HOUSTON FIRE DEPARTMENT ASSESSMENT PREPARED BY: Thom son AY p: orton. srtoanevs |eounsecons Thompson & Horton LLP Lemond & Lemond LLC Merri Schneider-Vogel Scott Lemond Philip D. Fraissinet Connica Lemond Lisa R. McBride Kimberly L. Cunningham DECEMBER 7, 2009HOUSTON FIRE DEPARTMENT ASSESSMENT 1. _ Purpose and Seope City Council and the Mayor of the City of Houston (“City”) engaged Lemond & Lemond LLC and Thompson and Horton LLP (“firms”) to assess the effectiveness of Houston Fire Department (CHED” or Department”) policies, practices, and training related to workplace harassment and discrimination. HFD’s vision is to provide “a superior level of emergency service that continually improves the quality of life, health and safety of the people [it] serve{s}--the citizens of Houston.” Effective workplace management promotes this vision by allowing HFD to focus on its ultimate mission of protecting life and property in the City of Houston. On the other hand, mismanagement of workplace complaints, including those involving allegations of harassment and discrimination, distracts from HFD’s mission and diverts key resources -- including time, money, and morale that should be devoted to the critical safety issues that the men and women of the HFD face each and every day. The purpose of our engagement is to independently and fairly assess the culture and workplace environment of HFD with particular attention on how effectively the City and HED resolve alleged incidents of harassment and discrimination involving race, gender, and other legally protected classifications. To conduct this assessment, we gathered input from stakeholders, analyzed City and HFD policies and procedures, reviewed resolution of past discrimination and harassment claims, and assessed best workplace practices of other fire departments, government entities, and private sector companies. Based on the assessment, in this Report we provide information and recommendations to the City so that its leadership may determine what, if any changes and improvements can be made to further HFD’s ultimate mission to protect lives and property in the City. We wish to acknowledge and thank the many members of HFD who participated and assisted in this assessment. From rank-and-file members at numerous fire stations throughout the City to top command staff, members were consistently cooperative, helpful, forthcoming with information, and candid about their opinions. The participation and assistance of these many members were essential to producing an honest and fair assessment that we believe will be helpful to the City and HFD in addressing workplace issues in the future, Il. Overall Assessment Our assessment of HED workplace issues and our recommendations for improvement must be viewed in proper context. We began this assessment after highly-publicized allegations of gender and racial discrimination and harassment emerged earlier this year. In the ensuing public discussion over those allegations, some asked whether the allegations reflected the HFD workplace environment. We were not retained to, nor did we investigate, those particular allegations and express no comment on them. However, based on extensive discussions with firefighters throughout HED, we found a dedicated force of professional men and women willingto risk life and safety at a moment's notice to serve Houston's citizens. Many HFD members candidly shared opinions or concems about workplace issues they experienced or observed ~~ some, according to their accounts, involving race, gender or other protected classifications. However, we did not find the nature of these concerns to be of the severity or type of those receiving public attention this year. Rather, we believe HFD shares the same challenge as many other employers, especially large employers: to effectively manage and resolve workplace problems, particularly those involving discrimination and harassment charges, in order to promote rather than distract from its mission. This challenge for HFD may be heightened given the unique nature of the profession and workplace environment. Our assessment and recommendations are comprehensive and extensive; however, they should not be construed as an indictment of HFD or Houston firefighters in general. UI. Process Our assessment involved four primary tasks: ‘A. Review and Assessment of Legal Parameters In order to understand and evaluate the legal environment within which HFD handles personnel matters, including allegations of discrimination and harassment, we analyzed the various laws, regulations, City ordinances, and HFD rules that apply to the Department. We have summarized this legal and regulatory landscape below in Sections IV and V and in the appendix attached to this Report. Given the sheer volume of rules that have developed over time, we have made some recommendations below in Section VILB in order to simplify, clarify, and add consistency to the regulatory scheme that applies to HFD workplace issues. B. _ Review of Past Complaints of Discrimination and Harassment In order to assess the nature of workplace complaints filed in HFD, we reviewed and analyzed (1) discrimination or harassment complaints filed with the Office of Inspector General (OIG) between 2005 and 2008 and (2) discrimination charges filed with the Equal Employment Opportunity Commission or Texas Workforce Commission from 2005 to 2009. We reviewed the complaints to determine the nature of the allegations, whether discrimination or harassment was confirmed, and whether there appeared to be trends of pattems in the types of complaints filed. We have provided our observations regarding our review of these filings in Section VI.B below. C. _ Interviews of HFD Stakeholders In order to assess HFD’s workplace environment, we gathered information from a wide- variety of stations, departments, and diverse group of HFD members. We conducted interviews in accordance with an HFD Special Bulletin, attached as Appendix 1, issued by the Fire Chief to all employees. Under this Bulletin, HFD employees were informed that we would initiate interviews with some members and that members could contact us to provide information even if they were not selected for an interview.We initiated and conducted structured interviews of approximately one-hundred and twelve (112) members of the Houston Fire Department. Our structured interviews included: twenty-two (22) women; ninety (90) men; thirty-one (31) black; twenty-six (26) Hispanic, and fifty-five (55) white firefighters.’ Individuals from approximately nventy-eight (28) fire stations located in each City Council District were interviewed, along with individuals from the Department’s Dart Station, Planning and Homeland ‘Security Command, and the EMS Headquarters. In addition to the one-hundred and twelve (112) structured interviews, we received information from approximately thirteen (13) individuals, from approximately ten (10) different work locations, who contacted us pursuant to the Special Bulletin. Finally, we gathered additional information, often for general background or about a specific issue, from numerous other City, HFD, and Union sources. In total, we talked with approximately one-hundred and forty (140) individuals to gather information about HFD workplace and operations. These individuals hold various job positions and ranks within the Department, including: Firefighter, Engineer Operator, Senior Inspector, Captain, Senior Captain, District Chief, Deputy Chief, and Chief, We also talked to individuals with varying years of experience from Probationary Officers to those who had over thirty (30) years of experience with the Department. D. Assessment of Best Practices We gathered information from or about other fire departments around the nation, as well as the U.S. Department of Defense and private industry to determine what common practices have led to improvements in how those entities or industries have dealt with workplace discrimination and harassment issues. We communicated with or gathered information about several fire departments, including those that have been regarded as having made progress in the areas of workplace diversity. For example, we had discussions with and received written information from the Chief and Assistant Chief from the Minneapolis Fire Department, a department with one of the most diverse firefighter workforces in the country, as well as the Tucson and Lincoln fire departments. E. Limitations There are some important limitations to our assessment and this Report. First, we expressly were not retained to investigate or draw conclusions regarding any particular allegations of acts or incidents of discrimination or harassment. Second, although we conducted interviews with many members and employees of HFD, our interviews were not determined based on @ statistically relevant random sampling or other scientifically- based method. Rather, our goal was to ensure that we obtained input from a diverse group of HFD members and to allow individuals to contact us if they so desired. Finally, although we were initially asked to review issues related to criteria used for involving "Im this assessment, we use the demographic terminology that is in current use by HED.outside law enforcement entities in HFD investigations, our scope was subsequently clarified to not include this issue because this matter was ultimately handled by the City Attorney's Office. IV. Legal Parameters Unlike private industry employers, HFD is constrained in its ability to make personnel decisions by a number of statutory, charter, ordinance, and labor agreement provisions. Chief among them is Chapter 143 of the Texas Local Government Code which sets out the civil service scheme for HFD employees. TEX. Loc. Gov’T CoDE ANN. §§ 143.001-143.363. The Department is also subject to the City of Houston Municipal Charter and Code of Ordinances, and its Collective Bargaining Agreement with Houston Professional Fire Fighters Association — Local 341, International Association of Fire Fighters (“Union”). A detailed discussion of these laws and contractual obligations is contained in Appendix 2. V. Internal Governance Internally, HFD is governed by its own rules and regulations which “provide guidelines for behavior and conduct which will aid in the achievement of orderly coordination of effort among members of the Houston Fire Department in the discharge of their duties, under both routine and emergency conditions.” The Department is also subject to a number of City policies and Mayoral decrees, Currently, neither the City nor HFD has a unified, updated anti-discrimination policy Rather the City and HFD have many disparate, overlapping, and, in some cases, conflicting rule executive orders and policies that relate, in some way, to discrimination/harassment issues and processing complaints. A detailed discussion of the relevant rules and regulations, policies, and orders is contained in Appendix 2; however, some of the most relevant are as follows A. General Anti-Discrimination/Harassment Rules and Orders © HFD Rules and Regulations, Volume 1, Reference Number I-01 Section 9 deals with workplace and public behavior. Prohibitions include harassing another member or citizen because of race, ethnic group, religion, or sex. © Mayor’s Policy Number 101.00 declares the City’s commitment to “Affirmative Action” and employment practices without regard to race, color, religion, sex, national origin, age, handicap, Vietnam-era veteran status, or disabled veteran status. ‘* Mayor's Policy Number 102.00 declares the City’s commitment to provide equal employment and economic opportunities in all City programs without regard to race, color, religion, sex, national origin, age, handicap, Vietnam-era veteran status, or disabled veteran status, and to provide each employee a work environment free of discrimination.Mayor's Policy 106.00 pledges that the City will employ individuals on the basis of their qualifications and with assurance of equal opportunity and treatment regardless of race, religion, color, sex, age or national origin. exual Harassment/Discrimination Rules and Orders Mayor's Policy Number 113.00 (in addition to general harassment policies above) forbids and addresses sexual harassment. Mayor's Policy Number 102.00 states it is the policy of the City to provide each employee a work environment free of sexual harassment. Slur and Artifact Rules and Orders HFD Rules and Regulations, Volume 1, Reference Number I-01, Section 8 forbids the use of race, ethnicity, or gender slurs. Section 9 of the same rules prohibits the use of “obscene, immoral, profane, or offensive language,” and “offensive religious, racial, ethnic, or sexual remarks.” Executive Order 1-20 forbids City workers from using “racial, ethnic or gender slurs or connotations towards another employee” or creating “an intimidating, hostile ot offensive working environment.” The Order defines slur as “a remark, language, illustration, or other media including but not limited to jokes and pornography, which degrade an individual's race, gender or national origin, provides a complaint mechanism, and holds supervisors and managers accountable for their failures to act upon information that a violation has occurred. HED Order No. 01 charges “Station Officers” with reviewing Mayor’s Executive Order 1-20 and specifies that members are expected to be cognizant of what constitutes offensive artifacts and symbols and recognize they are not permitted on City property. Other Related Rules and Orders HED Rules and Regulations, Volume 1, Reference Number I-01, Section 6 concems “obedience to rules, orders, and regulations” and addresses such issues as compliance with laws and orders, obedience to the chain of command, truthfulness, cooperation in departmental investigations, and the filing of grievances. Section 8 of the same rules also prohibits discrimination based on sexual orientation, and disrespectful or discourteous behavior, Section 9 prohibits hazing and possessing or viewing “[lJewd or obscene calendars, pictures, slides, movies, television programs, pornography, etc. .. ..” Mayor's Policy No. 114 extends the prohibition against discrimination to employees with disabilities.‘© Executive Order 1-8 further extends the ban on discrimination to sexual orientation and delegates responsibility for conducting sexual orientation discrimination and retaliation investigations to OIG. * HFD Order No. 01 charges “Station Officers” with reviewing with their subordinates Mayor's Executive Orders 1-8 and HFD Rules and Regulations, Volume 1, Reference Number I-01, Sections 8.0 and 9.0. * Mayor's Policy No. 114 extends the prohibition against discrimination 10 employees with disabilities. E. Complaint Process Rules and Orders * HED Rules and Regulations, Volume 1, Reference Number I-01 Section 8 expresses a preference for informal resolution of disputes “within the various districts or commands . ..” « HFD Rules and Regulations, Volume 1, Reference Number 1-04 sets out the complaint procedures and establishes the practices to be followed during internal investigations. * City of Houston Administrative Procedure 3-7 requires complaints of discrimination or harassment to be immediately forwarded to the Office of Inspector General for review and possible investigation. Mayor's Policy Number 102.00 compels department heads to report affirmative action goals and timetables, inform their staffs about procedures to resolve discrimination complaints, and disseminate those procedures. The Affirmative ‘Action Division (now known as the Mayor's Office of Affirmative Action and Contract Compliance) is given the responsibility to “investigate and resolve complaints alleging discrimination or retaliation on the basis of race, color, religion, sex, national origin, age, handicap, or veteran status” and provide Equal Employment Opportunity training for all officials and employees. In tum, the “Director of Affirmative Action . . . shall have the authority to develop, implement, coordinate, monitor, and enforce an ongoing plan of affirmative action for the City of Houston, and to investigate and determine the merits of any such violations and/or exceptions.” + Executive Order 1-39 reconstitutes OIG as a division within the Mayor's Office to “conduct, supervise, monitor and initiate investigations relating to misconduct with respect to City employees, excluding, classified police officers subject to Chapter 143 of the Texas Local Government Code. ‘We believe the current practice of promulgating many different rules to circumscribe the same, or similar behavior is confusing and hampers eflective training and implementation, During our interviews, many employees reported lack or incomplete knowledge of the Department's conflict resolution policies and procedures in general and of the procedures conceming reports of harassment or discrimination specifically. Additionally, the various Departmental policies and procedures on the subject are inconsistent with other City rules and ordinances, In particular, provisions placing an affirmative duty upon 7supervisors to receive, investigate, and resolve harassment and discrimination claims conflict with Houston, Tx., Cope § 14-55.7, AP 3-7, and Executive Orders 1-8 and 1-39 which place such duties squarely within the hands of OIG? ‘Added to the inconsistent language is the fact that a large number of firefighters we interviewed expressed the belief that members must initially report job-related problems to their immediate supervisors, then, if no resolution is reached, follow the chain of command until a resolution is reached. This belief has its apparent genesis in Section 6 of HFD's rules and regulations, which generally requires obedience to superior officers and Section 8.10 which states “(d]isagreements should, when practical, be settled within the various districts or commands, whether with the Station officer, or in the Chief Officer's quarters, Matters not settled in this manner should be addressed through the grievance process.” While many members reported that this informal process of conflict resolution works well in most cases, the practice does have drawbacks, First, Section 8.10 expresses a preference for following the chain of command, It is not a mandate, as many employees believe. Many firefighters interviewed stated they believe that the practice leads to retaliation by superiors which, in tum, may have a chilling effect on bringing legitimate concems to HFD leadership. Second, some of the firefighters interviewed reported dissatisfaction with outcomes or a fatalistic attitude based on experiences such as having to report misconduct to a person engaged in or with prior knowledge of the misconduct, favoritism or otherwise selective enforcement of HFD rules. Third, there is currently no record-keeping requirement for informal conflict resolution. As a consequence, HFD is losing valuable information concerning the types and frequency of tensions in the workplace and ay be missing opportunities to address them more effectively. Fourth, whether accurate or not, the perception exists among some firefighters that there is a sinister motive behind informal conflict resolution: officers who engage in misconduct, including harassment and discrimination, serve as ‘gatekeepers to the formal process and use their positions to thwart fair resolution of problems. Because of these concerns, and because some of the rules and regulations addressed above are outdated and inconsistent with one another, we recommend various changes in Section VIB of this Report. VI. Assessment of Workplace Environment A. Workplace Culture Firefighting has long been regarded as a noble, dangerous, and demanding profession, with a unique workplace environment not typical of most other white-collar or even blue~ collar professions. It also has been, historically, a profession made up almost exclusively of men and, moreover, largely of white men. As with other professions, the introduction 2 Though Executive Order 1-39 controls in cases of inconsistency, the mere fact that contradictory language is still found in HFD rules and regulations is a possible source of the confusion among HFD members. 