[Amended 7-12-2011 by L.L. No. 10-2011]
This article shall be known as the "Anti-Discrimination Law
of the Town of North Hempstead."
[Amended 6-2-2015 by L.L.
No. 5-2015; 12-18-2018 by L.L. No. 14-2018; 9-25-2019 by L.L. No. 14-2019]
A.
The Town
Board of the Town of North Hempstead recognizes that discrimination,
harassment, adverse employment action or retaliation in the workplace
based on (1) actual or perceived differences, including those based
on age, race, creed, religion, color, sex, national origin, disability,
marital status, ancestry, citizenship, pregnancy, sexual orientation,
gender or veteran status (each classification constituting a "protected
class") or (2) good faith reporting of violations of the Town’s
Code of Ethics or other instances of potential wrongdoing within the
Town is offensive, unlawful, and a violation of Town policies.
B.
The Town
Board of the Town of North Hempstead hereby finds and declares that
harassment, prejudice, intolerance, bigotry, discrimination, retaliation
and disorder occasioned thereby threaten the rights and proper privileges
of its inhabitants and menace the institutions and foundation of a
free democratic state.
C.
The purpose
of this article therefore is to protect every Town employee's right
to be free from discrimination, harassment or retaliation in the workplace
as well as encourage and enable Town employees to report credible
allegations of misconduct, wrongdoing, or unethical behavior in good
faith within the Town without fear of retaliation or adverse employment
action. Every Town employee is entitled to a working environment free
from discrimination, harassment or retaliation, and all Town personnel
and persons with whom the Town conducts business are hereby advised
that discrimination, harassment or retaliation will not be tolerated
within the workplace.
[Amended 6-2-2015 by L.L.
No. 5-2015; 12-18-2018 by L.L. No. 14-2018; 9-25-2019 by L.L. No. 14-2019]
A.
It shall
be an unlawful discriminatory practice to refuse to hire or employ
or to bar or to discharge from employment, or refuse to do business
with any person(s) or to harass or discriminate against any person(s),
or to otherwise subject to adverse employment action in compensation
or in terms, conditions or privileges of employment or the conduct
of business because of the actual or perceived age, race, creed, religion,
color, sex, national origin, disability, ancestry, citizenship, pregnancy,
sexual orientation, gender, veteran, marital or whistleblower status
of any person.
B.
This
article applies to employees of the Town of North Hempstead and the
Town of North Hempstead Solid Waste Management Authority (collectively
"Town employees"), applicants for employment, interns (paid and unpaid),
and all persons and entities with which the Town conducts business,
e.g., outside vendors, contractors, consultants, and members of the
public.
A.
The practices prohibited in § 23-17.2 above include harassment on the basis of an individual's actual or perceived membership in one of the identified protected classes.
B.
Sexual harassment.
[Amended 6-2-2015 by L.L.
No. 5-2015; 12-18-2018 by L.L. No. 14-2018]
(1)
Sexual harassment is a form of sex discrimination and is unlawful
under federal, state and 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.
(2)
Sexual harassment includes unwelcome conduct which is either
of a sexual nature or which is directed to an individual because of
his/her sex when:
(a)
Submission to the conduct is made either explicitly or implicitly
a term or condition of an individual's employment; or
(b)
Submission to, or rejection of, such conduct is used as the
basis for employment decisions affecting such individuals; or
(c)
Such conduct has the purpose or effect of interfering unreasonably
with the 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.
(3)
Forms of sexual harassment that can create a hostile work environment
include, but are 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.
