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       1      JOINT HEARING BEFORE THE NEW YORK STATE
              SENATE STANDING COMMITTEE ON ETHICS AND
       2      INTERNAL GOVERNANCE;
              SENATE STANDING COMMITTEE ON WOMEN'S ISSUES;
       3      SENATE STANDING COMMITTEE ON INVESTIGATIONS AND
              GOVERNMENT OPERATIONS;
       4      ASSEMBLY STANDING COMMITTEE ON LABOR; and
              ASSEMBLY TASK FORCE ON WOMEN�S ISSUES
       5     -----------------------------------------------------

       6                     JOINT PUBLIC HEARING:

       7      TO EXAMINE SEXUAL HARASSMENT ISSUES IN THE WORKPLACE

       8     -----------------------------------------------------

       9                                 Assembly Hearing Room 1923
                                         250 Broadway, 19th Floor
      10                                 New York, New York

      11                                 Date:  May 24, 2019
                                         Time:  10:00 a.m.
      12

      13      PRESIDING:

      14         Senator Alessandra Biaggi, Chair
                 Senate Standing Committee on
      15         Ethics and Internal Governance

      16         Assemblyman Marcos Crespo, Chair
                 Assembly Standing Committee on Labor
      17
                 Senator Julia Salazar, Chair
      18         Senate Standing Committee on Women�s Issues

      19         Senator James Skoufis, Chair
                 Senate Standing Committee on
      20         Investigations and Government Operations

      21         Assemblywoman Latrice Walker, Chair
                 Assembly Task Force on Women�s Issues
      22

      23

      24

      25







                                                                   2
       1
              SENATE MEMBERS PRESENT:
       2
                 Senator Jamaal Bailey
       3
                 Senator David Carlucci
       4
                 Senator Andrew Gounardes
       5
                 Senator Brad Hoylman
       6
                 Senator Liz Krueger
       7
                 Senator John Liu
       8
                 Senator Shelley Mayer
       9
                 Senator Zelnor Myrie
      10

      11      ASSEMBLY MEMBERS PRESENT:

      12         Assemblyman David Buchwald

      13         Assemblywoman Catalina Cruz

      14         Assemblywoman Natalia Fernandez

      15         Assemblyman Dick Gottfried

      16         Assemblyman Michael Montesano

      17         Assemblywoman Yuh-Line Niou

      18         Assemblymember Felix Ortiz

      19         Assemblyman Dan Quart

      20         Assemblyman Edward P. Ra

      21         Assemblywoman Linda B. Rosenthal

      22         Assemblywoman Rebecca Seawright

      23         Assemblywoman Jo Anne Simon

      24         Assemblywoman Aravella Simotas

      25







                                                                   3
       1
              SPEAKERS:                               PAGE  QUESTIONS
       2
              Melissa Franco                            15       34
       3      Deputy Commissioner of Enforcement
              Gina Martinez                             15       34
       4      Deputy Commissioner, Regional Affairs
                and Federal Programs
       5      Dana Sussman                              15       34
              Deputy Commissioner, Intergovernmental
       6        Affairs and Policy
              New York City Commission on Human Rights
       7
              Michael Volforte                         206      214
       8      Director
              NYS Governor's Office of
       9        Employee Relations

      10      Noelle Damico                            261      270
              Senior Fellow
      11      National Economic and
                Social Rights Initiative
      12
              Sara Ziff                                304      309
      13      Founder, and Executive Director
              Model Alliance
      14
              Marissa Hoechstetter                     320      333
      15      Personal Story

      16      Andrea Johnson                           379      408
              Senior Counsel
      17      National Women's Law Center

      18      Miriam Clark                             379      408
              President
      19      National Employment Lawyers'
                Association/NY Affiliate
      20
              Laurie Morrison                          379      408
      21      Employee Advocate
              Member, National Employment Lawyers'
      22        Association/NY Affiliate

      23

      24

      25







                                                                   4
       1
              SPEAKERS (continued):                   PAGE  QUESTIONS
       2
              Ashley Sawyer                            463      487
       3      Director of Policy &
                Government Relations
       4      Kylynn Grier                             463      487
              Policy Manager
       5      Neillah Petit Frere                      463      487
              Member, Sisters in Strength
       6      Rose Antoine                             463      487
              Member, Sisters in Strength
       7      Stacey King                              463      487
              Member, Sisters in Strength
       8      Marie St. Fort                           463      487
              Member, Sisters in Strength
       9      Girls for Gender Equity

      10      Marissa Senteno                          509      531
              Enforcement Program Manager
      11      Daniela Contreras                        509      531
              New York Organizer
      12      National Domestic Workers Alliance

      13      Cynthia Lowney                           560      609
              Attorney
      14      Personal Story
              Marie Guerrera Tooker                    560      609
      15      Personal Story
              Christine Reardon                        560      609
      16      Personal Story
              Dennis Reardon                           560      609
      17      Personal Story

      18      Helen Rosenthal                          620      626
              Council Member
      19      New York City

      20      Leeja Carter, Ph.D.                      634      658
              Development and Management Manager
      21      Black Women�s Blueprint

      22      Dr. Red Washburn                         634      658
              Director, Women�s and Gender Studies,
      23        and Associate Professor of English
              Kingsborough Community College
      24

      25







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       1
              SPEAKERS (continued):                   PAGE  QUESTIONS
       2
              Audacia Ray                              634      658
       3      Director of Community Organizing &
                Public Advocacy
       4      Briana Silberberg                        634      658
              Community Organizer
       5      New York City Anti-Violence Project

       6      Veronica Avila                           692      711
              Organizer
       7      Yasmine (ph.), Member                    692      711
                (Also speaking for Gemma Rossi,
       8         Restaurant Worker)
              Restaurant Opportunities Center of New York
       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25







                                                                   6
       1             ASSEMBLYWOMAN SIMON:  Okay, we're going to

       2      begin our hearing this morning, our joint hearing

       3      between the New York State Senate and the New York

       4      State Assembly, on Sexual Harassment in the

       5      Workplace.

       6             Today is May 24, 2019.

       7             I am State Senator Alessandra Biaggi.  I will

       8      be one of the co-chairs on the State Senate side.

       9             And I'm joined by my co-chair on the Assembly

      10      side, Assemblymember Marcus Crespo.

      11             I'm going to begin with some opening remarks,

      12      and then I'm going hand it over to the Assembly to

      13      also have some opening remarks, and remind us of our

      14      time constraints in terms of our testimony that we

      15      have here today.

      16             I'm also joined by my co-chair,

      17      Senator Salazar on my right.

      18             And later in the afternoon I'll be joined by

      19      Senator James Skoufis.

      20             For the first time in 27 years, on Wednesday,

      21      February 13, 2019, joint public hearings of the

      22      New York State Legislature were held on the subject

      23      of sexual harassment in the workplace.

      24             February's hearing was convened in response

      25      to a troubling pattern of high rates of persistent







                                                                   7
       1      and continuing behavior of harassment over the past

       2      quarter century.

       3             More currently, and specifically, the hearing

       4      was an outgrowth of, and in response to, the

       5      courageous efforts of seven former New York State

       6      legislative employees who witnessed, reported, or

       7      experienced sexual harassment during their time

       8      working in state government.

       9             They formed the Sexual Harassment Working

      10      Group, and have played an essential role in ensuring

      11      that there will be action to deal with the issue.

      12             At the urging of these brave women and other

      13      tireless advocates, and men, the goal of the hearing

      14      was to gather information that would reveal

      15      opportunities to create stronger and clearer

      16      policies and procedures that will endure in public

      17      and private sectors throughout the state.

