[Adopted 8-26-2008 by Ord. No. 8-2008; amended in its entirety 10-23-2018 by Ord. No. 7-2018]
A.
The City of Cohoes believes in the dignity of the individual and
recognizes the rights of all people to equal employment opportunities
in the workplace. In this regard, the City of Cohoes is committed
to a policy of protecting and safeguarding the rights and opportunities
of all people to seek, obtain and hold employment without subjugation
to sexual harassment or discrimination of any kind in the workplace.
It is the City of Cohoes' policy to provide an employment environment
free from sexual advances, requests for sexual favors, and other verbal
or physical conduct or communications which have the purpose or effect
of unreasonably interfering with an individual's work performance
or creating an intimidating, hostile or offensive work environment.
B.
Scope of policy. This policy applies to all City of Cohoes employees
and all personnel in a contractual or other business relationship
with the City of Cohoes, including, for example, applicants, temporary
or leased employees, independent contractors, vendors, consultants,
volunteers and visitors. Depending on the extent of the City of Cohoes'
exercise of control, this policy may be applied to the conduct of
nonemployees with respect to sexual harassment and/or sex discrimination
of City of Cohoes employees in the workplace. This policy applies
with equal force on City property as it does at City-sponsored events,
programs, and activities which take place off City premises.
C.
Policy objectives. By adopting and publishing this policy, it is
the intention of the Cohoes Common Council to:
(1)
Notify employees about the types of conduct which constitute sex
discrimination or sexual harassment based on gender or sexual orientation
prohibited by this policy;
(2)
Inform employees about the complaint procedures established by the
City which enable any employee who believes (s)he is the victim of
sex discrimination or sexual harassment to submit a complaint which
will be investigated by the City;
(3)
Clearly advise all supervisory staff, administrators, and employees
that discriminatory treatment based on sex, sexual orientation, or
sexual harassment of employees is strictly prohibited, and no such
person possesses the authority to harass or discriminate; and
(4)
Notify all employees that the City has appointed Compliance Officers
who are specifically designated to receive complaints of discrimination
based on sex or sexual harassment and ensure compliance with this
policy.
As used in this article, the following terms shall have the
meanings indicated:
Prohibited discrimination of employees can take the form of
any negative treatment of an employee, by either a City employee or
official, or a third party engaged in City-sponsored activities which:
Prohibited discrimination of employees can also take the form
of harassment even where there is no tangible impact upon the employee's
employment opportunities and/or employment benefits. The phrase "prohibited
discrimination" as used in this policy includes all forms of "sexual
harassment" (defined below).
Sexual harassment is a form of sex discrimination and is unlawful
under federal, state, and (where applicable) local law. 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.
Sexual harassment includes 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;
Such conduct is made either explicitly or implicitly a term
or condition of employment; or
Submission to or rejection of such conduct is used as the basis
for employment decisions affecting an individual's employment.
A sexually harassing hostile work environment 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 someone 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. This is also called "quid pro quo" harassment.
Any employee who feels harassed should report so that any violation
of this policy can be corrected promptly. Any harassing conduct, even
a single incident, can be addressed under this policy.
Examples of sexual harassment. The following describes some
of the types of acts that may be unlawful sexual harassment and that
are strictly prohibited:
Sexually oriented gestures, noises, remarks or jokes, or comments
about a person's sexuality or sexual experience, which create
a hostile work environment.
Sex stereotyping occurs when conduct or personality traits are
considered inappropriate simply because they may not conform to other
people's ideas or perceptions about how individuals of a particular
sex should act or look.
Sexual or discriminatory displays or publications anywhere in
the workplace, such as:
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.
Hostile actions taken against an individual because of that
individual's sex, sexual orientation, gender identity and the
status of being transgender, such as:
Who can be a target of sexual harassment?
Sexual harassment can occur between any individuals, regardless
of their sex or gender. New York Law protects employees, paid or unpaid
interns, and nonemployees, including independent contractors, and
those employed by companies contracting to provide services in the
workplace. Harassers can be a superior, a subordinate, a coworker
or anyone in the workplace, including an independent contractor, contract
worker, vendor, client, customer or visitor.
Where can sexual harassment occur?
Unlawful 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, e-mails, and
social media usage by employees can constitute unlawful workplace
harassment, even if they occur away from the workplace premises, on
personal devices or during nonwork hours.
A.
