Nearly six months after the New York Attorney General announced the commencement of an independent investigation of allegations of sexual harassment against Governor Andrew Cuomo, a bombshell, 168-page investigation report has been released to the public on August 3, 2021.  According to the report, investigators interviewed nearly 200 witnesses and reviewed over 74,000 documents.  After thoroughly analyzing the evidence, including Governor Cuomo’s responses to the accusations, the investigators substantiated allegations by eleven women that Governor Cuomo created a sexually hostile and overall toxic work environment.

The Cuomo investigation differed from the standard private workplace investigation in several respects.  Most importantly, the Cuomo investigation was conducted under the broad investigative powers vested in the New York Attorney General pursuant to State law – which included the ability for investigators to subpoena evidence and witnesses and to examine witnesses (including the accusers and Governor Cuomo) under oath. In contrast, workplace investigations in private employment settings are informal, non-judicial processes, and investigators do not have the power to compel witnesses to appear for interviews (under oath or not) or provide other evidence.  Regardless of this significant procedural difference, there is much that private employers and workplace investigators can learn from the Cuomo investigation report:

The importance of neutral and independent investigations, especially when a VIP is accused of misconduct.  

The Cuomo investigators found that previous complaints about inappropriate conduct by Governor Cuomo were handled internally within the Governor’s Executive Chamber and not reported to the State agency responsible for investigating harassment allegations made by State employees as required by the Executive Chamber’s written policies.  The evidence showed the Executive Chamber strained to interpret concerns that were raised about Governor Cuomo’s conduct in a manner that would excuse them from following the established procedures for commencing an investigation.  The investigators also concluded the actions taken by the Executive Chamber – implementing procedures to “protect” the Governor from being left alone with female staffers and finding different jobs for an accuser so she would not have to interact with the Governor – were inadequate and ineffective because the remedial measures did not address the alleged harasser’s conduct and had a more singular impact on the accusers.  It was only after the allegations against Governor Cuomo became publicized that his office referred the matter to the New York Attorney General, who retained outside counsel to conduct a neutral investigation.  

The blurry line between abusive conduct and unlawful harassment. 

It may be lawful for a boss to be an “equal opportunity” jerk to all employees; however, abusive conduct that is not tied to a protected category is frequently a harbinger of unlawful harassment based on protected category because both problems usually stem from an abuse of power.  As the Cuomo investigators found, the Governor’s sexual misconduct existed within an overall “toxic” work environment where Governor Cuomo (and other supervisors) routinely bullied subordinates by screaming, name-calling, demanding complete loyalty, and hazing new employees – including demanding impromptu performances of the song “Danny Boy,” purportedly as a way of assessing the employee’s temperament and ability to hold up under pressure.  The investigators concluded that this culture of fear and intimidation made employees feel afraid to report or reject Cuomo’s advances.  

How to resolve he said, she said (or more accurately, he said, they said) situations. 

The investigators meticulously assessed the credibility of the accusers, Cuomo, other witnesses, and their respective allegations, throughout the Investigation Report, and ultimately concluded that the accusers’ accounts were more credible. The investigators assessed credibility by applying the credibility factors identified by the EEOC:

1. Corroboration (or lack thereof) through physical evidence or the testimony of witnesses with the opportunity and capacity to observe.  This was the most heavily relied upon factor in the Cuomo investigation.  The accusers’ accounts of their experiences with Governor Cuomo were corroborated by eyewitnesses, witnesses who were subsequently told about the incidents in question, contemporaneous records such as text messages and emails, notes, photographs, and film.  On the other hand, many of Governor Cuomo’s denials, such as his claim that he did not sing the song “Do You Love Me” to an employee because he did not know that song was directly contradicted by a recording of Governor Cuomo singing the song in question.
2. Past history of similar conduct or reputation for veracity or deceit.  The investigation found that Governor Cuomo engaged in a pattern of unwelcome sexual conduct towards female subordinates, including conversations about personal and sexual matters, comments about their appearance and manner of dress; and hugging, touching, and kissing, which increased the credibility of the allegations.
3. Inherent plausibility.  The investigators found the accusers’ explanations that they did not report or reject Governor Cuomo’s conduct due to their fears about retaliation more believable than the Governor’s claim that he merely went along with personal conversation and physical touching initiated by female subordinates.
4. Motive to falsify or bias.  Governor Cuomo’s claim that the sexual harassment allegations against him were motivated by political rivalry did not persuade the investigators.  Even though one of Governor Cuomo’s public accusers was running for office and therefore may have had “political or other motivation” for publicizing her allegations, the investigators nevertheless found the factual allegations against Governor Cuomo to be credible because they were corroborated.
5. Demeanor or the witness’ manner or responding to questions.  Governor Cuomo alternately denied or could not recall that the alleged incidents in question took place, and occasionally intimated that accusers misinterpreted his actions and statements due to oversensitivity.  The investigators found Cuomo’s representations “unpersuasive.”  This shows that categorical denials, conveniently faulty memories, and other hackneyed defenses are not enough to overcome strongly corroborated, detailed, and consistently-told accounts.  

The thin line between defending oneself and retaliation. 

Governor Cuomo’s office undertook a defense strategy that included leaking confidential employment records relating to internal complaints against one of his accusers, circulating a draft Op-Ed disparaging one of the accusers among government employees, and “incessant[ly]” calling and texting employees in a “fishing expedition” for information about the allegations against Cuomo.  These actions were taken under the guise of attacking the accusers’ character and motives in furtherance of Governor Cuomo’s defense.  However, these tactics backfired and were found to be retaliatory and efforts to chill accusers from speaking out. 

Takeaways for employers:

Resist the urge to sweep allegations against higher-ups under the rug.  Develop and consistently follow written protocols that ensure fair handling of employee complaints. Retain experienced independent investigators to safeguard the impartiality of the investigation process. Take steps to eradicate abusive behavior, even if such conduct does not appear to cross the line into unlawful conduct. Resolve he said, she said disputes by gathering as much pertinent evidence as possible and thoroughly analyzing the evidence under the EEOC credibility factors. Avoid taking any actions that may give rise to the appearance of trying to influence an investigation or retaliate against a complaining party.