      18             We hope that the hearing might aid in the

      19      strengthening of proposed legislation, and spur the

      20      development of new legislation, that will make

      21      New York State a leader in workplace safety and

      22      anti-harassment law.

      23             We heard from the federal, state, and city

      24      agencies that play roles in policy development and

      25      enforcement of workplace safety.







                                                                   8
       1             Representative experts from advocacy

       2      organizations testified about the shocking nature of

       3      harassing behaviors, and recommended pathways for

       4      strengthening policy and enacting new legislation.

       5             Finally, and most powerfully, individual

       6      witnesses delivered searing testimony about their

       7      lived experiences of being subjected to sexual

       8      harassment while working in government.

       9             It was universally found that there is a lack

      10      of reliable policy and standard reporting structures

      11      that address victims in a trauma-informed manner.

      12             Critical gaps and obstructions impede timely

      13      and complete reporting of harassing behaviors.

      14             Throughout the hearing, witnesses exposed the

      15      grossly inadequate avenues of recourse available to

      16      them, and widespread institutional failure to

      17      resolve matters without subjecting survivors to

      18      further harm.

      19             Clearly, one hearing on this subject, after

      20      27 years of silence, is insufficient to address the

      21      scope and stubbornness of this problem, and to help

      22      us fully understand how to best refurbish policies

      23      and develop appropriate and enduring legislation

      24      that protects all workers in the state of New York.

      25             Absent from the February hearing were key







                                                                   9
       1      state governmental agencies, such as the New York

       2      State Human Rights Division, who is joining us here

       3      today, and the New York State Governor's Office of

       4      Employee Relations, that provide oversight, and

       5      exist as repositories for reporting.

       6             Without the opportunity to hear from these

       7      critical agencies and evaluate how policies were

       8      developed and how complaints are fielded, an entire

       9      dataset germane to making improvements in the system

      10      has not been captured.

      11             Despite the 11-hour marathon of February's

      12      hearing, blue-collar and service workers who were

      13      scheduled to testify were not able to.  Some did not

      14      have access to sufficient child care to remain with

      15      us into the night.

      16             As a result, their voices remain unheard.

      17             Professional white-collar governmental

      18      workers were the only individual victims of sexual

      19      harassment available to testify.

      20             We did not hear from any women or men of

      21      color.

      22             We know that when the target of harassment is

      23      both a woman and a member of a racial minority

      24      group, the risk of experiencing harassing behaviors

      25      is greatly increased because that if -- because,







                                                                   10
       1      beyond that, if the individual belonged to only one

       2      of those groups.

       3             Many service workers earn minimum wage or

       4      rely on tips, and have less than optimal control

       5      over their schedules, especially if they have

       6      dependent children.

       7             Taking this all into account, and reflecting

       8      on the importance of hearing from as many voices

       9      across all employment sectors as possible, we are

      10      conducting today's hearing.

      11             Finally, we need further testimony from those

      12      governmental leaders and agencies responsible for

      13      the laws and internal guidelines in places so we can

      14      closely examine the disparity between their

      15      intentions and the willful outcomes.

      16             Developing policy that is rigorous enough to

      17      produce better results requires a complete

      18      exploration.

      19             Through examination of past practice will

      20      enable us to determine how we have failed to achieve

      21      desired outcomes.

      22             It is not enough to have strong laws.  We

      23      must also have enforcement systems that function

      24      with equal strength.

      25             We laid the groundwork in February that







                                                                   11
       1      demands additional hearings in order to have a clear

       2      survey of the landscape before we begin to build a

       3      truly strong framework as a foundation for new

       4      structures.

       5             Survivors need to be heard so that oversight

       6      and enforcement bodies can develop informed policies

       7      and procedures.

       8             Our work is off to a good start, but it has

       9      only just begun.

      10             I'd like to address those who have chosen to

      11      testify with a moment of gratitude.

      12             It is because of your courage and your

      13      willingness to share your experiences today that

      14      New York can move one step closer towards building a

      15      society and culture that is harassment-free.

      16             And I before I hand it over to my Assembly

      17      co-chair, I would like to acknowledge all of my

      18      Senate colleagues who are here today.

      19             On my right we have Senator Liz Krueger,

      20      Senator Andrew Gounardes, Senator David Carlucci,

      21      Senator Jessica Ramos.

      22             In the first row in front of us, we have

      23      Senator John Liu, Senator Brad Hoylman,

      24      Senator Shelley Mayer, and Senator Zelnor Myrie.

      25             ASSEMBLYMAN CRESPO:  Thank you, Senator.







                                                                   12
       1             Appreciate your leadership on these issues,

       2      and to work with you.

       3             It's a great experience to be able to work

       4      with you on these issues, and to talk about ways to

       5      improve the workplace throughout the state of

       6      New York, and all industries.

       7             I am joined by a number of my colleagues in

       8      the New York State Assembly:

       9             Assemblywoman Aravella Simotas;

      10             Assemblywoman Rebecca Seawright;

      11             Assemblywoman Catalina Cruz;

      12             Assemblymember Dan Quart;

      13             Assemblymember Dick Gottfried;

      14             Assemblywoman Jo Anne Simon;

      15             Assemblymembers Ra, Montesano;

      16             Assemblymember David Buchwald;

      17             And Assemblywoman Yuh-Line Niou.

      18             And we are -- many of us were in the first

      19      hearing that lasted those 11 1/2 hours, but it

      20      wasn't enough.

      21             And as the Senator mentioned, too many

      22      presenters were not able to give their testimony and

      23      there are still too many voices to be heard.

      24             We know that this issue continues to prevail

      25      in the workplace, to occur in all industries.







                                                                   13
       1             Discrimination and sexual harassment need to

       2      be eradicated from our workplace, and we have work

       3      to do.

       4             Despite our efforts in last year's budget,

       5      and there were significant measures included in our

       6      budget, more work needs to be done.

       7             And that remains clear from the powerful

       8      testimony of those that came forward, the victims,

       9      that spoke to us in the first hearing, and those

      10      that we'll hear from today.

      11             There is still room for improvement, and

      12      room -- and ways for us to strengthen, not only the

      13      protections, but the enforcement mechanisms, as was

      14      mentioned by the Senator.

      15             I think about this from a personal

      16      perspective.  My 19-year-old daughter who's a

      17      sophomore in Queens College, or my 5- and

      18      6-year-olds who are first-graders in the Bronx.

      19             I want to make sure that they are able to

      20      enter a workplace where they are given every

      21      opportunity in a harassment-free space.

      22             And that's what we should aspire to, and we

      23      have to challenge ourselves; to not rest on our

      24      laurels, to not assume that things are okay, to not

      25      think that what we have already done is sufficient,







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       1      when we continue to hear horror stories, and --

       2      and -- and -- and abuse, taking place across the

       3      board; and, again, it's important to note, in all

       4      industries, affecting all communities, affecting all

       5      racial demographics, affecting all genders.

       6             We need to make sure that we strengthen our

       7      policies.

       8             You're seeing already significant pieces of

       9      legislation introduced by many of my colleagues who

      10      are here today, and others.

      11             And we want to make sure that, through your

      12      voices, we can strengthen those bills, and make sure

      13      that we move forward with a strong legislative

      14      package.

      15             We will probably never eradicate this from

      16      ever happening again, but we need to make sure that

      17      we make it a rare occurrence, and not the norm, in

      18      the workplace.

      19             That is our goal, and we will work hard to

      20      make sure that, together, we accomplish that in

      21      terms of our policies in the state of New York.

      22             So I'm grateful for this opportunity to hear

      23      your testimony.

      24             I will remind my colleagues, again, that we

      25      want to provide as much time to those presenters.







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       1             After 5:30, in this building, security

       2      leaves.

