May 26, 2022 City Council

[1. CALL SESSION TO ORDER]

[4. CITY MANAGER COMMENTS]

[00:01:19]

CITY MANAGER TURNER. MR. MAYOR, REGULAR COUNSEL, JUS ONE ITEM. I BELIEVE WE BOTH SECURED THE DATE FOR YOUR STRATEGIC PLANNIN SESSION FOR JUNE THE 14TH.

SO IF YOU WILL MAKE SURE THAT YOU COMMUNICATE IT BACK TO THE CITY SECRETARY ABOUT THAT TO MAKE SURE THAT DATE IS WORKABLE FOR YOU AND WE ARE REACHING OUT TO OUR FACILITATOR TO SEE IF

THAT WOULD WORK FOR HIM ALSO. >> THAT DOES NOT WORK FOR ME.

>> WELL, WE WILL FIND ANOTHER DATE.

>> SORRY ABOUT THAT. >> NOT A PROBLEM.

HE MENTIONS THAT BEFORE. WE WILL FIND ANOTHER DATE.

I GUESS I CAN SURE THERE IS A COUNSEL.

I WILL BE OUT OF TOWN BEGINNING JUNE 10TH AND WILL NOT BE RETURNING UNTIL JUNE 25TH, SO I WILL BE MISSING THE REGULAR

SCHEDULED JUNE 16TH MEETING. >> TYPICALLY WEDNESDAY, THURSDA OR FRIDAY AFTERNOONS ARE GOOD FOR ME.

>> WEDNESDAY, THURSDAY AND FRIDAY AFTERNOONS TYPICALLY ARE GOOD FOR ME ANYTIME. I'M JUST GOING TO BE GONE THE

WEEK OF THE SIXTH. >> RIGHT, ANY OTHER ITEMS, CITY

MANAGER. >> NOTES ARE.

>> ALL RIGHT. ANY PUBLIC COMMENT? DON'T SEE ANYBODY IS SIGNED UP FOR THAT.

[7. EXECUTIVE SESSION]

>> NO. >>> CITY COUNCILMEMBER KOHLER I NOW PRESENT. NEXT ITEM WE HAVE IS EXECUTIVE SESSION, ITEM 71, EXECUTIVE SESSION IN ACCORDANCE WITH TEXA OPEN MEETINGS ACT SECTION 51074 PERSONAL MATTERS CALLED MEETING TO APPOINT APPOINTMENT EVALUATION, REASSIGNMENT, DU DUTIES, DISCIPLINE OR DISMISSAL OF A PUBLIC OFFICER OR EMPLOYEE CITY MANAGER AND INTERIM CITY MANAGER.

THE TIME IS -. >>> MIKE, WERE WE GOING TO GO T THE 9-11TH? THAT WAS JUST A QUESTION.

BECAUSE THAT WAS WHAT CHRISTIAN SAID HERE, RIGHT?

>> THOUGH, WE JUST HAD TO OPEN THE MEETING HERE.

>> OKAY. >>> DON'T WANT TO [INAUDIBLE].

>>> >>> IT IS 3:37, AFTER EXECUTIVE

[8. ACTION RELATIVE TO EXECUTIVE SESSION]

>> NO ACTION BUT I LIKE TO THAN STR FOR COMING IN AND HELPING U WORK THROUGH THIS PROCESS OF SELECTING A CITY MANAGER.

I THINK IT WAS GREAT, A REALLY GREAT EXPERIENCE.

>> ARE WE GOING TO PUBLISH A TIMELINE TO CHANGE I WAS GOING TO BRING UP THE TENTATIVE PLAN IS I HAVE IT DOWN, WHICH IS SUBJECT TO CHANGE ON THE FLOOR BUT JUNE 9TH.

CITY COUNCIL NARROW DOWN THE LIST OF 40 PEOPLE TO A TOP 12.

WE WILL GO OVER THAT TONIGHT. TO GO TO SELECT THE TOP FIVE OU

[00:05:02]

OF THOSE 12. >>> THE NEXT IF I HAVE IS BY JUNE 30TH WE WILL HAVE THE FINA SELECTION.

BUT IN BETWEEN JUNE 9TH AND JUN RECEPTION.

WE WILL HAVE A -- I FORGOT WHAT THE WORD WAS.

ESTEPP -- >> A STEP IN A.

>> A PANEL WITH STAFF, OR HAVE OBSERVERS FROM THE PD, THE ISD, THE ESD, THE EDC WILL BE ON THA PEN ASKING QUESTIONS.

THE OBSERVERS WILL GIVE US FEEDBACK, AND THEN THE CITY COUNCIL WE HAVE A INTERVIEW PROCESS AND THE.

IN THE PUBLIC WHERE AGAIN THEY ASKED FOR CITIZEN INPUT ON WHAT

THEY SEE. >>> TODAY WE NARROWED IT DOWN FROM 46 CANDIDATES TO 12. SO ROUGHLY A FOURTH FROM WHAT W

STARTED WITH. >> EVERYTHING SUBJECT TO CHANGE.

WE MAY CHANGE A PANEL OR SOMETHING BUT THAT'S THE PLAN, RIGHT? I HAVE THAT RIGHT?

[9.1. Presentation by City Attorney's Office on Sexual and Other Forms of Unlawful Harassment (2 hours) (Cristian Rosas-Grillet)]

PS. >> ALL RIGHT, ANYTHING ELSE ON

THAT ONE? >>> ALL RIGHT, THE MOVE ON TO 91, PRESENTATION BY CITY ATTORNEY'S OFFICE ON SEXUAL AND OTHER FORMS OF UNLAWFUL HARASSMENT.

QUESTION? >>> OKAY, CAN YOU HEAR ME? OKAY. SO THIS IS THE REQUESTED TW TWO-HOUR OR LESS -- TRAINING ON HARASSMENT AND OTHER FORMS OF UNLAWFUL HARASSMENT SO I WILL TRY TO GET EVERYBODY OUT OF HER BEFORE FIVE. BUT LET'S GET TO IT.

LET ME SEE HOW THIS WORKS. OKAY, SO FOR THE AGENDA I JUST HAVE KIND OF OVERVIEW OF THE BASIC OR TITLE VII WHICH IS YOU FEDERAL OPERATING DETERMINATION WHICH ALLOWS YOU THINK OF AND I IS CRENATION LAW AT THE FEDERAL LEVEL.

WHAT DISPARATE CHANGES, WOULD B TOGETHER AS TRADITIONAL CRENATION AND NEUTRAL POLICIES THAT CAN HAVE A DISPARATE IMPAC THAT ARE ALSO PERMITTED UNDER TITLE VII, MCDONNELL DOUGLAS IS JUST A GENERAL FRAMEWORK OF HOW THESE CLAIMS PLAY OUT AT THE COURT SYSTEM, WHAT THE CLAIMANT IS TO PROVE AND THEN WHAT THE CITY HAD TO PROVIDE AS EVIDENCE TO SHIFT THE BURDEN BACK TO THE PLAINTIFF. AND THEN WE ARE GOING TO TALK ABOUT SEXUAL HARASSMENT. YOU KNOW, THE TEXT, QUID PRO Q QUO, HOSTILE WORK ENVIRONMENT. THE AFFIRMATIVE DEFENSE THAT EMPLOYERS CAN HAVE WHEN THE HARASSMENT IS BY A COWORKER UNDER THIS SUPREME COURT CASES. PROBATIONAL RETALIATION AND SOM SITUATIONAL RIDERS ARE AVAILABL FOR CLAIMANTS OF SEXUAL HARASSMENT. QUICK OVERVIEW OF THE FEDERAL AND STATE AGENCIES THAT, YOU KNOW, ADMINISTER HIS EMPLOYMENT STATUTES. QUICK UPDATE ON STATE LAW RELATED TO SEXUAL HARASSMENT, WHICH GAVE US AN ACTUAL DEFINITION UNDER STATE LAW FOR SEXUAL HARASSMENT.

AND IT SOME EXPANDED SCOPE OF EMPLOYEE THE SUBJECT TO THE STATE LAW COMPONENT OF SEXUAL HARASSMENT.

