New Sexual Harassment Policies Are Enforced – or Not

NYS Gov. Andrew Cuomo

New York State has new sexual harassment policies on the books. Yay for us. But these policies are not uniformly enforced, according to sources.

The saying goes: “a law is only as good as its’ implementation”.

At least that is what my dad, assistant attorney general under Louis Lefkowitz and others for 30 years, told me over and over again.

So what we are seeing in America is the door swung wide open to women who claim sexual harassment by the men they worked for or with. Whether their stories are correct or not is still up in the air somewhere. And all sides are preparing their bows and arrows to fight for what they believe. That’s a problem.

I think the hysterics have gone too far, for many reasons, but certainly one in particular. At this time, any person can make any claim about anyone, get the social media and news to pick it up, and boom….suddenly, the person who allegedly did the bad acts, is tainted for life, or at least until there is a proper investigation, which gets, by way of good SEO, the more credible facts to appear above the rumors in a Google search. Still, the general public never knows what really happened.

The NY POST asked me to comment on what I thought of NYC Mayor DeBlasio’s claim that as far as sexual assault claims are concerned, “The Department of Education led the way with 471 complaints, of which only a mere seven, or a little over 1 percent, were substantiated.”

My response is here:


Department of Education stifled sex harassment claims: ex-union rep

By Selim AlgarYoav Gonen and Max Jaeger , April 26, 2018

It was set up to fail.
 The Department of Education office that substantiated just 1.5 percent of 471 sexual harassment claims was established to keep complaints from going to the more forceful federal Equal Employment Opportunity Commission, according to a veteran union rep.

“They wanted control over these complaints, so they invented a subsidiary of the DOE to control the initiation and outcome of a case,” said Betsy Combier, a former United Federation of Teachers rep who now advises teachers facing charges by the Department of Education. “The [DOE Office of Equal Opportunity] is there to make sure no one goes to the EEOC, where the case would actually get an independent hearing.”

A rep for the EEOC said New York City agencies may refer cases to it, but he could not provide numbers for how many actually were.

The DOE office substantiated just seven of 471 sex harassment claims it investigated between July 2013 and 2017.

Mayor Bill de Blasio defended the paltry number Wednesday, claiming there is a “hyper-complaint dynamic” and a culture of people lodging complaints with ulterior motives.

Advocates slammed de Blasio on Thursday for the retrograde defense.

“What he should have said is that addressing sexual harassment and sexual assault are top priorities and that, as the leader of our city, he is fully committed to restoring women’s trust and ensuring their safety,” said the National Organization for Women’s New York City chapter president Sonia Ossorio, adding de Blasio’s remarks were “disappointing” and a “disservice.”

A lawyer who represents sexual harassment victims said it was hard to believe the mayor’s comments came from the same guy who travels around the country to spread a progressive agenda.

“That’s crazy. You may expect that more from a large corporation than from a man who considers himself the most liberal person on the planet,” said Maimon Kirschenbaum of Joseph & Kirschenbaum LLP, which handles discrimination cases.

City officials insisted all harassment complaints are “thoroughly” investigated.

“The DOE’s Office of Equal Opportunity and Diversity Management treats every allegation of discrimination with the utmost seriousness and thoroughly investigates complaints,” said spokeswoman Toya Holness.

The city is hiring 11 new OEO investigators, which will bring the total to 18, officials said.”

And there’s the rub. Where are the facts? Let me give you a current example.
Veteran NBC Reporter Tom Brokaw was recently accused of sexual misconduct with a former News staffer Linda Vester. Suddenly, more than 60 female journalists came forward with a signed letter of support for him. We, the public, don’t know what happened, but everyone “knows” that people can be found guilty or innocent depending on how the media coverage tells the “story” – if indeed there was one in the first place:
from Linda Stasi, NY Daily News April 29, 2018:

                                    Tom Brokaw

“Maybe you too but not #MeToo. More than 60 female journalists signed a letter of support for Tom Brokaw in response to allegations of sexual misconduct by his former colleague, Linda Vester.
Rachel Maddow, Maria Shriver and Andrea Mitchell were among those signing the statement that he “treated each of us with fairness and respect.”
Brokaw meantime, called Vester’s claims, “an ambush,” which is pretty much what she said of him.
Bottom line? Just because he didn’t try to kiss them doesn’t mean he didn’t try to kiss her. Just saying.”