8of racial and ethnic minorities and women into the ranks has resulted in a more diverse workplace, but also has carried with it challenges and resistance to change in the culture and environment that has long been part of the firefighting profession, Our interviews with members of HFD confirmed that Houston’s firefighting department shares many of the same cultural and environmental attributes of the firefighting profession generally First, firefighting’s historical core mission ~ the suppression of fire ~ requires significant physical skills, including strength, stamina, and agility. These physical skills are also necessary for other key functions, such as rescue operations, medical situations, and maintenance of equipment. It is critical that firefighters possess the physical skills necessary to safely and effectively perform their mission. However, it is apparent that certain beliefs about and the manner in which the required physical skills have been measured can serve as an obstacle to the integration of diversity in the profession, particularly by women, For example, based on our review of information about the profession as well as our interviews in HFD, there does appear to be a perception among many that standards have been or must be lowered in order for women to be able to qualify for the job. There may also be women who otherwise would be interested in being firefighters who have misperceptions about the physical requirements of the profession. As discussed later in the assessment, dealing with perceptions about this essential part of the firefighting profession and ensuring that qualification standards are consistent with the critical elements of the job are important to shaping workplace attitudes, It is also true that the nature of modern firefighting has changed. There is an increased reliance on and need to work effectively with technology and advanced equipment, as well as an increased role of firefighters in non-fire-suppression functions, such as EMT duties. These and other changes in the profession mean that, in addition to physical skills, firefighters must possess other skills, such as judgment and intellectual skills, which have resulted in increased educational requirements for the job. In HFD, candidates now must have at least sixty (60) hours of college credit to qualify for the job, whereas in the past, no college hours were required. Perhaps the most unique aspect of firefighting is the workplace environment. In HFD, firefighters work twenty-four hour shifts, and must be ready to respond to emergency calls at any moment. As such, firefighters work for long periods of time in close proximity to one another in an environment that necessarily involves many activities not typical of other work settings, such as cooking, eating most meals together, sleeping, showering, and recreational activities. Not surprisingly, this close environment can build close ties ~ what was often described to us as a “family” environment. However, this environment also creates challenges very different from the typical office or workplace environment. HED, as with the firefighting profession generally, is imbued with a quasi-military culture, which stresses respect for line of command and authority. This is important in a profession in which lives are at stake and where it is crucial that orders be followed in 9stressful and life threatening situations. However, this attribute can also present significant challenges. Subordinates can be tom between following lines of command or respecting authority, on the one hand, and raising complaints or providing information about a complaint that may not be favorably viewed by a superior. Initiation for rookies has long been part of the firefighting culture, New firefighters are integrated into the system through various rites of initiation, some fairly benign, while others more demoralizing and unsafe have lead to current HFD rules prohibiting hazing. Although some forms of initiations may serve to build bonds among firefighters, they also create a perception of hostility to outsiders and add to the challenges of an integrated workforce. All of these factors lead to a unique work environment that presents complex challenges when dealing with harassment and discrimination issues. The challenge is to retain what is positive about the culture, while also fostering a professional environment in which harassment and discrimination is not tolerated, complaints are effectively investigated and resolved, and time and resources can be focused on the mission of the Department. B. _ Review of Historical Complaints ‘As part of our assessment we reviewed and analyzed discrimination and harassment complaints filed with OIG between 2005 and 2008’. We also reviewed Charges of Discrimination that were filed with the Equal Employment Opportunity Commission (EEOC) or the Texas Workforce Commission (TWC) from 2005 to 2009. We reviewed the complaints and charges to determine whether there appeared to be trends in the types of complaints filed and the work location of the incidents. The number of complaints/charges filed did not appear to be outside the range of what might be expected for an organization the size of the Department (approximately 4,000 employees). In the following sections, we describe the nature of some of the charges and complaints filed. Because we did not talk to the parties involved in the allegations and did not investigate each item, we obviously cannot, and do not, express any opinions or conclusions regarding the validity of the complaints or lack thereof. Rather, we believe this information is relevant to gain an idea of the nature of concerns of the firefighters who filed complaints. EEOC Charges Approximately thirty-six (36) charges were filed with the EEOC/TWC between 2005 and 2009. Some of the complaints involved several different allegations (retaliation and gender; race and gender, etc.). Of these charges, approximately twenty-one (21) alleged discrimination on the basis of race, approximately ten (10) alleged discrimination on the basis of gender, approximately four (4) alleged discrimination based on national origin, > At the time we began the assessment and requested the information, the complaints initiated in 2009 were still being investigated and therefore could not be released to us, 10approximately three (3) alleged discrimination based on disability, and one alleged discrimination based on age. Approximately fifieen (15) charges contained allegations of retaliation ~ the individuals who brought the charges complained that they had been retaliated against for bringing a discrimination or harassment complaint in the past. Several of the charges involved challenges to policies or practices. These included a complaint on behalf of black firefighters that the tests used for promotions had a disparate impact on black firefighters and a challenge by several women who claimed that the promotion policy had a disparate impact on women. Several charges alleged that the transfer and overtime policies are applied differently to women and black and Hispanic firefighters. Other charges involved more individualized allegations of discrimination such as: a claim by a firefighter that she was issued an involuntary medical separation, involuntarily assigned to the nightshifi and denied a staff position due to her national origin and sex; a claim that the rotation for driving the ladder truck at a station was discriminatory; a claim that a black firefighter was not permitted to “ride-up™ as his white counterparts were permitted to do; a claim that a firefighter was denied training or had to go through obstacles to obtain the training; and a claim by a female firefighter that she was required to take additional tests that male firefighters were not required to take, or required to demonstrate the ability to use equipment when male firefighters were not. A few charges involved allegations that individual firefighters received negative evaluations for discriminatory reasons. Others alleged that they were involuntarily transferred or suspended due to a discriminatory reason. A firefighter filed a charge alleging graffiti, ‘vandalism, and disparate treatment due to race and sex, and another female firefighter alleged vandalism, graffiti and acts of harassment due to her gender, including inappropriate touching, comments, and acts that created a hostile environment. Two firefighters alleged a hostile environment created by a noose in the workplace and retaliatory treatment as a result of complaining about the incident ‘Approximately fourteen (14) of the charges are still pending before the EEOC or the TWC. The EEOC made a finding of discrimination in only one (1) case (involving charges filed by three (3) complainants). In that case, as required by law, the EEOC referred the case to the Department of Justice for review, which declined to file suit on behalf of the complainants. The complainants also declined to file suit on their own behalf, In the remaining charges that were filed and are no longer pending, the EEOC dismissed the charges because it either did not find discrimination or at the request of the complainants. In both of these situations complainants had the right to pursue lawsuits, Six (6) lawsuits were filed. Five (5) are still pending and one was voluntarily dismissed by the complainant. One of the pending cases was brought by seven (7) individuals who had filed charges of discrimination alleging that the testing system had a disparate impact on black firefighters. 4 “This refers to the practice of permitting a firefighter to gain more experience by being placed in the acting officer's position nT2, OIG Complaints Approximately fifty-four (54) complaints filed with OIG that relate to harassment or discrimination were provided to us. Of those fifty-four (54) complaints, approximately twenty-four (24) alleged harassment or discrimination based on race, two (2) of which involved reverse discrimination; approximately six (6) involved allegations of discrimination/harassment based on national origin; approximately six (6) dealt with allegations of sexual harassment; approximately seven (7) dealt with allegations of discrimination or harassment based on gender; two (2) alleged sexual orientation discrimination; and approximately eight (8) dealt with retaliation. Included in the complaints were eight (8) in which racial, ethnic, or gender slurs were alleged. The complaints arose from seventeen (17) stations, approximately six (6) complaints dealt with firefighters’ actions either off duty or away from their work locations (e.g., at a hospital or a private residence while responding to a call), and approximately seventeen (17) arose from other work locations within the HFD. Of the fifty-four (54) complaints, twenty-three (23) complaints were sustained. Many of the complaints involved multiple or combined alleged rule violations. Of those twenty- three (23) complaints that were sustained, one (1) involved sexual harassment, three (3) involved racial slurs, and two (2) involved Title VII retaliation claims. ‘The remaining complaints were sustained on the basis of violations of HFD rules and regulations not specifically related to discrimination or harassment. Several of the complaints involved more than one rule violation as follows: six (6) involved “conduct and behavior;” five (5) involved truthfulness/false reports; three (3) involved courtesy to public harmony; one (1) involved neglect of duties; six (6) involved respect to fellow members/failure to treat in respectful manner; nine (9) involved immoderate language; and three (3) involved obedience to lawful order/obedience to rules. 3. Observations From reviewing the OIG complaints, we did not observe pervasive or systemic incidents of discrimination or harassment based on race, sex or national origin emanating from a particular work location. ‘There were approximately five (5) stations and four (4) other worksites in which more than one complaint arose. For the most part the complaints involved isolated inappropriate acts of individuals. Some of the individual allegations that were sustained justified significant disciplinary consequences. Although any sustained charge involving an act of discrimination or harassment is serious, we did not conclude on the basis of our review of the OIG complaints that discrimination, harassment or retaliation was pervasive throughout the Department or at a particular work location. We observed some inconsistencies in the identification of rule violations within the OIG investigations we reviewed. When a complaint is filed and investigated by the OIG, the 12complainant does not necessarily allege a violation of a rule, regulation or policy. Rather, the complainant describes the alleged conduct. The OIG investigator assigned to the complaint investigates and makes findings, The division manager’ then reviews the findings and determines which, if any, rules, regulations or policies have been violated. ‘As such, in most of the complaints, there was more than one rule or regulation allegedly violated. There appears to be some discretion on the part of division manager to identify what rule or regulation is sustained. Additionally, because the subject matter of the rules and regulations overlap, in some situations, OIG sustained complaints by finding a violation of one rule and not another. The most obvious example relates to racial/ethnic/gender slurs. Of the twenty-three (23) complaints sustained, three (3) were sustained on the basis of a slur. However, based on the allegations and the findings, in several additional cases, slurs could have been sustained. Instead, a rule violation related to “immoderate language” or “respect to fellow members” was sustained. We are unable to determine if the discipline imposed was the same, harsher, or more lenient than had a racial/ethnic/gender slur had been sustained so we cannot determine the actual effect of these findings.” We also noted some inconsistency in those complaints that were determined to be “not sustained” and those that were determined to be “for information only.” Sometimes when OIG concluded that a violation occurred but could not determine who committed the violation, OIG determined that a claim was “not sustained” and other times OIG made a determination of “information only.” Although we heard some complaints that the OIG investigations were superficial, from our review, they appeared to be comprehensive and thorough. We also heard some concems expressed that the complaints were not investigated in a timely manner. Based on the information we requested and received, we are not aware of any complaints investigated by the OIG that extended beyond the 180-day statutory time line. We did not review any complaints that OIG referred back to the Department for investigation, so wwe are not expressing any opinion about the nature of those complaints or how they were investigated. None of those complaints, however, should have involved harassment or discrimination, ‘On more than one occasion, specific diversity training or some other intervention was suggested or agreed to be provided as a result of the investigation. We followed up on two of these instances. In one situation the training was provided. In the other situation the intervention was not provided. 