As with discrimination involving race, color, creed, religion, national
origin, disability, political affiliation, age, arrest record, and
veteran or marital status, the City of Cohoes prohibits discrimination
on the basis of sex or sexual orientation and will not tolerate any
form of sexual harassment. The City of Cohoes will take all steps
necessary to prevent and stop the occurrence of sexual harassment
and/or sex discrimination in the workplace.
B.
The City of Cohoes' policy applies to all employees, applicants
for employment, interns, whether paid or unpaid, contractors and persons
conducting business, regardless of immigration status, with the City
of Cohoes. In the remainder of this document, the term "employees"
refers to this collective group.
C.
Sexual harassment or discrimination will not be tolerated. Any employee
or individual covered by this policy who engages in sexual harassment
or retaliation will be subject to remedial and/or disciplinary action
(e.g., counseling, suspension, termination).
D.
Retaliation prohibition. No person covered by this policy 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 or discrimination complaint.
The City of Cohoes will not tolerate such retaliation against anyone
who, in good faith, reports or provides information about suspected
sexual harassment. Any employee of the City of Cohoes who retaliates
against anyone involved in a sexual harassment or discrimination investigation
will be subjected to disciplinary action, up to and including termination.
All employees, paid or unpaid interns, or nonemployees working in
the workplace who believe they have been subject to such retaliation
should inform a supervisor, manager, or the Deputy Corporation Counsel.
All employees, paid or unpaid interns or nonemployees who believe
they have been a target of such retaliation may also seek relief in
other available forums, as explained below in the section on legal
protections.[1]
E.
Sexual harassment is offensive, is a violation of our policies, is
unlawful, and may subject the City of Cohoes 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.
F.
The City of Cohoes will conduct a prompt and thorough investigation
that ensures due process for all parties, whenever management receives
a complaint about sexual harassment, or otherwise knows of possible
sexual harassment occurring. The City of Cohoes 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.
G.
All employees are encouraged to report any harassment or behaviors
that violate this policy. The City of Cohoes will provide all employees
a complaint form for employees to report harassment and file complaints.
H.
Managers and supervisors are required to report any complaint that
they receive, or any harassment that they observe or become aware
of, to the Deputy Corporation Counsel.
I.
This policy applies to all employees, paid or unpaid interns, and
nonemployees, and all must follow and uphold this policy. This policy
must be provided to all employees and should be posted prominently
in all work locations to the extent practicable (for example, in a
main office, not an off-site work location) and be provided to employees
upon hiring.
A.
Reporting sexual harassment or discrimination.
(1)
Preventing sexual harassment and discrimination is everyone's
responsibility. The City of Cohoes cannot prevent or remedy sexual
harassment or discrimination unless it knows about it. Any employee,
paid or unpaid intern or nonemployee who has been subjected to behavior
that may constitute sexual harassment or discrimination is encouraged
to report such behavior to a supervisor, manager or Deputy Corporation
Counsel. Anyone who witnesses or becomes aware of potential instances
of sexual harassment or discrimination should report such behavior
to a supervisor, manager or Deputy Corporation Counsel.
(2)
Reports of sexual harassment or discrimination may be made verbally
or in writing. A form for submission of a written complaint is attached
to this policy, and all employees are encouraged to use this complaint
form.[1] Employees who are reporting sexual harassment or discrimination
on behalf of other employees should use the complaint form and note
that it is on another employee's behalf.
[1]
Editor's Note: Said complaint form is on file in the
City offices.
B.
Supervisory responsibilities.
(1)
All supervisors and managers who receive a complaint or information
about suspected sexual harassment or discrimination, observe what
may be sexually harassing behavior or for any reason suspect that
sexual harassment or discrimination is occurring, are required to
report such suspected sexual harassment to Deputy Corporation Counsel.
(2)
In addition to being subject to discipline if they engage in sexually
harassing or sexual discrimination conduct themselves, supervisors
and managers will be subject to discipline for failing to report suspected
sexual harassment or otherwise knowingly allowing sexual harassment
or discrimination to continue.
(3)
Supervisors and managers will also be subject to discipline for engaging
in any retaliation.
A.
All complaints or information about sexual harassment or discrimination
will be investigated, whether that information was reported in verbal
or written form. Investigations will be conducted in a timely manner,
and will be confidential to the extent possible.
B.