LITTLE OVERVIEW OF THE CITY POLICY AND WHAT THE PROCEDURES ARE ALREADY IN PLACE. AND SINCE WE HAVE TALKED ABOUT OTHER FORMS OF UNLAWFUL HARASSMENT, THIS IS NOT GOING T BE A DEEP DIVE, IT IS KIND OF A SURFACE LEVEL BIG PICTURE AMERICANS WITH DISABILITIES ACT PREGNANCY DOES CRENATION ACT, GENETIC INFORMATION IS CRENATIO ACT, AND EMPLOYMENT AT WILL DOCTRINE, OPEN GOVERNMENT, AND JUST ONE SLIDE ON DISCIPLINE.

AND FEEL FREE. HE CAN STOP ME AND ASK QUES QUESTIONS. WE CAN NOT HAVE QUESTIONS AND LEAVE THEM UNTIL THE END. IF THEY ARE SPECIFIC FACTUAL QUESTIONS, I'D RATHER THAT BE I RIDING AND I CAN ACTUALLY GIVE YOU A NUANCED ANSWER. BUT IF IT IS KIND OF A GENERAL QUESTION, PLEASE INTERRUPT ME ANY TIME.

>>> SO, THESE ARE JUST A FEW OF THE STATUES THAT WE ARE GOIN TO TALK ABOUT. LET'S SEE MARGO TITLE VII, ADA, PDA, ADA, KEN, I-I CAP N-NO CAP A GOJET THE ALPHABET SOUP OF DISCRETION. WE'LL TALK WITH BECAUSE OF THE

CIVIL RIGHTS ACT OF 19. >> COUNCIL GORDON: MONTH IS YOU GENERAL PROHIBITION AND A LAWFU IS CRENATION SO IT IS UNLAWFUL.

SHALL BE AN AWFUL LOW PRICE WHE EMPLOYEE DISCRIMINATES AGAINST AN INDIVIDUAL WITH RESPECT TO HIS COMPLETION, TERM, CONDITION OR PRIVILEGE OF EMPLOYMENT BECAUSE OF AN INDIVIDUAL'S PROTECTED CATEGORY, SO GENERALL RACE, SEX, AGE, NATIONAL ORIGIN ET CETERA SO THAT IS A FEDERAL LAW PROHIBITION.

AND TEXAS WE DO HAVE A STATE LA EQUIVALENT WHICH IS THE TEXAS COMMISSION OF HUMAN RIGHTS ACT WHICH IS ADMINISTERED BY THE TEXAS WORKFORCE COMMISSION CIVI RIGHTS DIVISION BAR AND SO IT HAS SIMILAR PUNDITS ESTATE PARALLEL TO TITLE VII.

AND SO, AGAIN, THE PROHIBITION AND DESCRIPTION OF THE BASE OF

[00:10:05]

SO BEFORE YOU CAN FILE A LAWSUI YOU HAVE TO GO EITHER TO THE EEOC TO THE TEXAS WORKFORCE COMMISSION AND FILE A CHARGE.

AND WE WILL JUST BRIEFLY COVER WHAT THAT PROCESS IS PURE, BUT YOU WILL -- THEY WILL REVIEW YOUR CHARGE, MAKE ANY FINDINGS, IF NECESSARY, AFTER INVESTIGATION.

AND THEN THEY WILL ISSUE IS CALLED THE RIGHT TO SUE LETTER WHICH IS A LITTLE PIECE OF PAPE THAT YOU CAN WALK ACROSS THE STREET TO THE COURTHOUSE AND, I THE CLAIMANT WANTS TO PURSUE FURTHER THEIR CLAIM BUT THEY AS A PREREQUISITE HAVE TO GO TO EITHER EEOC OR TEXAS WORKFORCE COMMISSION AND FILE A CHARGE.

BUT EEOC DIPPING ON THE CLAIM, THEY HAVE DURING THE DAY SINCE THE DISCRIMINATORY ACT, AND UNDER STATE LAW IT IS 180 DAYS.

LET'S SEE. >>> SO IN THE EMPLOYMENT CONTEXT, GENERALLY YOU NEED TO HAVE THAT IS UNLAWFUL TO REFUSE TO HIRE, FIRE, TREAT DIFFERENTL BASED ON A PARTICULAR CATEGORY.

SO THERE HAD TO BE WHAT WE THIN OF AS DISPARATE TREATMENT BECAUSE WHAT YOU THINK OF WHEN THEY THINK OF IS CRENATION IS KEMOKO I DON'T LIKE YOU BECAUSE OF BLANK, AND THEREFORE I'M GOING TO TAKE ADVERSE IMPLEMENT ACTION AGAINST YOU, WHETHER THA BE FAILURE TO PROMOTE MY FAILUR TO HIRE CONSTANT MOTION, TERMINATION, ET CETERA ". AND S THOSE ARE STILL FORMS OF THIS CRENATION. AND THEN THERE IS DISPARATE IMPACT CLAIMS, WHICH WERE NOT GOING TO GET TO IN-DEPTH.

BUT IS A MORE INTENTIONAL TIP O HIS CRENATION AND OCCURS GENERALLY WHEN YOU POLICY FOR PRACTICES OR RULES THAT APPEAR ON THEIR FEET TO BE NEUTRAL AND NONDISCRIMINATORY BUT THAT YOU HAVE A PROPORTIONATE IMPACT ON PROTECTED GROUP, AND SO I GUESS AN EXAMPLE IS IF YOU HAD AN EMPLOYMENT POLICY THAT HAD A MINIMUM HEIGHT REQUIREMENT, THA THE POSITION, SOMETIMES THOSE TYPES OF PIPE RECOVERS ARE MINIMIZED, DISPROPORTIONATELY IMPACT WOMEN OR KEEP THEM OUT O THESE POSITIONS.

SIMILARLY, IF YOU HAVE A BLANKE POLICY TO DISQUALIFY ALL APPLICANTS THAT HAVE A CRIMINAL BACKGROUND, SOMETIMES THAT DISPROPORTIONATELY AFFECTS MINORITIES POPULATION, HISPANIC OR AFRICAN-AMERICAN. AND SO GENERALLY ON THEIR ARTICULATE A LEGITIMATE NONDISCRIMINATORY REASON FOR THEIR DECISION. AND THEN IT SHIFTS BACK TO THE CLAIMANT TO CONTINUE WITH THE CLAIM.

AND SO THE CASE THAT YOU HAVE T MAKE UNDER A DISPARATE TREATMEN CLAIM IS MEANT TO SHOW THAT YOU ARE A MEMBER OF THAT PARTICULAR THAT YOU ARE QUALIFIED FOR THAT POSITION, THAT YOU SUFFERED AND THAT ADVERSE INPUT ACTION, AND THAT THE SUCCESS OF THE ADVERSE IMPLEMENT ACTION GIVE RISE TO A INFERENCE OF HIS CRENATION.

SO HE JUST HAD TO ALLEGE THOSE THINGS.

IF YOU ALLEGE THOSE THINGS ON PAPER, THEN THE BURDEN SHIFTS T THE EMPLOYER. NOW THE EMPLOYER HAD TO COME BACK AND SHOW SEQUENCE ILLEGITIMATE NOTICE CREMATORY REASON FOR THEIR DECISION. SO SOMEBODY SAYS I WAS DISCRIMINATE ON THE BASIS OF AG BECAUSE I'M OVER 40, THEN ONCE THEY FILE THEIR CHARGE GENERALL THE EEOC SENDS YOU REQUEST FOR

[00:15:02]

SO YOU WOULD BASICALLY HAVE AN OPPORTUNITY TO EXPLAIN WHY THIS PERSON WAS TERMINATED, PREFERABLY NOT RELATED TO AGE.

