City of Rensselaer, NY Article V Sexual Harassment Prevention Policy

[Adopted 9-21-2016 by L.L. No. 4-2016; amended 6-7-2023 by L.L. No. 5-2023]

§ 37-20 Policy statement.

A. The City of Rensselaer is committed to maintaining a workplace free from sexual harassment. Sexual harassment, which includes harassment on the basis of sex, self-identified or perceived sex or gender, sexual orientation, gender identity, gender expression or transgender status, is a form of workplace discrimination. Sexual harassment is considered a serious form of employee misconduct. All employees, interns, volunteers, and nonemployees are required to work in a manner that prevents sexual harassment in the workplace. Any employee, intern, volunteer, or nonemployee in the workplace who engages in sexual harassment or retaliation will be subject to remedial and/or disciplinary action, up to and including termination. This policy is one component of the City of Rensselaer commitment to a discrimination-free work environment.[1]

[1] Note that other forms of discrimination, as well as harassment based on protected classes or characteristics other than those covered under this policy are covered separately under the City of Rensselaer Discrimination and Discriminatory Harassment Policy.

B. Sexual harassment is against the law. All persons have a legal right to a workplace free from sexual harassment. This right can be enforced by filing a complaint internally with the City of Rensselaer, and/or with a government agency or in court under federal, state or local antidiscrimination laws.

C. Sexual harassment is offensive, is a violation of our policies, is unlawful, and may subject the City of Rensselaer to liability for harm to targets of sexual harassment. In New York, harassment does not need to be severe or pervasive to be illegal. Harassers may also be individually subject to liability. Those covered by this policy who engage in sexual harassment, and managers and supervisors who engage in sexual harassment or who knowingly allow such behavior to continue, will be subject to remedial action or discipline in accordance with law or an applicable collective bargaining agreement.

D. This policy also prohibits retaliation against individuals who report or complain of sexual harassment or participate in the investigation of a sexual harassment complaint, as further described herein.

E. The City of Rensselaer will conduct a prompt, thorough and confidential investigation that ensures due process for all parties, whenever the City of Rensselaer or its supervisory or managerial personnel receives a complaint about sexual harassment or retaliation, or otherwise knows of possible sexual harassment occurring. The City of Rensselaer will keep the investigation confidential to the extent possible. Effective corrective action will be taken whenever sexual harassment or retaliation is found to have occurred. All persons covered by this policy, including managers and supervisors, are required to cooperate with any internal investigation of sexual harassment.

F. All employees, interns, volunteers, and nonemployees are encouraged to report any harassment or behaviors that violate this policy. The City of Rensselaer will provide a complaint form for the reporting of harassment and to file complaints. Managers and supervisors are required to report any complaint that they receive, or any harassment that they observe or become aware of in the workplace. Confronting the harasser is not required but is encouraged if the complainant feels it is possible and safe to do so. Anyone covered by this policy has the right to file a good faith complaint without first communicating with the offender.

§ 37-21 Scope.

A. Who is covered by this policy? This policy applies to all employees, applicants for employment, interns, whether paid or unpaid, volunteers, nonemployees and persons conducting business with the City of Rensselaer.[1]

[1] Nonemployees, as defined by law, includes contractors, vendors and consultants or those who are employees of the contractor, vendor or consultant.

B. 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 who provide services in the workplace. This policy also protects volunteers of the City of Rensselaer.

C. Who can be a sexual harasser? A harasser can be a superior, a subordinate, a coworker or anyone in the workplace including an independent contractor, contract worker, vendor, client, customer or visitor, or anyone with whom the person interacts while conducting their job duties.

D. Where can sexual harassment occur? Unlawful sexual harassment is not limited to the physical workplace itself. It can occur while employees, interns and/or volunteers are traveling for business or at employer sponsored events or parties. Calls, texts, emails, and social media usage can constitute or contribute to unlawful workplace harassment, even if occurring away from the workplace premises or not during work hours.

§ 37-22 Definitions of prohibited conduct.

A. What is sexual harassment?

(1) 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, self-identified or perceived sex or gender, sexual orientation, gender identity, gender expression or transgender status.