This is what is wrong with the #Me Too movement – my opinion as a woman – before, not after the media gets to say what really happened, please let’s get the facts straight. Lets get professional investigators who know how to get to the “real” story, are trained in how to do that, and start from a neutral place where no side is favored. Let’s stop the mobbing as a way to create facts.

Then we have laws that we can trust and lawmakers who can show us their mettle in standing up to a mob and say “stop”.

Betsy Combier

Patricia Gunning’s (picture above) retaliation complaint against her boss at a New York State agency was routed through several different investigative bodies and has yet to be resolved — a common fate for harassment complaints against state officials. CreditKarsten Moran for The New York Times
Patricia Gunning’s retaliation complaint against her boss at a New York State agency was routed through several different investigative bodies and has yet to be resolved — a common fate for harassment complaints against state officials. CreditKarsten Moran for The New York Times

Sex Harassment Complaints in New York Fall Into an Enforcement Maze


In early April, with hundreds of New York City’s elite gathered at a power breakfast at Cipriani Wall Street, Gov. Andrew M. Cuomo extolled the merits of the state’s new sexual harassment policies, calling them a model that would be “binding on every government in the State of New York.”
But while Mr. Cuomo and other lawmakers have lavished praise upon the new reforms, little has been said about a less glamorous question: Who, exactly, will enforce them?

There is no single investigative body or agency charged with hearing complaints of sexual harassment or abuse by state officials. Nor is there a uniform statewide definition of sexual harassment.

What exists is a tangle of commissions, offices and agencies, many with overlapping jurisdictions but different procedures and enforcement powers — and no clear framework for reconciling them.

In three recent harassment complaints against top state officials, no fewer than six different groups conducted investigations, an examination by The New York Times shows. All the cases were reviewed at least three times, sometimes with conflicting results.

In one case, an allegation went from the state’s Justice Center for the Protection of People with Special Needs to the Governor’s Office of Employee Relations and then to the state inspector general.

In another, an allegation was handled by the inspector general’s office, then by the Division of Criminal Justice Services, and then by the Joint Commission on Public Ethics. In the third, it went from the Office of General Services to the governor’s employee relations office to the inspector general, and finally to the public ethics commission.

The cases show that bringing a complaint in New York State government can be a clunky, unpredictable process. What policies do exist are not always followed. And for all the sleek uniformity that officials have promised in recent weeks, none of the new policies fully address how, in practice, it will be achieved.

Mr. Cuomo’s aides say the multiple reviews of each of the three complaints demonstrate how seriously they were treated.

“Complainants should have as many options as possible,” Alphonso David, the governor’s counsel, said in a recent interview. “If I’m a victim of discrimination, I want to have as many options available to me to seek redress.”

But ethics experts said the lack of clarity around procedure could undermine accountability and public trust.

“When jurisdiction becomes so bifurcated or attenuated that the ball just keeps bouncing from one agency to the next, that can become a tool for delay,” said Paula Franzese, a professor at Seton Hall Law School and former chairwoman of New Jersey’s state ethics commission. “That can promote delay and studied inaction and certainly inefficiency.”

‘He Should Just Watch It’

In 2016, Patricia Gunning had been at the Justice Center for the Protection of People with Special Needs for three years. As the agency’s special prosecutor, she was one of its highest-ranking officials, and after months of feeling that the agency’s acting director had created a “frat-house culture,” including having an inappropriate relationship with a staffer, she confronted him.

The retaliation was immediate, according to Ms. Gunning. In June of that year, after the director, Jay Kiyonaga, shouted at her so loudly that several colleagues sent her emails afterward asking if she was all right, she reported him to the Justice Center’s general counsel.

The subsequent inquiry found that “everyone confirmed” Ms. Gunning’s account of Mr. Kiyonaga “raising his voice and swearing at you,” according to a recording of a conversation, obtained by The Times, between Ms. Gunning and the counsel, Robin Forshaw.

But the incident “didn’t raise with us the idea” that it needed to be reported further, Ms. Forshaw said.

“We’ve told him he should just watch it, and not do that kind of thing,” she said.

The agency had written a memo about the incident, but it would not go in Mr. Kiyonaga’s file. If Ms. Gunning wanted to continue pursuing the complaint, Ms. Forshaw said, she could “make a report of discrimination or retaliation with our affirmative action officer, the Division of Human Rights, the E.E.O.C.

