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As everyone knows by now, an investigation conducted by independent lawyers selected by the New York State Attorney General concluded that Governor Andrew Cuomo sexually harassed State employees through unwelcome and unwanted touching, as well as by engaging in a pattern of behavior that included making numerous offensive and sexually suggestive comments. The investigators further concluded that the Executive Chamber’s failure to investigate allegations of harassment by Governor Cuomo violated its own internal policies and at least one complainant was unlawfully retaliated against.

Public and private pressure in the face of the August 3, 2021, report documenting the findings of the independent investigation (the “Report”), as well as a series of resulting staff resignations, led Governor Cuomo to announce he would be stepping down as governor as of August 24, 2021.

The Report serves as a guide for employers on how not to handle complaints of harassment and of what can happen when a blind eye is turned to misbehavior and workplace culture issues. Unfortunately, many of the allegations against Governor Cuomo reflect behavior that can be found in workplaces across our country. Behavior that the harasser wrongly views as innocuous or acceptable for one reason or another, but which is offensive to the victim and others can lead to legal liability for the employer and even individual managers. The Report is a wake-up call to all employers, who should promptly proactively ensure their workplace reflects a culture of respect and a firm understanding of anti-harassment and anti-retaliation laws.

If not already done, employers should schedule an annual anti-harassment training for all of their employees – from the most junior part-time employee to the CEO. Pursuant to a law Cuomo himself signed and heralded in 2018, annual anti-harassment training is a legal requirement in New York for all employers and many other states have also implemented employee training requirements. We typically recommend holding different training sessions for managers and staff as the issues each group faces differ and the separation allows participants to feel more comfortable discussing issues and asking questions. Notably, the Report cites Governor Cuomo’s failure to sign his own attestation of completion of required anti-harassment training in 2019 (an aide signed it for him) and failure to complete anti-harassment training in 2020 or 2021.

During Cuomo’s announcement of his resignation, he stated “In my mind, I've never crossed the line with anyone, but I didn't realize the extent to which the line has been redrawn.” However, laws that Cuomo himself previously signed to much fanfare (e.g., amendments to the New York State Human Rights Law) expressly reject a heightened “severe or pervasive” standard for actionable workplace harassment, and instead adopt a much lower “less well” standard for determining whether gender based harassment is unlawful. Accordingly, we view with skepticism Cuomo’s quasi-mea culpa concerning lines being “redrawn.”

We anticipate the publication of the Report, which includes details of behavior found to constitute unlawful harassment, will lead to an increase in awareness of workplace harassment issues and frequency of complaints of workplace harassment. If there are employees within an organization who believe actions such as those taken by Governor Cuomo are acceptable, that organization has significant exposure. Employers should reflect upon their culture and employee behavior at all levels of the organization. If there are any questions about that culture, a temperature check may be in order. See our prior article on this topic, Internal Investigations: Workplace Culture Temperature Check.

Employers should have in place a written anti-harassment policy that clearly outlines how a complaint may be reported without retaliation and the steps to be taken once a complaint is received. Those steps will include an investigation, which may be conducted either by internal staff or an independent party. Multiple reasons exist for engaging the assistance of an independent third party with workplace investigations. Internal staff is often not adequately trained to conduct a workplace investigation, interpersonal relationships may make it difficult for internal staff to be effective, and employees may feel more comfortable disclosing information to an independent party.

The Report cited the culture and practices of the Executive Chamber under Governor Cuomo – specifically the fostering of a culture of fear and intimidation, normalization of inappropriate comments and interactions, and a failure to enforce policies and safeguards – as contributing to the incidents of sexual harassment and retaliation, as well as the existence of an overall hostile work environment. Equal employment opportunity laws serve an important function in leveling playing fields and promoting civility and respect among colleagues. Ironically, Cuomo was a vocal champion of many of these causes over the course of his tenure as Governor of New York State. The takeaway for business leaders should be that actions speak louder than words.

For more information on the topic discussed, contact:

• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Joel A. Klarreich  |  jak@thsh.com  |  212-508-6747
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158