(2) Understanding gender diversity is essential to recognizing sexual harassment because discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment. The gender spectrum is nuanced, but the three most common ways people identify are cisgender, transgender, and non-binary. A cisgender person is someone whose gender aligns with the sex they were assigned at birth. Generally, this gender will align with the binary of male or female. A transgender person is someone whose gender is different than the sex they were assigned at birth. A nonbinary person does not identify exclusively as a man or a woman. They might identify as both, somewhere in between, or completely outside the gender binary. Some may identify as transgender, but not all do. Respecting an individual's gender identity is a necessary first step in establishing a safe workplace.

(3) Sexual harassment is unlawful when it subjects an individual to inferior terms, conditions, or privileges of employment. Harassment does not need to be severe or pervasive to be illegal. It can be any harassing behavior that rises above petty slights or trivial inconveniences. Every instance of harassment is unique to those experiencing it, and there is no single boundary between petty slights and harassing behavior. However, the Human Rights Law specifies that whether harassing conduct is considered petty or trivial is to be viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics. Generally, any behavior in which an employee or covered individual is treated worse because of their gender (perceived or actual), sexual orientation, or gender expression is considered a violation of the City of Rensselaer policy. The intent of the behavior, for example, making a joke, does not neutralize a harassment claim. Not intending to harass is not a defense. The impact of the behavior on a person is what counts.

(a) 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 complaining 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.

(4) 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, self-identified or perceived sex or gender, sexual orientation, gender identity, gender expression or transgender status. 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, and/or which interfere with the recipient's job performance.

(5) Sexual harassment also occurs when a person in authority tries to offer 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.

(6) Anyone subject to and/or covered by this policy who feels harassed should complain so that any violation of this policy can be corrected promptly. Any harassing conduct, even a single incident, can be addressed under this policy.

B. Examples of sexual harassment.

(1) Sexual harassment under the law and prohibited by this policy may include, but is not limited to, the following prohibited conduct:

(a) Physical assaults of a sexual nature, such as:

[1] Touching, pinching, patting, grabbing, brushing against another person's body or poking another person's body; rape, sexual battery, molestation or attempts to commit these assaults (which should be reported to local authorities as promptly as is possible); or

[2] Rape, sexual battery, molestation, or attempts to commit these assaults, which may be considered criminal conduct outside the scope of this policy (please contact local law enforcement if you wish to pursue criminal charges).

(b) Unwanted sexual advances or propositions, such as:

[1] Requests for sexual favors accompanied by implied or overt threats concerning the target's job performance evaluation, a promotion or other employment benefits or detriments;

[2] Subtle or obvious pressure for unwelcome sexual activities; or

[3] Repeated requests for dates or romantic gestures, including gift-giving.

(c) Sexually oriented gestures, noises, remarks, jokes or comments about a person's sexuality, sexual experience, or romantic history which create a hostile work environment. This is not limited to interactions in person. Remarks made over virtual platforms and in messaging apps when employees are working remotely can create a similarly hostile work environment.

(d) Sex stereotyping, which occurs when conduct or personality traits are considered inappropriate or treated negatively simply because they may not conform to other people's ideas or perceptions about how individuals of a particular sex should look or act, including:

[1] Remarks regarding an employee's gender expression, such as wearing a garment typically associated with a different gender identity; or

[2] Asking employees to take on traditionally gendered roles, such as asking a woman to serve meeting refreshments when it is not part of, or appropriate to, her job duties.

(e) Sexual or discriminatory displays or publications anywhere in the workplace, such as:

[1] 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 or in a work-related gathering or setting.

[2] This extends to the virtual or remote workspace and can include having such materials visible in the background of one's home during a virtual meeting.

(f) Hostile actions taken against an individual because of that individual's sex, self-identified or perceived sex or gender, sexual orientation, gender identity, gender expression or transgender status, such as:

[1] Interfering with, destroying or damaging a person's workstation, tools or equipment, or otherwise interfering with the individual's ability to perform the job;

[2] Sabotaging an individual's work;

[3] Bullying, yelling, name-calling;

[4] Intentional misuse of an individual's preferred pronouns; or

[5] Creating different expectations for individuals based on their perceived identities;

[6] Dress codes that place more emphasis on women's attire;

[7] Leaving parents/caregivers out of meetings.