“You could also, I guess, potentially make a workplace violence complaint, if that’s what your concern is,” Ms. Forshaw added.

Under a 10-step procedure devised by the governor’s office for state agencies, internal complaints are supposed to be investigated by an affirmative action officer. But Ms. Gunning said she did not speak to the Justice Center’s affirmative action liaison until after Ms. Forshaw’s call.

Ms. Gunning contacted the liaison herself, and the liaison referred the complaint to the Governor’s Office on Employee Relations. Investigators there, working with the Office of General Services, determined the complaint was “without merit,” according to Christine Buttigieg, a Justice Center spokeswoman. (Ms. Gunning said she was never informed of the results of that investigation.)

Ms. Gunning then approached the governor’s office directly. In an Oct. 26, 2017, letter to Mr. David and the governor’s secretary, Melissa DeRosa, she asked them to review her complaint, offering to share the recorded conversation. Mr. David replied to say he had referred her inquiry to the inspector general.

That investigation is still open. Ms. Gunning said she had heard from the inspector general’s office only twice since October.

“Here you have the governor talking about all this stuff, but you don’t see many state employees coming forward, right, because why would you?” Ms. Gunning said. “Given that I was at the top of my agency — if you witnessed what happened to me, why would you ever come forward?”

Mr. David said it was inaccurate to suggest that the state was trying to skirt accountability by referring complaints to different agencies.

“If an agency conducts an investigation, and they make a determination that the claim is unsubstantiated, the reason why the case is referred to another agency is because the complainant doesn’t like the result,” he said.

But Ms. Gunning said she had no choice but to bring her story to multiple agencies, because no single one provided a fair, thorough investigation.

“I literally had no idea where to go,” she said. “The burden should not be on victims of sexual harassment, discrimination or abuse to wade through multiple inconsistent and unsafe options.”

Two Inquiries, Two Findings

At the Division of Criminal Justice Services, after complaints surfaced against a senior official there, the referral order was reversed.

Last December, the state inspector general, Catherine Leahy Scott, wrote a letter informing the criminal justice agency’s deputy commissioner that the official, Brian J. Gestring, had created an environment “rife with incidents of sexual harassment, ageism, racism, and threats of retaliation and physical violence.”

But while the inspector general’s office was conducting its investigation, the agency had been conducting its own.

The agency’s conclusions contrasted starkly with the inspector general’s. The inspector general’s office found that Mr. Gestring, the director of the agency’s Office of Forensic Science, had told employees they needed to “hump more” and had threatened to hurt a female employee. It recommended that the agency “take action as you deem appropriate” against Mr. Gestring, according to the letter, which was first reported by The Albany Times Union.

The criminal justice division’s investigation, in contrast, concluded that the allegations were unsubstantiated, according to an agency spokeswoman, Janine Kava.

One employee who had testified against Mr. Gestring, Kimberly Schiavone, was transferred to another office within the agency, and another, Gina Bianchi, was fired and then reinstated to a demoted position. Mr. Gestring remained in his position.

After the women announced their intention to sue the state for retaliation and equal protection violations, Mr. David said he referred the retaliation claims to the Governor’s Office of Employee Relations; the harassment claims, as well as the conflicting findings of the two previous investigations, went to the Joint Commission on Public Ethics. Both of those inquiries remain unresolved.

John W. Bailey, a lawyer for the women, said the inspector general’s findings should have stood.

“It is clear that certain people are not happy with the inspector general’s report,” he said. “They want someone else to say, ‘We’ve taken a look at this, and we don’t agree.’”

New York’s statutes offer little guidance as to how these various investigative bodies are to coexist, and which might get priority over another.

The public ethics commission is responsible for investigating violations of the state’s public officers law, which does not explicitly refer to sexual harassment but requires officials to follow a “course of conduct which will not raise suspicion among the public.” The inspector general’s office investigates allegations including “abuse” in executive agencies. The Division of Human Rights prosecutes “unlawful discriminatory practices,” and the Governor’s Office of Employee Relations “promotes and maintains a safe and healthy workplace.”

Each state agency is also required to have its own procedures for addressing discrimination complaints.

Karl Sleight, the former executive director of the now-defunct New York State Ethics Commission, compared the development of state ethics bodies to the accumulation of shale.

