By Simone R.D. Francis (Ogletree Deakins)
The New York attorney general’s August 3, 2021, report regarding the sexual harassment allegations brought against former New York governor Andrew Cuomo, “Report of Investigation Into Allegations of Sexual Harassment by Governor Andrew M. Cuomo,” contains extraordinary detail to support the conclusion that Cuomo “ sexually harassed a number of current and former New York State employees.” Beyond noting the political consequences of the investigation, employers may wish to consider utilizing these recent developments as an opportunity to reassess their workplace practices to minimize the likelihood of events occurring similar to those described in the report. Among the many potential action items and considerations, below are tips on training, education, communication, and investigations that employers may wish to explore as a result of the Cuomo report.
1. Annual Harassment Prevention Training
In many states, including New York, the law requires that employers provide employees with interactive harassment prevention training. Even if some or all of an employer’s workforce is situated in a state that does not mandate such training, conducting regular employee training may be a best practice. Currently, there are multiple options for delivering training, and the increased reliance on virtual meetings since the start of the COVID-19 pandemic has shown that a means exists to offer training when in-person sessions are not feasible. For employers that have not yet conducted harassment prevention training in 2021, the report’s findings may serve as a reminder of the value of taking proactive measures to help ensure that employees at all levels of an organization are regularly informed of an employer’s policies and the applicable law.
2. Real-World Scenarios in Trainings
In addition to ensuring that the training covers any topics required by state law, employers may wish to consider utilizing training that addresses real-world scenarios relevant to the workplace. The report underscores the practical difficulties of confronting unwelcome behavior when a significant disparity in power exists between the recipient of unwelcome conduct and the individual who is responsible for the conduct, and employers may wish to consider providing guidance on addressing such situations. As employees continue to navigate remote or hybrid work arrangements, it may be helpful to maximize training modules that address issues that can arise when individuals are increasingly utilizing these still relatively new work arrangements.
The report also underscores the importance of educating employees concerning still-common explanations for unwelcome workplace behavior, including that hugging or kissing is an element of an individual’s upbringing. As the authors of the report explained, “[a]s a matter of law, claiming that the gender-based behavior is simply a function of being old-fashioned or culturally more affectionate is not a defense to sexual harassment.” Employers may also wish to consider training programs that address same-sex harassment, harassment of transgender employees, and harassment by customers or clients. Training programs relevant to members of the contemporary workforce may be more likely to impart lessons that will be remembered and that will influence conduct.
3. Ensuring All Employees Complete Harassment Training
The report also serves as a reminder of the importance of implementing processes to prevent employees from opting out of training. For example, the report states that “In response to our [the investigators’] request for all certifications or records of completion of training for the Governor from January 1, 2013 to the present, the Executive Chamber has only been able to produce … one attestation form for 2019.” The report goes on to explain that the 2019 attestation form turned over to the investigators had been signed by an individual other than former governor Cuomo, although both the individual and the governor “claimed … the Governor reviewed the training material.”
To avoid similar issues, employers may wish to consider implementing express rules barring surrogates from completing training for other employees, just as employers prohibit nonexempt employees from completing or altering the time records of other employees. Developing written policies addressing the consequences of filing improper certifications of training completion, including reminders of those policies in the training module, and developing appropriate audit practices to ensure completion by all employees, regardless of level in the organization, are some measures that employers might consider.
4. Respectful-Workplace Training
Although addressing sexual harassment and harassment based upon protected characteristics presents a significant set of concerns for employers, curtailing behavior prohibited by law may not by itself produce an engaged and productive workforce. Accordingly, in addition to providing training about unlawful harassment, employers may wish to consider providing training that underscores an expectation of respectful interaction generally, regardless of the participants involved, their genders or other protected characteristics, or their respective levels of authority.
The report addresses a culture of intimidation that was found to exist in the executive chamber. For example, one employee described the environment as one that included “a lot of cursing and screaming,” and she stated that she understood that “employees who angered the Governor faced outbursts from the Governor and his surrogates.” Another employee claimed that “[i]f you got yelled at in front of everyone, it wasn’t any special day.” Although these examples of regular, vocal displays of displeasure are not the most headline-grabbing aspects of the report, they serve as a reminder that when respectful workplace interaction ceases to become the norm, more problematic behavior may follow.
