[Added 11-13-2018 by Ord.
No. 5-2018[1]]
[1]
Editor's Note: This ordinance provided an effective date of
11-14-2018.
A.
The City of Newburgh is committed to maintaining a workplace that
is free from sexual harassment. Sexual harassment is a form of workplace
discrimination and will not be tolerated. All employees are required
to work in a manner that prevents sexual harassment in the workplace.
This policy is one component of the City's commitment to a discrimination-free
work environment.
B.
Sexual harassment is against the law. All employees, applicants for
employment, interns, nonemployees (as defined below) and other persons
conducting business with the City have a legal right to a workplace
that is free from sexual harassment.
A.
This policy applies to all employees, applicants for employment,
interns, nonemployees (see definition below), and other persons conducting
business with the City, regardless of immigration status ("covered
individuals"), with respect to conduct by other persons.
B.
For purposes of this policy, a "nonemployee" is an independent contractor,
agent or someone who is (or who is employed by) a contractor, subcontractor,
vendor, consultant or anyone providing services in the workplace.
Nonemployees also include volunteers, temporary workers, persons providing
equipment repair, cleaning services or any other service pursuant
to a contract, or other relationship with the City.
C.
All covered individuals must follow and uphold this policy.
D.
Sexual harassment is a form of misconduct and will not be tolerated.
Sexual harassment is offensive, a violation of the City's policies,
unlawful, and may subject the City to liability for harm to targets
of sexual harassment. Sexual harassers may also be individually subject
to liability.
E.
Following receipt of a complaint about sexual harassment or of knowledge
regarding possible sexual harassment that is occurring or has occurred,
the City will conduct a prompt, thorough and confidential investigation
that ensures due process for all parties. Appropriate corrective action,
subject to any statutory or contractual limitations, will be taken
whenever sexual harassment is found to have occurred.
F.
What is "sexual harassment"?
(1)
Sexual harassment is a form of sex discrimination and is unlawful
pursuant to 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.
(2)
Sexual harassment includes unwelcome conduct that is of a sexual
nature or that is directed at an individual because of his/her sex,
sexual orientation, gender identity or transgender status when:
(a)
The 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;
(b)
The conduct is made either explicitly or implicitly a term or
condition of employment; or
(c)
Submission to or rejection of the conduct is used as the basis
for employment decisions affecting an individual's employment.
(3)
A sexually harassing hostile work environment includes, but is not
limited to, words, signs, jokes, pranks, intimidation or physical
violence that are of a sexual nature, or that are directed at an individual
because of his/her sex, sexual orientation, gender identity 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 that are offensive or objectionable
to the recipient, which cause the recipient discomfort or humiliation
or that interfere with his/her job performance.
(4)
Sexual harassment also occurs when a person in authority tries to
trade job benefits for sexual favors. Job benefits may include hiring,
promotion, continued employment or any other terms, conditions or
privileges of employment. This is also called "quid pro quo" harassment.
(5)
Any covered individual who believes that he/she is being or has been
sexually harassed should report the sexual harassment so that any
violation of this policy can be promptly corrected. Any sexually harassing
conduct, even a single incident, can be addressed pursuant to this
policy.
G.
Examples of sexual harassment. The following describes some of the
types of acts that are strictly prohibited and that may constitute
unlawful sexual harassment:
(3)
Sexually oriented gestures, noises, remarks, jokes or comments about
a person's sexuality or sexual experience that creates a hostile
work environment.
(4)
Sex stereotyping which 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, including:
(a)
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.
(6)
Hostile actions taken against an individual because of his/her sex,
sexual orientation, gender identity or transgender status, including:
H.
Who can be a target of sexual harassment? Sexual harassment can occur
between or among any individuals, regardless of their sex or gender.
New York Law protects covered individuals from sexual harassment.
Sexual harassers can be a superior, a subordinate, a co-worker or
anyone in the workplace, including another covered individual or any
other person, including a visitor.
I.
Where can sexual harassment occur? Unlawful sexual harassment is
not limited to the physical workplace itself. It can also occur outside
of the workplace while covered individuals are traveling for work
or at employer-sponsored events, programs, activities or parties.
