Employers can learn many lessons from the recent allegations of sexual harassment levied against New York Gov. Andrew Cuomo. Companies should use this as an opportunity to take notice — and take action — in their own workplaces.
Despite years of discussions and promises to stop harassment, sexual harassment remains misunderstood.
First and foremost, anytime an allegation of harassment, discrimination, or other misconduct is made in the workplace, the employer must ensure that everyone involved receives a fair and impartial investigation.
Too often in recent years, we have rushed to assume that a person accused of misconduct is guilty of the behaviors. Everyone deserves fairness in the process.
The person selected to conduct the investigation needs to be a person who has the talent and experience to conduct a thorough investigation free from influence. Don’t assume just because someone is a lawyer or human resources professional that the person has the experience or demeanor to conduct an investigation that will properly assess credibility with appropriate fact-finding.
While Cuomo, like anyone, deserves fairness and an investigation, he has already admitted to behaviors that would lead to a reasonable conclusion he did indeed commit a form of sexual harassment. He claims to have misunderstood what sexual harassment behaviors look like. Employers should consider that perhaps their employees are equally in the dark or would at least make a claim to this effect.
Cuomo has admitted to being “playful,” “making jokes” that he thinks are “funny,” and teasing people in a “good-natured way.” He said he means no offense and does it for levity and banter. He also said he “never inappropriately touched anybody and I never propositioned anybody and I never intended to make anyone feel uncomfortable.”
Employers must train their managers—if not all employees—to understand what constitutes sexual harassment. Too often individuals wrongly believe that their “intent” (or lack thereof) to commit harassment matters—it doesn’t.
If the comments are made toward an individual because of that person’s sex (for instance, the person would not have made the comments to another gender) and a reasonable person would find them offensive, the recipient of the objectionable behaviors found them offensive and the conduct was severe or pervasive, the person has created a hostile environment and engaged in sexual harassment.
Whether it is a legally actionable hostile environment under federal law may depend on whether the conduct occurred between two co-workers or by a manager.
Employers are strictly liable for the actions of their managers with a limited affirmative defense.
Legal liability attaches if the employer was put on notice of the behaviors between co-workers and failed to stop them.
For harassment by a manager, employers also will need to prove, in part, that they took reasonable steps to prevent the harassment from occurring in the first place.
Companies can generally meet this defense by training managers on the expectations that the employer will not tolerate any form of harassment, which includes specific behaviors such as discussing your sex life, flirtation, sexual innuendo, sex-oriented kidding, and teasing, and the like.
Training managers is a lot cheaper than a lawsuit.
While touching someone can supplement a claim of harassment, merely because someone isn’t touched doesn’t mean harassment didn’t occur.
Managers must understand that once on notice, the response should not be to transfer the victim, as allegedly occurred when the staffer reported Cuomo’s misconduct, it should be to immediately conduct an investigation. If there is a finding of wrongdoing, take corrective action to stop the misconduct, which usually means termination.
Too often managers accept the victim’s request to keep the matter confidential or the manager will ask if the person wants to proceed or file a complaint. These are not acceptable responses.
Cases involving elected officials, board members, and customers can be complicated, but they don’t get a bye because they are in positions of authority.