By Elliot H. Clark
Here we go again. Yes, I am going to take on the case of Governor Andrew Cuomo. This is another sad example that we are not in the “post” #MeToo era. Sexual harassment continues to be a front and center social issue and HR is right in the middle of it.
I want to stay away from the politics. It seems that today politicians sometimes rush to defend allies and attack opponents regardless of the facts at hand. This case should not be about who is red and who is blue. It should be about what is right, what is wrong, and the law. And recently, the laws in the state of New York have changed.
As I write this in the first week of March, Governor Cuomo just completed a press briefing where he addressed the allegations. Let’s review the facts as they have been disclosed thus far. The allegations of sexual misconduct began when a former aide disclosed that she felt she had been sexually harassed. Shortly after that initial complaint, two further complaints arose. One was from a former staffer who had notified management in the state of New York government and requested reassignment. The other involves an associate who was a political operative but not an employee.
I wrote a column three years ago that all of society owned responsibility for Harvey Weinstein. Everyone knew the phrase “casting couch” but acted shocked to discover that it actually existed. That was hypocritical to say the least. But once the issue broke open, it seemed some sensitivities changed. Politics have made things harder for HR. Calls during the Kavanaugh confirmation hearings that “all women must be believed” were nonsensical. Equally nonsensical was the default position of management of the past that all accusers were disgruntled “gold diggers.” Neither position is true. There are false accusations and there are false denials. The proper position is all accusations must be investigated. Period, end of story.
Too little is known about the New York case to draw conclusions. Though mass media pundits love to do this, the investigation has yet to take place. For the sake of best practices, however, I would like to point out a few things. Any investigation of a senior executive needs to be independent. The Attorney General of New York Letitia James will run the investigation, but it will be performed by outside counsel. Note: It is important for the CHRO to have direct access to outside counsel, not just access through the general counsel of the company. For example, what if the general counsel or the CEO is the accused?
The other interesting point in the New York case is that New York State law specifies that the standard for harassment is perception of the subject of the behavior, not the intent of the accused. Understanding these jurisdictional issues is critical. In an emotional apology, Governor Cuomo stated that he never meant to make anyone uncomfortable. He denies unwanted physical contact, which was part of allegation, but seemed to concede that the verbal dialogue was inappropriate. As a former attorney general and the Governor who upholds the laws of New York State (passed on his watch), he should know that the perception of his accusers is paramount—not his intent.
For HR leaders, as a matter of practice, this press briefing cut both ways. On the one hand, you need to recognize the accused statements as incriminating, and on the other hand, it is a stark reminder to not let the subject of an investigation speak publicly and make the conduct of the investigation harder, particularly in high profile organizations.
As an aside, it seems the Governor has apologized and recognized his behavior was inappropriate. Why don’t leaders understand that the very power that they have to engage in bad behavior imposes the obligation to show restraint and set a better example? I suppose that is a mystery of life question.
To the extent I would offer my opinion on personalities, the “tough guy” persona of Governor Cuomo could make him an imposing or threatening presence to both male and female subordinates. I would contend that he and the former occupant of the White House, who also acted like a “tough” New Yorker, only experienced the mean streets of “Gotham” though the windows in the backseats of their daddy’s limousines. Nonetheless, the perception of the staff as to how a leader would react when challenged or refused is also an issue in any investigation.
It is unfortunate that we are here again. For HR, there are lessons to learn from these events. Let’s hope that leaders learn them first so HR has fewer of them to deal with in the future.