect you? Has your job been affected in any way?

Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?

Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?

Are there any notes, physical evidence, or other documentation regarding the incident(s)?

How would you like to see the situation resolved?

Do you know of any other relevant information?

Questions to ask the alleged harasser:

What is your response to the allegations?

If the harasser claims that the allegations are false, ask why the complainant might lie.

Are there any persons who have relevant information?

Are there any notes, physical evidence, or other documentation regarding the incident(s)?

Do you know of any other relevant information?

Questions to ask third parties:

What did you see or hear? When did this occur? Describe the alleged harasser's behavior toward the complainant and toward others in the workplace.

What did the complainant tell you? When did s/he tell you this?

Do you know of any other relevant information?

Are there other persons who have relevant information?

Credibility determinations.

If there are conflicting versions of relevant events, the employer will have to weigh each party's credibility. Credibility assessments can be critical in determining whether the alleged harassment in fact occurred. Factors to consider include:

Inherent plausibility: Is the testimony believable on its face? Does it make sense?

Demeanor: Did the person seem to be telling the truth or lying?

Motive to falsify: Did the person have a reason to lie?

(d)

Corroboration: Is there witness testimony (such as testimony by eyewitnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party's testimony?

(e)

Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eyewitnesses to the alleged harassment by no means necessarily defeats the complainant's credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

Reaching a determination.

Once all of the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether harassment occurred. That determination could be made by the investigator, or by a management official who reviews the investigator's report. The parties should be informed of the determination.

In some circumstances, it may be difficult for management to reach a determination because of direct contradictions between the parties and a lack of documentary or eyewitness corroboration. In such cases, a credibility assessment may form the basis for a determination, based on factors such as those set forth above.

If no determination can be made because the evidence is inconclusive, the Borough will undertake further preventive measures, such as training and monitoring.

Assurance of immediate and appropriate corrective action.

The Borough will undertake immediate and appropriate corrective action, including discipline, whenever it determines that harassment has occurred in violation of the employer's policy.

Remedial measures will be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. These remedial measures need not be those that the employee requests or prefers, as long as they are effective.

To balance the competing concerns, disciplinary measures should be proportional to the seriousness of the offense. If the harassment was minor, such as a small number of "off-color" remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary. On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.

Remedial measures should not adversely affect the complainant. Thus, for example, if it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise). Remedial responses that penalize the complainant could constitute unlawful retaliation and are not effective in correcting the harassment.

(5)

Remedial measures also should correct the effects of the harassment. Such measures should be designed to put the employee in the position s/he would have been in had the misconduct not occurred.

Examples of measures to stop the harassment and ensure that it does not recur:

Oral or written warning or reprimand;

Transfer or reassignment;

Demotion;

Reduction of wages;

Suspension;

Discharge;

Training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer's antiharassment policy; and

Monitoring of harasser to ensure that harassment stops.

Examples of measures to correct the effects of the harassment:

Restoration of leave taken because of the harassment;

Expungement of negative evaluation(s) in employee's personnel file that arose from the harassment;

Reinstatement;

Apology by the harasser;

Monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the workplace because of the complaint; and

Correction of any other harm caused by the harassment (e.g., compensation for losses).

§ 52-19 Other preventive and corrective measures.

Duty of care.

The Borough recognizes that its responsibility to exercise reasonable care to prevent and correct harassment is not limited to implementing an antiharassment policy and complaint procedure.

An employer's duty to exercise due care includes instructing all of its supervisors and managers to address or report to appropriate officials complaints of harassment regardless of whether they are officially designated to take complaints and regardless of whether a complaint was framed in a way that conforms to the organization's particular complaint procedures. For example, if an employee files an EEOC charge alleging unlawful harassment, the employer should launch an internal investigation even if the employee did not complain to management through its internal complaint process.

Furthermore, due care requires management to correct harassment regardless of whether an employee files an internal complaint, if the conduct is clearly unwelcome. For example, if there are areas in the workplace with graffiti containing racial or sexual epithets, management should eliminate the graffiti and not wait for an internal complaint.

Training. Employees of the Borough shall be provided with training, by a person trained to lead or implement such training, which shall include a detailed discussion of the following:

A detailed explanation of what constitutes illegal harassment.

The procedures for filing a harassment charge.

The procedures to be followed in the investigation of a harassment charge.

Management's obligation regarding incidents of sexual harassment.

(5)

Recordkeeping requirements.

False accusations.

Because a charge of harassment is a grave and serious one, false accusations of harassment are, and will be treated as a disciplinary offense and will result in a level of punishment appropriate for a person actually engaging in such behavior.