The United States Department of Justice (DOJ) just announced a settlement with the New York State Governor’s office for sexual harassment and retaliation against at least 13 female employees during Mr. Cuomo’s term as governor. Which begs the question, what were the DOJ’s findings?
The DOJ found that the former governor repeatedly subjected women who worked for him to “unwelcome sexual contact, non-consensual sexual contact, ogling, unwelcome sexual comments, gender-based nicknames, comments on their physical appearances, and/or preferential treatment on their physical appearance.” The DOJ noted that all of these actions are identifiable as Title VII violations but with no Human Resources Department (“HR”) in place, there was no reliable or confidential method to report the misconduct.
The DOJ said Cuomo’s conduct was supported and hidden by various staff attempting to cover for the governor. The staff’s conduct was cited as being “designed only to protect Cuomo from further accusations, rather than to protect employees from sexual harassment.” It’s easy to see how the systemic problems were perpetuated in an environment where the system wasn’t even broken, but apparently non-existent.
There is a lot of information on the “dos and don’ts” within the settlement agreement. First and foremost, have an HR Department. Yes, the governor’s office with approximately 135 employees did not have any HR support. Needless to say, the DOJ found this to be a big problem. The New York Governor’s office now have an HR department staffed with experienced people who are able to draft policies and procedures as well as provide annual training on Title VII.
As part of the settlement reached, the new HR Department has been tasked with the following list of what would typically be standard operating procedures for running an office, and includes but is not limited to:
- Provide regular guidance on employee relations and proper management;
- Regularly educate employees about the complaint handling process as part of orientation, during training, and by posting, in the physical office and online, notices about the ways employees can file complaints both internally and externally;
- Facilitate mandatory trainings and track employees compliance with those trainings;
- Take corrective action for violations of equal employment opportunity (EEO)related laws, the EEO Handbook, and workplace civility.
- Launching a Workplace Sexual Harassment hotline.
- Posting EEO notices in common places in the office and sending monthly e-mail reminders regarding all of the possible ways for employees to file complaints both internally and externally.
- Requiring HR Department personnel and supervisors to automatically file internal reports of potential violations of law or the EEO Handbook within three days if the complainant does not report it themselves.
- Instituting live, mandatory, training addressing discrimination, harassment, and retaliation each calendar year, and designating an HR Department employee to track compliance with training requirements.
- Allowing employees to file anonymous complaints.
- Prevent the release of personnel materials for retaliatory purposes. New York State now has an anti-retaliation law that prohibits the release of personnel materials for retaliatory purposes.
A common theme in the settlement agreement was follow-up in both training and addressing current problems within the Governor’s office. In singling out live training, the goal of the DOJ seems to be telegraphing the importance of this form of training as opposed to staff members individually watching outdated videos that don’t allow for interactive discussion.
Likewise, the Governor’s office didn’t have an adequate process for handling complaints of misconduct, according to the report. In fact, they had no process or procedures. They do now.
This is important for all employers. Once a report is made, management has an obligation to investigate regardless of whether the allegedly harassed employee wants an investigation or not. Post investigation, whether a problem is found or not, any and all corrective action is to be followed up on to make sure it’s actually correcting the problem.
The individuals involved in the coverup are no longer employed by the Governor’s office. They were accused of acts of retaliation. Remember, it’s not just the harasser who is in the wrong, it’s also others who engage in any corollary activities including those who retaliated against not only victims, but whistleblowers as well. The DOJ was troubled by the executives who knew about the conduct but “failed to effectively remediate the harassment on a systemic level. When employees attempted to raise concerns about Cuomo’s conduct to his senior staff, Cuomo’s staff failed to follow Equal Employment Opportunity policies and procedures to promptly report those allegations to the appropriate investigative body.”
The take-away from this is the reminder that just because a manager is not a harasser, if they knew about the problems and did nothing to solve them, they put themselves and the organization in jeopardy. Culpability for managers who turn a blind eye to Title VII violations is a good topic to discuss at your annual management training. As the frontline defense, they could end up without a job for not following your policies against harassment. And your company can end up without the benefit of the Ellerth-Faragher defense, which is the only viable defense when supervisor-subordinate harassment is established.
Here are some other topics for your annual supervisory training as suggested by the DOJ.
Supervisors are to be:
- Reminded of their mandatory reporting obligations;
- Provided with instructions for reporting discrimination, harassment, and retaliation with an emphasis on their affirmative duties of supervisors to report discrimination harassment, and retaliation even in the absence of a formal or informal complaint; and
- Supervisors are to be trained on real life actions they can take to prevent, respond to, stop, and remedy discrimination, harassment, and retaliation.
The settlement agreement makes a nice rubric for your training needs this year. No one wants a lawsuit where the DOJ is the plaintiff. And in case you are losing sleep over former Governor Cuomo and all these legal challenges, you don’t need to be. While he has aggressively defended himself against civil suits from women with sexual harassment claims, under New York law his defense is paid for by the taxpayers of the State of New York.
Need help with training, writing policies, or dealing with a harassment issue? We are here to help. Feel free to contact Madalene Witterholt or anyone in our multi-state Labor & Employment Practice Group.