BUT THEN YOU WOULD SAY, HERE'S AIR FORCE EVALUATIONS, HERE IS WHY WE MADE THE DECISIONS, AND THEN THE BURDEN AGAIN SHIFTS BACK TO THE EMPLOYEE TO PROVE THAT THE INFORMATION IS PRETEXT THAT THAT'S NOT THE REAL REASON. SORT SO LONG AS YOU HAVE LEGITIMATE, PROPERLY DOCUMENTED BUSINESS REASONS THAT AN EXCRETORY FOR YOUR POINT ACT ACTIONS, THEN THERE'S GENERALLY NOT AN ISSUE THERE. BUT, YOU KNOW, THERE IS KIND OF THE BACK AND FORTH ON THESE CLAIMS. AND SO IS IT TO BLEED BY THE EMPLOYEE THAT THE REASON IS GIVEN IS THAT THE REAL REASON, IS NOT SUFFICIENT, SO THEY DO ACTUALLY HAVE TO PRODUCE EVIDENCE OF THE REASON THAT YOU

PROVIDED IS A PRETEXT. >>> HARASSMENT.

GENERAL DEFINITION, THERE IS NO -- NOW WE DEFINITION UNDER STAT LAW AS YOU MENTIONED BUT THERE IS -- MOST OF THE INFORMATION O HARASSMENT HAVE BEEN THROUGH DECADES OF CASE LAW BUT IT IS UNWELCOME CONDUCT THAT BASED ON RACE, COLOR, RELIGION, SEX, DISABILITY OR GENETIC INFORMATION.

AND THESE ARE THE TWO TYPES THA WE GENERALLY FIND.

IS THE QUID PRO QUO WHICH IS WHERE -- AND DURING THE OPPRESSIVE CONDUCT BECOMES A CONDITION OF CONTINUED EMPLOYMENT. SO IF YOU DON'T DO THIS, THEN AND ADVERSE EMPLOYMENT ACTION. OR IS HOSTILE WORK ENVIRONMENT, WHICH IS CONDUCT THAT IS SO SEVERE AND PERVASIVE ENOUGH TO CREATE A WORK ENVIRONMENT THAT REAL PERSON WOULD CONSIDER INTIMATING, HOSTILE OR ABUSIVE, AND SO A HOSTILE WORK ENVIRONMENT, EVEN THOUGH WE ARE TALKING ABOUT IT IN THE CONTEXT OF SEXUAL HARASSMENT, IS NOT LIMITED TO SEX OR GENDER IDENTITY OR SEXUAL ORIENTATION. IT COULD BE BASED ON RACE, AGE, DISABILITY, ET CETERA. SIMILARLY WE'VE HAD DISCUSSIONS ABOUT BULLYING AND CYBER BULLYING AS HARASSING CONDUCT O AND SO THESE TYPES OF BEHAVIORS CAN WRITE TO THE LEVEL OF HOSTILE WORK ENVIRONMENT THAT WILL BE PROTECTED UNDER TITLE VII. IF THEY ARE ON THE BASE OF ONE

OF THE PROTECTED CATEGORIES. >>> SO TITLE VII AND IMPLEMEN THIS CRENATION LAWS DON'T NECESSARILY PERMIT ALL FORMS OF HIS CRENATION. IS GENERALLY NOT DEEMED -- AND THERE'S LEGAL FROM SUPREME COUR CASES THAT SAY TITLE VII IS NOT INTENDED TO BE A GENERAL CIVILITY CODE FOR THE AMERICAN WORKFORCE. AND SO YOU COULD HAVE A COMMENT OR SITUATIONS THAT ARE UNCOMFORTABLE, UNPROFESSIONAL, BUT THAT DON'T RISE TO THE LEVE OF UNLAWFUL HOSTILE WORK ENVIRONMENT UNDER THE HIS CRENATION STATUTES.

AND SO THAT'S ALWAYS -- THAT'S THE TRICKY PART BECAUSE IT IS NOT THAT WE ARE ENCOURAGING THI TYPE OF BEHAVIOR AND WE'RE NOT TRYING TO DO PREVENTIVE WORK, BUT IT TAKES A LOT TO REACH THE LEVEL OF WHAT IS CONSIDERED A HOSTILE WORK ENVIRONMENT UNDER THE EMPLOYMENT STATUTES. AND SO -- BUT THAT IS NOT TO SA THAT EMPLOYERS, CITIES INCLUDED THROUGH THEIR POLICIES OR RETRAINING CAN'T EMPHASIZE THAT THESE TYPES OF CONDUCT, EVEN IF NOT ILLEGAL, ARE NOT ACCEPTABLE IN THE WORKPLACE, AND BY PROVIDING TRAINING TO MANAGERS AND SUPERVISORS WITH EFFECTIVE TOOLS, THEN YOU CAN KIND OF DETAIL OR BANK CREDIT FRESCO INTO A LEVEL WHERE IT BECOMES JUST A TOXIC WORK ENVIRONMENT.

SO EEOC GENERALLY, IN ADDITION TO THE ATTORNEY THAT THEY NORMALLY REQUIRE OR THEY RECOMMEND, I ALSO RECOMMEND WORKPLACE CIVILITY TRAINING, WHICH IS NOT NECESSARILY ABOUT IMPLEMENT HIS CRENATION LOG BUT IS JUST MORE OF -- NOT NECESSARILY WHAT NOT TO DO BUT WHAT TO DO AND HOW TO ENCOURAGE KIND OF A WORK ENVIRONMENT THAT IS RESPECTFUL AND WELCOMING TO EVERYBODY AS PART OF THE ORGANIZATION BUT BECAUSE I THIN IN THEIR REPORTS THE RESEARCH INDICATED THAT CIVILITY IS OFTE AN ANTECEDENT TO WORKPLACE HARASSMENT AS IT CREATES A CLIMATE OF GENERAL DERISION AND DISRESPECT IMAGE HARASSING BEHAVIORS ARE TOLERATED. AND SO KIND OF YOU START WITH INCIVILITY AND IT JUST KINDA FOSTERS THINGS AND CAN GET OUT

OF HAND. >>> SEXUAL HARASSMENT IS JUST A TEMPER SEX DETERMINATION THAT VIOLATES TITLE VII.

THERE'S TOTALLY DIFFERENT TYPES. IT COULD BE PHYSICAL WHICH PHYSICAL, VERBAL OR VISUAL HARASSMENT, PHYSICAL, BLOCKING MOVEMENTS, IMPEDING, PATTING, PINCHING, TOUCHING, THINGS OF THAT NATURE. OF COURSE, VERBAL ON ANY EITHER DIRECT OR SUBTLE PRESSURE OR REPEATED OR UNWELCOME REQUESTS FOR DATES OR SEXUAL ACTIVITIES. IT COULD ALSO INCLUDE DEROGATOR

[00:20:06]

IN 2020 THE US SUPREME COURT FOUND THAT TITLE VII, THE PROHIBITION OF DISCRIMINATION I THE BASE OF SIX ALSO INCLUDE SEXUAL ORIENTATION AND GENDER IDENTITY, SO TAKING ANY CAN OF ADVERSE INPUT ACTION FOR INDIVIDUAL FOR BEING GAY OR TRANSGENDER VIOLATES TITLE VII. SO IT'S JUST A THING TO KEEP IN MIND. AND SO WE TALKED ABOUT QUID PRO QUO AND HOSTILE WORK ENVIRONMEN BEING THE TYPES GENERALLY CONSIDERED OF SEXUAL HARASSMENT. SO, YES, QUID PRO QUO.

SUBMISSION TO A REJECTED SUPERVISORS SEXUAL DEMANDS AFFECT THEM FROM DIVISIONS SUCH AS BEING HIRED, FIRED, PROMOTED OR GIVEN A RAISE. GENERALLY WITH THE QUID PRO QUO IS ABOUT EMPLOYERS STRICTLY LIABLE IF IT RESULTS IN A ADVERSE UNDERPRODUCTION SO IF THERE IS A ACTUAL ACTUALLY GIVE THE EMPLOYEE, REGARDLESS OF WHETHER OR NOT THE HIGHER LEVEL MANAGEMENT IS AWARE, THE EMPLOYER IS STRICTLY LIABLE.

AND THEN YOU HAVE -- LET'S SEE, I THINK I WENT TOO FAR.