(4)
The following is a partial list of examples of sexually harassing
conduct:
(a)
Unwanted sexual advances or propositions, including requests
for sexual favors accompanied by implied or overt threats concerning
the target's job performance evaluation, promotion or other job benefits
or detriments and subtle or obvious pressure for unwanted sexual activities;
(b)
Sexually oriented gestures, noises, remarks, jokes or comments
about a person's sexuality or sexual experience which creates a hostile
work environment;
(c)
Sex stereotyping which occurs when conduct or personality traits
are considered inappropriate simply because they may not conform to
other people's idea or perceptions about how individuals of a particular
sex should act or look;
(d)
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
displays on workplace computers, cell phones or other electronic devices
and sharing these displays while in the workplace;
(e)
Hostile actions taken against an individual because of his/her
sex, sexual orientation, gender identity or transgender status, including:
interfering with, destroying or damaging a person's workstation, tools,
equipment, or otherwise interfering with the person's ability to perform
the job; sabotaging a person's work; and bullying, yelling or name-calling;
or
(f)
Physical conduct such as touching, petting, pinching, patting,
kissing, hugging, grabbing, brushing against another person's body,
impeding or blocking movements, poking another person's body, rape,
sexual battery, molestation or any such attempts to commit such assaults.
(5)
Sexual harassment on the job is unlawful, whether it involves
co-worker harassment, harassment by a supervisor or member of management,
or harassment by persons doing business with or for the Town.
C.
Other forms of harassment. Harassment on the basis of a protected class other than sex is unlawful under federal, state and local law. Prohibited conduct includes behavior similar to that outlined under § 23-17.3B of this article for sexual harassment. The following is a partial list of examples of harassing conduct:
[Amended 12-18-2018 by L.L. No. 14-2018]
(1)
Discriminatory displays or publications based on membership
in a protected class, anywhere in the workplace, including displaying
pictures, posters, calendars, graffiti, objects, promotional material,
reading materials or other materials that are racially, ethnically
or religiously demeaning. This includes displays on workplace computers,
cell phones or other electronic devices and sharing these displays
while in the workplace;
(2)
Gestures, noises, remarks, jokes or comments based on a person's
membership in a protected class, such as racial, ethnic or religious
jokes, or derogatory comments, slurs, innuendoes, epithets or threats
(including those uttered over radio or television broadcasts); or
(3)
Physical conduct such as touching, impeding, blocking movements
or battery, assault or attempts to commit such assaults because of
membership in a protected class.
(4)
Hostile actions taken against an individual because of his/her
protected class, including: interfering with, destroying or damaging
a person's workstation, tools, equipment, or otherwise interfering
with the person's ability to perform the job; sabotaging a person's
work; and bullying, yelling or name-calling.
A.
The term "disability" means any physical, medical, mental or psychological
impairment, or a history or record of such impairment.
B.
The term "physical, medical, mental or psychological impairment"
means:
(1)
An impairment of any system of the body, including, but not
limited to: the neurological system; the musculoskeletal system; the
special sense organs and respiratory organs, including, but not limited
to, speech organs; the cardiovascular system; the reproductive system;
the digestive and genito-urinary systems; the hemic and lymphatic
systems; the immunological systems; the skin; and the endocrine system;
or
(2)
A mental or psychological impairment.
C.
In the case of alcoholism, drug addiction or other substance abuse,
the term "disability" shall only apply to a person who is recovering
or has recovered and currently is free of such abuse, and shall not
include an individual who is currently engaging in the illegal use
of drugs or currently working under the influence of alcohol, when
the covered entity acts on the basis of such use.
[Amended 12-18-2018 by L.L. No. 14-2018]
[Amended 6-2-2015 by L.L.
No. 5-2015]
The term "gender" shall include actual or perceived sex and
shall also include a person's gender identity, self-image, appearance,
behavior or expression, whether or not that gender identity, self-image,
appearance, behavior or expression is different from that traditionally
associated with the legal sex assigned at birth.
[Added 9-25-2019 by L.L.
No. 14-2019[1]]
The term "good faith" means disclosing information concerning
potential wrongdoing which the individual making the disclosure reasonably
believes to be true and reasonably believes to constitute wrongdoing.
[Added 9-25-2019 by L.L.
No. 14-2019]
The term "whistleblower" shall include any Town employee who
in good faith discloses information concerning wrongdoing by another
Town employee, or wrongdoing concerning business conducted by the
Town.
[Added 9-25-2019 by L.L.
No. 14-2019]
The term "wrongdoing" shall include any alleged corruption,
fraud, criminal or unethical activity, misconduct, waste, conflict
of interest, intentional reporting of false or misleading information,
or abuse of authority engaged in by a Town employee that relates to
the Town.
