On August 24, 2021, Kathy Hochul was sworn in as the first female governor of New York, assuming office in the wake of the resignation of Andrew Cuomo. The former Governor, a once-powerhouse politician with a decade in the executive office, departed Albany in disgrace.
Cuomo did not leave office alone—at least four former senior aides and state officials have also resigned, as well as several prominent supporters who found themselves caught up in the scandal created by his conduct. That number does not include those who left their positions due to the harassment they allege to have faced. Hochul must now rebuild from the rubble left behind by her predecessor, as the leadership team in the executive branch, as well as those of prominent organizations throughout New York, have been left in disarray.
The allegations against Cuomo are voluminous, and range in severity from his usage of "pet names" to his inappropriate touching of female subordinates. The report concluded that beyond the Governor himself, "the Executive Chamber's culture" was "filled with fear and intimidation, while at the same time normalize[ed] the Governor's frequent flirtations and gender-based comments[.]"
Cuomo's downfall was shocking on one level, as he was long seen (or wanted to be seen) as a champion of women's rights. In fact, on August 12, 2019, he signed groundbreaking legislation establishing some of the strongest anti-harassment legislation in the country. However, it may not have shocked many who knew him, as the report commissioned by Attorney General Letitia James' detailed years of questionable behavior and cover-ups by those around Cuomo.
How did this happen? There are many factors that led to Cuomo's resignation, the most striking of which being the conduct of certain members of his staff, who the Attorney General's report portrays as seeking to "protect" Cuomo by enabling and perpetuating the conduct that led to his downfall.
It is just the latest in a long line of harassment scandals in the #MeToo era, but the facts here raise sharp questions. Is knowing the law enough? How can you protect against misconduct at any level in your organization? And what happens when the principal offender is the one in charge?
The Attorney General's report has been called "a road map for lawsuits." While Cuomo and his counsel continue to deny the report's findings, it offers crucial lessons for anyone looking to prevent lawsuits, or at least prevent the kind of workplace environment which is detailed in the report. For those in positions of power, the lesson should be that no one is immune from these claims—not even a governor.
We've written extensively on Labor Days about the ever-changing world of sexual harassment, retaliation, and hostile work environments. New York in particular is home to some of the strongest anti-harassment laws in the country. Under the framework of either the New York State Human Rights Law or Title VII of the Civil Rights Act of 1964, employers are obligated to take proactive steps to ensure that no employee suffers from gender-based discrimination.
Therefore, any employer can learn something from what happened in the Executive Chamber.
There is no "silver bullet" policy or plan that will completely eliminate discrimination from a workplace, and any policy must be continuously updated as businesses grow and the law changes. Therefore, employers must remain vigilant and ready to adapt, working with legal professionals to make sure that their policies not only meet legal requirements, but also the needs of their particular business.
That also means that all employees should regularly receive training on harassment and acceptable workplace standards of conduct. That includes your most senior executives, who should each attend a special session of training geared to senior leadership.
Many of the lessons learned are common sense and not dissimilar from what we were taught as children when we started grade school: keep your hands to yourself, don't call people names, be respectful of your friend's body and personal space, let a superior know if something has gone wrong, etc. That's why it's a common reaction from anyone reading the headline du jour to think, "how could they not have known this was wrong? Why didn't anyone stop it?"
That issue is complicated, but solvable.
Start Again, From the Top
Most of the coverage surrounding the Cuomo scandal has remained focused on the Governor himself. Cuomo drew significant criticism for admitting during his resignation speech, "In my mind, I have never crossed the line with anyone, but I didn't realize the extent to which the line has been redrawn." Certainly, the conduct described in the report was never acceptable, but to the extent the legal "line" in New York was redrawn, it was done by his own hand. Cuomo is both intelligent and knowledgeable enough to have known better.
So why did the harassment occur, despite this?
With a high-profile offender, it is far too easy to hold the individual responsible—to focus on a nameable, recognizable face, instead of systems comprised of otherwise anonymous enablers.
The Attorney General's report did not reach the easy conclusion and place all the blame on Cuomo. Instead, it emphasized that it was "the Executive Chamber's culture" that normalized and perpetuated the abuse.
Even when improper behavior is not outright encouraged (as it may be in the most toxic workplaces) it may still be acquiesced to. This acquiescence is a sign of perhaps the most insidious kind of culture—one in which an individual has no recourse and no way to make their voice heard.
Therefore, employers cannot settle for regular harassment trainings. It is not enough to simply establish and update policies and procedures. Instead, this most recent scandal teaches us that the most proactive thing any business can do is to establish systems of accountability into all echelons of its structure.