5 ONG has four different units, It is our understanding that currently, all harassmenvdiserimination complaints are investigated by investigators in the Employee Relations Unit. If a complaint were to be investigated by an investigator in the HFD Internal Affairs Unit, the department head of that unit, a senior arson investigator, ‘Would determine the rule violations. See our recommendation L in Section VILL of this Report. ® According to the HFD Behavior Manual, a violation of Rule 9.02, lmmoderate Language is a category 3 offense, yet a violation of rule 8.01, Racial, Ethnic, and Gender Slurs, is a category 2 offense for a single isolated slur and a category 4 offense for multiple incidents of slurs. 13‘The number of EEOC charges filed per year did not appear excessive in light of the number of employees in the HFD workforce. For example, only one (1) EEOC charge was filed in 2005, sixteen (16) were filed in 2006, (more than half of those involved challenges to the promotion policy of the Department), four (4) were filed in 2007, five (5) were filed in 2008, and ten (10) were filed in 2009. Several of the charges filed in 2009 were filed as amendments to previously filed charges. C. Trends from Interviews Our interviews focused on three broad categories: experiences related to harassment/discrimination, including experiences of the interviewees and those of other, opinions about the complaint process; and opinions and suggestions regarding training in the area of diversity/harassment/discrimination. In the following sections, we describe the nature of the responses we received during our interviews. Because we did not talk to everyone involved or investigate matters that came up in interviews, again we do not express any opinions or conclusions regarding the validity of any particular comments. We believe, however, that these interviews provide a general basis to assess the overall HED workplace. |. Harassment and Discrimination ‘The majority of the firefighters we interviewed reported that either they experienced discrimination or harassment or believed that others had experienced discrimination or harassment. Many of these individuals described incidents that occurred years ago when they first were employed by the Department. Some reported that they had experienced subtle acts of discrimination such as feeling excluded when they filled in at another station and that they did not know if the isolation was because of their gender, race or national origin, but they thought that might have been a factor. Others described experiences of more overt discrimination. Some reports included: discriminatory statements or slurs; assignment of a black firefighter to a “permanent” transfer position by a white supervisor (resulting in the black firefighter being the first person to have to fill in at other stations); and a white firefighter refusing an order given by a black firefighter. Several black firefighters expressed that they thought that black firefighters are disciplined more harshly than nonminority firefighters and that the promotion process was applied in a discriminatory manner. Specifically, they alleged that there is an arbitrary cut-off score on the promotion test that changes all the time and is set 10 intentionally keep minorities from receiving promotions. We heard many comments that the imposition of discipline is determined more by the race or gender of the person violating the rule than the nature of the offense. Others reported a sense that those in a higher rank who are complained against are “protected” and not disciplined. Many expressed that there needs to be a prescribed progressive discipline system and appeared unfamiliar with a departmental discipline system or manual. A black firefighter shared that he thought that O1G’s refusal to believe his account of what happened with another firefighter was because of his race. A black captain indicated that he thought he had been discriminated against when white subordinates went to white captains for 4guidance, direction etc. instead of conferring with him. One Hispanic firefighter complained that he was retaliated against by a white captain because he spoke up in support of a black firefighter who was allegedly targeted. Several black firefighters indicated that there are certain stations that blacks and women. are not welcome at and there are others that are “dumping” grounds for minorities. Some black firefighters expressed that there is a feeling among some white firefighters that black firefighters are or were hired by the Department as a result of affirmative action, A. related theme is that there is still a “good ole boy” system in the Department and those who are different -- whether because they do not share the same interests, because they do not have relatives in the Department, or because they do not “look like” the traditional firefighters who have been in the Department for decades ~-are not accepted. The comments we received about women in HFD are quite diverse. Many male firefighters expressed that they are completely comfortable working with women and are not aware of any harassment or discrimination against women. Others expressed very different views. For example, one male captain reported that he does not put women in positions to perform life saving or physically demanding tasks because he believes they will fail. Several men interviewed expressed apprehension about women being in the Department. Other men said that they felt that way when they first began to work with women, but no longer feel that way. They expressed the opinion that as long as the female firefighter can do her job, they have no problem working with female firefighters. Some expressed continued concem about working with women and thought that men had to change their behavior when women were present. A number of male firefighters made comments that women had it easier than they and used their gender to get out of doing work. Other men expressed “paternalistic” comments about women — such as “I wouldn’t want my wife or daughter to be a firefighter.” ‘A number of male firefighters interviewed expressed a concem that the Department has lowered its physical standards in an effort to accommodate women firefighters. Although the firefighters who expressed this concem did not share specifics about the changed requirements, some indicated that they believe that the standards have been lowered and that change has had a detrimental effect on the Department and the services provided by the Department. Others did not go so far as to say that reduced physical requirements resulted in firefighters who were not able to perform their required duties, but just that the lowered standards resulted in a workforce that was not as physically fit as it would have been under the former requirements. The comments made by women were also varied. More than half of the women we interviewed had positive comments about the Department and had not experienced acts of discrimination or harassment and had no personal knowledge of other women being discriminated against or harassed. Many women firefighters attributed their positive experiences to their good fortune of working with excellent captains. Many women interviewed, however, did express the opinion that they had to prove themselves in a way that men did not. Although they did not characterize this expectation as a form of discrimination, they did believe it indicated different treatment.Several women who reported disparate treatment due to their gender, reported that some captains who do not like women in the Department have made it difficult for women, including denying time off when requested, denying the right to get off work at the end of the shift, and not providing training and experience on certain apparatus as required. Several men shared these views. Some women firefighters interviewed felt that women should not complain about what they viewed as “minor” things as having to share dormitories with men or not having their own restrooms. They also wanted to be seen as firefighters, not “female firefighters” because they think that identifying themselves as female firefighters perpetuates the myth that female firefighters cannot perform at the same level as male firefighters. Others believe that concerns about dormitories, restrooms and other working conditions are legitimate issues and they should be addressed, Other women shared experiences of overt discrimination, One woman firefighter reported that she had good experiences until a particular captain became her supervisor ‘and he did not like women working in the Department and made her job very difficult. She also stated that when she tried to transfer, her captain shared negative comments ‘about her with the captain at the new station. She indicated that she was isolated and felt left out when she worked at fire stations where she was the only white person, and that she has heard a captain tell inappropriate jokes about females. Another female firefighter reported that she has historically had a difficult time in the Department since she entered the Academy more than a decade ago. She reported that she was required to perform training cycles over to prove her physical strength when her male counterparts were not. She also shared that she was subjected to acts of harassment when she went to different Stations including having her locker broken into, her tires slashed, and her food contaminated, She stated that she was identified as a trouble-maker and transfers were blocked due to this identification. Another female firefighter reported that she was denied training provided to others. She also shared that she has experienced disrespect, for women, was subjected to the display of inappropriate pictures and pornographic ‘magazines in the station, and had to listen to inappropriate language at the station. ‘A large number of firefighters interviewed identified rookie hazing as a form of harassment. Most did not attribute the hazing to race, ethnicity or gender. Many seemed very accepting of rookie hazing, and saw it as a “right of passage” that was well engrained in the culture of the Department. A few firefighters indicated that they experienced or observed more severe hazing because of gender or race, but there is a sense by many that joking among firefighters serves as a de-stressor, in an otherwise very Stressful environment. One Hispanic firefighter indicated that he has heard comments that might be considered derogatory toward his ethnicity, but he did not take the comments that way. By contrast, other firefighters thought that hazing, including practical jokes, etc., has not place at work and showed unprofessional conduct There was an almost universal feeling that the atmosphere of the stations, including tolerance or intolerance to discrimination, harassment, rookie hazing, etc. reflects the attitudes of the station’s captain and/or district chief. 162. The Complaint Process We received diverse comments about the complaint process. Many firefighters indicated that they knew there was a complaint process and they knew where to find the rules for filing complaints if they needed to, but because they never felt the need to file a complaint, they were unable to explain the process. Several firefighters also noted that if they had a question about filing a complaint they would contact the Union, Staff Services or their captain. ‘A number of firefighters recognized that some concems could be processed through the grievance process while others may be filed with OIG. When we probed further, however, very few were able to give examples of which concerns were channeled through which process. Others reported that they were knowledgeable of the complaint process but when asked to describe it, their descriptions were inaccurate. A small number of firefighters interviewed knew nothing about the complaint process. Similarly, a small number of firefighters interviewed had actually used the complaint process. Those who had the most accurate knowledge of the complaint process were those who had studied for a promotional exam. It appears that the study materials for promotions provide the most concrete information about the complaint process. ‘A large number of firefighters indicated that they would go through the chain of ‘command if they had a complaint, Some indicated that they had to tell their immediate supervisor if they intended to file a complaint, even if the supervisor was the subject of the complaint, Others indicated that normally they would be required to go through the chain of command, but they could bypass a supervisor if the complaint was about that supervisor. Many interviewed also expressed that concems are dealt with at the station level. Most who were interviewed saw that as a positive fact and many thought that going outside the station was looked down on because it reflected badly on the captain and gave the impression that the captain cannot handle problems or issues. We heard quite a few concerns that the complaint process does not promote confidentiality. For example, some report that confidentiality is neither maintained nor encouraged, which results in much more public discussion about particular complaints than is necessary or appropriate. Many opined that captains and members in senior ‘management positions openly discuss complaints that are being investigated or have been investigated. Some also report that when a member files a complaint at Staff Services, Staff Services then tells the person complained about that a complaint against them has been filed, and this impedes the investigation process. Because many complaints are actually investigated by captains and district chiefs, if confidentiality is not maintained, there is a great chance that firefighters in stations and other work locations become aware of specific complaints, We also heard comments that the complaint process is not effective because the decision-makers are influenced by each other. The concern is that 7the process is not impartial and often the person who is asked to investigate the situation is a person who is either involved or is being influenced by the person against whom the complaint has been filed. Several individuals indicated that the only way to obtain a fair and impartial investigation is to file an EEOC complaint. We heard disparate views on whether firefighters were reluctant to file complaints due to fear of retaliation. The majority of firefighters who expressed an opinion on this issue opined that they did not fear retaliation and indicated that if there was something significant to complain about, they would file a complaint. A significant number of firefighters interviewed, however, did express that members do not file complaints for fear of retaliation. They believe that lack of confidentiality concerning the complaints fosters this fear. Most of the members interviewed who expressed some fear of retaliation explained the “fear of retaliation” as being identified as a complainer and treated differently as a result of complaint. A smaller number of those interviewed believed that they would actually suffer retaliation for having filed a complaint. ‘We learned that some captains note in the captain’s log when a member has filed a formal complaint.’ We reviewed Rule 11.01, which addresses captain’s log book entries to determine if such a notation is required. Captains are required to include in the captain's log information pertaining to their tour of duty. Seven (7) specific categories of information are required to be included in the captain's log. Although one of the categories includes a catch-all category — all other pertinent information concerning apparatus, personnel or station and all training ~ it does not appear that the rule requires @ captain to note in the log that a firefighter has filed a complaint. 3. Training Many firefighters expressed strong and diverse opinions about training, Regarding waining on diversity/harassmenv/discrimination, most of the firefighters interviewed either expressed the opinion that more and regular training in these areas would be beneficial or indicated that they were neutral about the subject. A number of non- minority firefighters, however, expressed that_~=s more training ~— on diversity/harassment/discrimination issues is not necessary. Those interviewed also expressed diverse views about the type of training. Some indicated that computerized training was efficient and effective. Those who liked this kind of training indicated that it was the best way to train large numbers of firefighters and to ensure that they all received the training. Those who disliked this method of training indicated that often only one person in the station takes the computer training course for everyone else in the station. In other words, although all the firefighters sign off as having completed the training, they have not. Others who did not identify that * Some expressed a concern with this practice because it impaired confidemtality. One member, however, expressed that all complaints should be logged in the captain's log to maintain proper documentation of the existence of the complaint. See our comments about this issue in Section VII.H of this Report. 