[Added 9-25-2019 by L.L.
No. 14-2019]
All Town employees who discover or have knowledge of potential wrongdoing concerning board members, officers, or other employees of the Town; or a person having business dealings with the Town; or concerning the Town itself shall report such activity in a prompt and timely manner in accordance with the procedure outlined under § 23-17.12B. The identity of the whistleblower and the substance of his or her allegations will be kept confidential to the extent possible.
It shall be an unlawful discriminatory practice for any person
to aid, abet, incite, compel or coerce the doing of any of the acts
forbidden under this article, or to attempt to do so.
[Amended 12-18-2018 by L.L. No. 14-2018; 9-25-2019 by L.L. No. 14-2019]
A.
Retaliation
and/or adverse personnel action of any kind against an individual
or whistleblower who makes a good-faith report of wrongdoing, potential
violations of the Town’s Code of Ethics or otherwise unlawful
harassment or discrimination or who participates truthfully in an
investigation into an allegation of wrongdoing, harassment or discrimination
is prohibited.
B.
Retaliation is unlawful under federal, state and local law against an individual who has engaged in protected activity. Allegations of retaliation against an individual who has engaged in protected activity will be investigated by the Town in accordance with § 23-17.12B. Any individual who retaliates against or attempts to interfere with any individual who in good faith engages in protected activity may be subject to discipline as outlined under § 23-17.12G.
C.
Protected
activity occurs when a person has:
(1)
Filed a complaint disclosing any alleged corruption, fraud, criminal
or unethical activity, misconduct, waste, conflict of interest, intentional
reporting of false or misleading information, or abuse of authority
engaged in by a Town employee that relates to the Town or of harassment
or discrimination, either internally or with any anti-discrimination
agency;
(2)
Testified or assisted in a proceeding involving wrongdoing, harassment
or discrimination under New York State's Human Rights Law or another
anti-discrimination law;
(3)
Opposed wrongdoing, harassment or discrimination by making a verbal
or informal complaint to management, or by simply informing a supervisor
or manager of harassment;
(4)
Complained that another Town employee has been harassed or been discriminated
against; or
(5)
Encouraged a fellow Town employee to report harassment or discrimination.
[Amended 12-18-2018 by L.L. No. 14-2018; 9-25-2019 by L.L. No. 14-2019; 11-14-2023 by L.L. No. 19-2023]
A.
Complaints.
(1)
Complaints of wrongdoing, unlawful discrimination, harassment or
retaliation may be directed to the appropriate department head, or
to the Commissioner of Human Resources or to the Town Attorney or
his/her designee. Complainants are encouraged, but not required, to
consult initially with their department head(s) to attempt informal
resolution. Complaints made initially to the department head which
are not informally resolved to the satisfaction of the complainant
shall be referred to the Commissioner of Human Resources or the Town
Attorney. Complaints shall be made within one year after occurrence
of the alleged prohibited conduct.
(2)
Anyone who witnesses or becomes aware of potential instances of wrongdoing,
harassment, discrimination and/or retaliation may report such behavior
to the department head, or the Commissioner of Human Resources or
the Town Attorney or his/her designee. Reports of harassment or discrimination
may be made orally or in writing.
(3)
Any supervisor or manager who receives a complaint or information
about suspected wrongdoing, discriminatory harassment, observes what
may be wrongdoing, discriminatory and/or harassing behavior or for
any reason becomes aware of or suspects that wrongdoing or discriminatory
harassment is occurring or has occurred shall report that suspected
harassment to the department head, or the Commissioner of Human Resources
or the Town Attorney or his/her designee. Failure to report suspected
wrongdoing, discriminatory harassment or otherwise knowingly allowing
the continuation of discriminatory harassment or wrongdoing may result
in disciplinary action, subject to any statutory or contractual limitations.
(4)
All complaints of wrongdoing, unlawful discrimination, harassment
or retaliation and information and proceedings relating thereto shall
be kept in strict confidence except as otherwise specified herein.
