And I’m not even talking about sexual harassment.
As you all know, New York Gov. Andrew Cuomo (D) tendered his resignation this week, graciously offering to work a two-week notice.
I am not going to pile on about the sexual harassment allegations in the investigative report prepared at the request of state Attorney General Letitia James. Some of the allegations are really bad if true, but the Governor has denied those, and so at this point I must consider them to be allegations only. Some of the other allegations struck me as weak even if true (really? you can’t show your employees a cigar box you got from Bill Clinton and chuckle over it?) or too dependent on the subjective feelings of the Governor’s accusers rather than anything he actually did.
So, I’ll reserve judgment on the sexual harassment until the Governor has his day in court.
But, oh my gosh! The lessons his case has about employee relations! Here are a few examples of “Carefully observe what I do, and then do the opposite.”
Sexual harassment aside, the work environment was reportedly toxic. Probably the norm for the team of a high-powered governor in a high-powered state, but the work environment sounded like one that would give you ulcers, hives, and 4 a.m. calls to your Employee Assistance Program hotline. Meanness. Yelling. Demoting or transferring people (male as well as female) for arbitrary and capricious reasons. Telling a guy (a guy!), “Why don’t I do both our jobs because you obviously can’t do yours.”
Based on my experience, a nice boss who likes to hug and kiss his employees in a friendly, non-sexual way may make it through his entire career without ever being accused of sexual harassment. That’s because his employees love him and know he doesn’t mean anything by it. But let a nasty boss behave exactly the same way, and he’s likely to end up like Gov. Cuomo — out the door. Whether he technically “harassed” anyone or not.
Staff who did not know how to report an allegation of sexual harassment. According to the investigative report, employees on the Governor’s team did not know how to make an internal complaint of sexual harassment. This included the alleged victims, which is bad enough, but also the people the alleged victims went to with their complaints, which is a disgrace.
(I don’t rule out the possibility that the Governor’s circle may have temporarily “forgotten” what to do about any harassment complaints that concerned the Governor. I wasn’t born yesterday.)
Employers, make sure that anyone in a supervisory role knows exactly where in the organization to go if they observe or get a complaint of workplace harassment. Better yet, make sure everyone knows, whether they’re in management or not. And since #MeToo began in late 2017, we have encouraged employers to designate someone (for example, a Board member or even an outside third party ombudsperson) who could receive a complaint if the accused was someone very high up, or “irreplaceable” because of unique talents or other contributions.
Apparently Gov. Cuomo’s office doesn’t read this blog. (See Item No. 2.)
Skipping harassment training. According to the investigative report, Gov. Cuomo has received harassment training one time — ever — in 2019. Well, maybe he did, and maybe he didn’t. Someone else signed the certification saying that he’d had it in 2019, so maybe he didn’t even do it then.
If you’re a big shot who thinks harassment training is a waste of time, or boring, or that you’re just too important, then do it anyway. It could help you learn how to behave better at work, and at the very least it could also provide you with some protection if you’re ever accused of harassment. Even better, the fact that you — a big shot — are there for the training will set an excellent example for the people who don’t have enough clout to skip it, and it can help your company defend itself by showing that its anti-harassment policy had support at the highest levels.
“Allow me to dig that grave for myself. I don’t think you made it deep enough.” Two years ago yesterday, Gov. Cuomo signed into law legislation that made it significantly easier for plaintiffs to prevail in harassment cases in the State of New York. Among other things, the legislation extended the applicable statute of limitations in sexual harassment cases from one year to three years. It eliminated the requirement (which still exists under federal law) that the behavior be “severe or pervasive” to be legally actionable. (Does that sink the Governor on the cigar box?) It eliminated the requirement that the alleged victim make an internal complaint unless there was a good reason for not doing so. It also eliminated the requirement that the plaintiff show that similarly situated individuals in non-protected categories were treated more favorably. (Does that sink the “equal opportunity jerk” defense?)
In the Governor’s defense, these changes were enacted by the state legislature in response to #MeToo. All the Governor did was sign it into law. And he did reportedly say that the “severe or pervasive” standard was “absurd.”
Employers, shooting yourself in the foot — I mean, digging your own grave — I mean, hoisting yourself on your own petard — is never a good idea. A touchy-feely-kissy-double-entendre guy like the Governor should have had the self-awareness to realize that this one would probably come back to shoot/bury/hoist/bite him.
Well, anyway, congratulations to Lt. Gov. Kathy Hochul, who will soon become the first female governor in New York history. Lieutenant Governor, it sounds like you’ll have your work cut out for you.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.