18issue as a problem, nevertheless thought computer based training is ineffective, boring, and a waste of time. ‘A large number of firefighters who thought training in these areas were necessary, thought that personal training — given live by a person using scenarios and examples is most effective. Many expressed that consequences for violation of the rules related to disorimination and harassment should be included in the training. Some thought that training for a district at a station was effective. Others thought bringing everyone together in a large room like the training center is the most effective taining “There were divergent views about who should do the training to make it effective. Some said it should be done by individuals not associated with the HFD. Others said the firefighters will not relate to people who do not know anything about the Department. Some recommended that the presenters be from within and outside the Department. A tuniversal opinion expressed was that whoever does the training must be knowledgeable about the subject matter. Some expressed that the most important factor to determine the effectiveness of the training is if it appears that it has the support and buy-in of Tnanagement, Some thought it important for a member of the command staff to be present at trainings. Many firefighters of all ranks expressed a need for more management training. Several members indicated that once a firefighter passes the promotional exam and gets a promotion he or she is expected to perform new managerial responsibilities and they recives little training. We are aware that the Department recently instituted a New Officer Training program. This has provided some needed training, but more training on managerial techniques, how to deal with discipline issues, the complaint process and tiversity issues would be helpful to better prepare officers, Some firefighters who expressed strong opinions on this topic recognized that there are many areas of training ‘elated to firefighting duties that must be conducted but EEO issues should be given higher priority. 4, Transfers Many firefighters mentioned concerns about the procedure used for transfers. Several off the firefighters who called us to provide feedback did so t0 express specific concems bout the transfer practice. The concem uniformly expressed was the perception that firefighters are required oF at least expected, to contact the captain of the station to which the firefighter wants to transfer to notify the captain of his or her interest. According to many, captains often discourage the firefighter from transferring. For example, several individuals interviewed indicated that when the firefighter made the “courtesy call” the captain informed the firefighter thatthe captain already had someone in mind to fill the Savancy. Others reported that captains discouraged them from transferring by suggesting to the firefighter that he or she really did not want to come to that station. Several male, female, minority, and non-minority firefighters hold the opinion that some captains discourage transfers to maintain segregated workplaces. 19vu. Based on our review of the Local Governmental Code, Civil Service Rules and the guideline related to transfers, a person with the greatest seniority in grade is entitled to the transfer. There is a section in the guideline that states that during the new posting periods (for vacancies) all transfer requests submitted to the Personnel Assignment Office (PAO), the office where department transfer requests are received, recorded, and transfer orders are generated, will be forwarded to the district chiefs at both the outgoing and requested transfer locations. If any district chief wishes to disapprove the transfer request, the reasons must be submitted in writing to the Assistant Chief of Emergency Operations within seven calendar days of the end of the posting. District chiefs must base their disapproval of a request on the transfer requests not the posting results. If the ‘Assistant Chief of Emergency Operations approves the disapproval that single choice for the member will be inactivated and the position will go to the next eligible request on the list. The input we received was not critical of the right of district chiefs to disapprove a transfer request for a specific reason. Instead, the expressed concern was that captains were effectively selecting who they want to fill vacancies in their stations or work locations by direct and obvious discouragement when firefighters contact them pursuant to the “courtesy call.” Many firefighters chose not to proceed with the transfer request after receiving this discouragement for fear of retaliation by the captain or because they did not want to go where they were obviously not wanted. ‘According to many firefighters, any suggestion that the captains be contacted perpetuates the “good ole boy” system. In other words, instead of vacancies being filled through application of the transfer policy, which is based on seniority, in many situations, firefighters are hand-picked by the captains, without regard to seniority. We learned that the Department has eliminated any written suggestion of the “courtesy call.” However, based on our discussions with firefighters, including captains, we have concluded that many still believe that the “courtesy call” is still an expectation in the Department and that the practice continues. Best Practices/Recommendations A. Leadership Commitment Our review of best practices, whether in public fire departments, military, or private industry, revealed a consistent theme — organization leaders must be committed to improvement in EEO practices or little else will affect change. Although this may seem an obvious point, it was a point consistently expressed by public and private organizational leaders as essential to changing a culture in a manner in which discrimination and harassment is not tolerated. ‘The essential elements of leadership commitment are that (1) it must exist all levels of leadership, from elected officials such as the Mayor and City Council, to the department top brass, especially the Chief and assistant chiefs, to the district and station commands; (2) the commitment must be credible and visible to members of the department; and (3) commitment must be 20demonstrated through consistent and fair actions and decisions showing that harassment and discrimination will not be tolerated or brushed aside, The City has taken a number of actions that demonstrate the kind of commitment that is and will be necessary in order to improve the workplace environment in HED in future years. In each of our recommendations below, we identify actions that the City has already taken, or is planning to take, that we believe is helpful. We also recommend further actions that should be considered or taken. It will be important for future City leaders (within and outside of HED) to continue to demonstrate commitment to improvement if changes are to be effective in HFD in the future. B. _ Revise Current City and HFD Policies, Procedures, and Rules ‘The City in general and the Fire Department in particular should strive for clarity and consistency in articulating and punishing prohibited conduct. In order to clarify that the prevention of harassment and discrimination in the workplace is a high priority within the Department and that the chain of command preference for resolving disputes is not mandatory, and to resolve internal inconsistencies, we recommend: (i) withdrawal and/or revision as appropriate, of the current Mayor’s policies and executive orders addressing harassment and discrimination, in favor of a single, comprehensive, policy or executive order; and (ii) deletion of those portions of Volume I, Reference No. I-01 of HFD’s Rules and Regulations referencing harassment and discrimination, in favor of a single anti- hharassmenvanti-discrimination policy." 1. Mayor’s Policies and Executive Orders We are aware that the City’s current sexual harassment policy has been extensively revised. ‘The sexual harassment policy is contained in proposed Executive Order 1-50 which is included in Appendix 3. We suggest making one modification to revised Executive Order 1-50. The policy references the creation of a sexual harassment task force. We do not believe that a sexual harassment task force is necessary. If the City wants to create a task force to address discrimination, harassment, and diversity issues in general, we suggest that a task force with more expanded focus be created. We are also aware that the City’s policy on racial, ethnic, and gender slurs, contained in Executive Order 1-20, is in the process of being revised. ‘The revised policy has an expanded definition of prohibited conduct, including symbols, and states that OIG will investigate alleged violations of the executive order rather than the Affirmative Action § This includes deleting Sections 8,01, 8.02, and 9.32 Volume 1, Reference No. I-01 of the Rules and Regulations in their entirety and portions of Section 9.01. Language should be added to Section 8,10 to clarify that the chain of command preference for resolving disputes is not mandatory, prohibit retaliation against persons who avail themselves of the complaint or grievance process, and require that supervisors who engage in informal Complaint resolution document such encounters in accordance with Texas Local Government Code § 143.089(g), ‘The Mayor's policies and executive orders which should be withdrawn or revised include Mayor's Policies 101.00, 102,00, 106,00, 113.00, and 114.00, and Executive Orders 1-8, 1-20, and 1-39.Office, which is currently referenced in the executive order. A copy of revised Executive Order 1-20 is included in Appendix 4. Next, as modified, Executive Orders 1-50 and 1-20 should form the basis of, and be incorporated into, a single anti-harassment/anti-discrimination policy. Outdated policies and executive orders should be abandoned.” In adopting a broad anti-harassmenvanti- discrimination policy, the City should incorporate the following elements: (i) an unequivocal prohibition on harassment, discrimination, and retaliation; (ji) a statement that violators will be disciplined up to and including, indefinite suspension; (iii) a “user-friendly” mechanism for reporting harassment, discrimination, or retaliation, including alternative avenues for making such reports; and (iv) broad dissemination of the policy. It is crucial that members be able to readily locate the content of these anti- discrimination/harassment provisions, whether they deal with race, gender, national origin, age, disability, sexual harassment, or racial slurs. Therefore, the policy should be referenced by topic (i.e., sexual harassment, race discrimination, racial slurs, gender discrimination, etc.) in any index of policies, executive orders, etc. and accessible through the City’s and HED’s portals ot websites. We stress that departments need to familiarize themselves with the changes made to the current policies and provide sufficient training to ensure that they are understood and implemented appropriately. To ensure that employees are aware of the policy and individuals charged with enforcing it are properly trained, we recommend that any comprehensive anti-discrimination policy have an implementation date 30 or 60 days afer it is signed by the Mayor. Ifthe City decides to maintain separate executive orders or policies addressing the issues of discrimination, racial, ethnic, and gender slurs, etc., we still recommend that these executive orders or policies be revised and updated and that they have an implementation date following an adequate period of time for dissemination and training regarding the changes. 2, Fire Department Rules and Regulations In place of the Department's current rules and regulations, we recommend implementing a single policy consistent with the anti-harassmentanti-discrimination executive order. For HED, a proper anti-harassmenVanti-discrimination policy will contain the elements listed above, as well as an unambiguous statement that supervisors who know about, but fail to act, ‘on, harassing, discriminatory, or retaliatory conduct are themselves subject to discipline up ° The old policies and executive orders contained various references to “Affirmative Action.” ‘This language should not be carried over into the new executive order as, based on recent court cases and shifting public opinion, the term now has negative connotations and may be a source of confusion among members. We recognize that there are still legitimate uses of the term ouside of the equal employment opportunity context and our recommendations are ‘not intended to discourage such uses. 22to and including indefinite suspension."” Any anti-discrimination rule adopted should be consistent with the executive orders applicable to all City employees. Further, the new anti- harassmenvanti-discrimination policy should expressly state that no employee reporting a violation of the policy need follow the chain of command. C. _ HED’s Behavior Manual ‘The Department has adopted a manual that contains a progressive discipline system. The document, called the Behavior Manual, contains categories of offenses with corresponding ranges of disciplinary consequences. According to the 2008-2012 Strategic Plan developed by the Department and confirmation from some members of HPD command staff, all chief officers have received training on the HFD Behavior Manual. We have two fundamental recommendations concerning the Behavior Manual. First, the rules and policies that prescribe firefighter conduct and disciplinary consequences for violating the conduct rules must be clear, appropriate and consistent. Second, the Manual must be distributed to or at Jeast easily accessible by each member of the Department. Regarding the substance of the Manual, it should be revised to underscore the importance of creating an environment free from harassment and discrimination. We also suggest that management continue reviewing and revising the Manual to ensure that the consequences are appropriately assigned to the infractions. Currently, the Manual’s discipline categories are inconsistent as to the punishment meted out for various offenses. For example, being discourteous to a fellow firefighter over the telephone is punished as severely as making a racial slur (both a category 2 offense). In our opinion, a racial slur should be punished more severely than mere impoliteness. Further, the punishment for using a racial/ethnic/gender slur is in sharp contrast to the Manual’s recommendations. for harassing and discriminatory behavior like accessing pornographic materials at work or discriminating against a an employee on the basis of his or her sexual orientation, which are punished as a category 4 offense, Additionally, conspicuously absent from the Manual is any discussion regarding general harassment or discrimination based on sex, race, color, national origin, religion, age, or disability, or retaliation for engaging in protected conduct under the various State and Federal Equal Employment Opportunity laws. When we asked members of the command staff whether they were surprised that many firefighters were not aware of the Behavior Manual or the existence of a departmental progressive discipline system, they indicated they were not. They were aware that members other than those who are required to impose disciplinary consequences have not been given. a copy of the Manual. Nor has the Manual been published on the HFD portal, although there are plans to do so in the very near future. Knowledge and distribution of the Manual is imperative. If the Manual is the “roadmap” followed by those imposing discipline for %© 4 number of members have expressed the concem, and some officers have confirmed, that there are supervisors within the Department who “bury their heads in the sand” or “look the other way” when confronted with instances of harassment or discrimination by their subordinates. Supervisors must be held accountable for the known, ‘misconduct ofthe persons reporting to them. 23infractions of rules, regulations and policies, and dictates the expectations of member conduct, it is imperative that everyone in the Department is familiar with its content. We also suggest that especially those who are charged with determining disciplinary consequences receive training in the system. Last, and probably most importantly, we stress that those who impose the disciplinary consequences do so in an even-handed, nondiscriminatory manner. Periodic taining on this issue should be provided to those currently holding supervisory positions and when members are newly promoted to supervisory positions. The Manual has been described to us as a “living and changing” document, which is continually being revised. We recommend that the Manual be revised to address the recommendations in our Report D. Training HFD members (both rank and file and command staff) as well as outside industry and organization officials consistently identified effective EEO training as vitally important to effective human relations management. Our review focused on three types of training: (1) general training for rank-and-file members to better understand rules against discrimination and harassment; (2) personnel management training for officers with supervisory authority; and (3) training for those who conduct investigations. 1. Workplace Conduct Training Many HFD members expressed dissatisfaction with, or indicated that current EEO training can be ineffective. The following should be considered with regard to training for rank-and-file members in the areas of harassment and discrimination: * Training should be comprehensive — it should reach all employee groups from Academy trainees to senior management. Training should be tailored to each employee group to ensure that training is practical for the type of job performed. For example, Academy training should focus on explaining what is prohibited, the reasons the conduct is prohibited, and the penalties associated with the conduct. Supervisory training should begin at the engineer/operator level and concern itself with conflict resolution techniques, the Department's mission, supervisory responsibilities, and liabilities. ‘© Within each type of employee group, training should be uniform to ensure that each group receives clear and consistent guidance. If multiple trainers are used, written ‘materials should be reviewed to ensure uniformity, and trainers should be observed or recorded to ensure consistency from station/work location to station/work location ‘or across employee groups. + Training should be live if possible, rather than computer-based. 