5. Managers’ Obligations to Report Behavior
The investigators found that former governor Cuomo’s conduct did not occur only in settings where he and the target of his conduct were alone. For example, one complainant, a female member of the unit charged with protecting the former governor, reported that he had “ask[ed] her why she did not wear a dress” in the presence of the head of the unit. Although the head of the unit reportedly attempted to deflect the former governor’s comments, he subsequently sent a message to the female member of the unit that she interpreted as an instruction not to repeat the conversation that had occurred. In addition, the investigators reported that a different state employee had decided to “do her own screening first to determine if what [one employee] described constituted unlawful sexual harassment,” rather than report the information to the designated state office. Senior staff, by signaling to recipients of the behavior of the former governor that their silence was expected and failing to report troublesome and potentially unlawful behavior, arguably helped perpetuate an environment that “created powerful incentives for employees to maintain their silence.” The conduct continued and ultimately escalated to a level that justified a 165-page investigative report detailing the experiences of 11 identified individuals.
Although many employers invest significant resources in developing policies, as the authors of the report noted, “the problem did not rest with the Executive Chamber’s written policies, which were robust and consistent with the requirements of New York State law, but in the Executive Chamber’s failure to follow them.” Providing distinct or additional training for managers about their obligations may serve to minimize the likelihood that policies exist on paper only. The investigators’ findings suggest that simply stating a managerial obligation to report potential violations may have limited utility in the absence of detailed, clear examples covering topics such as addressing circumstances when a victim conveys hesitancy or unwillingness to initiate the reporting process.
6. Channels for Reporting Concerns
The report’s findings speak to a broader issue concerning how employees are made aware of anti-harassment policies, as well as how employees are made aware of the ways in which they may report concerns. Although many employers have established several channels for employees to report concerns, it may also be appropriate to ensure that information about those channels is easily accessible to employees, including those who may be new to an organization or hold temporary positions, and to provide options for anonymously reporting information. The investigators concluded, “Executive Chamber employees often did not know how to make a complaint and faced significant disincentives that discouraged them from speaking up about any potential harassment perpetuated by the Governor.” These findings may serve as a reminder of the importance of maintaining accessible reporting channels as well as alternate channels by which employees may bypass individuals in their immediate chains of command, including individuals who might be deemed to be “loyal” to those in their chains of command.
7. Consider Certification Requirements
Employers may also wish to consider requiring employees, particularly those at higher levels of organizations, to certify annually or at other regular intervals that they are not aware of any behavior that violates anti-harassment policies. Such measures may help to prompt additional reporting of issues before they mushroom into matters with the potential to cause significant reputational damage.
8. Educating Employees on Procedures for Investigating Workplace Concerns
Employers in New York must include in their sexual harassment prevention policies a “standard complaint form” and “a procedure for the timely and confidential investigation of complaints.” Regardless of whether this level of detail is required in the jurisdiction where an employer conducts business, it may be appropriate to include such information in a harassment prevention policy and provide some information about the complaint and investigation process as part of the training concerning the policy.
It is not unusual for employees to be reluctant to report concerns, and some of that reluctance may be a byproduct of a lack of transparency regarding what participation in an investigation actually entails. Although important reasons exist to maintain the confidentiality of specific investigations, providing some detail about what employees can expect from an employer’s investigative process may help to build trust and increase utilization of internal channels and procedures.
9. Credibility is Key in Workplace Investigations
Judging credibility and articulating the basis for what makes a witness credible (or not) is perhaps the most important skill of any workplace investigator. In the report, the Cuomo investigators compared Governor Cuomo’s “generalized statement[s]” and “blanket denials” with several factors that supported a determination that the allegations against Governor Cuomo were credible. For example, the investigators considered the fact that the complaints were contemporaneously memorialized and timely reported, the motivation of the complaining witnesses (particularly their reticence to complain), the specific nature of the allegations, and the existence of corroborating photographs, and text messages, among other factors. Identifying and weighing information that bears upon the credibility of the involved individuals is key in workplace investigations.
10. Organizational Assessments May be Beneficial
Another thing to consider is that recent cultural and social developments have raised issues of first impression—from an investigation and litigation standpoint—which sometimes require an increased level of knowledge and experience to handle appropriately. Particularly in today’s environment, a single (or multi) complainant investigation sometimes arises from or uncovers allegations of systemic or organizational problems that need to be addressed. Claims of pattern/practice discrimination, institutional/cultural inequities, unconscious bias, and ineffective complaint handling often require an in-depth analysis of a company’s policies and practices. Organizational assessments are detailed and offer actionable, tailored recommendations as a strategic plan for addressing large scale perceptions and institutional best practices—hopefully before they lead to potential legal exposure.