       3             So we can remain; however, if you leave the

       4      building after 5:30 p.m., they will -- you will not

       5      be able to re-enter.

       6             So, keep that in mind, and we'll keep

       7      reminding you as the day goes on.

       8             But we want to ask our colleagues as well, to

       9      keep your questions direct and succinct, so we can

      10      ensure that the presenters have as much time as they

      11      need.

      12             And, again, thank you, all, for being a part

      13      of this important conversation.

      14             SENATOR BIAGGI:  Thank you.

      15             Our first witnesses who will be testifying,

      16      is the New York State Division of Human Rights, are

      17      Melissa Franco, the deputy commissioner for

      18      enforcement, and, Gina Martinez, the deputy

      19      commissioner for regional affairs and federal

      20      programs.

      21             And they will be joined by the New York City

      22      Commission on Human Rights, who is represented by

      23      Dana Sussman, the deputy commissioner of

      24      intergovernmental affairs and policy.

      25             Thank you for being with us today.







                                                                   16
       1             D.C. MELISSA FRANCO:  Good morning, everyone.

       2             Distinguished members of the Committee, thank

       3      you for the opportunity to discuss the important

       4      issue of sexual harassment in the workplace on

       5      behalf of the New York State Division of Human

       6      Rights.

       7             My name is Melissa Franco, and I am the

       8      deputy commissioner of enforcement.

       9             I am joined here by my colleague,

      10      Gina Martinez, who is the deputy commissioner of

      11      regional affairs and federal programs.

      12             The New York State Human Rights Law prohibits

      13      discrimination on a wide range of protected classes,

      14      including prohibited sex discrimination and sexual

      15      harassment in employment, housing, credit, and

      16      places of public accommodation, volunteer

      17      firefighting, and educational institutions.

      18             The Human Rights Law also provides separate

      19      protections against retaliation.

      20             Last year Governor Cuomo signed a

      21      ground-breaking package of legislation that

      22      strengthened protections against sexual harassment.

      23             Now employers can be held liable under the

      24      Human Rights Law to non-employees performing work in

      25      the workplace; for example, independent contractors,







                                                                   17
       1      consultants, service providers, and delivery persons

       2      who were sexually harassed.

       3             This applies to all employers of any size,

       4      public or private.

       5             Today, any individual in a workplace, of any

       6      size, public or private, is entitled to protections

       7      against sexual harassment under the law.

       8             If an employer is found liable under the

       9      Human Rights Law for sexual harassment, they may be

      10      ordered to provide injunctive or appropriate

      11      affirmative relief, back and front pay, and

      12      compensatory damages for emotional distress.

      13             Civil fines and penalties and attorney fees

      14      may also be awarded in sexual-harassment cases.

      15             The division of human rights was created in

      16      1945 to enforce the Human Rights Law, to ensure that

      17      all New Yorkers have an opportunity to participate

      18      fully in the economic, cultural, and intellectual

      19      life of the state.

      20             DHR investigates, hears, and adjudicates

      21      complaints filed by individuals, as well as those

      22      brought by the division itself, to address systemic

      23      discrimination.

      24             DHR also engages in outreach and education

      25      campaigns, designed to inform the public of the







                                                                   18
       1      effects of discrimination, and their rights and

       2      obligations under the law, and issues, policies,

       3      regulations, and guidance, implementing the

       4      Human Rights Law, and addressing issues of

       5      discrimination and harassment.

       6             DHR has approximately 164 full-time

       7      employees, including 63 investigators at 12 regional

       8      offices across the state.

       9             The agency receives over 6,000 individual

      10      complaints annually, of which, approximately,

      11      80 percent relate to employment.

      12             For any claim of discrimination or

      13      harassment, individuals may file a complaint with

      14      DHR within one year of the last act of the alleged

      15      discrimination.

      16             Complaints with DHR can be filed in person at

      17      any office, or can be sent in via e-mail, fax, or

      18      mail.

      19             If individuals need assistance filing a

      20      complaint, they can call our hotline, or call or

      21      visit any of our regional offices.

      22             An individual does not need an attorney to

      23      file a complaint or utilize our process.

      24             DHR provides free translation and

      25      interpretation assistance at all offices.







                                                                   19
       1             Once a complaint is filed with our agency, it

       2      is reviewed to determine if DHR has jurisdiction

       3      over the conduct alleged.

       4             Next, the investigators conduct an

       5      investigation into whether there is probable cause.

       6      As part of this process, investigators may issue

       7      written requests for information, visit the site of

       8      the alleged incident, and meet with the parties

       9      and/or witnesses.

      10             Once DHR receives and files a complaint, it

      11      is served upon the respondent, who is asked to

      12      respond to it in writing.

      13             Any responses received are sent to the

      14      complainant, who is given an opportunity to provide

      15      a rebuttal.

      16             Once a final determination is made, both

      17      parties will receive a written determination in the

      18      mail.

      19             Currently, 97 percent of all claims

      20      investigated by DHR are completed and determinations

      21      are made within 180 days.

      22             During 2008, the average processing time to

      23      investigate a sexual-harassment case at the division

      24      was 172 days.

      25             If the investigator finds no probable cause







                                                                   20
       1      or lacks -- or a lack of jurisdiction, the complaint

       2      is dismissed.

       3             A complainant may appeal this dismissal

       4      within 60 days to the State Supreme Court.

       5             If a determination of probable cause is

       6      found, the claim will then proceed to a public

       7      hearing.

       8             If a complainant doesn't have a private

       9      counsel, the division will assign an attorney to the

      10      claim.

      11             If a settlement is not reached, the case will

      12      be calendared for a public hearing before an

      13      administrative law judge.

      14             If the complainant does not have a private

      15      attorney, the assigned division attorney will

      16      interview the complainant, review the evidence in

      17      the file, formulate a hearing strategy, and put

      18      forth the evidence at the hearing.

      19             The division attorney may also conduct

      20      cross-examination of the respondent's witnesses, and

      21      rebut any other evidence entered by the respondent.

      22             A division administrative law judge reviews

      23      all of the evidence, and then drafts a recommended

      24      order for the commissioner's consideration.

      25             The parties then have 21 days to file







                                                                   21
       1      objections to the recommended order.

       2             The commissioner makes the final

       3      determination as to whether the Human Rights Law has

       4      been violated, and may award any available remedy

       5      under the law.

       6             Either party may appeal an order directly to

       7      the State Supreme Court in the county where the

       8      discrimination is alleged to have occurred.

       9             DHR attorneys will appear in any of these

      10      cases on appeal to support our findings of

      11      discrimination in these matters.

      12             DHR is also empowered by the New York State

      13      Legislature to oppose systemic patterns of

      14      discrimination through division-initiated

      15      investigations and complaints.

      16             The division-initiated investigation unit is

      17      responsible for identifying, investigating, and

      18      bringing complaints to remedy large-scale systemic

      19      discrimination in New York State.

      20             The unit identifies potential targets through

      21      various means, including referrals from other state

      22      agencies, anonymous tips, newspaper articles, and

      23      meetings with various advocacy groups.

      24             Once a potential target is identified, the

      25      unit uses various investigative tools to gather







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       1      evidence to determine if a potential target has

       2      violated the law.

       3             If the evidence gathered shows a violation of

       4      the law has occurred, the unit will file a complaint

       5      on behalf of the State of New York.

       6             It will then be investigated by a separate

       7      regional office to determine whether there is

       8      probable cause to believe that discrimination has

       9      occurred.

      10             If there is a determination of probable

      11      cause, the complaint will proceed to a public

      12      hearing before an administrative law judge.

      13             The division is committed to the efficient

      14      and effective investigation and adjudication of all

      15      individual complaints of sexual harassment.