(5)
Nothing herein shall limit a complainant's right to pursue any
other legal remedy available to him or her.
B.
Investigation.
(1)
The Town Attorney or his/her designee shall, in a timely manner,
conduct an investigation of the complaint, interviewing appropriate
persons, examining relevant records and consulting with and utilizing
any appropriate Town staff. The investigation should determine, with
as much detail as possible, the sequence in which the alleged events
occurred, the identity of each person involved and their respective
roles, and the exact words and/or conduct of each person involved
in the reported events. To the extent possible, fact-finding interviews
should be conducted by the same person(s).
(2)
If the Town Attorney or his/her designee deems it appropriate,
the parties to the complaint may be brought together to attempt an
informal resolution of the complaint in a manner satisfactory to both
parties.
(3)
Both the complainant and the person against whom the complaint
is made shall be permitted to have counsel or other representatives
present at any interview or other proceedings.
(4)
Investigations shall be conducted by the Town Attorney or his/her
designee in accordance with the following procedures:
(a)
Upon receipt of a complaint, an immediate review of the allegations
will be conducted and any interim action will be taken, as appropriate.
(b)
Obtain and review relevant documents, emails or phone records.
(c)
Conduct interviews of the parties, including relevant witnesses.
(d)
Prepare a written summary of the investigation that contains
the following:
(e)
Keep the written documentation and associated documents in the
employer's records.
(f)
Inform the complainant of their right to file a complaint or
charge externally.
(g)
Each person interviewed in connection with such an investigation
shall be advised that they are protected by the nonretaliation provision
of this article.
C.
Town Attorney's recommendation.
(1)
Upon conclusion of the investigation and within 90 days after
the complaint is brought, the Town Attorney shall make a written recommendation
to the Supervisor, which shall be one of the following:
(2)
Copies of the Town Attorney's recommendation shall be mailed
to the complainant and the party against whom the complaint was made.
D.
Action by Supervisor. Within 14 days of receiving the Town Attorney's
recommendation:
(1)
The Supervisor may, but need not, adopt the Town Attorney's
recommendation. If the Town Attorney's recommendation is not adopted,
the Supervisor shall prepare a written statement detailing the factual
and/or legal basis on which the decision not to adopt the recommendation
was based.
(2)
The Supervisor may also pursue mediation or alternative dispute
resolution, including requiring informal appearances by the parties
or witnesses. The Town Board shall, subject to the Town's Payment
and Procurement Policy, approve and maintain a list of qualified outside
firms or entities from which the Supervisor shall select a mediator
or alternative dispute resolution provider. If no such list exists,
the Supervisor shall retain a mediator or alternative dispute provider
in accordance with the Town's Payment and Procurement Policy. If the
charged person is the Supervisor, the Deputy Supervisor or a member
of the Supervisor's staff, the Board of Ethics shall select the mediator
or alternative dispute resolution provider either from the approved
list or in accordance with the Town's Payment and Procurement Policy.
E.
Hearing.
(1)
Upon adoption of the Town Attorney's recommendation to conduct a
formal hearing or upon written request of a party accompanied by a
showing of material facts in dispute, the Supervisor or his/her designee
shall conduct a formal hearing in accordance with the provisions of
this section.
(2)
The Town Board shall, subject to the Town's Payment and Procurement
Policy, approve and maintain a list of qualified outside firms from
which the Supervisor shall select a hearing officer. If no such list
exists, the Supervisor shall retain a hearing officer in accordance
with the Town's Payment and Procurement Policy. If the charged person
is the Supervisor, the Deputy Supervisor or a member of the Supervisor's
staff, the Board of Ethics shall select the hearing officer either
from the approved list or in accordance with the Town's Payment and
Procurement Policy.
(3)
The hearing officer shall: i) be an attorney who is admitted to the
practice of law in the State of New York and be in good standing with
a minimum of five years practice and/or experience in the area of
labor and employment law; ii) be impartial and free of any personal,
professional, or financial interest which would conflict with his
or her objectivity in the hearing; and iii) not have participated
in the underlying investigation.