C. Retaliation.

(1) In addition to sexual harassment, retaliation for opposing or complaining of sexual harassment or participating in investigations of sexual harassment is prohibited by law and prohibited under this policy. No person covered by this policy shall be subjected to such unlawful retaliation. Unlawful retaliation can be any adverse employment action, including being discharged, disciplined, discriminated against, or any action that would keep or discourage anyone covered by this policy from coming forward to make or support a sexual harassment claim. Adverse action need not be job-related or occur in the workplace to constitute unlawful retaliation.

(2) The New York State Human Rights Law and this policy protect any individual who has engaged in "protected activity." Protected activity occurs when a person has:

(a) Made a complaint of sexual harassment, either internally or with any antidiscrimination agency;

(b) Testified or assisted in a proceeding involving sexual harassment under this policy, the State Human Rights Law or other antidiscrimination law;

(c) Opposed sexual harassment by making a verbal or informal complaint to the City of Rensselaer (including a supervisor or manager) or by simply informing a supervisor or manager of harassment;

(d) Reported that another employee, intern, volunteer or non-employee covered by this policy has been sexually harassed; or

(e) Encouraged a fellow employee, intern, volunteer and/or non-employee covered by this policy to report harassment.

(3) Employees, interns, volunteers, and nonemployees who believe they have been subjected to retaliation should report this conduct in accordance with the same reporting procedures as are outlined below. These complaints of retaliation will be investigated in accordance with the same procedures utilized to investigate a complaint of sexual harassment. Individuals also may file complaints of retaliation with the federal or state enforcement agencies (EEOC or New York State Division of Human Rights.) Any individual found to have engaged in retaliation as defined in this Policy may be subject to disciplinary action up to and including termination, and/or other corrective or remedial action as necessary.

§ 37-23 Reporting procedures and responsibilities.

A. Reporting procedures.

(1) Preventing sexual harassment is everyone's responsibility. The City of Rensselaer cannot prevent or remedy sexual harassment unless it knows about it. Any employee, intern, volunteer or nonemployee who has been subjected to behavior that may constitute sexual harassment is encouraged to report such behavior to a supervisor, department head or their designee. Anyone who witnesses or becomes aware of potential or perceived instances of sexual harassment should report such behavior to a supervisor, department head or their designee.

(2) Although encouraged, note that neither this policy nor state or federal law requires that an individual tell an alleged harasser to stop his/her actions. Failure to do so does not preclude the individual from filing a complaint of sexual harassment. Individuals should feel free to keep written records of any actions which may constitute sexual harassment, including time, date, location, names of others involved, witnesses (if any), and who said or did what to whom.

(3) Reports of sexual harassment may be made verbally or in writing. A form for submission of a written complaint is attached to this policy, and all employees, interns, volunteers, and nonemployees conducting business in the workplace are encouraged to use this complaint form. Individuals who are reporting sexual harassment on behalf of other employees, interns, volunteers or nonemployees should use the complaint form and note that it is on another person's behalf.

(4) Employees, interns, volunteers or nonemployees who believe they have been a target of sexual harassment may also seek assistance in other available forums, as explained below in the section on legal protections.

B. Supervisory responsibilities.

(1) All managerial and supervisory personnel of the City of Rensselaer shall be responsible for enforcing this policy and shall have particular responsibility for ensuring that the work environment under their supervision is free from sexual harassment and retaliation. In addition to being subject to discipline or other remedial action if they engaged in sexually harassing conduct themselves, all supervisors and managers who receive a complaint or information about suspected sexual harassment, observe what may be sexually harassing behavior or for any reason suspect that sexual harassment is occurring, are required to report same to the human resources manager and/or their designee. Supervisors and managers will be subject to discipline (or other remedial and appropriate action) for failing to report suspected sexual harassment or otherwise knowingly allowing sexual harassment to continue.

(2) Supervisors and managers will also be subject to discipline or other appropriate remedial action for engaging in retaliation.