24© Training should use real-world scenarios in which members can evaluate actual fact situations to learn how HFD rules should be applied, «Training should be clear regarding the consequences that will be applied for different types of rules infractions. * Training should be done more than once. A model of in-depth initial training with regular follow-ups (each year or other regular interval) will reinforce training. ‘© Training should be conducted by a person or persons with substantial knowledge of employment and civil service laws, whether they are internal City or HFD employees or outside consultants. 2. Management Training HFD members at various ranks and in various positions expressed to us concern that human relations training was not adequate as officers are promoted in the system to supervisory or management positions. These members opined that past training in the areas of complaint processing, investigations, and resolution, was often fairly minimal ‘and an “after-thought” in the promotion system. Based on the input from HFD members ‘and those outside the Department, we believe the following attributes, in addition to those in the preceding section, are common to effective EEO management training: «© EEO training should occur prior to and as a pre-requisite of promotion in the system. The skills in this area should be seen as essential to moving into a supervisory or management position, Training should begin at the Engineer/Operator level as those employees occasionally supervise others. + Training should use practical, real world examples in a “case-study” approach, in which officers are able to confront and engage in real fact scenarios, apply the laws and rules affecting HFD, and evaluate possible outcomes. «Supervisors should know that their failure to enforce laws, rules and policies against discrimination and harassment carry penalties that are at least as severe as the underlying violation itselt. 3. Investigator Training ‘Additional training on the elements of Title VII and other anti-discrimination laws would be helpful to OIG staff who investigate and identify rule/policy/law violations and Staff Services staff who recommend the discipline imposed. ‘All who are charged with the responsibility of identifying rule/policy violations should also receive training on the substance of the rules/policies. Conduct that might not rise to the level of a federal statutory violation, such as Title VII, might nevertheless violate the 25City’s or HFD’s anti-discrimination rules/policies. Additional training on the distinctions between statutory violations and intemal rule/policy violations would ensure accuracy and consistency in the identification of the violations that might be found. This training will be particularly helpful if the City and HFD implement extensive policy/rule revisions The training should also include guidance that if allegations fall within a specific rule, the more specific rule should be cited instead of a more general rule. An example would be citing to the rule related to racial, ethnic, and gender slurs instead of immoderate language. Particularly when the complaint relates to an allegation of discrimination or harassment based on race, national origin or gender, identifying a violation of a rule prohibiting such conduct sends a message of lack of tolerance toward such behavior. E. Provide HFD with a Dedicated Group of Human Resources Professionals HED is @ 4,000 person strong organization. Given its size, the Department needs dedicated Human Resources support. Currently, no individual or group is responsible for all HR functions within the Department. While the City has a Human Resources Department and Affirmative Action and Contract Compliance Office, no individual has specific responsibility for addressing Fire Department EEO matters, answering member questions, guiding decision makers, and strategic planning in the HR area, To add to the confusion, rules and regulations variously refer members to supervisors, the Affirmative ‘Action Director, OIG, and Staff Services office for employment related matters. To the extent HFD has a Human Resources Office, its function appears to be limited to mostly administrative matters, handling things like payroll, time off and leave issues, and benefits eligibility. Likewise, HFD’s relatively small Staff Services Office is mostly dedicated to the inputting and routing, of complaints, and assessment of penalties, not monitoring or resolving complaints.'' Rarely, if ever, does Staff Services devote its resources to actually investigating employee complaints. Instead, that job is often delegated to district chiefS or captains-- on top of their normal workloads.” “Under this system, after complaints are investigated, the findings are forwarded to Staff Services to identify rules or regulations alleged to have been violated, and to determine whether facts to support the charges are substantiated. If any charges are substantiated, Staff Services also decides what discipline is appropriate, Staff Services utilizes the Behavior Manual, referenced previously in this Report. This system could be improved. Specifically, several HFD officers reported receiving little or no training on how to conduct workplace investigations. Consistent with reports from firefighters, officers reported that investigations are often conducted in a hurried, incomplete, and/or begrudging fashion because the investigators simply do not know how 21 Staff Services is responsible for conducting workplace investigations that do not involve criminal or discriminatory conduct. °? Ail complaints related to discrimination or harassment, however, should be investigated by OIG. 26to conduct workplace investigations (i.e., interview witnesses, maintain confidentiality to the extent practicable, collect evidence, document findings and maintain records), are busy with other matters, and/or {eel uncomfortable investigating alleged wrongdoing by other officers. The Human Resource support should either conduct the investigations not conducted by OIG ot provide technical assistance to individuals who conduct the investigations. This support should include periodic training as well as specific assistance as particular issues arise. The Human Resource support should also be available to answer any questions about the complaint process. The complaint process should be easily accessible, provide for prompt resolution of issues, using as confidential a process as possible. Last, the Human Resource support can also provide assistance if a complaint is sustained and additional workplace training is indicated. F. _ Increasing Diversity Through Effective Recruiting and Preparation Based on our interviews, as well as information from other fire departments and organizations, it is apparent that increased diversity in the workplace can result in more awareness of the skills, abilities and talents possessed by firefighters of a different gender, race, ethnicity, or background, ‘This was most apparent in our discussions with female HFD firefighters, several of whom told us that after they demonstrated their competence and abilities to male counterparts, they were eventually and generally accepted as part of the team. On the other hand, there appears to remain a belief, particularly among some male firefighters, that physical requirements have been decreased over the years to accommodate female firefighters and that firefighters are less able to perform the duties required of their jobs due to the reduction in the physical requirements. The challenge lies in attracting sufficient numbers of diverse firefighters to create a critical mass which can, over time, change pre-conceptions and altitudes regarding firefighters of differing backgrounds. The challenge can be exacerbated by perceptions in the public that the Department is not welcoming to diverse firefighters. Our review of other organizations revealed some practices that have been helpful in recruiting qualified, diverse firefighters which, in turn, has changed cultural views of the abilities, talents and qualifications of those individuals: 1. Recruiting The City and HFD have already engaged in or are planning efforts to recruit non- traditional candidates, particularly women, to HFD. From our discussions with HFD, we understand that such recruitment efforts are headed by the Assistant Chief for Planning and involve one other firefighter and three additional support staff. Recruitment efforts involve community outreach, including presentations at schools, ROTC programs, and female collegiate sports programs. Although we recognize the budgetary challenges of limited resources, we recommend that the current recruitment efforts be expanded and formalized. We have identified the following best practices with regard to recruiting: «Assigning firefighters as part of official duties the job of recruitment. 27«Using diverse firefighters (men and women, different race and ethnicity) to recruit. «Targeting areas where non-traditional candidates are likely to be reached, such as military, construction industry, college athletics departments. «Evaluating effectiveness and job-relatedness of criteria currently used to give extra points to candidates for background (¢.g. military, education, certifications), ‘© Utilizing concerted efforts to inform larger community about nature of firefighting profession and dispelling certain myths that may dissuade non- traditional candidates. For example, we heard repeatedly that HFD has “lowered standards” to increase the number of qualified female candidates. Based on our review, this is not the case. 2. Mentoring/Tutoring Efforts HED has engaged in or is planning further efforts to educate and prepare some candidates for the various tests, particularly physical ability tests (PAT) that must be passed to become a firefighter, Based on our review of best practices, particularly within fire departments, we believe that efforts to expose candidates to the requirements of the job, particularly physical ability requirements, are important so that candidates are prepared and can evaluate their interest in and suitability for the job. In HED, applicants are not given any specific training before they take the PAT. We are aware that other fire departments throughout the country have provided training to potential applicants prior to having to take and pass a test such as the PAT and recommend this approach G. Transfers ‘Although we recognize that extending an introduction to a captain at a station with a Vacancy by the member posting for that vacancy is a professional gesture, it provides an ‘opportunity for the captain to discourage the member from transferring to that location, Ina system in which firefighters have an “entitlement” to transfer based on seniority requiring “approval” from a captain is counter to that policy. ‘To the Department's credit, it is our understanding that based on input from firefighters sho complained about the “courtesy call,” a written suggestion that members should call the captain of the location to which they want to transfer has been eliminated. However, it appears that there is still a perception that firefighters are expected to make the courtesy calle, To avoid the perception that the call is still expected and the resulting belief that the practice conflicts with seniority rights and creates an unwelcome atmosphere in some ‘circumstances, we recommend more extensive notification to members about elimination Of the practice, Eliminating the practice of requiring or encouraging a “courtesy call” will help dispel the perception held by many that there is still a“good ole boy” system in 28HED and that those who are not in that network are treated less favorably than those who are, H. —_ Confidentiality Issues Firefighters and management should be reminded that the complaint process is confidential. Individuals who file complaints should feel assured that only those with a need to know will have knowledge of the complaint or that a complaint has been filed. ‘Those who provide statements as part of an investigation of a complaint need reminders that dissemination of information provided as part of an investigation violates the rules promulgated by the OIG. These rules do not apply to complaints investigated by the HED personnel; therefore, additional rules that cover those departmental investigations should be promulgated and disseminated. Captains and others in management positions need additional training on confidentiality issues. Moreover, they should be reminded that they will be disciplined if they do not report violations of the confidentiality rules and if they violate the rules themselves. Additionally, because captains are not required to indicate in a captain's log that a member has filed a complaint, they should be told not to make any notations in a captain’s log indicating that a complaint has been filed or is being investigated. If a captain is aware that 2 member has left the work location to file a grievance or an OIG complaint, it would be appropriate to indicate when the member left and include a vague description of why they left ( such as “to go downtown”) and when he or she returned. If there is any question that Rule 11.01 (relating to the content of the captain’s log) would require a captain to enter that a member filed a complaint, we suggest that Rule 11.01 be amended to specifically indicate that captains are not required to enter in the captain's log that a member has filed a complaint or left the work location to file a complaint, or that a complaint is under investigation. To require such an entry could have a chilling effect on members filing complaints or disclose that a complaint has been filed to individuals who do not have a need to know that information, This is not to say that proper documentation of complaints should not be maintained. We believe it is critical that proper documentation of complaints and how they are investigated and resolved be maintained in an appropriate and confidential manner. I. _Non-Sustained Complaints Because the standard for sustaining a complaint is quite high, it is possible that a complaint is not sustained or the matter is concluded with a finding of “information only.” This is often the case if the perpetrator is unknown. Any inappropriate workplace conduct that takes place should be addressed in some way, regardless of whether the actual perpetrator is identified, or whether there is conflicting evidence that precludes a complaint from being sustained. We recommend that when the investigation reports are shared with Staff Services, someone review and determine if despite a finding of “not sustained” or “information only” some training or other intervention is indicated.J. Information on Physical Fitness Requirements To determine whether an expressed concern, that physical requirements have decreased resulting in a less prepared workforce is valid, we sought to obtain information about the history of the physical ability test (PAT) used by the HFD, when it was changed, why it was changed, and the basis for the change. ‘There appears to be very little written historical information about the PATS that have been used over the years, We asked for a PAT history, and based on narrative information provided by individuals who have been in the Department for a long time, ‘we have compiled information about the changes in the PAT requirements for entrance into the HFD Academy. There is no information, however, regarding the rationale behind the changes. We are aware that the HFD engaged the services of Jeanneret Associates Inc., management consultants, to, among other tasks, identify critical firefighters and EMS duties, determine the physical ability requirements of those jobs, and develop pre- employment selection procedures (a PAT). The PAT recommended was a standardized sum of four isometric strength tests (grip, arm lift, arm and should lift, and torso lift) plus two standardized long jump and a 1.5 mile run to be completed in fifteen (15) minutes or less. Following the completion of the Jeanneret study, the PAT used in 1993 and 1994! included a 1.5 miles run to be completed in fifteen (15) minutes, several strength tests, a broad jump of forty-eight (48) inches and a flexibility test . It appears that those tests, while not identical to those recommended by the Jeanneret study, are in line with recommendations made. These requirements were different than the PAT given in prior years and in subsequent years. Specifically, the ladder extension, ladder carry, hose drag, tower run and pick and carry jaw, were no longer required. Additionally, prior to 1993, recruits were required to run the 1.5 mile in twelve (12) minutes and thirty (30) seconds. In 1996, the requirements that are currently in place were adopted, except that the standpipe connection requirement was removed in 1997. The current requirements include: running a 1.5 mile in thirteen (13) minutes, seven (7) seconds; balance beam; ladder extension; stair climb; equipment hoist; portable equipment carry; and dummy carry (150 pounds). We have found no documentation to explain why the requirements were changed since the Jeanneret study was completed and there appears to be no validation studies for the current PAT. Based on our review, it appears that the only PAT that was validated was that administered in 1993 and 1994 when most of the women in the Department were hired. While the requirements were significantly different than they are now, and some may sincerely feel that they were less stringent than the current PAT, they are the only requirements that were validated >The majority of the women hired by the HFD were hired during 1993 and 1994 30We recommend that the current PAT be validated in some way. After validating the PAT, we suggest that information be disseminated throughout the Department that describes the PAT requirements and stresses that they are job-related and validated. ‘Additionally, information