Dismantle harassment protection machine

When Andrew Cuomo resigned from office, many wanted to believe that the system worked: The collective condemnation from advocates, elected officials, editorial boards and the general public forced the governor from power for abusing his authority and sexually harassing women in and out of the workplace.

But if we zoom out, the system’s failures are apparent, because while the rules of the game are meant to quickly sweep away bad actors after they are caught, they do nothing to prevent abuse and harassment from happening in the first place, or to protect workers when they try to stand up for themselves.

In the wake of the governor’s resignation, I wrote that we all bear a responsibility to “systematically work to dismantle the institutions and the cultures that foster and perpetuate harassment and work to change the norms — and laws — that protect harassers and their enablers.” As the Legislature returns to Albany this month, here are five ways that we can begin this important work and protect and empower all workers.

Cover all workers under the state’s sexual harassment law. When the Legislature passed (and Cuomo signed) a landmark law in 2019 to lower the burden of proof required to sustain charges of sexual harassment, we left a glaring loophole: employees who work for elected or judicial officials. The state has argued in several high-profile cases that workers experiencing sexual harassment by elected officials or judges are “personal staff” and therefore they are not liable under the law. Assemblywoman Yuh-Line Niou and I have introduced legislation to close this loophole.

Protect employees alleging harassment or discrimination from frivolous defamation lawsuits. Victims of workplace discrimination such as sexual harassment will frequently find themselves the subjects of defamation suits as a result of filing complaints. These retaliatory tactics have the desired effect of getting the victim to abandon his or her complaint or significantly delaying the investigation and adjudication of the underlying complaint as well as deterring future victims at the worksite from coming forward. Workers experiencing harassment or discrimination should not be silenced, and my proposal with Assemblywoman Jo Anne Simon will prevent these frivolous suits, meant only to intimidate victims, from being filed.

Prevent employers from retaliation by leaking confidential personnel files. As we have seen with the former governor’s staff, employers sometimes weaponize confidential personnel files against employees by leaking them to disparage or discredit a victim or witness of discrimination in the workplace. My legislation with Assemblywoman Jessica González-Rojas would ban the release of personnel records as a form of retaliation and allow a victimized employee the right to file a complaint with the attorney general, who would then commence an investigation into the retaliation.

Allow employees the right to review their personnel records. Knowledge is power, and there’s no better way to empower workers than to proactively grant them the right to review their personnel records so they know what information is in their file, as well as give them notice whenever negative information affecting their employment status, promotional opportunities or potential disciplinary action is filed against them. Under my bill with Assemblywoman González-Rojas, workers would have the opportunity to challenge the negative information filed against them by submitting a written objection. Granting workers this proactive right will inspire an open and transparent dialogue between employees and their employers while providing some recourse for employees to remove knowingly false or defamatory statements from their records.

Ban “no rehire” clauses in harassment and discrimination settlement agreements. Settlement agreements in cases of sexual harassment or workplace discrimination will often include terms that bar an employee from applying or working for a defendant employer ever again. While initially used to protect employers from dishonest plaintiffs, this tactic has come to limit the ability of an employee to pursue career opportunities. These clauses are used by all kinds of employers, big and small, and represent millions of employment opportunities. They have become de facto non-compete clauses that lock workers out of entire industries. I am partnering with Assemblywoman Catalina Cruz to ban the use of these settlement terms.

If we are serious about the condemnation we express when abusers fall from grace, we must also be willing to change the laws that protect harassers and leave survivors vulnerable. Taken together, these five measures will help to dismantle the structures that perpetuate workplace harassment and discrimination and promote inclusive and supportive workplaces. As we enter the new legislative session, the Legislature — and our new governor — have a great opportunity to demonstrate that we’re up for this challenge.