NOTE, THAT'S IT. OKAY, AND THEN WE GOT HOSTILE WORK ENVIRONMENT. SO, AGAIN, KIND OF YOUR BASIC ILLNESS FOR A CLAIM OF HOSTILE WORK ENVIRONMENT.

YOU TO BE A MEMBER OF A PROTECTED CLASS.

HERE TO BE SUBJECTED TO INAPPROPRIATE UNWELCOME KIND OF TO THE PRESENT, AND THAT SEPARATELY SEVERE OR PERVASIVE TO CREATE DEBT TO UNREASONABLY INTERFERE WITH WORK AND THAT CREATES AN DAMAGING, HOSTILE OR OFFENSIVE WORK ENVIRONMENT.

SO, AS I MENTIONED, IF IT RESULTS IN ADVERSE EMPLOYMENT ACTION, AND A QUID PRO QUO SCENARIO IT IS STRICT LIABILITY AND THE EMPLOYER IS RESPONSIBLE IN THE CONTEXT OF SUPERVISOR HARASSMENT AUTOMATICALLY. BUT IF THIS COURT HARASSMENT WITHIN THE EMPLOYER IS ONLY LIABLE IF THEY KNEW OR SHOULD HAVE KNOWN OF THE HARASSMENT AN FAILS TO TAKE ANY ACTION FOR TH COWORKER HARASSMENT. SO IT IS AMONGST COWORKERS, THE THERE'S KIND OF A HIGHER BURDEN OF PROOF TO SHOW THAT THE CITY NEW OR SHOULD HAVE KNOWN THAT SOMETHING GOING ON AND HAD FAILED TO TAKE ANY APPROPRIATE ACTION TO REMEDY THE SITUATION.

THAT'S WHERE HAVING A GOOD POLICY, HAVING REPEATED TRAININ OF STAFF, OF UNLAWFUL HARA HARASSMENT, OF CONDUCTING PROMP INVESTIGATIONS THAT ARE CONFIDENTIAL ARE USEFUL BECAUSE IT'S A WAY WHICH YOU CAN DEMONSTRATE THAT NOT ONLY DIDN' KNOW OR SHOULD HAVE KNOWN WHAT YOU MOST APPROPRIATE ACTION TO PREVENT THAT BEHAVIOR FROM OCCURRING IN THE WORKPLACE IN THE FIRST PLACE. SO SEVERE AND PERVASIVE IS THE STANDARD UNDER FEDERAL LAW FOR CONDUCT THAT RISES TO THE LEVEL OF HOSTILE WORK ENVIRONMENT. SO WE HAVE SOME EXAMPLES THERE OF WHAT IS OFFENSIVE CONDUCT. BUT GENERALLY YOU HAVE TO LOOK AT IT FROM WHAT THE LAW CALLS A REASONABLE PERSON STANDARD.

SO IT'S NOT -- IS BOTH A SUBJECTIVE STANDARD AND A OBJECTIVE STANDARD. IT'S NOT ENOUGH THAT IT FEELS OFFENSIVE TO YOU BECAUSE THERE ARE DIFFERENT LEVELS OF SENSITIVITY TO COMMENTS. AND SO THE COURT HAS SAID IS NO A HYPERSENSITIVE PERSON STANDAR COMPANY READABLE PERSON STANDAR FROM THE VIEW OF THE VICTIMS RESPECTIVE -- PERSPECTIVE.

SO HAD TO BE BOTH OBJECTIVELY PROBLEMATIC, BUT ALSO THE PERSO

TO FIND IT TO BE OFFENSIVE. >>> GENERALLY, UNLESS THE CONDUCT IS QUITE SEVERE, A SINGLE INCIDENT OR ISOLATED INCIDENTS GENERALLY DO NOT CREATE A HOSTILE WORK ENVIRONMENT. SO THE SUPREME COURT HAS SAID THAT THE UTTERANCE OF ETHNIC OR RACIAL EPITHET WHICH HINDERS OFFENSIVE FEELINGS IN AN EMPLOYEE WOULD NOT NECESSARILY AFFECT THE CONDITION OF EMPLOYMENT, -- TO VIOLATE TITLE VII ON AGAIN NOT CONDONING THIS TYPE OF BEHAVIOR BUT ONE-OFF COMMENTS THAT ARE PARTICULARLY OFFENSIVE ARE NOT ENOUGH TO CONSTITUTE SEVERE AND PERVASIVE CONDUCT FOR HOSTILE WORK ENVIRONMENT IT IS NOT AN ACTUAL TANGIBLE INPUT ACTION TAKEN AGAINST THAT PERSON AS A RESULT OF THAT.

>>> BUT THINGS LIKE THIS ONLY TO PRIVATE PARTS AND CLOTHING

[00:25:10]

COURTS WHEN DETERMINING WHETHER OR NOT SOME DEEP SEVERE OPERATORS ARE GOING TO LOOK AT FREQUENCY CONSERVATOR, WHETHER OR NOT IS THREATENING OR HUMILIATING, WHETHER OR NOT INTERVIEW THE CONDUCT OR THEIR ABILITY TO PERFORM THEIR JOB, THE CONTEXT AND, OF COURSE, THE TOTALITY OF THE CIRCUMSTANCES.

THERE IS A CASE THAT SAYS, YOU DON'T NECESSARILY NEED PSYCHOLOGICAL HARM IN ORDER FOR SOMETHING TO BE A HOSTILE WORK ENVIRONMENT THAT SEVERE. SO YOU DON'T NEED TO PROVE THAT YOU WERE ACTUALLY PSYCHOLOGICALLY INJURED.

YOU CAN SET A VIOLATION OF TITL VII.

AND SO THE STANDARD IS JUST, TO THE CONDUCT REASONABLY INTERFER WITH YOUR WORK PERFORMANCE, AND HARASSMENT ON THE BASIS OF SEX DOESN'T HAVE TO NECESSARILY BE MOTIVATED BY SEXUAL DESIRE.

TERMINATE IN THE BASE OF SEX. EXAMPLES COULD BE IF THE HARASSMENT IS REALLY HOSTILE TO THE PRESENCE OF MEMBERS OF A SPECIFIC GENDER IN THE WORKPLAC OR IN A MIXED GENDER WORKPLACE.

THE GENDERS ARE TREATED DIFFERENTLY, THAT'S GENERALLY SUFFICIENT ENOUGH TO SHOW AN INFERENCE THAT THE DECISION WAS MADE BECAUSE OF SEX. IF THERE IS THIS TYPE OF CON CONDUCT, THESE ARE SOME OF THE DEFENSES THAT ARE AVAILABLE TO THE EMPLOYER THAT THE CONDUCT WAS NOT UNWELCOME, THAT IT WASN'T DIRECTED AT A PARTICULAR PROTECTED CLASS.

UNIT IT IS THE EQUAL OPPORTUNIT JERK, RIGHT.

IS NOT ZERO, I'M NOT DOING IT BECAUSE YOU ARE A WOMAN OR BECAUSE YOU'RE ASIAN, IS I'M JUST NOT NICE ALL.

", SO THAT IS NOT NECESSARILY THE GREATEST DIFFERENT BUT IS CERTAINLY A DEFENSE THAT IS AVAILABLE.

IT IS ORIGINALIST BECAUSE A PARTICULAR CATEGORY, THEN YOU WOULDN'T HAVE NECESSARILY A TITLE VII VIOLATION, THAT THE CREDIT WAS IN SEVERE OR PERVASIVE, OR THAT WOULD NOT NECESSARILY AND OBJECTIVELY OR SUBJECTIVELY OFFENSIVE WHAT TOO PLACE. DIFFERENT TO DEFENSE IN THE HOSTILE WORK ENVIRONMENT CON CONTEXT, WHEN IT IS COWORKER HARASSMENT, IS AVAILABLE NOW. IF YOU CAN DEMONSTRATE THAT THE CITY EXCITE RENEWAL CARE TO CORRECT PRESSURE OR BEHAVIOR, O THAT YOU HAD A POLICY IN THE EMPLOYEE NEARLY FAILED TO USE THE PREVENTIVE OR CORRECTIVE MEASURES OR OPPORTUNITIES THAT WERE COMMUNICATED TO THE EMPLOYEE.