that the PAT administered when the majority of the women were hired were recommended by a study commissioned by the HFD, should help to dispel whatever myth exists that the Department lowered requirements to increase the number of women firefighters, and that by doing so it sacrificed the integrity of the process by permitting firefighters who are less able to perform the physical requirements of their jobs than in the past to become firefighters, We also reviewed the Department's Strategic Plan for 2008-2012, We note that Objective 1.4 relates to implementation of the recommendations of the Fire Service Joint Labor Management Wellness ~ Fitness Initiatives. These include, among other things, to implement peer fitness trainers as manpower to aide in the fitness assessments, education, and training and to initiate bi-annual fitness assessments on all members. Although this does not necessarily relate to whether each firefighter can perform the duties required of the job, it would ensure that each firefighter obtains a minimum level of physical fitness. K Hazing Although we received feedback from some that hazing or negative treatment of rookies has been eliminated, most firefighters we interviewed confirmed that it is widespread throughout the Department, Many of the firefighters who acknowledged the existence of negative treatment toward rookies, were not necessarily critical of the practice, in fact, many were very accepting that it was part of the Department's culture. Additionally, we did not conclude that there is widespread institutionalized hazing of individuals based on their race, ethnicity or gender. Rather, hazing seems most uniformly applied to rookies. Although many indicated that rookie hazing is well-engrained in the culture of the HFD as well as many other fire departments, hazing is prohibited by the rules and regulations of the HED. See 9.03 (members shall refrain from any form of hazing, harassment, or abuse of other members); 8.03 (superior officers shall be just, dignified, and firm in their relations with those members of lesser rank. They shall at all times abstain from violent, abusive language when giving orders, directions, or in conversations); 8.06 (members shall treat other members of the department with respect and response due them as fellow members. Itis counter to the development of @ tolerant, respectful culture to continue to engage in ‘and permit hazing. We recommend that training be provided to all members on the current rules mentioned above and afier training is completed that management impose appropriate discipline to those who violate the rules, L. Assignment of OIG Complaints We recommend that OIG investigators who have responsibility over HFD harassment, discrimination, and retaliation complaints be assigned to a dedicated unit and receive 31xi. specialized training in EEO matters and investigative techniques. We also recommend that a manager in that unit determine what rules, policies, etc. have been violated, Currently, the Internal Affairs Division of the Houston Fire Department Unit (“HFD TAD") is housed inside OIG. Under Executive Order 1-39, OIG is responsible for investigating reports of misconduct by City workers, but at its discretion, OIG need not investigate cases of “purely administrative violations.” Consistent with the Executive Order, Section 6.04 of Volume I, Reference No. I-04 of HFD’s Rules and Regulations provides that either HFD IAD or Staff Services shall conduct investigations of alleged employee misconduct. Currently, complaints alleging harassment, discrimination, or retaliation based on engaging in protected activity, are investigated by OIG’s Employee Relations Unit."* We believe that the Employce Relations Unit is the proper unit in the OIG to investigate complaints of discrimination and harassment. Therefore, we suggest that Section 6.04 of HED’s rules on complaints be revised to indicate that either the HFD IAD, the Employee Relations Unit of OIG, or Staff Services shall conduct investigations of alleged employee misconduct. Additionally, we suggest that all harassment or discrimination complaints continue to be investigated by an investigator in the Employee Relations Unit, rather than in the IAD Unit. Unlike other units within OIG, HFD IAD is staffed with arson investigators who serve two year stints with the unit, then leave for other jobs with HD. EEO complaints should be investigated by individuals with specialized training and experience in investigating these types of complaints. Conclusion The mission of HFD is, first and foremost, to protect lives and property in the City of Houston. Based on significant time we spent with many members of HFD, from probationary officers to the highest ranking command staff, itis readily apparent that the ‘men and women of HFD are dedicated to this mission such that they risk life and safety each and every day to protect our community. In recent months, however, there has been significant public discourse and controversy about workplace issues involving harassment and discrimination complaints within HFD. Although our firms were not retained to address particular allegations or complaints, the public interest in and diverse opinions about workplace issues in HFD demonstrate that effective personnel management is not merely incidental but rather critical to the success of HFD in carrying out its mission. We have offered a number of recommendations that we believe, based on years of experience counseling public and private employers, will help HFD better fulfill its mission, None of these recommendations, taken alone, will drastically change HED, nor will change occur overnight. Nonetheless, we believe that the City and HFD according t0 OIG's description on the City's webpage, the Employee Relations Unit “is primarily responsible for conducting “Title VII" investigations into allegations of discrimination, which include allegations involving age, disability, national origin, race, color, religion, retaliation, sex, and sexual harassment. This unit is also responsible for conducting investigations into allegations of policy and procedural violations involving department regulations, city executive orders, and/or policies promulgated by the Mayor.” 32have a true opportunity, through continued leadership and commitment, to make HFD a place that draws the best talent and most dedicated workforce from all segments of our community. We hope that this assessment will help the City and HFD take advantage of that opportunity.HOUSTON FIRE DEPARTMENT SPECIAL BULLETIN | a OFFICE OF THE FIRE CHIEF STATION OFFICER: - 7 8 c D SEPTEMBER 21, 2009 ‘SPECIAL BULLETIN NO. 182 TO: ALL EMPLOYEES SUBJECT: ASSESSMENT OF THE HOUSTON FIRE DEPARTMENT The Mayor and City Council have engaged outside consultants to assess the effectiveness of the Houston Fire Department's complaint resolution procedures and training related to harassment and/or discrimination in the workplace. The consultants are the law firms of Lemond & Lemond, LLC and Thompson & Horton, LLP. The contact numbers for the lawyers who are conducting the assessment are: Scott Lemond at (713) 223-2500 ext. 16, Connica Lemond at (713) 223-2500 ext. 11, Merri Schneider-Vogel at (713) 554-6749, Philip Fraissinet at (713) 554-6743, Lisa McBride at (713) 554-6747, and Kim Cunningham at (713) 554-6742. As part of the assessment, employees of the Department may: (i) be requested to discuss or answer questions about experiences related to harassment or discrimination, the Department's complaint procedures, and related training issues; or (ii) contact lawyer listed above to discuss or answer questions about experiences related to harassment or discrimination, the Department's complaint procedures; and related training issues, provided such contact is made on or before October 15, 2009, It is expected that you will cooperate with the consultants. Questions about this process may be directed to Assistant Chief Karen DuPont at 713.859.4934. No employee shall be retaliated against or otherwise face disciplinary action for complying with this Special Bulletin. Any employee who believes he or she has been retaliated against for complying with this Special Bulletin may, in addition to Contacting the Staff Services Division or filing a complaint or grievance with the Office of Inspector General, contact Kelly Shreck with the Mayor's Office of Affirmative Action and Contract Compliance at (713) 837-9023 for additional assistance. Please be aware that the lawyers identified above represent the City of Houston and do not represent any individual employee of the Houston Fire Department. ‘They cannot Provide individual legal advice to any employee of the Houston Fire Department. Neither the assessment nor the interviews or questioning of any employee of the Houston Fire Department is an investigation into any particular allegation of wrongdoingby any employee of the Houston Fire Department nor an interrogation within the meaning of Tex. Loc. Gov't Cone ANN. § 143.123. REL Brrw& Phil Boriskie Fire ChiefRELEVANT STATE, CITY AND HFD DEPARTMENTAL GUIDANCE I. State and City Laws, Ordinances, and Labor Agreements Unlike private industry employers, the Houston Fire Department (“HFD”) is restricted in its ability 10 make personnel decisions by a number of Statutory, Charter, Ordinance, and Labor ‘Agreement provisions. Chief among them, Chapter 143 of the Texas Local Government Code sets out the civil service scheme for HFD employees. TEX. Loc. Gov’ CODE ANN. §§ 143.001- 363. The stated purpose of the statute “is to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants.” ‘A. State Law: Chapter 143 of the Texas Local Government Code Every HFD firefighter who completes his or her probationary period is entitled to hold a “classified” civil service position. Though the statute does not specifically define “classified, taking Chapter 143 as a whole, a “classified” job may fairly be stated as one that is: (i) entitled to the protections afforded under Chapter 1431; (ii) placed on a list by title, rank, grade, or other similar categorization; and (iii) subject to entrance and promotional examinations.” Thus, it may generally be said that Chapter 143 establishes the manner in which firefighters are hired, tested, compensated, determined fit for duty, provided with time off, promoted, and disciplined. ‘Among the protections afforded by Chapter 143 are the ability to: (i) appeal employment decisions such as demotions, suspensions (including indefinite suspensions), and being “passed over” for promotion despite receiving a high score on a promotional examination; and (ii) “grieve” other disciplinary actions, such as written or oral reprimand, assignment transfers, job performance reviews, and work assignments, to a Civil Service Commission or Hearing Examiner, except that a firefighter “may not file a grievance relating to . . . an allegation of discrimination based, in whole or in part, on race, color, religion, sex, or national origin.” "These are, essentially, due process protections such as notice, hearing, an opportunity to present one’s side of the story, and appeal rights. See, e.g, HOUSTON, Tx, CODE § 14-182(b) (civil service employee may only be indefinitely suspended, demoted, or subjected to a cut in pay “for just cause”). 2 See, eg, HOUSTON, TX, CHARTER § 14-27 (2009) (defining “classification” as the “[o}rderly arrangement of positions into separate and distinct classes 50 that each class will contain those positions which involve similar Guties, responsibilities, and qualification requirements” and “class” as “[a] group of positions which, having common characteristics or similar educational and general qualification requirements or encompassing positions sufficiently alike as to character of duties and responsibilities, warrant for the group essentially the same treatment for al civil service purposes ....”)Conceming Departmental or City investigations, HFD must provide notice to any firefighter at least 48 hours prior to any meeting or hearing: (i) “at which the firefighter . .. is required or entitled to be present;” (ii) involving the firefighter’s own Civil Service grievance; or (iii) concerning a response to charges that may result in the firefighter’s indefinite suspension. Conduct for which a firefighter may come under investigation or be subject to suspension include violating the law, being an incompetent employee or neglecting work duties, being discourteous, lacking “good moral character,” taking intoxicants on duty or being intoxicated off duty, engaging in “conduct prejudicial to good order,” failing to pay his or her debts, being absent without leave, “shitking duty or cowardice at fires,” or violating departmental rules. “Interrogations” of firefighters may generally only be conducted during normally assigned working hours. An individual investigating a complaint against a firefighter must “inform the firefighter in writing of the nature of the investigation and the name of each person who complained about the firefighter, if known, conceming the matters under investigation” unless a criminal investigation is under way or the disclosure of information would impede a criminal investigation. Complaints filed by persons other than peace officers, must be verified in writing, but “not later than the 48th hour before” the investigation is to begin, the investigator must give the firefighter “the affidavit, complaint, or statement.” To the extent a firefighter faces suspension (including indefinite suspension), the Department is forbidden from taking action more than 180 days after discovering the misconduet. Further, the Fire Chief must, within 120 hours of suspending a firefighter, “file a written statement of action with the [City Civil Service} commission.” Failure to abide by the 180 day and 120 hour limitations “voids” any attempted suspension. ‘The statute grants permission to the City to “meet and confer” with the labor organization recognized as the firefighters’ exclusive bargaining agent. By agreeing to “meet and confer,” the City gains “local control over the wages, salaries, rates of pay, hours of work, and other terms and conditions of employment, or other state-mandated personnel issues ” Should the City enter into a labor agreement under this provision, the contract cannot “interfere in the right of members of the firefighters association to pursue allegations of discrimination based on race, creed, color, national origin, religion, age, sex, ot disability with the [Texas] Commission on Human Rights or the [United States] Equal Employment Opportunity Commission or to pursue affirmative action litigation.” B. City of Houston Charter Tuming to the City of Houston Municipal Charter, the City is a Constitutional “Home Rule City,” meaning Houston's voters have elected to accept responsibility for amending the Charter. Article V-a of the current City Charter establishes the civil service scheme, creating a “Civil Service Commission,” mandating that the supervisor of any suspended employee notify the Civil Service Commission of such suspension, providing a method of appeal to the Commission through public hearing, and authorizing the Commission to adopt rules and regulations which“shall include such provisions as may be necessary to prohibit discrimination in employment, appointment or promotion because of sex, race, color, creed or national origin.” C. Code of Ordinances of the City of Houston Chapter 2, Article XIV of the Municipal Code of Ordinances prohibits discrimination in employment, the awarding of contracts, and the performance of City services. Protected classes include “race, color, national origin, marital status, religion, age, gender, sexual orientation and gender identity, disability, [and] military service.” Violation of Article XIV subject employees “to disciplinary action up to and including indefinite suspension/termination or removal from office. ...” Under the auspices of Article V-a of the Charter, Chapter 14 of the City Ordinances sets out the duties of the Civil Service Commission, including the Commission's role in providing for the ‘examination and classification of virtually all City workers. The Ordinance also authorizes the Commission to conduct various types of employment-related investigations and hearings. Its ability to consider complaints of discrimination and harassment, however, is very limited. First, if, during the course of a hearing or investigation, the Commission finds that an employee “has been discharged, demoted, reduced in rank or compensation or transferred for religious, racial or political reasons,” it “shall order reinstatement without loss of pay . .. .” Second, the Commission, upon request from an affected employee, may exercise oversight in the case of a layoff. Upon a finding that “race, color, creed, sex, religion, national origin, handicap or political of fratemal affiliation” played any role in a layoff decision, “it shall order the reinstatement of the wronged employee(s) with back pay and the layoff of other employee(s) in lieu thereof.” Otherwise, the Commission has no jurisdiction to decide discrimination issues: Discrimination complaints. Any complaint which alleges discrimination in whole or in part, based on race, color, religion, sex, national origin, age 40 years and over, Vietnam Era veteran status, disability, or retaliation for filing a charge/claim of discrimination (discrimination factors) is not grievable through the grievance process. All such claims will be referred by the grievance coordinator to the office of the inspector general for investigation and/or to the director for a determination of severability, if necessary. All or any portion of the complaint which is not based upon a discrimination factor and which may be segregated and severed, may proceed through the grievance process if it is otherwise grievable herein even if