      16             In light of the powerful organizing that is

      17      laid bare the society-wide harm caused by sexual

      18      assault, DHR is seeing a dramatic rise in complaints

      19      coming forward.

      20             Since 2016, there has been a 62 percent

      21      increase in individual complaints of sexual

      22      harassment filed with the division.

      23             By taking effective action, DHR is able to

      24      bring justice on behalf of complainants who have

      25      faced such harassment.







                                                                   23
       1             For example, in 2017, DHR issued an order in

       2      favor of three women from Western New York who faced

       3      sexual harassment at the dental office where they

       4      worked.  The complainants were subjected to being

       5      called derogatory names, persistent invites to

       6      dates, inappropriate touching, and other offensive

       7      behavior.

       8             When one of the complainants notified her

       9      manager of the unwanted sexual advances, the

      10      employer countered by saying "the aggressor plays

      11      like that."

      12             The complainants were collectively awarded

      13      over $152,000 in damages for emotional pain and

      14      suffering, unlawful retaliation and discrimination

      15      against them.  And DHR issued a civil fine of

      16      $60,000, payable to the State, for violating the

      17      law, and required that the respondents to -- provide

      18      additional training.

      19             DHR order -- DHR's order was affirmed by the

      20      Fourth Department, Appellate Division, this past

      21      summer.

      22             The division is also committed to ending

      23      sexual harassment and other forms of discrimination

      24      via outreach and education.

      25             In 2018, and early 2019, the division







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       1      participated in approximately 40 education and

       2      outreach presentations across the state, that

       3      included discussions of preventing and addressing

       4      sexual harassment.

       5             Additionally, the division held six outreach

       6      events that specifically focused on sexual

       7      harassment, in Seneca Falls, Rochester, Cheektowaga,

       8      Newburgh, Buffalo, and Long Island.

       9             DHR is currently planning a robust outreach

      10      and education campaign, which will include public

      11      events and an active social-media presence, focusing

      12      on all elements of the law, including protections

      13      against sexual harassment.

      14             As part of last year's harassment package,

      15      the New York State Labor Law now requires all

      16      employers in New York State to establish a

      17      sexual-harassment policy, and provide annual

      18      sexual-harassment training.

      19             DHR was proud to work closely with the

      20      department of labor in developing a model policy,

      21      model complaint form, and model training for

      22      employers to adopt in the workplaces, as well as an

      23      easy, accessible website, with guidance and

      24      resources for workers and employers on New York

      25      State's laws against workplace sexual harassment.







                                                                   25
       1             Prior to being finalized, the models were

       2      presented to stakeholders and the public for public

       3      comments.  And the department of labor and DHR held

       4      meetings with employee and survivor groups, as well

       5      as business leaders and employers across the state.

       6             Hundreds of comments and suggestions were

       7      reviewed and taken into account before the final

       8      documents were released.

       9             The model policies and trainings are

      10      available online in readily accessible formats,

      11      translated into eight languages.

      12             Both the department of labor and DHR continue

      13      to engage in outreach and education on the state

      14      requirements, and we look forward to continuing

      15      those efforts as part of our upcoming outreach and

      16      education campaign.

      17             Thank you all for the opportunity to discuss

      18      the great work we do at DHR in our efforts to

      19      protect all New Yorkers from harassment and

      20      discrimination.

      21             D.C. DANA SUSSMAN:  Good morning, Senators

      22      and Assemblymembers.

      23             Thank you for convening today's joint hearing

      24      on the critical issue of combating sexual harassment

      25      in the workplace.







                                                                   26
       1             I am Dana Sussman, deputy commissioner for

       2      intergovernmental affairs and policy at the New York

       3      City Commission on Human Rights.

       4             I'm pleased to be back with you again after

       5      the first hearing on this topic in February.

       6             And I want to thank you, and the tireless

       7      advocates in the room today, who have brought us

       8      together to continue this vital and overdue

       9      conversation.

      10             In February, my testimony focused primarily

      11      on the ways in which the State Human Rights Law

      12      could be amended to align itself more closely with

      13      the New York City Human Rights Law, giving this

      14      state law more teeth to hold harassers and those

      15      that enable them accountable, and to afford more

      16      victims the legal protections they need to pursue

      17      justice.

      18             My testimony identified four areas to

      19      strengthen the law.

      20             1.  Correcting the decades of case law

      21      establishing the unnecessarily high, severe, or

      22      pervasive standard as the New York State legal

      23      standard for sexual harassment.

      24             2.  Explicitly rejecting the Faragher-Ellerth

      25      affirmative defense.







                                                                   27
       1             3.  Making it possible for managers and

       2      supervisors, even if they do not have an ownership

       3      interest in the employer, to be held personally

       4      liable for sexual harassment; and,

       5             4.  Ensuring that punitive-damage awards are

       6      available with respect to State Human Rights Law

       7      claims, as they are under other civil rights laws.

       8             Today I'm here to briefly discuss the work of

       9      the commission's gender-based harassment unit, and

      10      several recent developments in the commission's

      11      efforts to combat sexual harassment in the

      12      workplace.

      13             The gender-based harassment unit at the

      14      commission was launched in January of this year,

      15      with the budget of $300,000.  It has personal lines

      16      for four dedicated staff members, one supervisor,

      17      two attorneys, and one non-attorney investigator.

      18             As soon as an individual with a workplace

      19      sexual-harassment claim contacts the commission

      20      through our general intake line or our web form, the

      21      unit supervisor is alerted, and will make a quick

      22      assessment as to whether there should be any

      23      immediate action taken.

      24             While most individuals who report workplace

      25      sexual-harassment cases to the commission come to us







                                                                   28
       1      after they have left their place of employment,

       2      there are certain situations in which the unit may

       3      be able to intervene early and quickly to

       4      de-escalate a situation or to prevent retaliation.

       5             In some circumstances, the unit has been able

       6      to intervene immediately to ensure that evidence is

       7      preserved, either through surveillance video footage

       8      or documentary evidence, or, to obtain an immediate

       9      transfer of a victim of harassment to ensure the

      10      victim is not interacting with the alleged harasser.

      11             Not all circumstances warrant immediate

      12      intervention, so, for most cases, attorneys in the

      13      unit will meet with the complainant within several

      14      weeks after the initial call or e-mail, unless there

      15      is an urgent need to bring them in earlier, for

      16      example, where a statute of limitations may be

      17      running.

      18             The unit's attorneys primarily focus on

      19      workers in low-wage industries.  And while the

      20      commission has cases of workplace sexual harassment

      21      spanning all industries, in both high-paying and

      22      low-wage work, the unit has identified the private

      23      security and building-management industry and the

      24      hospital industry, particularly the restaurant

      25      industry, where -- which represent a







                                                                   29
       1      disproportionate amount of the unit's cases.

       2             Those industries highlight the

       3      vulnerabilities of workers who experience harassment

       4      in isolated and disconnected workplaces, and the

       5      lack of a clear or centralized management or

       6      reporting structure.

       7             The gender-based harassment unit also reports

       8      that, while most of the victims of cases at the

       9      commission are women, they're seeing a significant

      10      number of men who are now reporting sexual

      11      harassment.

      12             The vast majority of the alleged sexual

      13      harassers, although not all, are men, including in

      14      the cases in which men are the victim.

      15             While the unit's work is focused on

      16      investigating and prosecuting workplace

      17      sexual-harassment claims, other attorneys in the

      18      agency's law enforcement bureau also handle

      19      sexual-harassment cases.

      20             There are simply too many for the unit to

      21      handle alone.

      22             The commission's caseload of workplace

      23      gender-discrimination cases that include a

      24      harassment claim doubled in a single year after

      25      Tarana Burke's #MeToo movement relaunched in late







                                                                   30
       1      2017, from 56 in 2017, to 115 in 2018.