AND SO IF YOU HAVE A MECHANISM TO REPORT WORKPLACE HARASSMENT AND CONDUCT MITIGATIONS, AND TH EMPLOYEE JUST DOES NOT TAKE ADVANTAGE OF THAT, THEN THAT'S AN AFFIRMATIVE DEFENSE TO SAY THAT YOU NOT THE EMPLOYEE IS NO NECESSARILY UNDER BECAUSE THERE WERE MEANS TO RESOLVE THE SITUATION, AND THE EMPLOYEE DID

NOT TAKE ADVANTAGE OF THAT. >>> SO, WE TALKED ABOUT BE STRICTLY LIABLE FOR SUPERVISOR HARASSMENT, THAT IT RESULTS IN ADVERSE IMPLEMENTATION. FOR PURPOSE OF TITLE VII YOU'RE ONLY A SUPERVISOR WHEN THE EMPLOYER HAS EMPOWERED THAT INDIVIDUAL TO TAKE SCHEDULE IMPORTANT ACTION AGAINST THE VICTIM TO AFFECT ANY SIGNIFICAN CHANGE IN THEIR PLONER STATUS, SUCH AS HIRING, FIRING, FAILING TO PROMOTE ET CETERA.

AND SO IS NOT JUST A SUPERVISOR IT'S A SUPERVISOR NATURE HAS TH POWER TO DISAGREE ABOUT YOUR EMPLOYMENT STATUS.

SO YES, YOU GO, YOU FILE A CLAI WITH THE EEOC, THE EEOC CAN INVESTIGATE THE CLAIM OR ISSUE RIGHT TO SUE LETTER.

YOU HAVE TO FOLLOW SUIT AFTER YOU GET YOUR RIGHT TO SUE LETTE INTERNAL COURT WITH -- WITHIN 9 DAYS OF RECEIVING THE LETTER, O STATE COURT WITHIN 60 DAYS BETWEEN THE LETTER.

UNDER TITLE VII THOSE ARE SOME OF THE REMEDIES THAT ARE AVAILABLE. LOST PAY, PROMOTIONS.

YOU CAN GET COMPETITION FOR MENTAL ANGUISH, ATTORNEYS FEES, EXPERT AND COURT COSTS. AND IN SOME INSTANCES THE COURT CAN ORDER THE HIRING, PROMOTION OR REUSE THEM TO THE EMPLOYEE AND THAT THE CONDUCT WAS INTENTIONAL THE EMPLOYER ACTED WITH MALICE OR RECKLESS INDIFFERENCE.

THEN THE COURT CAN ALSO AWARD PUNITIVE DAMAGES.

TITLE VII PREVENTS THIS CONDITION BUT ALSO PROHIBITS RETALIATION, WHICH IS WHEN YOU TAKE AN ADVERSE INPUT ACTION AGAINST THE COVERED INDIVIDUAL BECAUSE THEY ENGAGE IN PROTECTE ACTIVITY. AND SO FILING A CHARGE,

[00:30:03]

BUT THE EMPLOYEE GOES FORWARD O THE CHARGE AND THEY GET FIRED.

SO YOU DON'T GET HIT BY THE CONDUCT NECESSARILY THAT PROMPTED THE CHARGE, BUT YOU DO GET HIT WITH YOUR RESPONSE TO HOW THEY REPORTED THE DESCRIPTION OR THE ALLEGED DISCOLORATION. AND SO THAT'S ALWAYS SOMETHING TO BE MINDFUL OF THESE. IS NOT DISPIRITING DESCRIPTION BUT SOMETHING PARTICIPATING IN INFORMED HIM/INVESTIGATION AND THE EEOC PROCESS AND THAT A BAS TO TAKE ADVERSE INPUT ACTION AGAINST INDIVIDUALS. SO THE GENERAL EEOC CHARGE PROCESS THEY GO, THEY FILE A CHARGE TIMELY WITHIN 180 OR 300 DAYS. IF THE CASE MERITS IT, THE EEOC WILL OFFER BOTH PARTIES THE OPPORTUNITY TO MEDIATE.

IT IS ENTIRELY VOLUNTARY TO MEDIATE.

AND TUMOR TAKES ABOUT THREE MONTHS, THAT WHOLE PROCESS.

IT'S PRIOR TO AN INVESTIGATION, BUT THEY ONLY OFFER IT IF -- THERE IS NO MERIT, THAT THEY MIGHT JUST CLOSE THE CASE, BUT THERE MAY BE SOMETHING THERE, THEY WILL MOVE IT ALONG TO MEDIATION. IF EITHER PARTY DECLINES, THEN YOU JUST PROCESS REGULAR CHARGE. YOU WILL GET ASSIGNED INVESTIGATOR, AND AT THAT POINT THE INVESTIGATOR GENERALLY CONTACTS THE EMPLOYER AND ASK FOR A POSITION STATED OR SOMETIMES FOR ON-SITE INTERVIEW OR REQUESTS FOR INFORMATION OR WITNESS INTERVIEWS. AND THEY RETURN TO INVESTIGATE THAT RESULTS IN CHARGE, AT LEAS IN 2016, WAS ABOUT TEN MONTHS.

SO IT'S KIND OF A LENGTHY PROCESS, BUT NUMBER WAS YOU FOUND THAT POSITIONS IT WITH TH JUST KIND OF SORTED OUT AND IS JUST A MATTER OF THEM DECIDING WHETHER OR NOT THEY WANT TO PURSUE IT FURTHER. AT THAT POINT THEY CAN EITHER MAKE A FINDING THAT THERE'S BEE NO CAUSE TO BELIEVE THAT THIS DONATIONS OCCURRED. -- DISCRIMINATION HAS OCCURRED.

IF THE ISSUE THAT BINDS MINICAM PROCEDURE FOR THE INVESTIGATE AND TO CONCILIATE WITH THE EMPLOYER AND TRY TO SELL IT PRIVATELY THROUGH A RECONCILIATION AGREEMENT.

OR THEY MIGHT JUST CLOSE IT AND ISSUE A RIGHT TO SUE LETTER RIGHT AWAY. INTERACTING WAS A BUSY START AT ANY POINT, THE CHARGING PARTY CAN ASK FOR A RIGHT TO SUE LETTER IF THEY DON'T WANT TO HAVE TO GO THROUGH THIS WHOLE PROCESS. TO GRATUITIES FILE A CHARGE AND START THE PROCESS. IT IS ESSENTIALLY THE SAME THIN AT THE STATE LEVEL. YOU FILE A CHARGE.

THERE IS AN OPTIONAL MEDIATION, EITHER IN PERSON, BY TELEPHONE, OR REMOTELY. BUT IF EITHER PARTY DECLINES WITH A CONDUCT IN INVESTIGATION AND THEY DECIDE WHETHER OR NOT THERE IS REASONABLE CAUSE TO BELIEVE THAT -- FOR -- NOT GO FOR THE RIGHT TO SUE AND JUST GO THROUGH THE EEO AND JUST YOUR CONSIDERATION? IS THERE LIKE A DIFFERENCE, OR PLUS OR A MINUS, KEYNES, WELL, SOMETIMES LITIGATION IS EXPENSIVE, SO FILING AN EEOC CHARGE IS RELATIVELY SIMPLE.

YOU CAN GO ONLINE NOW BUT BEFOR YOU GO TO IN EEOC OFFICE.

NOW YOU CAN DO IT ONLINE. AND IF YOU DO MEDIATION I THINK IT'S FREE OF CHARGE, SO THEY FACILITATE THAT.

IN SOME INSTANCES IT MAY BE NOT ENOUGH TO PUT A LOT OF MONEY INTO LITIGATION, BUT YOU WOULD STILL FEEL LIKE THERE'S SOMETHING THAT NEEDS TO BE REMEDIED.

AND THEY ARE VERY SUCCESSFUL IN KIND OF CLOSING CASES AMICABLY THROUGH MEDIATION OR THROUGH CONCILIATION.