Calls, texts, e-mails, and social media usage can constitute unlawful
workplace harassment even if they occur away from the workplace premises,
on personal devices or outside of work hours.
A.
Retaliation against anyone who, in good faith, complains, provides
information or assists in an investigation of suspected sexual harassment
as a witness or otherwise will not be tolerated.
B.
No covered individual will be subject to adverse action(s) (e.g.,
being discharged, disciplined, discriminated against, etc.) because
that person, in good faith, reports an incident of sexual harassment,
provides information, or otherwise participates in any investigation
of a sexual harassment complaint.
C.
Appropriate corrective action, subject to any statutory or contractual
limitations, including, but not limited to, disciplinary action, termination
of employment and/or termination of any contractual or other relationship
with the City will be implemented.
D.
Unlawful retaliation can be any action that could discourage a covered
individual 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 (e.g., threats of physical violence
outside of work hours).
E.
Retaliation is unlawful pursuant to 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, in good faith:
(1)
Made a complaint of sexual harassment, either internally or with
any anti-discrimination agency;
(2)
Testified or assisted in a proceeding involving sexual harassment
pursuant to the Human Rights Law or other anti-discrimination law;
(3)
Opposed sexual harassment 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
(5)
Encouraged a fellow employee to report sexual harassment.
[1]
Editor's Note: See Executive Law § 290 et seq.
F.
Even if the alleged sexual harassment does not rise to the level
of a violation of law, the individual is protected from retaliation
if he/she had a good faith belief that the practices were unlawful.
The retaliation provision is not intended, however, to protect persons
making intentionally false charges of sexual harassment.
G.
Any covered individual who believes that he/she has been a target
of any acts of retaliation in violation of this policy should immediately
report that conduct to his/her immediate supervisor or any individual
designated, in writing, by the City Manager as a Harassment Complaint
Officer. If the complaint involves or the individual is hesitant to
report to his/her immediate supervisor or a Harassment Complaint Officer,
the individual should report the conduct to the City Manager. If the
complaint involves or the individual is hesitant to report to the
City Manager, the individual is encouraged to report the behavior
to the Mayor. Individuals should not feel obligated to bring their
complaints to their immediate supervisor before bringing the matter
to the attention of a Harassment Complaint Officer, the City Manager
or the Mayor.
H.
Contact information for these individuals can be found on the City's
website at https://www.cityofnewburgh-ny.gov.
I.
Anyone who believes that he/she has been a target of prohibited retaliation
may seek legal remedies, as explained below in the section on legal
protections.
A.
Preventing sexual harassment is everyone's responsibility. The
City cannot prevent or remedy sexual harassment unless we know about
it.
B.
All covered individuals are encouraged to report any behavior that
may constitute sexual harassment in violation of this policy to his/her
immediate supervisor or any individual designated, in writing, by
the City Manager as a Harassment Complaint Officer. If the complaint
involves or the individual is hesitant to report to his/her immediate
supervisor or a Harassment Complaint Officer, the individual should
report the conduct to the City Manager. If the complaint involves
or the individual is hesitant to report to the City Manager, the individual
is encouraged to report the behavior to the Mayor. Individuals should
not feel obligated to bring their complaints to their immediate supervisor
before bringing the matter to the attention of a Harassment Complaint
Officer, the City Manager or the Mayor.
C.
Contact information for these individuals can be found on the City's
website at https://www.cityofnewburgh-ny.gov.
D.
Anyone who witnesses or becomes aware of a potential instance of
sexual harassment should also report this behavior to one of the above
individuals.
E.
Reports of sexual harassment may be made orally or in writing. A
form for submission of a written complaint is attached to this policy,[1] and all covered individuals are encouraged to use this
complaint form. If a covered individual reports sexual harassment
on behalf of someone else, he/she should use the written complaint
form and note that he/she is submitting the complaint on someone else's
behalf.
[1]
Editor's Note: Said form is on file in the City offices.
F.
