APPLICABILITY & PURPOSE

This Personnel Management Regulation (PMR) defines County of Marin policy and procedure for Equal Employment Opportunity, Anti-Harassment and Anti-Retaliation in employment.

CONTENTS

21.1 Policy
21.2 Discrimination and Retaliation
A. Discrimination Defined
B. Retaliation Defined
21.3 Harassment
A. Harassment Defined
21.4 Complaint Resolution Process for Alleged Discrimination, Harassment or Retaliation
A. Reporting Obligations
1. Supervisors and Managers
2. Other Employees
3. All Employees
B. Investigation
21.5 Discrimination Appeals
A. Right to Internal Appeal
1. Examination Appeal
2. Selection Appeal
3. Classification Appeal
4. Discipline Appeal
5. Other Discrimination or Retaliation Appeals
B. Internal Appeal Procedure
21.6. External Complaint
APPROVAL

FORMS AND ATTACHMENTS

21.1 Policy

A. The Marin County Board of Supervisors, in compliance with all applicable federal, state and local laws, is committed to being an equal opportunity employer and has zero tolerance for any form of discrimination, harassment, or retaliation based on any Protected Class, as defined below in Section 21.1 B. All personnel actions including, but not limited to, recruiting, hiring, training, promoting, compensating, transferring and laying off, shall be based on merit and job requirements, without regard to Protected Classes.

B. Protected classes include actual or perceived membership in the following classes: (a) sex; (b) race; (c) color; (d) ancestry; (e) religious creed; (f) national origin; (g) physical or mental disability; (h) medical condition; (i) age; (j) marital status; (k) the taking of protected family and medical leave; (l) sexual orientation, (m) gender identity or expression; and n) genetic information. (collectively “Protected Classes” or individually “Protected Class”).

C. It is the duty and responsibility of all appointing authorities and County employees to adhere to the provisions of this policy.

D. County personnel procedures will not allow for the use of or collaboration with any organization that prohibits employment in violation of federal or state discrimination laws.

E. This policy of equal employment opportunity will be a part of new employee orientation.

21.2 Discrimination and Retaliation

A. Discrimination Defined

1. In conformance with the Board policy to provide a workplace free from discrimination and to provide for equal employment opportunities, barring any lawful or valid reasons, all employees and applicants will have equal access to County operations and employment regardless of their actual or perceived status in a Protected Class.

B. Retaliation Defined

1. Retaliation constitutes a violation of this policy. Retaliation is defined as any adverse employment action which would not have occurred but for the complaining party’s engaging in opposition to employment practices that violate the County’s equal employment or anti-harassment policies. An adverse employment action could include but is not limited to a decrease in pay, change of hours, or reduction in authority and responsibility. Retaliation for filing a complaint about, or participating in, a PMR 21 investigation is also a violation of this policy and will not be tolerated.

21.3 Harassment

A. Harassment Defined

1. Harassment constitutes a violation of this policy.

2. Harassment is unwelcome verbal, physical, visual, written or environmental misconduct based on a Protected Class, which is offensive to a reasonable person in like or similar circumstances.

3. Prohibited harassment can consist of virtually any form or combination of verbal, physical, visual/written or environmental conduct. It need not be explicit, or even specifically directed at the victim.

4. Prohibited harassment includes, but is not limited to, the following misconduct:

a. Verbal Misconduct: remarks, slurs, jokes, or innuendos based on a Protected Class or perceived status in a Protected Class.

b. Physical Misconduct: touching, assault, gestures, or physical interference with movement based on actual or perceived status in a Protected Class.

c. Visual or Written Misconduct: Display or circulation of material, such as, but not limited to, posters, cartoons, drawings, computer graphics, e-mails, or other depictions based upon actual or perceived status in a Protected Class.

d. Environmental Misconduct: Other misconduct based on a Protected Class or perceived status in a Protected Class.

5. County employees, applicants and persons providing services pursuant to a contract are eligible to file a complaint of harassment under this policy.