(3) While supervisors and managers have a responsibility to report harassment and discrimination, supervisors and managers must be mindful of the impact that harassment and a subsequent investigation has on victims. Being identified as a possible victim of harassment and questioned about harassment and discrimination can be intimidating, uncomfortable and retraumatizing for individuals. Supervisors and managers must accommodate the needs of individuals who have experienced harassment to ensure the workplace is safe, supportive, and free from retaliation for them during and after any investigation.

C. City of Rensselaer responsibilities.

(1) The City of Rensselaer will be responsible for ensuring that this policy is provided to employees, interns, and volunteers. The City of Rensselaer will also ensure that annual training is conducted on sexual harassment.

D. Bystander intervention.

(1) Any employee witnessing harassment as a bystander is encouraged to report it. A supervisor or manager that is a bystander to harassment is required to report it. There are five standard methods of bystander intervention that can be used when anyone witnesses harassment or discrimination and wants to help.

(a) A bystander can interrupt the harassment by engaging with the individual being harassed and distracting them from the harassing behavior;

(b) A bystander who feels unsafe interrupting on their own can ask a third party to help intervene in the harassment;

(c) A bystander can record or take notes on the harassment incident to benefit a future investigation;

(d) A bystander might check in with the person who has been harassed after the incident, see how they are feeling and let them know the behavior was not ok; and

(e) If a bystander feels safe, they can confront the harassers and name the behavior as inappropriate. When confronting harassment, physically assaulting an individual is never an appropriate response.

(2) Though not exhaustive, and dependent on the circumstances, the guidelines above can serve as a brief guide of how to react when witnessing harassment in the workplace. Any employee witnessing harassment as a bystander is encouraged to report it. A supervisor or manager that is a bystander to harassment is required to report it.

§ 37-24 Investigation and response procedures.

A. All complaints or information about suspected sexual harassment 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 will be prompt and thorough, commencing immediately and completed as soon as possible. The investigation will be confidential to the extent possible. All persons involved, including complainants, witnesses and alleged harassers will be accorded appropriate due process to protect their rights to a fair and impartial investigation.

C. Any employee, volunteer, intern or non-employee may be required to cooperate as needed in an investigation of suspected sexual harassment. As further set forth herein, the City of Rensselaer will not tolerate retaliation against those who file complaints, support another's complaint, or participate in the investigation of a complaint.

D. All investigations will be conducted by the human resources manager and/or their designee. The nature of an investigation may vary on a case by case basis dependent upon the circumstances and extent of the allegations. Generally, investigations should be conducted by the human resources manager and/or their designee and in accordance with the following steps:

(1) Upon receipt of complaint, the human resources manager and/or their designee will conduct an immediate review of the allegations, and take interim actions, as appropriate. If the complaint is oral, encourage the individual to complete the "complaint form" in writing. If he or she refuses, prepare a complaint form based on the oral reporting.

(2) If documents, emails or phone records are relevant to the allegations, 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 (at a minimum) written documentation of the investigation (such as a letter, memo or email), 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 their statements;

(c) A timeline of events;

(d) A summary of prior relevant incidents, reported or unreported; and

(e) Recommendation(s) for the final resolution of the complaint, together with any recommendations for corrective or remedial actions to be taken.

(6) Keep the written documentation and associated documents in the employer's records.

(7) Submit the investigation report to the human resources manager and/or their designee.

E. Once the investigation report has been submitted to the human resources office, he/she or his/her designee shall review and make a final determination as to whether the policy has been violated.

F. The human resources manager and/or their designee shall promptly notify the complainant of the final determination, and also inform the complainant of their right to file a complaint or charge externally as outlined below.[1]

[1] Where a complaint was filed regarding sexual harassment against an individual other than the person making the written complaint, the person against whom the harassment was directed will be treated as the complainant for purposes of this policy.

G. If a complaint of sexual harassment or retaliation is determined to be founded, the City of Rensselaer may take disciplinary and/or corrective action. The human resources manager and/or their designee will be responsible for implementing any corrective or remedial actions deemed necessary.

§ 37-25 Reimbursement.

Any employee who has been subject to a judgement of personal liability for intentional wrongdoing in connection with a claim for sexual harassment shall reimburse the City of Rensselaer for any monies it paid to a complainant for what was found to be the employee's proportionate share of said judgement. These reimbursements must be made within 90 days from payment by the City of Rensselaer to the complainant. A failure to reimburse will result in the sum being withheld directly from the employee's compensation or through enforcement of a money judgement.