>>> SO YES, LET'S SEE, HOW AR WE DOING? STILL GOOD. MORE THAN HALFWAY THERE.

>>> THIS IS JUST AN UPDATE TO STATE LAW.

THIS DEFINITION FOR SEXUAL HARASSMENT NOW.

BEFORE THERE IS NO FEDERAL DEFINITION OF SEXUAL HARASSMENT BUT THIS IS A DEFINITION NOW. THERE ARE KIND OF SOME SUBTLE DIFFERENCES BETWEEN WHAT IS THE CASE LAW DEFINITION OF SEXUAL HARASSMENT AND THIS. THING IS NOT THE LANGUAGE IN C-CHAR CAP AND DOG, BUT THE CONDUCT NEEDING TO BE SEVERE AN PERVASIVE, BUT THERE'S KIND OF THIS NEW LINKAGE ABOUT CONDUCT THAT HAS A PERFECT EFFECT OF INTERFERING.

THAT'S FOR LAWYERS TO FIGHT WHA THOSE DIFFERENCES MEAN BUT IT JUST SOMETHING TO POINT OUT BETWEEN THE STATE AND THE FEDERAL COUNTERPART. THIS BILL THAT GOT PAST THIS LAST SESSION NORMALLY TITLE VII IMPLIES 15 OR MORE EMPLOYEES AN ONLY FOR THE PURPOSE OF SEXUAL HARASSMENT.

IT HAS EXPAND CHAPTER 21 OF THE LABOR CODE TO ANYBODY THAT

[00:35:04]

SO IT'S KIND OF A HIGHER STANDARD TO ME THAT YOU DIDN'T TAKE IMMEDIATE AND APPROPRIATE CORRECTIVE ACTION BUT IT IS A NEW BILL. WHAT THAT MEANS AND HOW THAT IS INTERPRETED IS STILL UP FOR GRABS.

BUT THAT'S A CHANGE AS OF SEPTEMBER OF LAST YEAR.

SO WE DO HAVE IN OUR PERSONAL POLICY AT THE COUNCIL ADOPTED, THERE IS A GENERAL POLICY THAT PERMITS SEXUAL AND OTHER FORMS OF UNLAWFUL HARASSMENT. IT HAS A SENSITIVE DEFINITION O WHAT HARASSMENT IS AND SEXUAL HARASSMENT, IT MAKES CLEAR THAT IT CAN INVOLVE INDIVIDUALS OF THE SAME OR DIFFERENT GENDERS, PROVIDES EXAMPLES, IT APPLIES T MATTERS HARASSMENT BY COWORKERS OR MANAGERS BUT ALSO ANY CITIZENS, VENDORS OR OTHER VISITORS IN THE WORKPLACE. AND IT ADDITIONALLY PROHIBITS SUPERVISORS FROM DATING ANY SUBORDINATES, SO THERE'S KIND O A DATING LIMITATION THERE. IT DOES HAVE MANDATORY REPORTIN REQUIREMENTS FOR ALL EMPLOYEES, WITH SOMEWHAT THE OFFENDERS IDENTITY -- POSITION IS WITHIN THE ORGANIZATION.

AND REQUIRED THE ANYBODY OBSERVES OR OTHERWISE LEARNS OF POTENTIALLY UNLAWFUL CONDUCT TO REPORT IT.

THAT REPORTING CAN HAPPEN EITHE AT THE NEWPORT DIRECTOR, HR, TH ASSISTANT CITY MANAGER OR THE CITY MANAGER.

AND SO THE POLICY DOES PROVIDE MULTIPLE AVENUES TO REPORT HARASSMENT, PROGRESS WITH THE NORMAL CHAIN OF COMMAND IS.

IF THE SUPERVISOR IS THE ONE THAT NOTICED THE HARASSMENT, THEY DO HAVE TO NOTIFY THE DEPARTMENT DIRECTOR AND HR.

>>> THE POLICY ENCOURAGES BUT DOES NOT REQUIRE PROMPT ADVISIN THE OFFENDER THAT THE BEHAVIOR IS UNWELCOME.

SOMETIMES, YOU KNOW, CONFRONTIN THE PERSON IS DOING THE HARASSMENT CAN BE PROBLEMATIC, AND SO ALTHOUGH THE POLICY SAID THAT SOMETIMES THIS RESOLVES THING, TO JUST LET THEM KNOW THAT THIS CONDUCT IS NOT WEL WELCOME, IT RESULTS THINGS, IS NOT REQUIRED IN ORDER FOR YOU T INITIATE A COMPLAINT.

IT DOES REQUIRE PROMPT INVESTIGATIONS BY MANAGEMENT, REQUIRED COOPERATION BY CITY EMPLOYEES.

AND TO THE POSSIBLE BYLAW UNDER THE PUBLIC INFORMATION ACT.

SEES TRY TO MAINTAIN THE INTERVIEWS AND INFORMATION RELATED TO THESE INVESTIGATIONS CONFIDENTIAL.

>>> SIMILARLY A PROHIBITS RETALIATION.

'S OR ANY EMPLOYEE THAT PARTICIPATES IN THESE TYPES OF INVESTIGATIONS ARE NOT TAKEN AN ADVERSE ACTION AGAINST THEM BECAUSE OF THEIR PARTICIPATION. AND, OF COURSE, IF THEY FIND TO BE ANY AUTOMATIC CONDUCT, IT REQUIRES PROMPT ACTION OF THIS PLAN THAT COULD INCLUDE TERMINATION.

AND THAT'S A QUICK BREAK ON SEXUAL HARASSMENT, AND THEN I'L GO QUICKLY OVER THE OTHER STATUTES.

AND I THINK THAT'S ALL I HAVE FOR TODAY.

SO. >>> AMERICANS WITH DISABILITIES ACT. POSSESS QUALIFIED INDIVIDUALS WITH DISABILITY FROM THIS TERMINATION.

YOU HAVE TO HAVE 15 OR MORE EMPLOYEES, AND YOU HAVE A DISABILITY UNDER THE ADA IF YOU HAVE A PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS ONE OR MORE MAJOR LIFE ACTIVITIES OR YOU HAVE A RECORD OF SUCH AN IMPAIRMENT, OR IF YOU'RE REGARDED AS HAVING SUCH AN IMPAIRMENT.

IF YOU DON'T HAVE THE DISABILIT PEOPLE THINK YOU DO AND THEY TREATED DIFFERENTLY BECAUSE OF THAT, THEN YOU ARE CONSIDERED T HAVE A DISABILITY UNDER THE ADA AND YOUR PROTECTED PIECE WHAT'S EXAMPLE OF A MAJOR LIFE ACT ACTIVITY?

>>> IT IS BASICALLY ANYTHING. A MAJOR LIFE ACTIVITY INCLUDES HEARINGS, SEEING, SPEAKING, BREATHING, PERFORMING MANUAL TASKS, WALKING, TAKING CARE OF YOURSELF, LEARNING OR WORKING.

>>> THAT BEING SAID, IN ORDER FOR YOU TO BE PROTECTED UNDER THE ADA, YOU HAVE TO BE A QUALIFIED INDIVIDUAL, WHICH MEANS YOU HAVE TO BE ABLE TO PERFORM ALL OF THE ESSENTIAL JO FUNCTIONS WITH OR WITHOUT VISIBLE CONDITIONS.

AND SO THE PERSON BECAUSE OF A DISABILITY CANNOT PERFORM A ESSENTIAL JOB FUNCTION, THEY AR NOT QUALIFIED, SO YOU DON'T NECESSARILY HAVE TO TAKE ANY ACTION WITH REGARDS TO THAT.