21.4 Complaint Resolution Process for Alleged Discrimination, Harassment or Retaliation

A. Reporting Obligations

1. Supervisors and Managers

a. Supervisors and managers are responsible for taking all steps necessary for all employees to promote equal opportunity employment and prevent discrimination, harassment, and retaliation from occurring within the County of Marin workplace. These steps include taking immediate action to stop any equal employment violation, harassment or retaliation and taking appropriate disciplinary action after timely investigation, where appropriate.

b. If an employee communicates alleged discrimination, harassment and/or retaliation, the manager, supervisor, department head or person performing supervisory duties to whom the allegation is communicated will ensure that it is reported to the Equal Employment Officer or Director of Human Resources. In the event the allegation involves the Human Resources Department, the allegation should be communicated to the County Administrator. Failure to report such an allegation may result in disciplinary action.

c. If the employee declines to complete the PMR 21 Complaint Form (hereinafter “Complaint Form”) the manager, supervisor or person performing supervisory duties will complete the Complaint Form and attempt to confirm with the complainant that the form is correct and request that the complainant sign the form. The person completing the form shall submit it to the appropriate person within fourteen (14) calendar days of being informed about the alleged violation by the employee.

2. Other Employees

All persons are strongly encouraged to report to their manager, supervisor or person performing supervisory duties, the Equal Employment Officer, Director of Human Resources, or the County Administrator any instances of an alleged violation of PMR 21 which they have directly observed, whether or not reported by the employee who is the object of the alleged conduct.

3. All Employees

a. Complaints under this policy must be filed within one hundred and fifty (150) calendar days from the date upon which the alleged violation occurred. If an employee or other complainant fails to fully complete the form, he/she will be given an opportunity to amend the complaint form within ten (10) calendar days. Forms must be amended within ten (10) calendar days in order to be processed.

b. All employees shall cooperate with any investigation of alleged violations of this policy conducted by the County, its agents, or employees.

c. Under no circumstances will an employee of the County who believes that he or she has been a victim of any violation of PMR 21 be required to first report that alleged conduct to a supervisor or other authority if that person or authority is the individual who has allegedly engaged in the conduct.

d. All persons are strongly encouraged to immediately report any suspected violation of this policy to their lead worker, supervisor, manager, department head, the Equal Employment Officer, the Director of Human Resources, or the County Administrator. The complainant will be asked to complete, sign, and submit the County’s Complaint Form. The Complaint Form is available on the MINE, from the Director of Human Resources, the Equal Employment Officer or a member of management. The Complaint Form is also provided as PMR 21-Form 1.

B. Investigation

1. The investigation will be conducted in a way which ensures, to the extent feasible, the privacy of the parties involved. All investigations will be conducted in compliance with any applicable state and federal laws or regulations, including but not limited to the Public Safety Officers Procedural Bill of Rights Act and the Firefighters Procedural Bill of Rights, where appropriate.

2. Complaints meeting the criteria for harassment, retaliation or discrimination as described in this policy will be fully and impartially investigated and/or immediate appropriate corrective action will be taken.

3. The Equal Employment Officer will notify the complainant and the subject and, as appropriate, the applicable department head(s). The subject and the complainant have the right to a representative of his or her choice during such interview and shall be notified prior to the interview.

4. Within fourteen (14) calendar days of the filing of a complaint, the Equal Employment Officer or other person assigned by the Director of Human Resources will initiate an investigation.

Within one hundred and eighty (180) calendar days of the initiation of the investigation, the person designated to investigate and/or resolve the complaint will report, in writing, the findings of fact to the Equal Employment Officer or the Director of Human Resources upon completion of the investigation. If the investigator has not completed the investigation within one hundred and eighty (180) calendar, prior to the expiration of this deadline the investigator shall inform the complainant and the subject of the investigation of the reason s/he is unable to issue a report within the required time period and shall provide an estimated time for completion, which shall not exceed an additional ninety (90) calendar days. If the investigation has not been concluded within a total of two hundred and seventy (270) calendar days from its initiation and an appeal is available under section 21.5, the complainant may file an appeal unless the parties mutually agree to an extension of these timelines.

After the Director of Human Resources receives the results of the investigation, the Director of Human Resources will determine whether the policy has been violated and will communicate this determination to the Department Head.

Upon completion of consultation with the Department Head or designee, within thirty (30) calendar days of the receipt of the investigation findings, the findings of the investigation and whether any action will be taken, will then be communicated to the complainant and subject.

5. In the event a complaint is sustained, remedial action will be decided in accordance with County policy and based upon the advice of the Director of Human Resources. If disciplinary action is taken, it shall be done in accordance with PMR 47. Due to the confidential nature of disciplinary actions, the complainant will not be informed of the particular remedial action taken.

6. For all purposes under Section 21.4 B. Investigations, any reference to the Equal Employment Officer, Director of Human Resources or Department Head shall mean the County Administrator if the complaint is against the respective office holder. If the complaint is against the County Administrator the complaint will be referred to the President of the Board of Supervisors for action.