Rank-and-file employees are reminded again and again to report harassment or discrimination to a supervisor or to human resources. But what happens when the harasser is a supervisor, or a member of human resources? Worse, what happens when the harasser is superior to that supervisor or to all of human resources? What happens when the harasser is the CEO of the company, or the Governor of an entire state?
Internal checks and balances work well, but only to a point. For total accountability, there must be an external check on even (and especially) the highest-ranking members in an organization.
There may always be mold spores, that doesn't mean that they must be given damp, dark environments in which to grow. Systems of accountability are the best way to shine a light on what's happening within a corporate structure.
Transparency and Advocacy
We know the effectiveness of external checks on organizations. For Cuomo, that check came from an investigation after the fact from the Attorney General and two well-respected law firms. Public opinion, plus the threat of impeachment from the legislature, eventually forced his resignation.
Similarly, in the private world, a CEO is accountable to the Board, which is in turn accountable to shareholders, and all of whom are accountable to that organization's clients and customers.
This all costs hundreds of hours and thousands upon thousands of dollars. It has also cost the jobs of not just the former governor, but also of many of those within his administration. Worst of all, these checks can come into effect too late—failing to prevent years or even decades of abuse, and leading to the final and most destructive external check: litigation.
Taking some proactive steps now can save your organization thousands of dollars, stave off the evisceration of your senior workforce, and create a safer, more inclusive environment for all your employees.
How do you do that?
- Train at the Top. It is not enough to make a CEO and executive team take the same general-purpose training that their assistants take—each should have a special session. This must be an in-person training, geared to your industry and the situations which those individuals will face.
Consider private sessions of training for those at the very top (at least every two years). The money you spend on this type of training will be well worth it.
- Act, Don't Suppress. The most effective way for employers to become aware of misconduct at the outset is through employee reports, and so an employer is well-served by not simply telling employees to report misconduct, but also to establish systems that help employees feel secure in coming forward.
A refrain throughout the report was that many interviewees knew what was happening, but feared coming forward as they did not believe anything would be done. Coming forward would imperil their jobs, and there would be no change whatsoever.
An employee should know precisely how their complaint will be investigated, and that the investigation will take place in a neutral, confidential environment. Human resources is an outlet, but can be perceived as a "black box," or a department subordinate to the whims of the alleged harasser. Transparency in investigative procedures, along with clearly-defined triggers for investigations, will help employees feel like their voices will actually be heard. It is incumbent upon employers to make reporting more effective and more convenient that sweeping misconduct under the rug and hoping it goes away.
In short, employers must remain transparent, thorough, and consistent in their handling of complaints to ensure that employees feel safe and heard.
- Conduct Real Exit Interviews. Exit interviews can be seen as a formality for most organizations—particularly those with high turnover. But exit interviews present an opportunity for ground-level, unvarnished insights into the health of your company. It may seem counterintuitive, but making complaints easier to submit is the best way to stamp out harassing behavior before it gets out of control. Use exit interviews to find out what roadblocks your employees are running into.
Consider adding pointed questions to your standard exit interview form: "Did anyone ever say or do anything to make you feel uncomfortable in the workplace?" "Did you ever feel unsafe?" "Did you ever want discuss a workplace issue, but were unsure of with whom you could speak?" A single question may be overlooked as a token effort. You have to insist that speaking the truth is to everyone's benefit.
- Establish an Independent Investigative Person or Department. Many employees are unable to distinguish between human resources and the company. They may believe (oftentimes justifiably) that their complaints will fall on deaf ears. To counteract this endemic belief, employers should establish the independence of Human Resources from the rest of the corporate structure—having it be answerable to only the Board, or even to an internal review panel (diffusing power is a tried-and-true method of diminishing the corrupting influence of unchecked authority).
An effective Human Resources department requires executive-level authority over every member of an organization. For instance, in many financial service businesses, an internal compliance office may act independently within the organization to ensure legality at all levels—human resources can be similarly empowered.
Taking things a step further, companies may retain the services of outside law firms, instructed to identify and report on misconduct as they are made aware of it.
Also, consider empowering this investigative department to commence their own investigations when they hear the rumblings of misconduct. Is there a story of something that happened at a business dinner? Is it well known that the Senior VP was flirting with a low-level clerk? When they hear the rumors, they must be empowered to act on them and investigate as needed. If the investigator can commence an investigation, without a formal "complainant", it may uncover the next scandal before it hits.
Nobody wants to be the next headline—to have people wonder aloud how more wasn't done in the face of obvious misconduct. Don't let your organization be that headline. Learn from the news and contact Kelley Drye today to help cultivate a work culture where everyone, top to bottom, feels accepted, safe, and heard.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.