An investigation of any complaint, information or knowledge of suspected
sexual harassment or discrimination will be prompt and thorough, commenced
immediately and completed as soon as possible. The investigation will
be kept confidential to the extent possible. All persons involved,
including complainants, witnesses and alleged harassers will be accorded
due process, as outlined below, to protect their rights to a fair
and impartial investigation.
C.
Any employee may be required to cooperate as needed in an investigation
of suspected sexual harassment or discrimination. The City of Cohoes
will not tolerate retaliation against employees who file complaints,
support another's complaint or participate in an investigation
regarding a violation of this policy.
D.
While the process may vary from case to case, investigations should
be done in accordance with the following steps:
(1)
Upon receipt of complaint, the Deputy Corporation Counsel will conduct
an immediate review of the allegations, and take any interim actions
(e.g., instructing the respondent to refrain from communications with
the complainant), as appropriate. If the complaint is verbal, encourage
the individual to complete the complaint form in writing. If he or
she refuses, prepare a complaint form based on the verbal reporting.
(2)
If documents, e-mails or phone records are relevant in the investigation,
take steps to obtain and preserve them.
(3)
Request and review all relevant documents, including all electronic
communications.
(4)
Interview all parties involved, including any relevant witnesses.
(5)
Create a written documentation of the investigation (such as a letter,
memo or e-mail), which contains the following:
(a)
A list of all documents reviewed, along with a detailed summary
of relevant documents;
(b)
A list of names of those interviewed, along with a detailed
summary of relevant documents;
(c)
A timeline of events;
(d)
A summary of prior relevant incidents, reported or unreported;
and
(e)
The basis for the decision and final resolution of the complaint;
together with any corrective action(s).
(6)
Keep the written documentation and associated documents m a secure
and confidential location.
(7)
Promptly notify the individual who reported and the individual(s)
about whom the complaint was made of the final determination and implement
any corrective actions identified in the written document.
(8)
Inform the individual who reported of the right to file a complaint
of charge externally as outlined in the next section.
A.
Unlawful retaliation can be any action that could discourage a worker
from coming forward to make or support a sexual harassment or sexual
discrimination claim. Adverse action need not be job-related or occur
in the workplace to constitute unlawful retaliation (e.g., threats
of physical violence outside of work hours).
B.
Such retaliation is unlawful under federal, state, and (where applicable)
local law. The New York State Human Rights Law[1] protects any individual who has engaged in "protected
activity." Protected activity occurs when a person has:
(1)
Made a complaint of sexual harassment or sexual discrimination, either
internally or with any anti-discrimination agency;
(2)
Testified or assisted in a proceeding involving sexual harassment
or sexual discrimination under the Human Rights Law or other anti-discrimination
law;
(3)
Opposed sexual harassment or sexual discrimination by making a verbal
or informal complaint to management, or by simply informing a supervisor
or manager of harassment;
(4)
Reported that another employee has been sexually harassed or been
the subject of sexual discrimination; or
(5)
Encouraged a fellow employee to report harassment or sexual discrimination.
[1]
Editor's Note: See New York State Executive Law § 290
et seq.
C.
Even if the alleged harassment or discrimination does not turn out
to rise to the level of a violation of law, the individual is protected
from retaliation if the person had a good faith belief that the practices
were unlawful. However, the retaliation provision is not intended
to protect persons making intentionally false charges of harassment.
A.
Retaliation is strictly prohibited by this policy and by law against
anyone who in good faith reports a suspected violation of this policy,
who assists in making such a complaint, or who cooperates in a harassment
or discrimination investigation. "Retaliation" means taking any adverse
action in response to a complaint being made.
B.
Complaints of retaliation should be brought directly to a Compliance
Officer. Such complaints will be promptly investigated. Subject to
the terms of any applicable collective bargaining agreement, a person
found to have retaliated will be subject to corrective action, up
to and including termination from employment, or in the case of a
nonemployee, an appropriate remedy up to and including termination
of the business relationship.
C.
Because of the damage that can be done to someone falsely accused,
any individual who in bad faith knowingly makes a false complaint
or report of sexual harassment or sex discrimination will be subject
to disciplinary action, up to and including termination, subject to
any applicable collective bargaining agreement.
A.