       2             And I note that this number is slightly

       3      higher than the number I reported in February,

       4      because it didn't account for some very late 2018

       5      filings.

       6             For the first four months of 2019, the

       7      commission filed an additional 42 complaints of

       8      workplace gender discrimination that included a

       9      harassment claim.

      10             And as of April 30, 2019, the commission is

      11      investigating 207 total cases.  That includes

      12      13 matters in a pre-complaint posture, in which the

      13      commission is seeking to resolve matters before a

      14      complaint is filed.

      15             I also want to highlight a significant recent

      16      development since the hearing in February.

      17             In March of this year, the State Supreme

      18      Court, in Automatic Meter Reading Corporation versus

      19      The NYC Commission on Human Rights, upheld the 2015

      20      commission decision and order in a workplace

      21      sexual-harassment case.

      22             The commissioner's decision and order was

      23      issued in late 2015 before the #MeToo reawakening,

      24      which demonstrates the leadership and the commitment

      25      of the commission to recognize the seriousness of







                                                                   31
       1      these claims.

       2             The commission ordered the highest-ever civil

       3      penalty in commission history, the only time we've

       4      ordered this amount, and the highest available under

       5      the City Human Rights Law, at $250,000, for willful,

       6      wanton, or malicious conduct; in addition to over

       7      $420,00 in total damages to the complainant,

       8      including back pay, front pay, interest, and $200,00

       9      in emotional-distress damages.

      10             The case involved a business owner who

      11      sexually harassed a female employee over a

      12      three-year period, repeatedly engaging in unwanted

      13      touching, regularly using lewd and

      14      sexually-inappropriate language to and about her,

      15      and posting a sexually-explicit cartoon in the

      16      workplace identified as the complainant.

      17             The State Supreme Court's decision in March,

      18      upholding the commission's order, is significant, in

      19      that it had -- it upheld one of the highest damages'

      20      awards and the highest civil penalty in commission

      21      history in a sexual-harassment case, reaffirming

      22      that sexual harassment causes real emotional and

      23      mental trauma, and devastating economic

      24      consequences, to those who experience it.

      25             It also affirmed the commission's finding







                                                                   32
       1      that the complainant was constructively discharged

       2      from her employment; meaning, that the sexual

       3      harassment made the workplace so unbearable, that

       4      she had no other option but to leave.

       5             The State Supreme -- the State Court decision

       6      further reinforces that administrative agencies

       7      tasked with enforcing local anti-discrimination laws

       8      are entitled to deference in their decision-making,

       9      and it sets a precedent for the issuance of the high

      10      penalties and damages where the evidence supports

      11      it.

      12             My last update is that, on April 1, the

      13      commission launched its online, interactive, and

      14      free anti-sexual-harassment training.  The training

      15      can be used to meet both the new City- and

      16      State-mandated annual anti-sexual-harassment

      17      training requirement.

      18             It is fully accessible to people with hearing

      19      and vision disabilities and mobility disabilities.

      20      It is available in Spanish, with nine additional

      21      languages on its way, and it is optimized for smart

      22      use -- for smartphone use as well.

      23             The training uses a story-based learning

      24      model; features scenarios drawn from real cases, and

      25      highlights the ways in which sexual harassment







                                                                   33
       1      commonly intersects with other protected categories,

       2      including race, immigration status, national origin,

       3      religion, sexual orientation, gender identity, and

       4      pregnancy and lactation.

       5             It educates the user on the complainant -- on

       6      the commission's encompassing definition of

       7      "gender," which includes gender identity and gender

       8      expression, and of its broad and protective

       9      sexual-harassment standard.

      10             It also provides tools and strategies for

      11      bystanders to disrupt patterns of sexual harassment.

      12             The training was developed with, and

      13      incorporates feedback, from over two dozen external

      14      stakeholders, including some of the stakeholders and

      15      advocates in this room today.

      16             Several government partners from our sister

      17      agencies on the state level, and several dozen

      18      internal city-agency administration partners,

      19      representing interests and expertise across city

      20      government.

      21             The training includes content that fulfills

      22      both the State and City requirements for

      23      anti-sexual-harassment training, and can be used by

      24      employers both within the city and outside the city,

      25      across the state, to meet the training requirement.







                                                                   34
       1             And, as of May 23, earlier this week, the

       2      training has now been completed over 25,000 times

       3      since we launched a month and a half ago.

       4             That's an undercount, because it does not

       5      reflect how many people view the training together

       6      at once, because multiple people or entire

       7      workforces can watch and participate in the training

       8      together.  And that would only account for one

       9      completion.

      10             We are grateful to be here today for the

      11      second hearing on workplace sexual harassment

      12      convened by the New York State Assembly and the

      13      Senate this year.

      14             To the women, men, and non-binary people who

      15      have organized, spoken out, and demanded action,

      16      accountability, and system change, we, as

      17      government, are in your debt.

      18             Thank you.

      19             ASSEMBLYMAN CRESPO:  Thank you,

      20      Deputy Commissioners, for your presentation, and for

      21      agreeing to do this jointly.  It's an interesting

      22      approach you both have.

      23             Let me try this.

      24             For the City of New York, you -- for the last

      25      10 years, you have applied a different standard.







                                                                   35
       1      You do not apply (indiscernible) gives a -- more

       2      opportunities for cases to be considered, heard, or

       3      determinations to be made.

       4             I'm curious, in those 10 years, has there --

       5      has the sky fallen on the employer community?

       6             Has -- have you seen a detrimental impact to

       7      the city's economy because of this policy?

       8             D.C. DANA SUSSMAN:  Well, I'm no economist,

       9      but I will say that, we understand our standard in a

      10      way -- we've heard that most employers or most

      11      employees expect workplace conduct to align with the

      12      standard that the City law sets out; that people are

      13      typically surprised that other standards across the

      14      country and the state standard is what it is,

      15      because I think expectations of workplace conduct in

      16      2019, or at least for the past few decades, have

      17      comported more closely with the being treated less

      18      well because of your gender standard than the

      19      "severe/pervasive" standard.

      20             So I think what's interesting is that, it

      21      seems like the law needs to catch up to what the

      22      current expectations of conduct are in the

      23      workplace.

      24             So I -- and I can say, I have not seen the

      25      sky fall, but, again, I'm no economist.  I wouldn't







                                                                   36
       1      be able to reflect on -- on the impact to the

       2      New York City economy, but it's not something I've

       3      seen.

       4             ASSEMBLYMAN CRESPO:  And with the increase in

       5      case, you mentioned also in your testimony, that

       6      there's been an increase in reports.

       7             Have you -- has the city council been helpful

       8      in increasing your budget significantly in order to

       9      address these issues?

      10             D.C. DANA SUSSMAN:  We are always in constant

      11      communication with the council, with the

      12      administration, about resources, and about how we

      13      can be flexible and responsive to the need, which is

      14      one of the reasons why I think our -- the

      15      gender-based harassment unit is particularly

      16      important, because we can get cases, particularly

      17      urgent ones, where someone may be in the situation

      18      and needs an immediate transfer or needs to

      19      negotiate a way out, they can come to us quickly.

      20             So we're trying to be -- the litigation and

      21      administrative process is long, we recognize that,

      22      and not everyone is situated to go through that full

      23      process.

      24             So, we try to work with the resources we have

      25      to provide the appropriate response.







                                                                   37
       1             ASSEMBLYMAN CRESPO:  And then, speaking of

       2      litigation, so if someone files a complaint with --

       3      a City employee files a complaint with your agency,

       4      do they have the option to also go to court?