the grievant has concurrently or subsequently filed a complaint on the nongrievable (discrimination based) aspects of the complaint with the office of inspector general and/or the Equal Employment Opportunity Commission (EEOC), or the Texas Commission on Human Rights (TCHR).With respect to matters that do not allege discrimination, the Ordinances permit City workers to file grievances concerning: * Nonselection for a promotion to a referred position; «Hazardous working conditions not intrinsic to the job: «Employee performance evaluations with an overall rating of less than acceptable or effective or the equivalent; © Failure to receive a performance evaluation if delayed more than six months; «Failure to be paid overtime or compensatory time, if eligible, appropriate, and worked; and/or + Written reprimand. D. Collective Bargaining Agreement Finally, HFD is constrained by various limitations contained in a February 25, 2009 Collective Bargaining Agreement (the “CBA” or “Agreement”) with Houston Professional Firefighters ‘Ascociation ~ Local 341, International Association of Firefighters (“Local 341” or the “Union”), an AFL-CIO affiliate. The stated purpose of the Agreement is “to achieve and maintain harmonious relations between the parties, adjust and to establish the rates of pay. hours or work, and other conditions of employment for all bargaining unit members and provide for the equitable and orderly adjustment of grievances which may arise during the term of this Agreement.” To the extent the CBA conflicts with Chapters 141-43 of the Local Government Code, City of Houston Civil Service Commission Rules, City executive orders or ordinances, or HED policies and procedures, the CBA controls. “Amticle 14 of the CBA establishes the manner for dealing with “contract grievances .. .. defined as any dispute, claim, or complaint involving the interpretation, application or alleged violation of any provisions of this Agreement.” The Agreement provides for a four step process for fire- fighters to resolve alleged contractual breaches. In addressing claims of “discrimination,” the Agreement prohibits the City and Local 341 from making decisions “on the basis of race, color, religion, national origin, sex, age, sexual brientation, or disability,” or membership/non-membership in the Union. However, consistent ith State law, alleged breaches of the non-discrimination provision of the Agreement by HFD are specifically excluded from Article 14’s grievance procedures.I. _ Internal Governance A. _ HFD Rules and Regulations, Bulletins, and Orders Internally, HED is governed by rules and regulations which “provide guidelines for behavior and conduct which will aid in the achievement of orderly coordination of effort among members of the Houston Fire Department in the discharge of their duties, under both routine and emergency ions.” HED regularly revises and publishes rules and regulations, but in between revisions, the Department may issue bulletins and orders. Bulletins are “consecutively numbered, written, directive(s], that will change, alter, amend, or clarify Fire Department guidelines, and for information of a permanent nature.” Orders are directives that “permanently change, alter, or amend Fire Department rules and regulations 1. Conduct and Bebavior Section 6 of Vol. 1, Reference No. I-01, addresses “obedience to rules, orders, and regulations.” ‘All members of HFD are expected to fully cooperate in departmental investigations. Specifically, “fwJhen directed by the Fire Chief to give a statement or furnish materials relevant to a departmental investigation, members shall comply with the directive.” Further, “[a]ny member who, when so directed by a superior officer, refuses to answer questions or render statements, ‘material, etc., relevant in any department personnel investigation shall be guilty of neglect of duty ‘and subject to disciplinary action.” HFD employees are required to respect rank and honor the chain of command. Generally, HFD employees must act appropriately in the workplace. For example, “[rJacial, ethnic, or gender slurs or connotations towards another member” are prohibited.’ Members shall not “create an intimidating, hostile, or offensive work environment” and any person using race, ethnicity, or gender slurs is subject to “disciplinary action up to and including discharge.” Employees who have been victimized by this type of offensive language “shall report the act immediately to their supervisor or manager and to HFD Staff Services . . . . Supervisors or 3 SMembers are required to speak the truth at all times whether under oath or not, in giving testimony, or in connection ‘with any legal official order received, or in connection with official duties.” (HFD Rule Vol. 1 § 7.11. 4 See also HFD Order No, 01 dated June 3, 2009 stating “fijt is the responsibility of each member to treat the citizens we serve, as well as one another, with respect and dignity,” mandating that “Station Officers” review Executive Order, 1-20, Racial, Ethnic and Gender Slurs, Executive Order, 1-8, Probibition of Discrimination Based On Sexual Orientation, and HFD Rules and Regulations, Volume 1 Administration; Reference 1-01, Sections 8.0 and 9.0 with each member, and requiring members “to be cognizant of what constitutes offensive “artifacts and symbols” and recognize they are not permitted on City property * slurs include any “remark, language, illustration, or other media including, but not limited to, jokes and pomography, which degrade an individual's race, gender, oF national origin.” (HFD Rule Vol. 1 § 8.01).managers who fail to act on allegations or evidence of discrimination based on race, ethnicity, or gender shall be considered for disciplinary action.” Discrimination based on sexual orientation is also forbidden in accordance with Mayor's Executive Order 1-8.° “Any violation of this Executive Order shall be reported in writing to the Office of the Inspector General, and to the appropriate supervisor.” “(Wyhile in uniform or on duty,” members shall not use “obscene, immoral, profane, or offensive janguage.” Nor may they “make any derogatory or otherwise offensive religious, racial, ethnic, or sexual remarks, Members who hear, witness, or are informed of such remarks shall immediately repor the incident to their immediate supervisor.” In tum the supervisor “shal investigate and take appropriate action.” Harassment of citizens or other members on the basis of race, ethnicity, religion, or sex “is strictly prohibited.” Rule 9.03 bars “any form of hazing, harassment, or abuse of other members. All improper behaviors shall be reported to the immediate supervisor who will then take the appropriate action, Members engaged in such conduct shall be disciplined accordingly along with any officers or members that allowed such conduct.” Further, religious or political arguments will not be permitted on duty or on Fire Department property. Members are also not allowed to “perform ny act or make statements, oral or written, which are directed at their co-workers with the jntent to destroy the morale, good order, and working relationships with such co-workers.” All “{ljewd or obscene calendars, pictures, slides, movies, television programs, pomography, etc.” are banned. 2. Workplace Complaints In addressing complaints related to rules, orders, and regulations, Section 6 states that “Members feeling aggrieved in the treatment, orders, neglect of duty by a ranking officer, or having a grievance against any other member, or guideline, may file a grievance with the Department Grievance Counselor pursuant to the grievance guideline.” In keeping with state law and City Ordinance, Volume I, Reference No. 1-19, Section 5.01 authorizes firefighters to file trievances concerning “aspects of the person's employment over which the Civil Service Commission . . . would have lawful jurisdiction, including but not limited to a written or oral reprimand, transfers, job performance reviews, and job assignments” Firefighters cannot, however, file grievances related to, among other things, “[aJn allegation of discrimination based in whole or in part, on race, color, religion, sex, or national origin... .” In general, HFD would like for “[dlisagreements” to “be settled within the various districts or ‘commands, whether with the station officer, or in the Chief Officer's quarters. Matters not © Discrimination includes “the actual or perceived status of a person with respect to his/her sexuality.” (HFD Rule Vol.1 § 8.02).settled in this manner should be addressed through the grievance process.” (HFD Rule Vol. 1 § 8.10), Receipt of complaints (whether citizens or employee) is addressed in Volume 1, Reference No. 1-04. Under this guidance, all citizen or employee complaints are to be forwarded to the Office of Inspector General (“OIG”). Consistent with City Ordinance, OIG is delegated responsibility for “intake, routing, and assignment of investigations of complaints and complaints that allege criminal conduct or discrimination based on race, color, religion, sex or national origin.” In tun, HFD’s Staff Services Office “shall be responsible for complaint intake, routing, and assignment of investigation of all other complaints, including but not limited to complaints that allege violations of Houston Fire Department rules and regulations, orders, bulletins, directives and guidelines.” Employee complaints of violations of rules and regulations, bulletins, orders directives, policies, procedures and/or guidelines must be in writing, verified, and filed with Staff Services. Complaints or inquiries concerning Emergency Medical Services personnel or medical procedures ‘ill be assigned to EMS Command for investigation after a review by the Staff Services Office.” With respect 10 medical care issues, § 6.02 authorizes HFD’s medical director to file complaints with OIG or Staff Services as appropriate. Section 6.03 concerns investigations and interrogations. Its language tracks the Texas Local Government Code requirements for notice and the manner in which a firefighter B. HED is also subject to City of Houston policies and procedures and executive orders emanating from the Mayor’s Office. On November 15, 2006, Administrative Procedure 3-7, the Positive Corrective Discipline Program, went into effect. Recognizing that Chapter 14 of the Code of Ordinances still serves that the governing authority for employee discipline and rights, the policy was designed to “allow department directors to develop customized positive corrective discipline programs for their departments” using the guidelines of the policy. Under AP-3-7, if a complaint of discrimination or harassment arises, itis to be promptly referred to the Office of Inspector General for review and possible investigation. C. — Mayor’s Policies and Executive Orders In addition to City administrative policies and procedures, the Mayor's Office periodically issues its own policies and executive orders. For example, Mayor’s Policy Number 101.00, promulgated on August 22, 1983, declares the City’s commitment to “Affirmative Action” and ” Volume II], Reference No. Ilh04 contains a more detailed complaint procedure for EMS employees.employment practices “without regarding to race, color, religion, sex, national origin, see, handicap,” Vietnam-era veteran status, or disabled veteran status. Mayor's Policy Number 102,00 (February 7, 1983) requires that all department/division heads report on a quarterly and annual basis, their affirmative action goals and timetables, inform each employee of the procedures established to resolve discrimination complaints, and distribute or post the procedures in a manner making them as widely available to employees as possible. The Affirmative Action Division (now known as the Mayor's Office of Affirmative Action and Contract Compliance) is to “investigate and resolve complaints alleging discrimination or retaliation on the basis of race, color, religion, sex, national origin, age, handicap, or veteran status” and provide Equal Employment Opportunity training for all officials and employees. “Violations or exceptions to this policy shall be brought to the attention of the Director of Affirmative Action. . . who shall have the authority to develop, implement, coordinate, monitor, and enforce an ongoing plan of affirmative action for the City of Houston, and to investigate and determine the merits of any such violations and/or exceptions.” The Mayor issued the Code of Employer/Employee Relations Policy on February 14, 1985, (Number 106.00) This Policy states that “fijn its continuing effort to implement fair and objective personnel policies and practices, the City of Houston pledges . . . [t]o employ people ‘on the basis of their qualifications and with assurance of equal opportunity and treatment regardless of race, religion, color, sex, age or national origin. . . .” Any violations of, or exceptions to, Policy No. 106 are to “be brought to the attention of the Director of Personnel .. . Mayor's Policy Number 113.00 (1985), forbids Sexual Harassment whether committed by supervisors or coworkers. The Policy places an “affirmative duty” upon supervisory personnel to maintain a sexual harassment-free work environment, Workers who are subjected to sexual harassment are encouraged to report the conduct to their supervisors. To the extent a supervisor fails to satisfactorily remedy the situation or an employee feels unable to report the conduct to his or her supervisor, the employee is encouraged to bring the report to the Direct of Affirmative Action. Mayor's Policy Number 113.00 was followed by Mayor's Policy No. 114 which extended the prohibition against discrimination to employees with disabilities in 1991 In 1998, Executive Order 1-8 extended the discrimination ban to sexual orientation. Unlike previous guidances, Executive Order 1-8 specified that the Office of the Inspector General (OIG) was responsible for conducting sexual orientation discrimination and retaliation investigations. The Order also charged supervisors with explaining, disseminating, and posting OIG procedures relating to the investigation of complaints of discrimination or retaliation based on sexual orientation. Also in 1998, the Mayor issued Executive Order 1-20 stating that no City worker shall, either verbally, non-verbally, or illustratively: “[ultilize racial, ethnic or gender slurs or connotations towards another employee” or “create an intimidating, hostile or offensive working environment by such conduct.” The Order defines a slur as “a remark, language, illustration, or other media including but not limited to jokes and pornography, which degrade an individual's race, gender 8or national origin.” Any employee who feels that he or she has been the subject of a slur is instructed to report the act immediately to his or her supervisor or manager, and the Affirmative ‘Action office. Supervisors or managers who fail to act shall be considered for disciplinary action. In October, 2004, the Mayor issued Executive Order 1-39 which reconstituted OIG as a division within the Mayor's Office. The mission of OIG is to “conduct, supervise, monitor and initiate investigations relating to misconduct with respect to City employees, excluding, classified police officers subject to Chapter 143 of the Texas Local Government Code.” OIG is tasked with helping to recommend and coordinate policies throughout the various city departments, and to provide fairness, uniformity and effectiveness in the conduct of employee-related investigations. Most importantly, OIG is to keep the Mayor's Office informed of the scope of employee misconduct so that a timely resolution can be achieved. Along with investigations, OIG is to serve as a repository of information on misconduct by City employees, and to provide the Mayor’s Office with the types and numbers of misconduct cases involving city employees. Under the executive order, every City employee has an affirmative duty to: (i) report to OIG, in ‘writing, any incident of criminal or administrative misconduct by any employee of the City; (ii) provide truthful information at all times no matter whether oral, written or in the form of a statement; and (ii) timely cooperate in any investigation and assist OIG with any investigation that may concern subjects within the personal knowledge of the employee. OIG is solely an investigative and reporting division of the Mayor’s Office. It does not have the authority to recommend, or take, disciplinary action.CITY OF HOUSTON EXECUTIVE ORDER SUBJECT PROHIBITED WORKPLACE CONDUCT, E.0.No. INCLUDING SEXUAL HARASSMENT 1-50 Effective Date UPON APPROVAL 1.0 PURPOSE AND SCOPE Itis the policy of the City of Houston to promote employment practices that provide @ work environment where faimess, equality, and mutual respect are valued. Employee behavior that is sexually harassing or sexually offensive or that otherwise impairs maintenance of a professional and dignified work environment is expressly prohibited and will not be tolerated. The purpose of this Executive Order is to define sexual harassment and other types of prohibited conduct and to establish procedures for investigating and remedying claims. This Executive Order governs employee conduct in all City workplaces and vehicles, during business travel, and in any other location where City business is conducted, regardless of whether the property is owned or leased by the City. This Order applies to all employees reyardiess of civil service status, classification, pay grade, length of employment, or full-time or part-time status. This Order supercedes Mayor's Policy No. 113.00, Sexual Harassment. 