“You have layer upon layer upon layer, and it’s reactionary. It’s by virtue of something happening — some kind of scandal,” he said. “That’s how these laws developed, how these agencies developed, and how their jurisdiction developed.

“It’s usually not with a clear central purpose. It’s to deal with the crisis du jour.”

Mr. David said that in the case of concurrent complaints, one agency might postpone its investigation until another’s had finished. But he acknowledged the potential for conflict.

“It may create confusion for an agency to do the same investigation where it’s interviewing the same people, reviewing the same documents, soliciting the same information,” he said.

And despite its investigative muscle, which includes subpoena power, the inspector general’s office has no enforcement authority; it can only recommend action. The public ethics commission can issue fines, but only for specific violations, such as improper financial disclosures. For others, including conduct that might “raise suspicion,” it too makes recommendations.

Mr. David conceded that the myriad complaint venues could have inadvertently negative effects. If two agencies arrived at different conclusions, complainants could lean on the one in their favor — “but be aware,” Mr. David said, that defendants could do the same.

“If you file a complaint with 30 different agencies, it may actually hurt you,” he said.

Turning a Blind Eye

In the third case, Lisa Marie Cater, an employee of the state’s Department of Motor Vehicles, dealt with multiple authorities after accusing Sam Hoyt, a regional president of the Empire State Development Corporation, New York’s main economic development arm, of sexual harassment and abuse. Ms. Cater filed a federal lawsuit against Mr. Hoyt and Mr. Cuomo in November, alleging the governor’s office had turned a blind eye to her complaint.

Mr. Hoyt, a former assemblyman from Buffalo, had previously been sanctioned after having an affair with an intern.

According to the lawsuit, Ms. Cater tried several times to report Mr. Hoyt’s harassment to the governor’s office but was consistently ignored.

Eventually, she was contacted by a lawyer with the Office of General Services, Noreen VanDoren. Ms. VanDoren, the lawsuit said, referred Ms. Cater to the inspector general’s office. From there, she was put in touch with the Joint Commission on Public Ethics.

The governor’s office, which has denied any wrongdoing, says it referred Ms. Cater’s complaint to the public ethics commission after she refused to cooperate with the inspector general’s office. It has consistently pointed to the multiple investigations as evidence that the lawsuit is baseless.

“The state launched three separate investigations in this matter, and any assertion to the contrary is patently and demonstrably false,” Mr. David said after the suit was filed.

The lawsuit is still active. The other complaints, too, remain unresolved.

Ms. Gunning resigned from the justice center last August. Ms. Schiavone and Ms. Bianchi remain in their demoted or transferred positions at the Division of Criminal Justice Services. Ms. Cater is on unpaid sick leave from the Department of Motor Vehicles.

Mr. Kiyonaga is now executive deputy commissioner of the Office for People with Developmental Disabilities, the state’s second-largest agency. Mr. Hoyt resigned from the state development corporation; after he announced his departure, top state officials, including the lieutenant governor, praised his work record.

Mr. Gestring, at the Division of Criminal Justice Services, was fired on March 22 — but not because of the inspector general’s findings, according to an agency spokeswoman.

He was fired, she said, for a separate set of “inappropriate remarks.”

Senator Andrea Stewart-Cousins, (pictured above) who leads the New York State Senate’s Democratic conference, is among several leaders in Albany to propose legislation cracking down on sexual harassment; Gov.  Andrew M. Cuomo was the latest to do so. 

Credit Nathaniel Brooks for The New York Times

Albany Lawmakers Signal Consensus on New Sexual Harassment Policies

By VIVIAN WANG, JAN. 2, 2018

A day before the start of what promises to be a contentious new legislative session, state policymakers signaled at least one area of possible agreement: cracking down on sexual harassment in New York government.

On Tuesday morning, a day before his annual State of the State address, Gov. Andrew M. Cuomo announced plans to propose legislation that would block government officials from using taxpayer dollars to settle sexual harassment claims, ban confidentiality agreements related to sexual harassment in state and local government, and standardize anti-harassment policies across government agencies.

The plan is among 21 proposals in Mr. Cuomo’s annual address that he has unveiled since December, including his most recent: calling on the Metropolitan Transportation Authority to look at improving transportation access to the Red Hook, Brooklyn area, including possibly extending subway service to a new station from Lower Manhattan. The governor also plans to preview legislation that would provide tax relief to property owners, a key issue in light of the federal move to reduce state and local property tax deductions.

