The Consequences of the Cuomo Inquiry Report: Lessons for Employers

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The New York Attorney General’s August 3, 2021 report regarding sexual harassment allegations against former New York Governor Andrew Cuomo, “Report of Investigation into Allegations of Sexual Harassment by Governor Andrew M. Cuomocontains extraordinary details to support the conclusion that Cuomo “sexually harassed a number of current and former New York State employees.” In addition to noting the political ramifications of the investigation, employers in New York and elsewhere might consider using these recent developments as an opportunity to re-evaluate their workplace practices to minimize the likelihood that events similar to those described in the report occur. Among the many potential action items and considerations, below are tips on training, education and communication that employers may wish to explore in the wake of the Cuomo report.

Annual Harassment Prevention Training Policies

In many states, including New York, employers are required by law to provide employees with interactive harassment prevention training. Even if some or all of an employer’s workforce is located in a state that does not mandate such training, regular employee training can be a best practice. Currently, there are several options for delivering the training, and the increased use of virtual meetings since the onset of the COVID-19 pandemic has shown that there is a way to deliver training when in-person sessions are not feasible. . For employers who have yet to conduct harassment prevention training in 2021, the report’s findings can serve as a reminder of the value of taking proactive steps to help ensure that employees at all levels of a organization are regularly informed of an employer’s policies and applicable law. .

Real-world scenarios in trainings

In addition to ensuring the training covers all topics required by state law, employers may consider using training that addresses real-world scenarios relevant to the workplace. The report highlights the practical difficulties of dealing with unwelcome behavior where there is a significant power disparity between the recipient of unwelcome behavior and the person responsible for it, and employers can consider providing guidance on how to deal with such situations. As employees continue to navigate remote or hybrid working conditions, it can be helpful to maximize training modules that address issues that can arise as individuals increasingly use these still relatively new working conditions.

The report also highlights the importance of educating employees about still common explanations for undesirable behaviors in the workplace, including that hugging or kissing is part of an individual’s upbringing. As the authors of the report explain,[a]In law, claiming that sexist behavior is simply a function of being old-fashioned or culturally more affectionate is no defense against sexual harassment. Employers can also consider training programs that address same-sex harassment, harassment of transgender employees, and harassment by customers or customers. Training programs relevant to members of the contemporary workforce may be more likely to impart lessons that will be remembered and influence conduct.

Ensure all employees complete harassment training

The report also reiterates the importance of having processes in place to prevent employees from withdrawing from training. For example, the report states that “In response to our [the investigators’] request for all certifications or certificates of completion for the Governor from January 1, 2013 to the present day, the Executive Chamber has been able to produce… only one certificate form for 2019.” The report goes on to explain that the form The 2019 attestation given to investigators was signed by someone other than former Governor Cuomo, although both the person and the governor “asserted…that the governor reviewed the training material.”

To avoid similar issues, employers may consider implementing express rules prohibiting surrogates from training for other employees, just as employers prohibit non-exempt employees from completing or changing work time records. other employees. Developing written policies addressing the consequences of filing inappropriate certifications of training completion, including reminders of these policies in the training module, and developing appropriate auditing practices to ensure completion by all employees, regardless of their level in the organization, are measures that employers could consider .

Respect in the workplace training

While addressing sexual harassment and harassment based on protected characteristics presents an important set of concerns for employers, reducing behaviors prohibited by law may not alone produce an engaged and productive workforce. . Therefore, in addition to providing unlawful harassment training, employers may consider providing training that emphasizes an expectation of respectful interaction generally, regardless of the participants involved, their gender or other protected characteristics, or their respective levels of authority.

The report discusses a culture of intimidation that was found to exist within the executive chamber. For example, one employee described the environment as “lots of name-calling and yelling” and said she understood that “employees who angered the governor faced outbursts from the governor and of his substitutes. Another employee claimed that “[i]If you were yelled at in front of everyone, it wasn’t a special day. While these examples of regular vocal displays of displeasure aren’t the most salient aspects of the report, they serve as a reminder that when respectful interaction in the workplace stops becoming the norm, more problematic behavior can follow.

Obligations of managers to report behavior

Investigators found that former Governor Cuomo’s conduct did not occur solely in contexts where he and the target of his conduct were alone. For example, one complainant, a female member of the unit tasked with protecting the former governor, said he had “asked[ed] why she wasn’t wearing a dress” in the presence of the unit leader. Although the head of the unit tried to deflect the former governor’s comments, he then sent a message to the female member of the unit which she interpreted as an instruction not to repeat the conversation that had occurred. Additionally, investigators reported that another state employee decided to “first do her own screening to determine if this [one employee] described as unlawful sexual harassment,” rather than reporting the information to the designated state office. Senior managers, by signaling to recipients of the former governor’s behavior that their silence was expected and by failing to report embarrassing and potentially illegal behavior, arguably helped perpetuate an environment that “created powerful incentives for employees to remain silent”. The conduct continued and eventually reached a level that warranted a 165-page investigative report detailing the experiences of 11 identified individuals.

Although many employers invest significant resources in developing policies, as the report’s authors noted, “the problem was not with the written policies of the Executive Chamber, which were robust and consistent with the requirements of the New York State law, but in the decision of the Executive House not to follow them. » Providing separate or additional training to managers on their obligations can serve to minimize the likelihood that policies only exist on paper. The investigators’ findings suggest that simply setting out a managerial obligation to report potential violations may have limited utility in the absence of detailed and clear examples covering topics such as handling the circumstances when a victim expresses a hesitation or reluctance to initiate the reporting process.

Channels for reporting issues

The report’s findings address a broader issue around how employees are informed about anti-harassment policies, as well as how employees are informed about how they can report concerns. Although many employers have several channels in place for employees to report concerns, it may also be appropriate to ensure that information on these channels is easily accessible to employees, including those who may be new to an organization. or who occupy temporary positions, and to provide options for reporting information anonymously. Investigators concluded, “Employees in the Executive Chamber often did not know how to file a complaint and faced significant disincentives that discouraged them from speaking out 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 alternative channels through which employees can circumvent individuals in their immediate chains of command, including individuals who might be considered “loyal” to those in their chains of command. order.

Employers may also consider requiring employees, especially 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 can help incentivize additional reporting of problems before they escalate into cases that could cause significant reputational damage.

Educate employees on procedures for investigating workplace concerns

New York employers must include in their sexual harassment prevention policies a “standard complaint form” and “a prompt and confidential complaint investigation procedure.” Regardless of whether this level of detail is required in the jurisdiction where an employer operates, it may be appropriate to include this information in a harassment prevention policy and provide information on the complaints and investigation process. as part of policy training.

It is not uncommon for employees to be reluctant to report concerns, and some of this reluctance may be a byproduct of a lack of transparency regarding what participating in a survey actually entails. While there are important reasons to keep specific surveys confidential, providing details about what employees can expect from an employer’s survey process can help build trust and increase channel usage. and internal procedures.

Ogletree Deakins’ It’s all about respect The training program addresses workplace behaviors that help foster a respectful work environment. The interactive, on-demand online modules are designed to meet the training requirements of each state that requires mandatory harassment training and to provide best practices for preventing and resolving a wide range of workforce issues.

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