§ 37-26 Further confidentiality and disclosure.

A. In recognition of the personal nature of discrimination complaints and the emotional impact of alleged discrimination, the City of Rensselaer shall keep complaints as confidential as is consistent with a thorough investigation, applicable collective bargaining agreements, and other laws and regulations regarding employees and the workplace setting. For the protection of all individuals who make complaints or are accused of prohibited discrimination, every witness interviewed during an investigation under this policy will be advised of the confidentiality requirement and instructed not to discuss the complaint, the investigation, or the persons involved. To the extent complaints made under this policy implicate criminal conduct, the City of Rensselaer may be required by law to contact and cooperate with the appropriate law enforcement authorities.

B. The terms of any settlement or other resolution are subject to disclosure unless the complainant seeks confidentiality. This request for confidentiality may be revoked within a certain time period in accordance with state law.

§ 37-27 False reports.

Reporting of a false complaint is a serious act. In the event it is found that an individual bringing the complaint has knowingly made false allegations, the City of Rensselaer may take appropriate remedial action and/or disciplinary action in accordance with the provisions of applicable collective bargaining agreement and/or state law.

§ 37-28 Legal protections and external remedies.

Sexual harassment is not only prohibited by the City of Rensselaer but is also prohibited by state, federal, and, where applicable, local law. Aside from the internal process at the City of Rensselaer, individuals may also choose to pursue legal remedies with the following governmental entities at any time.

A. New York State Division of Human Rights (DHR).

(1) The Human Rights Law (HRL), codified as N.Y. Executive Law, Art. 15, § 290 et seq., applies to employers in New York State with regard to sexual harassment, and protects employees, interns and nonemployees. A complaint alleging violation of the Human Rights Law may be filed either with Division of Human Rights or in New York State Supreme Court. Complaints of sexual harassment with DHR may be filed any time within three years 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 discrimination. An individual may not file with DHR if they have already filed a HRL complaint in state court.

(2) Complaining internally to the City of Rensselaer does not extend the time for filing a complaint with DHR or in court. The one year or three years is counted from date of the most recent incident of harassment.

(3) An individual does not need an attorney to file a complaint with DHR, and there is no cost to file with DHR.

(4) DHR will investigate the complaint and determine whether there is probable cause to believe that discrimination has occurred. Probable cause cases are forwarded to a public hearing before an administrative law judge. If discrimination is found after a hearing, DHR has the power to award relief, which varies but may include requiring the employer to act to stop the harassment, or redress the damage caused, including paying monetary damages, attorney's fees and civil fines.

(5) Contact DHR at [phone] 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.

(6) New York State Division of Human Rights also created a toll-free, confidential hotline at 1-800-427-2773 (1-800-HARASS-3) to provide counsel and assistance to individuals experiencing workplace sexual harassment, which is available Monday through Friday from 9:00 a.m. to 5:00 p.m.

B. United States Equal Employment Opportunity Commission (EEOC).

(1) The EEOC enforces federal antidiscrimination laws, including Title VII of the 1964 federal Civil Rights Act (codified as 42 U.S.C. § 2000e 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.

(2) 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.

(3) If an individual believes that he/she has been discriminated against at work, he/she 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 (1-800-669-6820 (TTY)), visiting their website at www.eeoc.gov or via email at [e-mail].

(4) 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.

C. Local protections.

(1) 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.

D. Contact the local police department.

(1) If the harassment involves physical touching, coerced physical confinement or coerced sex acts, the conduct may constitute a crime. Contact the local police department.

§ 37-29 Conclusion.

The policy outlined above is aimed at providing employees at the City of Rensselaer and covered individuals an understanding of their right to a discrimination and harassment free workplace. All employees should feel safe at work. Though the focus of this policy is on sexual harassment and gender discrimination, the New York State Human Rights law protects against discrimination in several protected classes including sex, sexual orientation, gender identity or expression, age, race, creed, color, national origin, military status, disability, predisposing genetic characteristics, familial status, marital status, criminal history, or domestic violence survivor status. The prevention policies outlined above should be considered applicable to all protected classes.