[00:40:04]

>>> BUT IF THEY CAN PERFORM ALL THE ESSENTIAL JOB FUNCTIONS WITH OR WITHOUT A REASONABLE ACCOMMODATION, THEN THEY ARE PROTECTED. AND SO -- LET'S SEE ON AND WITH THE ESSENTIAL JOB FUNCTIONS, I MEAN, IT'S IMPORTANT TO HAVE GOOD JOB DESCRIPTIONS ARE SOMETIMES IT'S GOOD TO THIS WIT THE ESSENTIAL JOB FUNCTIONS ARE BECAUSE THAT'S WHERE IT GETS TRICKY WHEN IF YOU DON'T HAVE A JOB DESCRIPTION POSTED IS NOT CLEAR, IS NOT CLEAR WHAT FUNCTIONS ARE ESSENTIAL AND WHA ARE NOT. THAT IS NOT WHERE HAVING PROPER DOCUMENTATION THEN KIND OF COME IN BY CITIES, BECAUSE IT IS JUS HARDER TO PROVE. BUT EITHER WAY, EVEN IF THERE I NOT PROPER INTERPRETATION, THER ARE SOME FACTORS TO DETERMINE WHETHER OR NOT SOMETHING IS AN ESSENTIAL JOB FUNCTION.

SO THEY WILL LOOK AT WHETHER TH REASON THE POSITION EXISTS IS T PERFORM THAT FUNCTION. NUMBER OF OTHER EMPLOYEES ARE ABLE TO PERFORM THAT FUNCTION, AND THE DEGREE OR IF THESE ARE SKILLS THAT ARE REQUIRED TO PERFORM.

AND SO IN ADDITION TO THE JOB DESCRIPTION THEY WILL ALSO LOOK AT OTHER EVIDENCE OF ESSENTIAL FUNCTIONS AND STARS OVER TIME THE EMPLOYEES BEEN DOING THESE TYPES OF TASKS, THE CONSEQUENCE OF NOT DOING THE TASK, AND WHAT PRESENT AND PAST EMPLOYEES AND THEIR POSITION HAS SPENT TIME DOING THAT.

SO, WE DID HAVE A CASE THAT SAY STAYING AWAKE IS AN ESSENTIAL JOB FUNCTION SO, YOU KNOW, WE DID HAVE -- LINDA SOMEBODY DID HAVE TO HAVE LITIGATION ABOUT THAT PART THAT IS WHY IT IS IMPORTANT -- YOU HAVE TO PUT TH AWAKE AND AGENDAS, BUT IT'S IMPORTANT TO THIS KIND OF WHAT OUR NONESSENTIAL JOB FUNCTIONS THAT CAN BE TRANSFERRED TO SOMEBODY ELSE, ARE NOT CRITICAL TO THE POSITION, AND WHAT ARE THINGS WITH WHICH THE CITY

CANNOT LIVE WITHOUT. >>> THAT BEING SAID, ADA DID NOT INSULATE AN EMPLOYEE FROM IMPORT ACTION BECAUSE OF MISCONDUCT. SO THE EMPLOYEE DOESN'T KNOW TH DISABILITY, THE EMPLOYEE HAS REQUESTED RENEWAL COMMISSION AN THEY HAVE A FARMER OFFENSE AND YOU LOVE THE DISABILITY AFTER THE FACT, THEN YOU DON'T HAVE T UNDO THE ADVERSE IMPORT ACTION OR TRANSFER REASONABLE ACCOMMODATION OR PREPAID IN THE INTERACTIVE PROCESS. SO IS NOT A BLANKET PROTECTION.

USED AFTER KIND OF FOLLOW THE PROCESS IN ORDER TO PERFORM THE ESSENTIAL JOB FUNCTIONS WITH AN ACCOMMODATION.

>>> WAS A REASONABLE COMMISSION? THAT'S SUBJECT TO A LOT OF LITIGATION.

BUT THE EEOC AND THE ADA TOOK ABOUT AN INTERACTIVE PROCESS IN WHICH THE EMPLOYER KIND OF -- THE EMPLOYEE AND EMPLOYER CAN FIRE BACK AND FORTH ABOUT TH THINGS, WHETHER THAT BE EQUIPMENT, RELOCATION CAN BE MADE TO THE POSITION SO THAT THEY CAN PERFORM THE ESSENTIAL JOB FUNCTIONS.

GENERALLY THE EMPLOYER DOESN'T NECESSARILY HAVE TO ALWAYS COMPLY WITH THE EMPLOYEES PREFERENCE.

THEY MAY HAVE A PREFERRED DECLARATION BUT A PREFERRED INFORMATION IF YOU CAN PROVIDE AN ALTERNATIVE REASONABLE COURAGE THAT GENERALLY SUFFICES AND SO YOU CAN MAKE IS INTERESTED IS READILY ACCE ACCESSIBLE, YOU CAN RESTRUCTURE JOB POSITIONS, REASSIGN KIND OF MENIAL TASKS TO OTHER INDIVIDUALS TO ACCOMMODATE FOR THAT.

YOU CAN OFFER MORE BREAKS THAN YOU NORMALLY WOULD.

IF THE DISABILITY REQUIRES IT. AND SO IT IS SUPPOSED TO BE A FLEXIBLE PROCESS IN WHICH THE EMPLOYER AND EMPLOYEE ARE, AND ALWAYS IN COMMUNICATION. SOMETIMES IS TRICKY BECAUSE DISABILITIES CHANGE AND EVOLVE, AND HOW THEY AFFECT YOUR POSITION. SO EMPLOYERS ARE ALWAYS KIND OF KEEP -- BE OPEN AND RECEPTIVE T HAVING THAT DIALOGUE AND TO BE TRANSPARENT WITH WHAT THE CITY CAN AND CANNOT DO.

THE THRESHOLD IS IF WHAT IS BEING ASKED FOR, WOULD CAUSE AN UNDUE HARDSHIP TO BUSINESS OPERATIONS? AT THAT POINT IS NO LONGER A REASONABLE COMMISSION AND SO YO DON'T HAVE TO APPLY. SO DOESN'T NECESSARILY HAVE TO BE FINANCIAL. BUT THAT IS HONESTLY CONSIDERED.

SO YOU LOOK AT HOW DIFFICULT OR EXPENSIVE IT IS TO PROVIDE THIS TERMINATION IN LIGHT OF OTHER FACTORS, THE TYPE OF OPERATION, THE FINANCIAL RESOURCES OF THE EMPLOYER, THE IMPACT ON OVERALL FACILITY, ET CETERA. AND SO IF YOUR TERMINATION IS UNDULY EXTENSIVE, SUBSTANTIAL O DISRUPTIVE IN GENERAL IS NOT CONSIDERED SOMETHING THAT A CIT HAS TO PROVIDE IN ORDER TO

[00:45:13]

AND SO KIND OF A WHAT NOT TO DO DON'T ASK PEOPLE ABOUT THEIR MEDICAL CONDITIONS. TO ASSUME THAT SOMEONE'S DISABILITY WILL AFFECT OUR JOB REPORTS OR TREAT ANYBODY DIFFERENTLY BECAUSE OF A KNOWN OR SUSPECTED DISABILITY.

AND PDA THE PREGNANCY THIS CREATION ACT PREVIOUS DISCUSSIO OF THE BASE OF PREVIOUS, 15 OR MORE EMPLOYEES.

IMPAIRMENT RESULTING FROM PREGNANCY CANNOT BE CONSIDERED DISABILITY UNDER THE ADA, WHICH WOULD REQUIRE A REASONABLE COMMISSION ABSENT AN UNDUE HARDSHIP.