Anyone who believes that he/she has been a target of prohibited sexual
harassment may seek legal remedies, as explained below in the section
on legal protections.
G.
Supervisory responsibilities.
(1)
Any supervisor or manager who receives a complaint or information
about suspected sexual harassment, observes what may be sexually harassing
behavior or for any reason becomes aware of or suspects that sexual
harassment is occurring or has occurred is required to report that
suspected sexual harassment to a Harassment Complaint Officer, irrespective
of whether the affected individual files a complaint. If the complaint
or information involves the Harassment Complaint Officer, the supervisor/manager
must report the suspected sexual harassment to the City Manager. If
the complaint or information involves the City Manager, the supervisor/manager
must report the suspected sexual harassment to the Mayor.
(2)
Contact information for these individuals can be found at https://www.cityofnewburgh-ny.gov.
(3)
In addition to potentially being subject to appropriate corrective
action, subject to any statutory or contractual limitations, if they
engage in sexually harassing conduct or retaliation themselves, supervisors
and managers will be subject to appropriate corrective action, subject
to any statutory or contractual limitations, for failing to report
suspected sexual harassment or for otherwise knowingly allowing sexual
harassment to continue. Corrective action includes, but is not limited
to, disciplinary action or termination of employment.
H.
Complaint and investigation of sexual harassment.
(1)
All complaints or information about sexual harassment will be investigated,
whether that information was reported in oral or written form. An
investigation of any complaint, information or knowledge of suspected
sexual harassment will be prompt and thorough, commenced immediately
and completed as soon as possible. All persons involved, including
complainants, witnesses and alleged sexual harassers will be afforded
due process, as outlined below, to protect their rights to a fair
and impartial investigation.
(2)
All covered individuals, including supervisors and managers, may
be required to cooperate as needed in an investigation of suspected
sexual harassment to the extent permitted by law. Anyone who participates
in an investigation will not be retaliated against for that reason.
The City will not tolerate retaliation against anyone who files a
complaint, supports another's complaint or participates in an
investigation regarding a violation of this policy.
(3)
While the process may vary from case to case, the following investigation
procedure must be followed when there is any indication that sexual
harassment has taken, or is taking, place:
(a)
The City Manager, or designee, will investigate all complaints
of sexual harassment, except as otherwise outlined herein. Third parties
may be designated to investigate a complaint or assist with any investigation.
If the complaint involves the City Manager, then the Mayor, or designee,
will investigate the complaint(s) in accordance with the below procedure,
except as otherwise outlined herein.
(b)
Upon receipt of a complaint or report of suspected sexual harassment,
the City Manager, or designee, will conduct an immediate review of
the allegations. If the complaint is oral, the City Manager, or designee,
will encourage the complainant or informant to complete the written
complaint form, a copy of which is attached to this policy.[2] If he or she refuses, the City Manager, or designee, will
prepare a complaint form based on the oral reporting.
[2]
Editor's Note: Said form is on file in the City offices.
(c)
If documents, e-mails, phone records or other paper or electronic
records are relevant to the allegations, the City will take steps
to obtain and preserve them.
(d)
The City Manager, or designee, will request and review all relevant
documents, including all electronic communications.
(e)
The City Manager, or designee, will interview all parties involved,
including any relevant witnesses.
(f)
All records of the investigation will be maintained in a secure
and confidential location.
(g)
The City Manager, or designee, will notify the individual who
complained and the alleged perpetrator of the outcome of the investigation.
(h)
The City Manager, or designee, will inform the individual who
complained of his/her right to file a complaint or charge externally,
as outlined below.
I.
Corrective action.
(1)
Any person, including covered individuals of every level, who, upon
an investigation in accordance with this policy, is determined to
have engaged in impermissible sexual harassment or retaliation in
violation of this policy will be subject to appropriate corrective
action, subject to any statutory or contractual limitations, including,
but not limited to, disciplinary action (e.g., suspension or termination
of employment).
(2)
If the sexual harassment involves a nonemployee or other individual,
then other consequences may be implemented up to and including termination
of any contractual or other relationship between the City and the
nonemployee or other individual.