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21.5 Discrimination Appeals

A. Right to Internal Appeal

If an applicant or employee is dissatisfied with the determination of a discrimination, harassment or retaliation complaint under 21.4 B. 4., the applicant or employee may petition in writing for a hearing provided that one or more of the following conditions exist:

1. Examination Appeal

The Complainant alleges he/she was not advanced in the examination process due to discrimination based on a Protected Class.

2. Selection Appeal

The Complainant alleges he/she was not selected for a position in the County of Marin due to discrimination based on a Protected Class.

3. Classification Appeal

A dispute exists between the employee (Complainant) and his or her department as to whether the employee is properly classified, or the employee’s classification was studied and the study resulted in a recommendation of no change or a lesser classification and the Complainant alleges that such action or inaction was due to discrimination or retaliation based on a Protected Class.

4. Discipline Appeal

The Complainant alleges he/she was suspended, demoted, dismissed or had a reduction in compensation due to discrimination or retaliation based on a Protected Class. Such disciplinary appeals shall be filed within the timeframes set forth in PMR 47.7B. or 47.7.C.

It may be necessary to stay PMR 47.7B. or 47.7.C. timelines in order for Human Resources to process the PMR 21 complaint. Under these circumstances, the PMR 47.7.B. or 47.7.C. appeal timeline shall commence upon the determination of the investigation under 21.4.B. 4.

5. Other Discrimination or Retaliation Appeals

The Complainant alleges another form of discrimination or retaliation based on a Protected Class. Discrimination, for the purpose of appeals, occurs when an adverse employment action, which is based upon a protected class, results in a material impact to the employee’s terms, conditions or privileges of employment.

B. Internal Appeal Procedure

1. The petition shall be filed with the Director of Human Resources within fourteen (14) calendar days (except for allegations under 21.5 A.4.) after receipt of the determination provided under PMR 21.4 B. 4.

Appeals under 21.5 A.4. (Discipline Appeals) shall be filed with the Director of Human Resources within the timeframes set forth in PMR 47.7 B. or 47.7. C, unless it is necessary to stay timelines in order for Human Resources to process and/or investigate the PMR 21 complaint. It may be necessary to stay PMR 47.7B. or 47.7.C. timelines in order for Human Resources to process the PMR 21 complaint. Under these circumstances, the PMR 47.7.B. or 47.7.C. appeal timeline shall commence upon the determination of the investigation under 21.4.B. 4.

2. Appeals of PMR 21 investigations shall be heard by an ALJ mutually selected by the County and the Complainant.

The ALJ shall conduct a full evidentiary hearing and shall make a final decision on whether PMR 21 was violated and if so what shall be the remedy. The parties may, however, at any time mutually agree to a settlement or alternate disposition of the complaint.

3. The general hearing procedures and rules outlined in PMR 3 shall be followed by the ALJ, except as provided by 21.5 B4.

4. An appeal under 21.5 A4 (Discipline Appeals) shall be conducted in accordance with the hearing procedure set forth in PMR 47.8. The hearing shall be conducted by an ALJ and will concern the alleged discrimination or retaliation complaint and the disciplinary action. The ALJ shall issue written findings with respect to both the alleged discrimination or retaliation complaint and the disciplinary action.

The written findings issued by the ALJ regarding the disciplinary action shall be reviewed by the Personnel Commission. Based on such written findings, the Personnel Commission shall adopt, modify or reject the ALJ’s findings and decision pertaining to the disciplinary action. If the Personnel Commission adopts the ALJ’s findings and decision, it shall issue the ALJ’s decision as its own. If the Personnel Commission modifies or rejects the ALJ’s decision, the Personnel Commission shall issue its own written findings and decision as set forth in PMR 47.9.

5. The granting of an evidentiary hearing related to a PMR 21 violation(s) shall be binding on all parties, reviewable by writ of mandate to the Superior Court pursuant to Code of Civil Procedure § 1094.5.

6. The cost of the ALJ shall be paid by the County.

21.6. External Complaint

A. The Human Resources Department will make available upon request information from the Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission regarding filing claims of equal employment opportunity violations, harassment, or retaliation with these entities.

B. The County’s obligation to defend and indemnify its officers and employees is prescribed by California Government Code Sections 825 et seq. and 995 et seq. For allegations of harassment filed against a County employee in a court of law or other appropriate outside governmental agency, the determination to provide the employee with legal representation and/or pay the cost of settlement or judgment will be made consistent with all applicable requirements of the California Government Code including but not limited to those listed above.

APPROVAL

Revised Date: June 2015
Revisions No. : 2
Prepared By: Roger Crawford

Approved: ss/Katie Rice