2.0 DEFINITIONS AND EXAMPLES OF PROHIBITED CONDUCT 24 “Sexual Harassment” includes, but is not limited to, unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome verbal comments of a sexual nature, unwelcome physical contact or touching of a sexual nature, or unwelcome displays or distribution of sexually-oriented material, Sexual harassment is wrongful regardless of whether the parties are the same sex or the opposite sex or whether one or more parties are transgendered. A violation of this Executive Order occurs when: 1. Submission to the unwelcome conduct is made either explicitly or implicitly a term or condition of an individuat’s employment; or 2 Submission to oF rejection of the unwelcome conduct by an individual is used as a basis for employment decisions affecting that individual, or 3. The unwelcome conduct has the purpose or effect of interfering with an individual's professional performance or creates an intimidating, hostile, or offensive work environment. Conduct constitutes sexual harassment if it results in @ tangible employment action (such as termination, indefinite suspension, demotion, or loss of pay or benefits) or if it results in the creation of a hostile work environment. A hostile wark environment occurs when unwelcome sexual conduct, insults, vulgarities, or acts of intimidation permeate the workplace and have become so severe or pervasive as fo become a term or condition of employment for the recipient of the conduct. Approved Date Approved Page 1 of 5Conduct that satisfies any of the above definitions of sexual harassment will violate this Executive Order regardless of whether it occurs during working hours, during a lunch break, or during an off-duty, work-related social or recreational activity. After-hours conduct, such as telephoning an employee at home, may violate this ‘order if the subject matter or purpose of the conduct is work-related or ifthe conduct adversely impacts oris likely to impact working relationships or the work environment. 2.1.1. Examples of Prohibited Conduct. Whether conduct violates this policy will be determined by looking at all circumstances, including whether the conduct was verbal, physical, or both; whether the behavior was offensive or threatening and intimidating; and whether the acts were isolated andinfrequent, While it is not possible to list all behaviors that might constitute sexual harassment, the following are examples of conduct that may violate this policy: 24.44 Unsolicited, unwelcome flirtations, advances, andlor propositions of a sexual nature; 244.2 Meking an adverse employment decision against an employee who refuses to comply with a request of a sexual nature: 24.43 Threatening, either directly or indirectly, to retaliate against an employee who refuses to comply with or submit to a request of a sexual nature; 244.4 Insults, jokes, names, epithets, statements, of stories that are lewd, demeaning, derogatory, or objectively offensive; 2445 Unwelcome, sexually-oriented communications regarding sexual history, sexual experience, or sexual desires; 244.6 Unweicome physical contact, including touching, grabbing, pinching, or massaging; 2. Intentionally or recklessly brushing up against another person when a reasonable person would view the contact as unwelcome; 2448 Unwelcome non-verbal conduct of a sexual nature, including leering, whistling, exposing oneself, touching oneself, or making sexual gestures; 2449 Inappropriate display or distribution of sexually suggestive or pornographic items or material, including video images, audio clips, or graffiti; 2.44.10 Use of electronic equipment, including ‘computer networks, cell phones, and copy machines, to transmit or display objectively offensive material of a sexual nature; 2.44.11 Withholding employment opportunities from an employee because the supervisor has chosen to provide those opportunities to another employee with whom the ‘supervisor is sexually involved; and/or 2.44.12 Deliberately sabotaging work areas or projects and/or deliberately withholding information or equipment necessary for an individual to perform his or her job. 2.2 “Inappropriate Conduct of a Sexual Nature” is conduct of a sexual nature that is inappropriate ina professional work environment. This catagory encompasses (i) conduct of a sexual nature that is objectively offensive but that may not be sufficient to salisfy the legal definition of sexual harassment and (ii) conduct of a sexual nature that is consensual between two or more parties but that is nonetheless inappropriate in a professional work environment, such as engaging in sexual activity in City offices or City vehicles. 2.3 "Retaliation is conduct or decisions that a reasonable employee would view as materially adverse and whose purpose or effect is to discourage employees from exercising their rights under this policy or under the law. These rights include fling a complaint under this policy; filing a complaint with an external goverment agency such as the Equal Employment Opportunity Commission (EEOC); assisting another employee in the fling of a complaint; providing information during an investigation or testifying in a legal proceeding; or otherwise ‘opposing conduct prohibited by this policy. Retaliation against employees who engage in protected conduct is expressly prohibited. The protection against retaliation applies to all good-faith complaints, even if the complaints ullimately are not sustained Subject PROHIBITED WORKPLACE CONDUCT, | E. 0. No. 4-50 | Page 2 of 5 INCLUDING SEXUAL HARASSMENT Effective Date:_Upon Approval*3,0 EMPLOYEE AND SUPERVISORY OBLIGATIONS All employees: Employees who are subjected to conduct in violation of this policy are encouraged to report the conduct at the earliest possible stage, before the conduct becomes severe or pervasive, so that the City can take appropriate action to remedy the offensive conduct. A delay in reporting may impair the City's ability to investigate or to take corrective action. As stated in Section 4.0 of this policy, employees may report prohibited conduct to the Office of the Inspector General (OIG), the Designated Departmental Representatives (DDRs) assigned to their department, or the City of Houston's Sexual Harassment Hotline. All supervisors: Any supervisor or manager who receives a complaint of sexual harassment or other prohibited conduct or who observes prohibited conduct in his or her department shall take prompt and appropriate action reasonably necessary to ensure compliance with this policy. Ata minimum, the supervisor or manager shall as expeditiously as possible make a report to a Designated Department Representalive assigned to his or her department. No supervisor or manager has authority to agree not to transmit a report or to agree to a delay in transmitting a report. Failure of 2 supervisor or manager to discharge responsibilities under this paragraph is a violation of this policy and may result in disciplinary action, including termination or indefinite suspension. All department directors: Directors shall implement this Executive Order by rigorously enforcing the standards imposed by this policy; by developing and disseminating appropriate General Orders, Bulletins, or Departmental procedures that communicate to employees that violations of this policy wil not be tolerated and will resuitin corrective action, up to and including termination or indefinite suspension; by taking appropriate action to ensure that complaints are promptly and fairly investigated; by imposing corrective action, up to and including termination or indefinite suspension, when violations of this policy are confirmed; and by ensuring that department ‘employees receive periodic training regarding this policy. 4.0 COMPLAINT PROCESS When an employee believes that he or she has been subjected to conduct prohibited by this policy, the individual is encouraged to inform the alleged offender that the conduct in question is unwelcome or offensive, If this approach is unsuccessful or not feasible, the individual may pursue informal or formal means of resolution, 41 Advice and Information ‘Any individual may seek advice or information on matters related to this policy without having to lodge a formal complaint. Employees may seek informal guidance by calling the City’s Sexual Harassment Hotline (713- 837-9030) or by contacting the Designated Departmental Representatives (DDRs) assigned to the employee's department. Additionally, any employee, supervisor, or DDR may contact the Director of Affirmative Action to inquire about the scope or implementation of this policy. 4.2 Informal Resolution Requests for informal resolution may be addressed 1o a Designated Departmental Representative or to the Director of Affirmative Action. Each department director shall appoint at least two DDRs who are qualified by training to serve the functions of this policy. Whenever possible, the DDRs should consist of at least one male and one female. Departments that are small or that lack qualified personnal fo serve as DDRs may designate one for more DDRs who are assigned to the Human Resources Department. The identity of the DDRs shall be appropriately publicized to employees. Subject: PROHIBITED WORKPLACE CONDUCT, | E. O. No. 4-50 | Page 3 of 5 INCLUDING SEXUAL HARASSMENT Effective Date: Upon ApprovalInformal resolution is appropriate when (i) the alleged conduct is neither severe nor pervasive, (il) the facts are not materially in dispute, and (il) formal disciplinary action is not required to remedy the complaint. Methods of informal resolution may include, but are not limited to, (i) counseling the accused employee and/or providing directives regarding unacceptable workplace behavior, () implementing an employee request for a voluntary change in a work schedule or assignment; (il) mediating the conflict; and/or (iv) providing training and/or mentoring. The DDRs shall maintain @ written record of the terms and conditions of the informal resolution. 4.3 Formal Complaints ‘A formal complaint may be filed by the employee who has been subjected to the prohibited conduct, by an employee who has observed prohibited conduct, or by a Designated Departmental Representative. The formal complaint process may be used whether the accused is a City employee, supervisor, manager, independent contractor, employee of a vendor or contractor, or other third party. Use of the informal resolution process is not a prerequisite to filing @ formal complaint. Formal complaints may be presented to any of the following offices: (i) Office of the Inspector General (OIG) - (713) 247-5800 - located on the third floor of 61 Reisner St, Houston, Texas; OR (i) Employee's Designated Departmental Representative (contact information ordinarily will be available on Departmental bulletin boards); OR (ii) City of Houston Sexual Harassment Hotline (operated by the Affirmative Action Office) - (713) 837- 9030. All complaints received by a DDR or the Sexual Harassment Hotline will be transmitted to the OIG for processing. Employees who initially submit oral complaints will be required to place their complaints in writing, ‘The OIG shall promptly investigate each complaint, demonstrating appropriate urgency. Prompt investigation means that the investigation is commenced and completed as expeditiously as possible given the nature and complexity of the allegations, The OIG shall maintain written guidelines that outline the procedures: for investigating and resolving complaints. A copy of the guidelines shall be provided to the complainant and to the accused at the commencement of the investigation. ‘At the conclusion of the investigation, the OIG shall prepare a written report, which shall be transmitted to the DDR and the department director with administrative responsibilty over the unit employing the accused. Employees who are found to have violated this policy shall be subject to corrective action and/or discipline, up to and including termination or indefinite suspension. The department director shall implement disciplinary or corrective action without delay, and the measures taken shall be reasonably calculated to prevent future violations of this policy. If the department director is the subject of the complaint, the report and remedial action will be determined by the Mayor or his or her designee. In the event that an employee files a complaint against a DDR or other employee who has responsibilities under this policy, or in the event that such employee is @ material fact witness in any investigation, the OIG in ‘consultation with the Director of Affirmative Action may modify these procedures to ensure that such employee js not involved in the processing of the complaint. In the event that the complaint is against the Director of ‘Affirmative Action, the OIG may modify these procedures without consulting the Director of Affirmative Action. 5.0 FRATERNIZATION ‘Although personal relationships occasionally develop at work, some attractions are not mutual, and these situations can develop into sexual harassment complaints. Employees in a supervisory position shall keep their relationships with subordinates on a professional basis and shall exercise good judgment by avoiding sexual relationships with individuals who report, directly o indirectly, to the supervisor. Subject: PROHIBITED WORKPLACE CONDUCT, | E. 0. No. 4-50 | Page 4 of 5 INCLUDING SEXUAL HARASSMENT Effective Date: Upon ApprovalThe policy against fratemization does not prohibit marital, dating, or intimate relationships between employees who work in different departments or divisions. However, all employees should be aware that even consensual relationships have the potential to be disruptive or to lead to harassment claims. Consensual relationships also may lead to inappropriate conduct of a sexual nature that violates Section 2 of this policy. The City may take remedial action any time a consensual relationship between two employees becomes unwelcome or adversely affects any employee's work environment. 6.0 OTHER REMEDIE: OMPLIANCE AND TRAINING Reports to external agencies: Employees may seek extemal review of a sexual harassment complaint or the City's employment practices by filing a complaint with the U.S, Equal Employment Opportunity Commission and/or the Texas Workforce Commission. Certain procedural requirements and deadlines may apply. Information regarding these agencies is posted on Departmental bulletin boards and is available on the Internet. ‘Training and Other Resources: All employees shall receive periodic training regarding this policy. The Affirmative Action Director shall develop appropriate training programs and shall issue additional guidelines and procedures as necessary to implement this Executive Order. ‘Sexual Harassment Task Force: The Mayor or his or her designee shall appoint a Sexual Harassment ‘Task Force to address issues and procedures germane to enforcement of this policy. The Task Force is an associated effort of representatives from the OIG, DDRs, employee organizations, City departments, Affirmative ‘Action Office; the Employee Assistance Program (EAP), and outside community groups. ‘Subject: PROHIBITED WORKPLACE CONDUCT, | E. 0. No. 4-50 | Page 5 of 5 INCLUDING SEXUAL HARASSMENT Effective Date: Upon ApprovalCITY OF HOUSTON EXECUTIVE ORDER sussect Racial, Ethnic and Gender Slurs E. 0. No. 1-20 Revised Effective Date UPON APPROVAL 1.0 PURPOSE To provide @ fair and equitable work environment for all employees. Federal, state and local legislation and Mayor's Policy Statement on Affirmative Action dated December 14, 1982, This policy applies to all city of Houston employees and supersedes any former City of Houston policy, procedure or directive. 4, POLICY Itis the policy of the City of Houston that employees shall not verbally, non-verbally or illustratively: 44 42 ‘Any employee who believes he or she has been subject to a violation of this policy should report the alleged violation immediately to his/ner supervisor or manager or to the Office of Inspector General. BASIS SCOPE Utilize or display racial, ethnic or gender slurs, connotations, words, objects or symbols. A slur is defined as a remark, language, illustration, or other media including but not limited to jokes and pornography, which degrade an individual's race, gender or national origin. This policy prohibits menacing behavior, words, or symbols directed at persons of a particular race, ethnicity or gender; displaying, distributing or otherwise communicating anything offensive in any medium which focuses on race, ethnicity or gender; making critical or mocking comments about racial, ethnic or gender characteristics, such as voice, accent, physical features, hair texture, or manner of dress; perpetuating or promoting racial/ethnic/gender stereotypes, such as assumptions about likes and dislikes based on race, ethnicity, or gender. This policy also prohibits offensive symbols and objects such as posters, cartoons, bulletins, drawings, photographs, magazines, written articles or stories, screen savers, or electronic communications which focus on race, ethnicity or gender. Prohibited symbols in this policy inelude those symbols that by their very utterance or display are commonly understood to convey direct hatred, disrespect or contempt for others on the basis of their gender, race, or rational origin; or Create an intimidating, hostile or offensive working environment by such conduct. Approved Date Approved Page 1 of 2COMPLIANCE 5.1 Adherence to the above is mandatory. Any employee who fails to comply with this policy is subject to disciplinary action up to and including discharge. 5.2 Supervisors or managers who fail to act on allegations or evidence of discrimination based on race, ethnicity or gender shall be considered for disciplinary action. EXCEPTIONS Policy exceptions and/or violations shall be brought to the attention of the Office of Inspector General for investigation and recommended course of action. 7. DEPARTMENT AMPLIFICATION lf appropriate, a department may make department specific amplifications. Subject: Racial, Ethnic and Gender Slurs | E. 0. No. 4-20 Revised | Page 2 of 2 Effective Date: Upon Approval