Lessons Learned from the Cuomo Investigation

Jathan Janove, J.D. By Jathan Janove, J.D. August 12, 2021
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Lessons Learned from the Cuomo Investigation

​Many years ago, I was hired to investigate allegations of sexual harassment and retaliation against a senior government official. The government also hired a co-investigator. Between the two of us, we covered gender diversity as well as legal practice. She represented plaintiffs/employees, whereas I represented defense/management.

After many hours of work, my co-investigator and I reached the same conclusion: The allegations were valid and this official should not be in a position of power or authority. But rather than present formal findings as investigators did in the matter regarding former New York Governor Andrew Cuomo, we approached the government representatives who hired us and informed them what our findings would be. We said we'd be happy to make formal findings and were confident the findings would withstand scrutiny from the accused official's attorneys or others. However, if the government wanted to give this person an opportunity to resign prior to formal findings and the inevitable publicity, now was the time. Otherwise, we would proceed as originally planned.

When offered the opportunity to resign and leave government service permanently, the official initially resisted. He continued to deny the allegations, claiming things had been misconstrued, blaming victims, questioning the competency and impartiality of the investigators, and so on. However, he soon capitulated, announced his retirement and left government service for good. There was some publicity and Equal Employment Opportunity claims that were settled prior to litigation, but the matter soon faded from the rearview mirror.

"Independent investigations work," said Gretchen Carlson, a former Fox News journalist who filed a harassment case against Roger Ailes, then-chairman and CEO of Fox News. Carlson's case was eventually settled with a significant payment, a public apology and Ailes's resignation. "This is what I've called for inside all workplaces," Carlson said.  

Carlson later co-founded LiftOurVoices.org, an organization dedicated to the eradication of forced employee arbitration clauses and nondisclosure agreements. "When you stop silencing women, you truly move towards equality in the workplace," she said.

Lessons Learned

Reflecting on my experience as well as what I've read of the Cuomo and Ailes investigations, several lessons emerge for HR professionals and other company leaders:

  1. The fear of retaliation among employees is very real and very powerful. It can exert a chilling effect on employees' willingness to report problems that lasts for years, or forever.

  2. When information surfaces that someone in a position of power and authority has been misbehaving for a long period of time, HR and management's response should never be skepticism. Instead of asking "Why are you reporting this now?", the response should be, "Tell me more."

  3. Don't be distracted by righteous indignation that appears genuine. Malefactors in power build their own narratives, which get reinforced by a lack of confrontation. Like Cuomo, Ailes and the official we investigated, the response is often, "I'm a champion of women! Look who I've hired and promoted! I fully support #MeToo and have never tolerated sexual harassment!" Don't let what seem to be genuine expressions of outrage fool you. Get beneath the surface.

  4. Don't conflate the way the official or person in authority has treated you with how you think they treat others. When interacting with HR or others in authority, the person may be a paragon of professionalism. But it doesn't necessarily follow that they behave the same way with others.
      
  5. A fear of retaliation, combined with the propensity of powerful people to create self-narratives, means that sexual harassment will continue to be a problem, especially when there's an imbalance in organizational power. Thus, HR should always keep its antenna up and have the courage and tenacity to investigate signs of trouble proactively. HR should also have the authority to hire outside investigators whenever it deems it appropriate.

Others Weigh In

"It's sad that these [sexual harassment] cases exist," said Paul Jones, chief people officer of USANA Health Sciences in Salt Lake City. "Organization leaders must truly create cultures where values are clear, consistent and not situational."

Jones emphasized the importance of trust, saying that in a culture with high levels of trust and respect between all members of the organization, "this behavior is very unlikely to occur. And if it does happen, there will be transparency and enforced action to correct it." Jones further noted that how we deal with today's employee relation concern will, moving forward, either encourage trust and confidence or skepticism and fear. "We cannot adequately deal with today's problem without recognizing how it impacts the culture and values of tomorrow," he said.

When there are allegations of a leader's harassment, "smoke" usually means "fire," said Pam McGee, SHRM-CP, HR vice president at the Father's Table in Sanford, Fla. "In my experience, individuals in leadership positions who have abused their authority to establish an atmosphere of fear must be dealt with immediately." She said that HR and senior management shouldn't be deterred from taking action "by possible fallout concerning positive attributes the leader may have demonstrated."

Colleen McManus, SHRM-SCP, an HR executive and consultant working in the public sector in Phoenix, noted an additional cost when people such as Cuomo and the official I investigated are able to continue their misbehavior.

"Many who work in public service do so because they feel called to help the greater good and the citizens in the towns, cities, counties, states and countries they serve," McManus said. "That was the case with me. I hoped that in making a career in public service, I could use my professional skills to make a positive difference for many others. 

"I don't know if the public or the media always appreciate or understand the sacrifices that many public servants make to perform some of the work we do, such as providing security in correctional facilities, processing unemployment and disability benefits, working with [people with mental health conditions], teaching special needs children, keeping our jurisdictions safe, investigating allegations of some of the worst actions imaginable, and many other jobs," McManus added. "Pay can often be much lower than the salaries paid to our private-sector counterparts, and many public servants do not receive regular pay increases, cost of living increases, or other bonuses or perks. Public servants are called to serve, we believe in the missions of our jurisdictions, and we believe in the work we do.

"No one, in any environment, deserves to be victimized, discriminated against or harassed," she continued. "When this happens to public servants, we don't just lose employees, we lose selfless, compassionate, dedicated people who were making sacrifices to further a mission and hopefully benefit the rest of us."

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

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