The sexual-harassment proposals closely mirror others put forward by state lawmakers from both parties in recent weeks: In mid-December, Senators Catharine Young and Elaine Phillips, both Republicans, proposed bills that, in addition to banning secret settlements, would also codify the definition of sexual harassment in state law and expand harassment protections for independent contractors.

Also on Tuesday, the Senate Democratic Conference, led by Andrea Stewart-Cousins, put forward its own slate of similar bills, which would also more clearly outline state agencies’ and supervisors’ responsibilities to address harassment in their ranks.

All told, the nearly identical proposals reflect an unusual degree of consensus among the notoriously divided state Legislature. Policymakers said the agreement illustrates the extent to which there has been a recent national reckoning on workplace equality.

“I don’t think anybody could have avoided this topic, as you saw person after person being put into the limelight because of questionable behavior,” Ms. Stewart-Cousins, the Senate minority leader, said in an interview on Tuesday. “It sounds like everybody’s talking about it, so it sounds like everybody wants to do something.”

Assembly Speaker Carl Heastie, a Democrat, and Senator Jeffrey Klein, the leader of the Independent Democratic Conference, a group of renegade Democrats who often collaborate with the Republicans, also signaled their willingness on Tuesday to tighten policies against workplace sexual harassment.

Albany has already been entangled in the recent surge of alleged sexual misconduct disclosures. In November, Lisa Marie Cater, a former state employee, filed a lawsuit against Sam Hoyt, a former Cuomo appointee and former Democratic assemblyman from Buffalo, accusing him of paying $50,000 to buy her silence after he sexually harassed her. Ms. Cater also accused Mr. Cuomo and the governor’s office of being “deliberately indifferent” to her complaints, a charge they deny.

When a public radio reporter asked Mr. Cuomo last month about the allegations against Mr. Hoyt and what he could have done differently to address such behavior in state government, Mr. Cuomo told the reporter, Karen DeWitt, that her question did a “disservice to women.”

“When you say it’s state government, you do a disservice to women, with all due respect, even though you’re a woman,” he told Ms. DeWitt.

After Mr. Cuomo’s comments attracted widespread criticism, his aides scrambled to clarify that he had meant to convey the prevalence of sexual harassment across sectors.

In a statement on Tuesday, Mr. Cuomo said the past year had brought a “long overdue reckoning.”

“This year, we saw brave men and women across the nation shatter this silence and create a moment of reckoning that through these reforms we seek to turn into permanent protections,” he said.

Many of the various proposals wade into the private as well as the public domain. Mr. Cuomo’s planned legislation would require any companies with state business to disclose the number of sexual harassment cases they had faced each year, and would bar employers from forcing their employees into private arbitration. One of the Democrats’ bills would expand protections for employees of small businesses.

Ms. Young said the focus on harassment by celebrities and public officials, both in New York and nationwide, threatened to overshadow victims of sexual harassment whose accused abusers were less well known. She said her proposal to allow independent contractors, in industries ranging from hair styling to real estate, to sue their employers for sexual harassment could ensure protections for up to 40 percent of New Yorkers, the percentage she said work on a freelance or contract basis.

“This tackles the serial sexual predators of the rich and famous but also helps everyday New Yorkers who may find themselves in terrible situations,” Ms. Young said.

Lawmakers said the question of who to hold accountable for sexual harassment in Albany had been a topic of concern for years, citing the example of Vito Lopez, a former assemblyman whom two former aides accused of serial harassment in 2013. In 2015, Mr. Lopez settled with the women for $580,000, with the state paying $545,000.

But they agreed that the fallout from the revelations about movie mogul Harvey Weinstein had forcefully reopened the discussion.

“I think it was clear that women realized that this was a moment to really assert ourselves,” Ms. Stewart-Cousins, who is the first woman to lead a state conference in New York, said. “As a legislator, as a woman lawmaker, I couldn’t let this moment pass.”

Follow Vivian Wang on Twitter: @vwang3

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Reversing Course, Cuomo Will Return Weinstein’s Money OCT. 12, 2017

Speaker to Seek Expulsion of Assemblyman Over Harassment Scandal MAY 16, 2013

As Cuomo Hires More Women, Ex-Senior Official Is Accused of Assault NOV. 19, 2017

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