Any complainant or accused party who wishes to appeal the procedures
which the City followed in investigating a written complaint filed
under this policy may do so within 10 days of receipt of the appellant's
notification of the investigation outcome. Untimely submissions shall
not receive consideration. Such appeal must be made in writing to
the Cohoes Common Council by submission to the City Clerk. The appellant
shall be entitled to present evidence as to why the investigation
procedures were flawed, improper, or otherwise not in compliance with
this policy. The Board's consideration and review of any such
appeal shall be conducted confidentially in executive session. Following
a review of that evidence, as well as the information obtained in
the investigation process and conclusions derived therefrom, the Cohoes
Common Council, or its designee, shall render a decision. The Council's
decision shall be final. The appellant shall be notified of the decision
in writing.
B.
Nothing set forth in the Appeal Process above shall be construed
to in any way confer upon either the complainant(s) or the person(s)
accused of violating this policy any right to appeal the City's
determination as to appropriate disciplinary and/or corrective action
to be taken on meritorious complaints. In this regard, the City at
all times retains sole discretion to determine the appropriate disciplinary
and/or corrective action to be taken with regard to a meritorious
complaint.
A.
The City shall maintain a written record of all complaints of sex
discrimination and/or sexual harassment for a period of at least six
years. The City shall also document the steps taken with regard to
investigations, as well as conclusions reached and remedial action
taken, if any. The City shall also maintain these documents for, at
a minimum, six years.
B.
The City records regarding alleged discrimination shall be maintained
separate and apart from personnel records.
Any questions by employees of the City about this policy or
potential discrimination should be brought to the attention of one
of the City's Compliance Officers. The names, addresses, and
telephone numbers of the City's Compliance Officers shall be
made available to all employees.
The Mayor shall appoint at least two employees of the City to
serve as Compliance Officers, one of whom should be the Deputy Corporation
Counsel. Any person serving as a Compliance Officer shall no longer
serve as such upon his/her termination from employment with the City.
A.
The effective date of this policy shall be January 1, 2019. The Mayor
shall ensure that this policy is adequately disseminated and made
available to all employees of the City. This policy shall be distributed
to new employees upon their hire and during the month of January of
each year. In addition, copies of this policy and complaint form shall
be maintained in the office of each Compliance Officer; the office
of the Mayor; and the office of the City Clerk.
B.
Upon the effective date of this policy, the provisions of this policy
shall supersede and replace all prior City policies and regulations
regarding employee sex discrimination, sexual harassment, and related
complaint procedures.
A.
Sexual harassment is not only prohibited by the City of Cohoes but
is also prohibited by state, federal and, where applicable, local
law.
B.
Aside from the internal process at the City of Cohoes, 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, you may seek the legal advice of an attorney.
C.
In addition to those outlined below, employees in certain industries
may have additional legal protections.
(1)
State Human Rights Law (HRL).
(a)
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 discrimination, 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 Division of Human Rights (DHR) or
in New York State Supreme Court.
(b)
Complaints with DHR may be filed any time within one year 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.
(c)
Complaining internally to the City of Cohoes does not extend
your 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.
(d)
You do not need an attorney to file a complaint with DHR, and
there is no cost to file with DHR.
(e)
DHR will investigate your complaint and determine whether there
is probable cause to believe that sexual harassment has occurred.
Probable cause cases are forwarded to a public hearing before an administrative
law judge. If sexual harassment is found after a hearing, DHR has
the power to award relief, which varies but may include requiring
your employer to take action to stop the harassment, or redress the
damage caused, including paying of monetary damages, attorneys'
fees and civil fines.
(f)
DHR's main office contact information is: New York State
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.
(g)
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.
(2)
Civil Rights Act of 1964.
(a)
The United States Equal Employment Opportunity Commission (EEOC)
enforces federal anti-discrimination laws, including Title VII of
the 1964 federal Civil Rights Act (codified as 42 U.S.C. et seq.).
An individual can file a complaint with the EEOC anytime within 300
days from the harassment. There is no cost to file a complaint with
the EEOC. The EEOC will investigate the complaint and determine whether
there is reasonable cause to believe that discrimination has occurred,
at which point the EEOC will issue a right to sue letter permitting
the individual to file a complaint in federal court.
(b)
The EEOC does not hold hearings or award relief, but may take
other action, including pursuing cases in federal court on behalf
of complaining parties. Federal courts may award remedies if discrimination
is found to have occurred. In general, private employers must have
at least 15 employees to come within the jurisdiction of the EEOC.
(c)
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
e-mail at info@eeoc.gov.
(d)
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.
(3)
Local protections. 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.
(4)
Contact the Local Police Department if the harassment involves unwanted
physical touching, coerced physical confinement or coerced sex acts.