       5             D.C. DANA SUSSMAN:  You can come to the

       6      commission at a certain point in the process, before

       7      we issue a decision, a determination, whether it's

       8      probable cause or no probable cause, you can remove

       9      your case from our agency and take it to court.

      10             After it crosses a threshold into a

      11      determination at the City level, you've,

      12      essentially, chosen your venue, and you would not be

      13      able to go to court.

      14             But you preserve your right with respect to

      15      federal claims, if you file with the City

      16      commission, it's cross-filed with the EEOC.  So that

      17      preserves your federal claims as well.

      18             And you could, again, remove your complaint

      19      from our agency and choose to go court at a certain

      20      point in the process.

      21             But if you sort of choose to proceed to

      22      completion, then the venue has been chosen, and that

      23      would be the commission.

      24             ASSEMBLYMAN CRESPO:  Then, for the State, so,

      25      first of all, I've got to preface whatever I ask







                                                                   38
       1      with this:

       2             I appreciate the work you all do.  And I'm

       3      sure that everyone in your agency is fully committed

       4      to doing the best they can with limited resources.

       5             And I'm sure your experience had -- we do in

       6      the Legislature, I'm sure you have the same

       7      challenge, given, particularly, the increase in

       8      caseloads that you've seen.

       9             I'm very bad at math, but, 6,000 cases, and

      10      you have 63 officers --

      11             OFF-CAMERA SPEAKER:  (Inaudible.)

      12             ASSEMBLYMAN CRESPO:  Investigators?

      13             D.C. MELISSA FRANCO:  Investigators, yes.

      14             ASSEMBLYMAN CRESPO:  So, 164 full-time, but

      15      63 investigators; so, 95 cases each, more or less?

      16      Is that --

      17             D.C. GINA MARTINEZ:  It depends.

      18             We have an office that is completely

      19      dedicated to sexual harassment.  It's the office of

      20      sexual-harassment issues.

      21             If you want to do an average, I would say the

      22      regional offices around the state --

      23             We also have an office dedicated to housing

      24      discrimination, so that's a totally different

      25      office.







                                                                   39
       1             -- if I think of the numbers, I would say

       2      there's probably -- taking out housing, I would say

       3      50 to 60 cases.  It fluctuates.

       4             ASSEMBLYMAN CRESPO:  So it's -- but it's fair

       5      to say that the investigators have their fair share

       6      of work?

       7             D.C. GINA MARTINEZ:  A heavy caseload,

       8      absolutely, yes.

       9             ASSEMBLYMAN CRESPO:  And, anecdotally, do you

      10      hear them often, maybe, express a sentiment that,

      11      somebody got away with one; that they just -- you

      12      know, there was something wrong, but, they just

      13      could not meet the standard, they just couldn't

      14      prove it?

      15             Do you hear that?

      16             D.C. GINA MARTINEZ:  I haven't heard that.

      17             It's hard to say "somebody got away with

      18      one."

      19             We construe our law with a liberal

      20      interpretation.

      21             I wouldn't be able to say, I mean --

      22             ASSEMBLYMAN CRESPO:  I know it's a tough one.

      23             D.C. GINA MARTINEZ:  -- it is (indiscernible

      24      cross-talking) --

      25             ASSEMBLYMAN CRESPO:  I'm not trying to put







                                                                   40
       1      you on the spot.

       2             D.C. GINA MARTINEZ:  -- (indiscernible)

       3      tough --

       4                (Indiscernible cross-talking.)

       5             ASSEMBLYMAN CRESPO:  The reason -- I guess

       6      what I'm really trying to get at is this:

       7             We know the City has done away with this

       8      "severe and pervasive" standard, and it has created

       9      a better road map for cases to be brought forward

      10      and/or investigated and/or, you know, decisions to

      11      have been made.

      12             We seem to keep hearing that we are applying

      13      a standard that makes it too difficult, often cases,

      14      to find justice.

      15             And, I -- I mean, and that's a policy

      16      decision that I guess we would have to make.

      17             But, how do you feel, do you -- would you

      18      welcome a -- the City standard at the state level?

      19             D.C. GINA MARTINEZ:  Well, I -- I -- I'd have

      20      to say that, you know, we enforce the laws as

      21      currently written.

      22             If you believe that, you know, a change to

      23      the law should be made, we'd certainly enforce it,

      24      as you feel the need to strengthen it.

      25             I do want to point out, for our cases, for







                                                                   41
       1      sexual-harassment cases in particular, we have a

       2      probable-cause rate of about 25 percent.  That's --

       3      that's a pretty high rate, that's a good rate, and

       4      that's above the average for all cases.

       5             So, we -- we -- going back to your prior

       6      question, there's not too many of those that got

       7      away.

       8             And in terms of filing, you know, we have a

       9      pretty easy process, as Deputy Commissioner Franco

      10      stated earlier in her testimony.

      11             People can come to our -- any of our regional

      12      offices and file anywhere in the state.  And they

      13      can file, you know, via mail, e-mail.  They can call

      14      us and we will send them a complaint form, and we

      15      will route it to the appropriate office.

      16             And like I said, we take this very seriously.

      17      We have an entire office that's dedicated to this

      18      issue.

      19             ASSEMBLYMAN CRESPO:  I don't doubt that.

      20             I mean, if it was completely up to me, I'd

      21      give you more resources so you can do even more.

      22             D.C. GINA MARTINEZ:  And I would welcome that

      23      with open arms.

      24             ASSEMBLYMAN CRESPO:  But -- so, and one last

      25      thing, so I asked this question of the City as well:







                                                                   42
       1      But, again, if somebody files -- if an employee

       2      outside the city of New York files a complaint with

       3      your office, do they have the option to go to court?

       4             D.C. MELISSA FRANCO:  They do have the option

       5      to go to court.  We -- they can remove it to state

       6      court even after a determination is made of probable

       7      cause.

       8             ASSEMBLYMAN CRESPO:  Even after the

       9      determination is made?

      10             D.C. MELISSA FRANCO:  Yes.

      11             D.C. GINA MARTINEZ:  And they can also file a

      12      claim within three years of the alleged act of

      13      discrimination.

      14             So they have one year to file with us, and

      15      three years to file in state court.

      16             ASSEMBLYMAN CRESPO:  How many applications do

      17      you get of someone who is past that one-year

      18      deadline and has to be turn down, turned away?

      19             D.C. GINA MARTINEZ:  I don't readily have

      20      those numbers available, but I -- if you'd like, I

      21      can find those out --

      22             ASSEMBLYMAN CRESPO:  I'm curious to know.

      23             D.C. GINA MARTINEZ:  -- and forward them to

      24      you.

      25             ASSEMBLYMAN CRESPO:  And in that process, do







                                                                   43
       1      you notify, do you explain, to the person who

       2      brought the complaint about their options to go to

       3      court, and the timeline of when and how they should

       4      proceed with that?

       5             D.C. GINA MARTINEZ:  Absolutely.

       6             ASSEMBLYMAN CRESPO:  Thank you.

       7             SENATOR BIAGGI:  I just want to acknowledge

       8      that we've been joined by Senator Jamaal Bailey.

       9             And we will hear now from Senator Salazar.

      10             SENATOR SALAZAR:  Thank you.

      11             Thank you all for your testimony.

      12             My -- I have a few questions for Dana.

      13             First, I want to ask about, you mentioned

      14      that the gender-based harassment unit's budget is

      15      $300,000, and that there have been 207 cases, that

      16      are both gender-based harassment and -- or, that are

      17      gender-based harassment.

      18             Is this enough, in your opinion -- and

      19      I realize you said you're not an economist -- in

      20      your opinion, or your experience, do you think that

      21      this is adequate funding to handle that many cases?