(4)
Such hearing shall provide an opportunity for parties and witnesses
to be heard, shall be conducted so as to do substantial justice between
the parties according to the rules of substantive law and shall not
be bound by statutory provisions or rules of practice, procedure,
pleading or evidence, except that hearings conducted under this article
will follow the provisions of Article 3 of the New York State Administrative
Procedures Act. The Town Board
is authorized to establish, by resolution, additional rules governing
the procedures for hearings under this article. The hearing should
be conducted in a timely manner and pursued with sufficient diligence
to reach a conclusion without undue delay. The Town may elect to have
legal counsel present at the hearing to represent the Town's interest.
(5)
Within 14 days of the conclusion of such hearing, the Supervisor
or his/her designee shall issue a written statement of findings of
fact, including a determination as to whether or not prohibited conduct
has occurred.
F.
Record. The record maintained with respect to each complaint of wrongdoing,
discrimination, harassment or retaliation shall contain the written
complaint; the Town Attorney's or his/her designee's memo summarizing
the investigation; the recommendation of the Town Attorney or his/her
designee; if a formal hearing is conducted, a record thereof in a
form determined by the Supervisor or his/her designee; the Supervisor's
or his/her designee's statement of findings of fact; and the Supervisor's
or his/her designee's written determination. Such record shall be
available to either party or the designee thereof.
G.
Discipline sanction. Conduct which is found to violate this article
shall be deemed a serious violation of Town policy and shall be the
basis for disciplinary action as set forth herein. The disciplinary
action shall be in accordance with a graduated schedule of penalties
and disciplinary actions to be assessed and instituted by the Supervisor
in accordance with the severity and/or repetitiveness of any finding
and determination of discrimination, harassment or retaliation and
shall include one or more of the following:
(1)
Verbal reprimand to be noted in the offender's personnel file.
(2)
Written reprimand to be included in the offender's personnel
file.
(3)
Transfer as a result of a satisfactory informal resolution procedure
or as a sanction prior to the completion of a Subsection 75 Civil
Service Law hearing or a formal hearing.
(4)
Demotion in grade and title.
(5)
Suspension without pay for a period not exceeding two months.
(6)
Fine not to exceed $100 to be deducted from the salary or wages
of such employee.
(7)
Dismissal of the offender.
H.
Should the procedures set forth herein be inconsistent with the disciplinary
procedures under a collective bargaining agreement in effect for the
Town, then covered employees will be disciplined consistent with the
collective bargaining agreement.
I.
Process when conflict of interest exists. Notwithstanding any provisions
of this article to the contrary:
(1)
In the event the Town Supervisor, Deputy Supervisor or a member of the Supervisor's staff is named in a complaint alleging wrongdoing, unlawful discrimination, harassment or retaliation, or is involved in the incident, or the Town Supervisor otherwise has a conflict, a hearing officer designated pursuant to this article shall, upon a determination that prohibited conduct has occurred, include in his/her written statement of findings of fact a recommendation for disciplinary action as described in § 23-17.12G. If the hearing officer's recommendation is not adopted by the Supervisor, the Supervisor shall prepare a written statement detailing the factual and/or legal basis on which the decision not to adopt the recommendation was based. Such statement shall be made part of the record.
(2)
No person against whom such a complaint has been made shall take
part in any discussion, investigation or decisionmaking process provided
for herein, but this shall not preclude such person from offering
his/her version of the matter to the designated investigator or hearing
officer.
[Amended 9-25-2019 by L.L. No. 14-2019]
The Town Board, by resolution, shall adopt a policy to be provided
to Town employees in order to ensure that all Town employees are informed
of the Town's Anti-Discrimination Law, to assist Town employees who
complain of prohibited conduct and to maintain in each office a working
environment free from discrimination, harassment and retaliation.
If any clause, sentence, paragraph, section, word or part of
this article is adjudged by any court of competent jurisdiction to
be invalid, the judgment shall not affect, impair or invalidate the
remainder of this article but shall be confined in its operation to
the clause, sentence, paragraph, section, word or part of this article
directly involved in the controversy in which judgment is rendered.
