(a) Sexual Harassment Prohibited. It is the policy of the Borough of Ellwood City to maintain a working and learning environment free from sexual harassment. Sexual harassment is hereby prohibited. Any employee of the Borough who engages in conduct which constitutes sexual harassment as defined in this Policy shall be subject to discipline up to and including discharge. Any employee of the Borough who is subjected to sexual harassment in the course of his or her employment or as a result of his or her employment with the Borough of Ellwood City shall have the right to file a complaint under this Policy.
(b) Sexual Harassment Defined. Sexual harassment is a form of sex discrimination prohibited by Titles VII and IX of the Civil Rights Act of 1964, as amended, and the Pennsylvania Human Relation Act. The following behavior constitutes prohibited sexual harassment for purposes of this Policy:
(1) Unwelcome sexual advances;
(2) Requests for sexual favors; or
(3) Other unwelcome verbal or physical conduct of a sexual nature, where:
A. Submission to such conduct is explicitly or implicitly required of the recipient;
B. Submission to or rejection of such conduct is used as the basis of work-related decisions affecting the recipient; or
C. Such conduct has the purpose or effect of unreasonably interfering with the recipient's work or school performance or of creating an intimidating, hostile, or offensive working or learning environment.
(c) Consequences of Violation of Policy. Any employee of the Borough of Ellwood City who is found to have engaged in conduct constituting sexual harassment may be subject to discipline up to and including discharge. The results of any disciplinary action taken will be placed in the employee's personnel file. The employee may reply, in writing, to any charges or discipline taken and to include such reply in the personnel file.
In addition, any employee found to have violated this Policy may be required to participate in educational or training activities, counseling, or mediation, as a condition of continued employment. Determination of the appropriate disciplinary sanction or educational or conciliatory requirements shall be based upon the circumstances of the individual case, considering the following factors, among others: the severity of the misconduct; the pervasiveness or persistence of the misconduct; the effect of such misconduct on the victim or victims; and the intent of the perpetrator.
(d) Complaint Procedure.
(1) The Personnel Committee of Council is hereby designated as the Sexual Harassment Liaison. It shall be the responsibility of the Liaison to promptly and thoroughly investigate any and all sexual harassment complaints received or referred by other Borough staff, and make recommendations to the Borough Council based upon that investigation.
(2) The Personnel Committee of Council shall receive sexual harassment complaints from staff. Each year, staff and employees shall be notified that the Borough Manager is available to receive sexual harassment complaints, answer questions concerning sexual harassment, and assist in resolving problems which may involve sexual harassment.
(3) Employees may lodge sexual harassment complaints with other appropriate individuals in the Borough. The staff may lodge complaints with their supervisors, with the Borough Sexual Harassment Liaison, or through their union representatives. All sexual harassment complaints so lodged shall be promptly and thoroughly investigated.
(4) In the case of sexual harassment complaints lodged by an employee with his or her department head, at the complainant's request, the department head will attempt to resolve the problem informally. If an informal resolution, satisfactory to the complainant, is reached, no further investigation or action by the Borough is required.
(5) All other complaints not informally resolved to the complainant's satisfaction shall be referred to the Sexual Harassment Liaison, which shall immediately initiate an investigation, which shall include, but not be limited to, the following:
A. Interview of the complainant;
B. Interview of the accused; and
C. Interview of any other persons with personal knowledge of the allegations of the complaint. All employees involved in such an investigation shall maintain strict confidentiality.
(e) Disposition of Complaint.
(1) In all cases investigated by the Borough Sexual Harassment Liaison, the results of the investigation shall be reported in writing to Borough Council, to the complainant and to the accused. Such report shall include a conclusion and a summary of facts upon which such conclusion is based, and a recommendation as to remediation, if appropriate.
(2) If the Sexual Harassment Liaison concludes that unlawful sexual harassment has occurred, Borough Council shall determine the appropriate remediation and/or discipline. Any disciplinary action shall be subject to limitations of the Borough Code and other applicable law.
(3) If the Sexual Harassment Liaison concludes that no unlawful sexual harassment has occurred, the Borough Council, the complainant and the accused shall be so notified. Under no circumstances shall any record of a complaint which is found to be without basis be released to any person other than the complainant, the accused, and the Borough Council, without consent of the accused, except by an order of court.
(4) If the investigation is inconclusive, the Liaison shall so state in its report. The Borough Council, at its discretion, may order the complainant and the accused to participate in nondisciplinary remediation, including, but not limited to, meetings, training, counseling or mediation. Under no circumstances shall an accused or a complainant be disciplined based upon an inconclusive investigation.
(5) If the Sexual Harassment Liaison concludes that the accused is not guilty of unlawful sexual harassment, and that the complaint was lodged in bad faith, then Borough Council may impose appropriate discipline on the complainant, subject to the limitations of the law and applicable collective bargaining agreements. In addition, if the Sexual Harassment Liaison concludes that the accused retaliated against the complainant in any way because of the complaint, Borough Council may impose appropriate discipline on the accused, subject to the law and applicable collective bargaining agreements.
(f) Guidelines for Investigating Sexual Harassment Complaints. Individuals vested with responsibility for investigating staff and student sexual harassment complaints are called upon to exercise independent judgment in determining the appropriate procedure to follow, within the confines of due process and collective bargaining agreement protections. The following guidelines are intended to assist the investigator in conducting such an investigation.
(1) The complainant should be encouraged to tell his or her story in a private setting, accompanied by a union representative, if desired. The investigator should attempt to elicit specific facts from the complainant, including the identity of the alleged harasser, the time and place of the incident or incidents complained of, or other possible victims of harassment.
(2) If the accused is represented by a union, he or she should have the opportunity to bring a union representative to the interview. The accused should be informed of the specific charges against him or her and should be allowed to fully explain his or her version of the incident. If the complainant is an adult, he or she should ordinarily be identified. The investigator should also bear in mind that an accused has a right to be informed as to the identity of his or her accuser before discipline is imposed.
(3) The investigator should interview any witnesses with actual knowledge of the incident(s) complained of. Such witnesses should be instructed to refrain from discussing the investigation with others.
(4) The investigator should interview any other individuals who may have been subject to harassment by the accused. The investigator shall keep in mind that the more people interviewed, the greater the likelihood of damaging gossip; therefore, the investigator should interview only those individuals who the investigator has reason to believe may have been subject to harassment by the accused. The investigator should instruct such individuals to refrain from discussing the investigation with others.
(5) To the extent practical, the investigator should refrain from sharing details of the complaint allegations with witnesses.
(6) Severe sexual harassment may constitute sexual abuse or sexual assault. The investigator should alert the accused to the fact that the harassment complained of may constitute a crime, and advise him or her that a criminal complaint can be filed with the police or the district attorney.
(Res. 1998-12. Passed 8-17-98.)