J.
Confidentiality. The confidentiality and privacy of all parties involved
in a complaint, report or investigation of suspected sexual harassment
or retaliation in accordance with this policy will be respected to
the extent possible while permitting the City to conduct a thorough
investigation of the complaint or report and take appropriate corrective
action as necessary.
K.
Bad faith claims. If, after investigating a complaint of sexual harassment,
it is determined that a person has made a claim of sexual harassment
or retaliation in bad faith, or intentionally provided false information
regarding a claim of sexual harassment or retaliation, legal action
and/or appropriate corrective action, including, but not limited to,
disciplinary action, termination of employment and/or termination
of any contractual or other relationship with the City, may be taken
against that person, subject to any statutory or contractual limitations.
Sexual harassment is not only prohibited by the City, but it
is also prohibited by state, federal and (where applicable) local
law. Aside from the internal process at the City, covered individuals
may also choose to pursue legal remedies, including, for example,
in court and/or with the below 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.
A.
New York State Human Rights Law (HRL).
(1)
The HRL, codified as New York Executive Law, Art. 15, § 290
et seq., applies to employers in New York State with regard to sexual
harassment and protects employees, paid and 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. Complaints with the
DHR may be filed any time within one year of the harassment. If an
individual did not file at the DHR, they can sue directly in state
court pursuant to the HRL within three years of the alleged harassment.
An individual may not file with the DHR if they have already filed
an HRL complaint in state court.
(2)
Complaining internally to the City does not extend your time to file
with the DHR or in court. The one-year and three-year time periods
outlined above are counted from the date of the most recent incident
of harassment.
(3)
You do not need an attorney to file a complaint with the DHR, and
there is no cost to file. The 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, the DHR has the authority to award relief,
which varies but may include requiring an employer to take action
to stop the harassment, or redress the damage caused, including paying
monetary damages, attorneys' fees and civil fines.
(4)
The DHR's main office contact information is: NYS Division of
Human Rights, One Fordham Plaza, Fourth Floor, Bronx, New York 10458,
(718) 741-8400. The contact information for DHR's White Plains
Office (which serves Orange County) is: 7-11 South Broadway, Suite
314, White Plains, New York 10601, Telephone No. (914) 989-3120, eFax:
(914) 989-3122, InfoWhitePlains@dhr.ny.gov.www.dhr.ny.gov. Individuals
can contact the 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 the
DHR. The website also contains contact information for DHR's
regional offices across New York State.
B.
Civil Rights Act of 1964.
(1)
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. § 2000e
et seq.). An individual can file a complaint with the EEOC any time
within 300 days from the harassment. You do not need an attorney to
file a complaint with the EEOC and there is no cost to file. 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 employee 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 e-mail at info@eeoc.gov. If an
individual filed an administrative complaint with the DHR, the 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 or work to find out if one or more of these
laws exist.
(2)
For example, anyone who lives or works in Orange County may file
complaints of sexual harassment with the Orange County Human Rights
Commission at: 40 Matthews Street, Suite 301, Goshen, NY 10924, (845)
615-3680.
D.
Contact the Police Department. If the sexual harassment involves
physical touching, coerced physical confinement or coerced sexual
acts, the conduct may constitute a crime, and affected individuals
should contact the Police Department.
A.
This policy should be posted prominently in all work locations to
the extent practicable (for example, in a main office, but not an
off-site work location). The City will provide this policy to all
employees and will provide this policy to new employees upon hire.
B.
All employees will receive sexual harassment prevention training
at least annually.
C.
We trust that everyone will continue to act responsibly to establish
a working environment free of sexual harassment. We encourage you
at any time to raise any questions you may have about this policy.
If any clause, sentence, paragraph, section or part of this
article shall be adjudged by any court of competent jurisdiction to
be invalid or otherwise unenforceable, such judgment shall not affect,
impair or invalidate the remainder thereof but shall be confined in
its operation to the clause, sentence, paragraph, section or part
thereof directly involved in the controversy in which such judgment
shall have been rendered.
