[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
A. 
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:
(1) 
Negatively impacts an employee's employment opportunities and/or employment benefits; and
(2) 
Is based upon the employee's sex or sexual orientation.
B. 
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
A. 
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.
B. 
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:
(1) 
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;
(2) 
Such conduct is made either explicitly or implicitly a term or condition of employment; or
(3) 
Submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual's employment.
C. 
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.
D. 
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.
E. 
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.
F. 
Examples of sexual harassment. The following describes some of the types of acts that may be unlawful sexual harassment and that are strictly prohibited:
(1) 
Physical acts of a sexual nature, such as:
(a) 
Touching, pinching, patting, kissing, hugging, grabbing, brushing against another employee's body or poking another employee's body;
(b) 
Rape, sexual batter, molestation or attempts to commit these assaults.
(2) 
Unwanted sexual advances or propositions, such as:
(a) 
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;
(b) 
Subtle or obvious pressure for unwelcome sexual activities.
(3) 
Sexually oriented gestures, noises, remarks or jokes, or comments about a person's sexuality or sexual experience, which create a hostile work environment.
(4) 
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.
(5) 
Sexual or discriminatory displays or publications anywhere in the workplace, such as:
(a) 
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.
(6) 
Hostile actions taken against an individual because of that individual's sex, sexual orientation, gender identity and the status of being transgender, such as:
(a) 
Interfering with, destroying or damaging a person's workstation, tools or equipment, or otherwise interfering with the individual's ability to perform the job;
(b) 
Sabotaging an individual's work;
(c) 
Bullying, yelling, name-calling.
G. 
Who can be a target of sexual harassment?
(1) 
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.
H. 
Where can sexual harassment occur?
(1) 
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]
[1]
Editor's Note: See § 56-49, Legal protections and external remedies.
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.
(3) 
Employees, paid or unpaid interns or nonemployees who believe they have been a target of sexual harassment or discrimination may also seek assistance in other available forums, as explained below in the section on legal protections.[2]
[2]
Editor's Note: See § 56-49, Legal protections and external remedies.
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.