In this video, I breakdown New York Governor Andrew Cuomo’s apology statement from the perspective of a California employment attorney and cover the five lessons employers should learn from this incident:
1. Duty to investigate complaints.
California Government Code section 12940(j) provides that it is “unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” The law also provides that employers are liable if they “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Gov. Code section 12940(k).
2. Investigations must be done properly and impartially.
The investigator needs to be an impartial third-party that is knowledgeable on conducting investigations. More information on how employers can conduct proper investigations can be read here.
3. Harassment can take many forms – not just physical touching.
4. The focus is on the victim’s perspective, not whether the alleged harasser intended the conduct.
The U.S. Supreme court explained, “This standard requires an objectively hostile or abusive environment—one that a reasonable person would find hostile or abusive—as well as the victim’s subjective perception that the environment is abusive.” Harris v. Forklift Systems, Inc.
5. Do not jump to any conclusions prior to finalizing the investigation.
As a reminder, California employers with five or more employees must provide two hours of sexual harassment prevention training to supervisors, and one hour of training to employees as of January 1, 2021. This training must be renewed every two years.