Ω Report on New York State Joint Legislative Hearings
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Ω REPORT ON NEW YORK STATE JOINT LEGISLATIVE HEARINGS ON SEXUAL HARASSMENT Senator Alessandra Biaggi Chair of Committee on Ethics and Internal Governance Senator Julia Salazar Chair of Committee on Women’s Health Senator James Skoufis Chair of Committee on Investigations and Government Operations DATE OF HEARING: February 13, 2019 DATE OF REPORT: April 15, 2019 TABLE OF CONTENTS 1. Introduction 2. Summary of Testimony from the February 13 Albany Hearing 3. Summary of Legislation Already Submitted 4. Comparison of Policies of the Legislature 5. Plan for Future Hearings Appendix A. Legislation Already Submitted Appendix B. Senate Sexual Harassment Policy Appendix C. Assembly Sexual Harassment Policy Appendix D. Submitted Testimony 2 1. INTRODUCTION For the first time in 27 years, on Wednesday, February 13, 2019, joint public hearings of the New York State legislature were held on the subject of Sexual Harassment in the Workplace. February’s hearing was convened in response to a troubling pattern of high rates of persistent and continuing harassing behavior over the past quarter century. More currently and specifically, the hearing was an outgrowth of and response to the courageous efforts of seven former New York State legislative employees who witnessed, reported, or experienced sexual harassment during their time working in State government. At the urging of these brave women and other tireless advocates, the goal of the hearing was to gather information that would reveal opportunities to create stronger and clearer policies and procedures that will endure in public and private sectors throughout the state. Legislative leaders hoped that the hearing might aid in the strengthening of proposed legislation and spur the development of new legislation that will make New York State a leader in workplace safety and anti-harassment law. Legislators heard from the federal, state, and city agencies that play roles in policy development and enforcement of workplace safety. Representative experts from advocacy organizations testified about the shocking nature of harassing behaviors and recommended pathways for strengthening policy and enacting new legislation. Finally, and most powerfully, individual witnesses delivered searing testimony about their lived experiences of being subjected to sexual harassment while working in government. It was universally found that there is a lack of reliable policy and standard reporting structures that address victims in a trauma-informed manner. Critical gaps and obstructions impede timely and complete reporting of harassing behaviors. Throughout the hearing, witnesses exposed the grossly inadequate avenues of recourse available to them and widespread institutional failure to resolve matters without subjecting them to further harm. Clearly, one hearing on this subject after 27 years of silence, is insufficient to address the scope and stubbornness of this problem and help us to fully understand how best to refurbish policies and develop appropriate and enduring legislation that protects all workers in New York. Absent from the February hearing were key state governmental agencies such as the NYS Human Rights Division and NYS Governor’s Office of Employee Relations (GOER), that provide oversight and exist as repositories for reporting. Without the opportunity to hear from these critical agencies and evaluate how policies were developed and how complaints are fielded, an entire data set germane to making improvements in the system has not been captured. Despite the 11-hour marathon length of February’s hearing, blue collar and service workers who were scheduled to testify were not able to. Some had insufficient childcare to remain with us into the night. As a result, their voices remain unheard. Professional white-collar governmental workers were the only individual victims of sexual harassment available to testify. We did not hear from any women or men of color. We know that when the target of harassment is both a woman and a member of a racial minority group, the risk of experiencing harassing behaviors is greatly increased beyond that if the individual belonged to only one of those groups. 3 Intersectionality is, in itself a risk factor for increased rates of workplace harassment. Many service workers earn minimum wage or rely on tips and have less than optimal control over their schedules, especially if they have dependent children. Taking this into account, and reflecting on the importance of hearing from as many voices across all employment sectors as possible, we recommend additional hearings within normal business hours that gives priority to these workers. Finally, we need further testimony from those governmental leaders and agencies responsible for the laws and internal guidelines in place so we can closely examine the disparity between their intentions and the woeful outcomes. Developing policy that is rigorous enough to produce much better results requires a complete exploration. Thorough examination of past practice will enable us to determine how we have failed to achieve desired outcomes. It is not enough to have strong laws. We must also have enforcement systems that function with equal strength. We recommend hearings that provide an opportunity for leadership in Albany to address how we arrived at this dissonant moment. We laid groundwork in February that demands additional hearings in order to have a clear survey of the landscape before we begin to build a truly strong framework as a foundation for new structures. Victims need to be heard so that oversight and enforcement bodies can develop informed policies and procedures. Our work is off to a good start, but has only begun. 4 2. SUMMARY OF TESTIMONY Roberta Reardon - Commissioner, NYS Department of Labor (DOL) Commissioner Reardon (RR) feels as though the DOL is going above and beyond what the Department is legally required to do in regard to the model policy, but when asked by Sen. Biaggi, RR could not speak to how the DOL is doing anything more than educational outreach, nor could she demonstrate how the model harassment policy goes beyond the established statutory requirements. Upon being questioned about oversight and implementation of the model policy, she reinforced that the Department is solely focused on educating businesses and spreading awareness about the new policy. Numerous members of the legislature voiced concerns regarding the lack of enforcement in terms of compliance, including: Sen. Biaggi, Sen. Skoufis, A/M Crespo, Sen. Salazar, A/M Walker and Sen. Ramos. The common reply to the questioning regarding enforcement was that the DOL is not an enforcement agency, but RR could not pinpoint which agency is responsible for enforcement. Another common refrain of RR’s was that it is up to the legislature to set more policy if members think current standards are insufficient. There was also a major concern of the legislators surrounding [especially] vulnerable populations, like immigrants, whose legal status remains undefined. The concern specifically is that individuals with legal statuses in question are not reporting the harassment and/or discrimination they have endured for fear of outing themselves. RR ensured that non-citizens working in NYS are protected by the same sexual harassment laws every other worker in the state is protected by, including protections related to retaliation. No extra considerations are taken by the DOL for immigrant workers, but the Department works with advocacy groups to ensure such employers and employees understand their rights and responsibilities. Some other themes within this testimony concerned the statute of limitations (1 year through NYS DHR) for reporting harassment in the workplace and the lack of clarity when it comes to reporting such harassment. RR did not have an opinion to share about the potential insufficiency of the current 1 year statute of limitations at the state-level. Regarding the navigability of the reporting process, it is worth elevating that RR thinks the complaint process should be accessible, but not easy (see exchange with A/M Quart). RR stated this after stating earlier in her testimony that individuals, especially young people, are more empowered than ever when it comes to handling harassment and recognizing boundaries, as if to put the onus on individuals experiencing harassment, not the institutions who perpetually fail to adequately address sexual harassment and discrimination in the workplace. 5 Dana Sussman Dep. Commissioner of Intergovernmental Affairs & Policy, NYC Division of Human Rights (DHR) Based on the sentiments leading into the hearing and the testimony itself, the NYC DHR is considered a national leader in establishing and implementing strong and thoughtful reform in the realm of sexual harassment and discrimination. The line of questioning coming from the members of the legislature felt less accusatory and more exploratory as to how the State can “get it right”. The policies the DHR has implemented are much more generous from the complainant’s point of view. The city expanded the statute of limitations for reporting harassment to 3 years, the DHR does not allow non-disclosure agreements, the city now allows for attorney’s fees, the DHR requires employers of 15 or more employees to conduct annual sexual harassment training and they established an internal gender-based harassment unit to focus solely on facilitating claims of sexual harassment. Specifically, the unit is a small group of trauma-trained attorneys (currently 4-5 on staff)