      22             D.C. DANA SUSSMAN:  Well, like I said, the --

      23      you know, the unit has folks that are dedicated to

      24      these cases.  But, because there are quite a number

      25      of them, and they are challenging cases to work on







                                                                   44
       1      and to collect the evidence around, attorneys in our

       2      general, sort of, pool of investigating attorneys

       3      handle these cases as well.

       4             So it's not -- it's -- the unit is very

       5      useful, especially when there's a quick response

       6      that's needed.

       7             But we also have attorneys who take on all

       8      sorts of cases; also take on gender-based harassment

       9      cases as well.

      10             SENATOR SALAZAR:  Excellent.

      11             And then, also, regarding, you mentioned in

      12      your testimony, that when the unit supervisor is

      13      alerted to a claim, they'll make a quick assessment

      14      as to whether there should be any immediate action

      15      taken.

      16             Could you possibly elaborate on what that

      17      assessment -- what is factored in in that

      18      assessment?

      19             D.C. DANA SUSSMAN:  Sure.

      20             So our typical process is that, someone will

      21      either send in -- complete our form on our website,

      22      or will call our info line, and, either way, it gets

      23      routed to our gender-based harassment unit

      24      supervisor.

      25             They will then look at the report, and will







                                                                   45
       1      often speak with the potential complainant directly.

       2             And in the cases that they've highlighted for

       3      me, they are -- there are situations in which

       4      someone was actually harassed on the job interview;

       5      was misgendered repeatedly, was harassed based on

       6      gender identity and stereotyping.

       7             And the unit was able to intervene quickly,

       8      to ensure that the person was not discriminated

       9      against in getting the job.  And then once on the

      10      job, would be, you know, not misgendered, not

      11      harassed, not work with the person who interviewed

      12      them.

      13             So that was a unique situation in which the

      14      person really was adamant about not filing a

      15      complaint; wanted the job, didn't want to create a

      16      huge fuss, but wanted to be treated with dignity and

      17      respect, and not misgendered.

      18             So -- so that's a unique situation.

      19             But there have been others, where, it's --

      20      video surveillance was captured pretty quickly.

      21      They would send out sort of a non-spoilation letter,

      22      a preservation request, to say, We're initiating an

      23      investigation.  You must preserve this evidence and

      24      deliver it to us;

      25             Or, in other circumstances of immediate







                                                                   46
       1      transfer to a different location;

       2             Or, a schedule change to avoid interaction

       3      with the harasser.

       4             So we can't -- you know, we have limited

       5      ability to sort of prosecute cases without a

       6      complaint filed.  But what we can do is help, sort

       7      of, navigate some of those complicated issues before

       8      someone initiates the whole process.

       9             SENATOR SALAZAR:  And this is somewhat

      10      related to my last question.

      11             You also mentioned that, in the matters that

      12      the commission is investigating, this includes

      13      some -- in pre-complaint posture, where the

      14      commission is seeking to resolve them before a

      15      complaint is filed.

      16             Could you maybe elaborate on what the

      17      motivation has been, or might be, to resolve before

      18      a complaint is filed?

      19             Maybe this is obvious, but is -- is it just

      20      for efficiency?  Is it to minimize the process that

      21      both parties have to go through?

      22             D.C. DANA SUSSMAN:  I think it's -- some of

      23      those things.

      24             I think there are people who call us, who

      25      say, This is happening.  I don't want to file a







                                                                   47
       1      complaint.

       2             So there are a few options.

       3             We can initiate our own investigation.

       4             There have been a few instances, that I'm

       5      aware of, where it's a restaurant.  There's just

       6      pervasive hostile work environment for every -- you

       7      know, for many people.  And we'd get reports of

       8      that.

       9             And so we'll initiate sort of a pre-complaint

      10      intervention.  We'll alert the respondent that we're

      11      investigating.

      12             And some respondents, before they're actually

      13      respondents, will come to the table and say, Okay,

      14      we know there's a problem.  We want to fix it.  How

      15      can we work with you?

      16             So we've negotiated mandated training, policy

      17      development, and then ongoing monitoring, so that

      18      they have to report back to the commission on the

      19      steps that they've taken.

      20             And if they don't, we can file a complaint;

      21             Or, if we are notified that they're not

      22      complying, we can file a complaint.

      23             So it's a mix of efficiencies, what the

      24      people coming forward want.

      25             And -- and if a respondent is willing to come







                                                                   48
       1      to the table pretty early on, then we don't need to

       2      go through, like, sort of extended investigation and

       3      litigation.

       4             ASSEMBLYMAN CRESPO:  Before I go to

       5      Assemblywoman Simotas, I want to acknowledge we've

       6      been joined by Assemblywoman Latrice Walker, the

       7      Chair of the Assembly Task Force on Women's Issues.

       8             We have -- we'll be rotating back and forth

       9      on the questions.

      10             Assemblywoman Simotas.

      11             ASSEMBLYWOMAN SIMOTAS:  Thank you.

      12             I'm sure we all can appreciate how difficult

      13      it is to come to terms when somebody is being

      14      sexually harassed in the workplace.

      15             My question is for DHR.

      16             Do you believe that one year is enough to --

      17      time to bring an action with your agency?

      18             D.C. MELISSA FRANCO:  If you're -- I believe

      19      you're talking about the statute of limitations.

      20             ASSEMBLYWOMAN SIMOTAS:  Yes.

      21             D.C. MELISSA FRANCO:  May I begin by saying

      22      that, when we do our education and outreach, one of

      23      the first things that we do is, we make potential --

      24      we make individuals aware in the public that it is a

      25      one-year from the last date of discrimination.







                                                                   49
       1             As to any changes in the statute of

       2      limitations, of course it's up to you; and if you

       3      changed it, we would abide by it.

       4             However, in the administrative process, you

       5      know, the idea is that a complaint be addressed and

       6      adjudicated within a quicker manner than it would be

       7      in court.

       8             So we have found that, if witnesses come

       9      closer in time to the last identified act, their

      10      memories are better, the documents haven't been

      11      destroyed, the respondents haven't gone out of

      12      business.

      13             So there is -- that's what we have seen.

      14             However, if you choose to change the statute

      15      of limitations, we welcome it, and we will abide by

      16      it.

      17             ASSEMBLYWOMAN SIMOTAS:  I have another

      18      question, follow-up to that.

      19             You know, normally, you would think that, if

      20      somebody is going through an administrative process,

      21      they might not need an attorney, or they can maybe

      22      file the complaint themselves.

      23             If you're going to go through the court

      24      system, oftentimes people feel intimidated, and they

      25      believe that they need -- they need attorneys.







                                                                   50
       1             If they decide to go through the

       2      administrative process with DHR, do you think we

       3      should toll the statute of limitations, that they

       4      can then file claims in state court, to actually

       5      give them an opportunity to really have their

       6      grievances heard?

       7             D.C. MELISSA FRANCO:  Should we toll the

       8      stat -- let me make sure I understand it.

       9             Would you mind repeating that?

      10             ASSEMBLYWOMAN SIMOTAS:  Yes.

      11             Should we -- if somebody decides to go

      12      through the administrative process with DHR, should

      13      the time frame that it takes to go through that

      14      process be looped on to the amount of time they can

      15      file a claim in state court?

      16             In other words, if it takes 180 days,

      17      ideally, or if it takes two years, because

      18      sometimes, you know, as we know from the testimony

      19      that you submitted, it takes longer, should their

      20      time not run out to actually go to state court and

      21      file a claim if they're actually able to secure an

      22      attorney?

      23             D.C. GINA MARTINEZ:  That's a tough one.

      24             They have three years to go to court.  That's

      25      a good amount of time.