AND IF THE EMPLOYEE IS TEMPORARILY NEW TO PERFORM A JO DETERMINE A CONDITION INTO PREGNANCY OR CHILDBIRTH, EMPLOYER MUST TREAT THEM IN THE SAME WAY AS THEY TREAT OTHER TEMPORARILY DISABLED EMPLOYEES. AND SO IF YOU WOULD NORMALLY GRANT, IF YOU HAVE SOME SORT OF SHORT-TERM IS OF THE PROGRAM IS AVAILABLE FOR OTHER CONDITIONS, AND THERE IS A CONDITION AS A SHORT-TERM DISABILITY RELATED T PREGNANCY, YOU WOULD HAVE TO

TREAT THEM THE SAME. >>> AND SO, SIMILARLY, IF YOU CANNOT SINGLE OUT PREGN PREGNANCY-RELATED CONDITIONS OR SOCIAL TREATMENT, SO IF YOU DON'T REQUIRE DOCTORS NOTES, IF YOU'RE NOT OUT TO MORE THAN THREE DAYS, HE CAN'T REQUIRE FO PREGNANCY, OR VICE VERSA. A D-DOG CAP EA -- ADEA DESCRIPTION ON THE BASIS OF AGE OLD AGE? NOT ALL THESE. THERE'S ANOTHER CENTURY FOR THA BUT AGE 40 OR OLDER APPLY TO AL CITIES REGARDS TO NUMBER EMPLOYEES BUT IT DOES PERMIT CITY TO FAVOR OLDER WORKERS BASED ON AGE, EVEN IF DOING SO WOULD AFFECT A YOUNGER WORKER WHO WAS ALSO 40 OR OLDER. SO IT'S INTERESTING RECALL TH THERE. IT APPLIES TO BOTH EMPLOYEES AN JOB APPLICANTS. THERE IS A TENSION THAT ALLOWS FOR THE CITY TO IMPOSE A MINIMU OR A MAXIMUM AGE REQUIREMENT BU ONLY FOR PEACE OFFICERS OR POLICE OFFICERS.

MANAGING THE TEXAS LABOR CODE. >>> GENERALLY NOT OTHER THAN ARE YOU 18 OR YOU SHOULDN'T AS PEOPLE ABOUT THEIR AGE DURING HIRING OR MAKE ANY ASSUMPTIONS ABOUT HOW AGE AFFECTS ABILITY, TO PERFORM OUR JOB OR TREAT PEOPLE DIFFERENTLY BECAUSE OF THEIR AGE. SO ANY KIND OF INPUT ACTIONS HAVE TO BE LEGITIMATE NOT ESCALATORY REASONS UNLESS IT IS A PUBLIC SAFETY EMPLOYEES AND THEREFORE UNDER THE ASSUMPTION THAT WE TALKED ABOUT JUST NOW. THIS IS KIND OF NOT A POPULAR ONE BUT PRETTY DESIGNATION ON THE BASE OF GENETIC INFORMATION IS USED FOR GATHERING OR DISCLOSURE ALSO YOU CAN'T GENERALLY ASK ABOUT INDIVIDUALS GENETIC TESTS, ANYTHING RELATED.

RELATED TO FAMILY MEMBERS MEDICAL HISTORY SO YOU WOULDN'T ASK ABOUT MEDICAL HISTORY OF FAMILY MEMBERS ON IMPORT APPLICATION. OF COURSE, YOU CAN'T COLLECT THAT INFORMATION AND CAN'T MAKE ANY IMPORTANT DECISIONS ON THE BASIS OF THAT. AND SO THAT CAN UP A LITTLE BIT DURING COVID BECAUSE PEOPLE WER ASKING, WELL, AS ANY OF YOUR FAMILY MEMBERS EXPOSED TO COVID AND SO THAT WOULD REVEAL INFORMATION ABOUT FAMILY MEDICA HISTORY AND SO THAT'S NOT -- IT WOULD BE A PROHIBITED QUESTION. AND SO YOU COULD ASK THAT DIFFERENTLY, "HAVE YOU BEEN EXPOSED TO SOMEBODY THAT HAS COVID AND ANSWER WOULDN'T NECESSARILY REVEAL INFORMATION ABOUT FAMILY MEDICAL HISTORY. TEXAS IS EMPLOYED AT WILL SO YO CAN TAKE ANY ACTION. UNLESS IT IS, YOU KNOW, FOR NO CAUSE OR FOR GOOD CAUSE UNLESS IT IS NOT AN ILLEGAL CAUSE, WHICH WE'VE TALKED ABOUT QUITE BIT.

IT DOES, OF COURSE, PROTECT PEOPLE FROM BEING TERMINATED BECAUSE OUR SURRENDER RIGHTS OR CLAIM UNDER THE EMPLOYMENT STATUTES. AND THERE ARE A FEW KIND OF MINOR EXCEPTION TO THE EMPLOYMENT AT WILL RULE.

IF YOU HAVE AN EMPLOYMENT CONTRACT.

IF YOU'RE GETTING FIRED FOR REFUSING TO DO AND ILLEGAL ACT THAT WOULD SUBJECT YOUR EMPLOYE TO THE EMPLOYEE TO CRIMINAL LIABILITY BUT THEN THERE IS A PUBLIC POLICY EXCEPTION TO THE EMPLOYED AT WILL DOCTRINE. THERE IS ALSO PROTECTED UNDER THE WHISTLEBLOWER ACT TO PROTEC WITHIN HER PERFORMING JURY SERVICE OR COMPLYING WITH A SUBPOENA.

AND THEN ALL THE EMPLOYER STATUTES THAT WE TALKED ABOUT THAT ARE EXCEPTIONS TO THE EMPLOYMENT AT WILL DOCTRINE.

[00:50:06]

BUT IT DOES HAVE KIND OF A CARV OUT THAT IF THE EMPLOYEE OR OFFICER THE SUBJECT OF DISCUSSION REQUESTS THAT DISCUSSION TAKE PLACE IN OPEN SESSION, THEN THE COUNSELOR CANNOT AVAIL THEMSELVES OF THAT EXCEPTION TO GO INTO EXECUTIVE SESSION. AND GENERALLY WITH THAT THE DISCUSSION TO BE RELATED TO SPECIFIC POSITIONS AND INDIVIDUALS, AND IT CAN'T BE A BROAD GROUP OR KIND OF THE CITY AS A WHOLE OR ENTIRE DEPAR DEPARTMENTS, IN THE CONTEXT OF

THE PERSONNEL EXCEPTION. >>> AND LAST SLIDE, EMPLOYMEN AT WILL. IT'S IMPORTANT THAT WE HAVE THINGS IN RIDING, HAVE PROPER DOCUMENTATION, BECAUSE THERE IS NO GOOD THAT EVERYTHING IS DONE BY THE BOOK AND PROPERLY IF YOU HAVE NO EVIDENCE TO SHOW THAT OTHERWISE.

SO IT'S ALWAYS GOOD TO TAKE TIM TO DO THINGS THE RIGHT WAY, ESPECIALLY IF THERE IS SOME CONCERNS ABOUT POTENTIALLY LITIGIOUS EMPLOYEES OR FORMER EMPLOYEES.

I AM ALWAYS KEEPING A GOOD RECORD THAT IS SIGNED AND ACKNOWLEDGED BY THE EMPLOYEE BEING CONSISTENT AND TREATING EVERYBODY THAT IS SIMILARLY SITUATED THE SAME WAY.

IS BEING KIND OF THE LOOKOUT FO SALARY FREEZE CREMATORY CLAIMS BUT ALSO HOW YOU REACT TO THE BEAKER THAT COULD RESULT THAN

ANY QUIT ABOUT RETALIATION. >>> AND WITH THAT, THAT IS MY

PRESENTATION. >>> [INAUDIBLE].

>>> WE CAN. THAT IS A COUNSEL PREFERENCE.

THERE IS NO SPECIFIC, I GUESS, STATUTE, AT LEAST IN THIS CONTEXT FOR BULLYING. BULLYING KIND OF GETS LUMPED INTO HARASSMENT. CONDUCT -- THERE IS SOME OVERLA THERE. SO IF THE CONDUCT RISES TO A LEVEL EITHER BECOME A HOSTILE WORK ENVIRONMENT, SO IT IS STIL ACTIONABLE UNDER TITLE VII, WHETHER THE CONDUCT IS HAPPENIN ONLINE OR IS HAPPENING IN PE PERSON.

I DON'T KNOW THAT I WOULD HAVE AN HOUR TO TALK ABOUT BULLYING, BUT WE COULD CERTAINLY DISCUSS THAT.

I DON'T KNOW IF ANYBODY HAS ANY QUESTIONS OR EVERYBODY IS READY

TO GO. >>> QUESTIONS OR COMMENTS?

>>> THANK YOU. >>> IF THERE'S NOTHING ELSE FOR THE CITY COUNCIL TODAY,

* This transcript was compiled from uncorrected Closed Captioning.