                                                                   51
       1             I think -- I think it's an issue of, you have

       2      to pick your forum.

       3             But, again, the way the law is currently

       4      written, they have a year for us, and they have

       5      three years to go to court.

       6             The way it is currently written, we enforce

       7      it.

       8             If changes are to be made, then we will -- we

       9      will enforce them.

      10             ASSEMBLYWOMAN SIMOTAS:  Thank you.

      11             SENATOR BIAGGI:  Senator Gounardes.

      12             SENATOR GOUNARDES:  Thank you very much.

      13             I have --

      14             SENATOR BIAGGI:  Excuse me, I'm so sorry.

      15      Pardon my interruption.

      16             We have been joined by Senator James Skoufis,

      17      my other co-chair.

      18             Sorry, Senator Gounardes.

      19             SENATOR GOUNARDES:  Okay.  Anything for

      20      Senator Skoufis.

      21                [Laughter.]

      22             SENATOR GOUNARDES:  Thank you very much for

      23      your testimony this morning.

      24             I want to start with some questions for DHR.

      25             You said that, of all the cases you received,







                                                                   52
       1      that you invest -- you received, and then you closed

       2      out, 25 percent of them in sexual-harassment cases,

       3      complaints filed, had probable cause to move on to a

       4      hearing.  Is that right?

       5             D.C. GINA MARTINEZ:  Correct.

       6             SENATOR GOUNARDES:  The non-sexual harassment

       7      cases, what's the percentage of cases that you've

       8      investigated that result in the probable cause --

       9             D.C. GINA MARTINEZ:  For the past -- since

      10      2016, they have been hovering around 10 to 12

      11      percent.

      12             SENATOR GOUNARDES:  So the sexual-harassment

      13      complaints have a higher rate of probable-cause

      14      findings?

      15             D.C. GINA MARTINEZ:  Correct.

      16             SENATOR GOUNARDES:  Okay.  Thank you.

      17             What is the -- after a cause of probable --

      18      after a finding of probable cause is made, what's

      19      the time window for a hearing in which a complainant

      20      gets the hearing at that point?

      21             D.C. GINA MARTINEZ:  Okay.

      22             SENATOR GOUNARDES:  Can you walk us through

      23      that?

      24             D.C. GINA MARTINEZ:  Absolutely.

      25             SENATOR GOUNARDES:  Average time?







                                                                   53
       1             D.C. MELISSA FRANCO:  So -- just so you know

       2      the process:

       3             In all cases but for housing cases, once

       4      there is a determination of probable cause, again,

       5      all cases but housing cases will be scheduled for a

       6      prehearing settlement conference.

       7             During that time, the complainant, if they

       8      have a private attorney, they will be on there.  If

       9      not, a division attorney is assigned.

      10             An administrative law judge is on the call.

      11      She run -- she or he runs the call, as well as the

      12      respondent and the respondent's attorney.

      13             That usually is scheduled about four weeks

      14      after a probable-cause determination.

      15             If there is a settlement, the case will come

      16      off the calendar, and the attorneys will reduce it

      17      into writing.

      18             And once the parties sign off on it, the

      19      division attorney will send it to the administrative

      20      law judge, who will review it, okay it, and then

      21      it's sent to the commissioner to sign off on an

      22      order.

      23             However, if there isn't a settlement, the

      24      case will then be scheduled for a public hearing,

      25      and that's, usually, anywhere between two to







                                                                   54
       1      three months after the prehearing settlement

       2      conference.

       3             SENATOR GOUNARDES:  And in those cases, if it

       4      gets to the hearing, is the preliminary finding of

       5      probable cause given any additional weight to the --

       6      to the judge, or is it a -- is it basically like

       7      starting from scratch again, to (indiscernible

       8      cross-talking --)

       9             D.C. MELISSA FRANCO:  It's a de novo hearing.

      10             SENATOR GOUNARDES:  It's a de novo hearing?

      11             D.C. MELISSA FRANCO:  Yes.

      12             SENATOR GOUNARDES:  So it's kind of like

      13      another bite at the apple, you know, to kind of have

      14      a fresh start, for both the complainant and the

      15      alleged harasser?

      16             D.C. MELISSA FRANCO:  They put on their

      17      evidence anew, yes.

      18             SENATOR GOUNARDES:  Okay.

      19             In what percentage of cases that you receive,

      20      that you make a determination on, can you kind of

      21      walk us through how many of the cases you're able to

      22      make a probable-cause determination on without doing

      23      any additional fact finding?

      24             In other words, how many cases do you just

      25      get a complaint, you talk to the alleged harasser,







                                                                   55
       1      give the complainant a chance to rebut, and then

       2      make a closing?

       3             Or, how much time -- in what cases do you

       4      actually go beyond the back-and-forth, to come to a

       5      conclusion?

       6             D.C. GINA MARTINEZ:  So I can't give you an

       7      actual number for that.

       8             There are cases where they're pretty

       9      straightforward and we can just move forward pretty

      10      quickly.

      11             However, each investigation is obviously done

      12      on a case-by-case basis.  All of the cases are

      13      fact-specific.

      14             And our investigations are done using tools

      15      at the discretion of the regional director.

      16             So some cases require one- and two-party

      17      conferences; some don't.

      18             Some cases require additional requests for

      19      information; some don't.

      20             Site visits as well.

      21             I don't have exact numbers for which ones

      22      kind of go through the process because, they're so

      23      good, that we have that, you know, piece of

      24      evidence, where the alleged harasser is saying, you

      25      know, X, Y, Z, and we're good to go within, you







                                                                   56
       1      know, two or three weeks.

       2             SENATOR GOUNARDES:  Got you.

       3             Okay, thank you.

       4             And I guess this question is -- sorry, one

       5      more question for DHR, and then a question for both.

       6             You said that you have a 62 percent increase

       7      in the number of complaints that have been received?

       8             D.C. GINA MARTINEZ:  62 percent increase in

       9      sexual-harassment filings since 2016.  So that's,

      10      from 2016 to 2018, the filings for sexual-harassment

      11      complaints have increased by 62 percent.

      12             Correct.

      13             SENATOR GOUNARDES:  Has your budget increased

      14      by any reasonable amount in that time window as well

      15      to process those?

      16             I know there was a similar question raised on

      17      the Assembly side about more resources.

      18             But if you have -- that seems like a pretty

      19      dramatic increase.

      20             D.C. GINA MARTINEZ:  It definitely is a

      21      pretty dramatic --

      22             SENATOR GOUNARDES:  Have you received any

      23      additional support -- budgetary support to kind of

      24      help accommodate?

      25             D.C. GINA MARTINEZ:  I'd have to speak to my







                                                                   57
       1      finance director about that.

       2             SENATOR GOUNARDES:  Okay.  Thank you.

       3             I guess for both DHR and the city commission,

       4      what -- are the investigators that you have, are

       5      they trained in, you know, kind of, dealing with

       6      trauma victims, when they are interviewing and

       7      taking complaints, and interviewing complainants,

       8      about these cases?

       9             D.C. DANA SUSSMAN:  So we've have partnered

      10      with the Mayor's office to end gender-based

      11      discrim -- gender-based violence -- domestic and

      12      gender-based violence, to train our staff.  They

      13      provide a pretty comprehensive victim-centered and

      14      trauma-informed training to City employees.

      15             And so we partner with them to get our staff

      16      trained.

      17             I think the next upcoming training is this

      18      summer.

      19             And one of the benefits of having the

      20      gender-based harassment unit, is we have individuals

      21      who are regularly working with people who are coming

      22      out of or are currently in very stressful,

      23      emotionally-charged, and, in many cases, devastating

      24      situations.

      25             And so they are particularly well positioned







                                                                   58
       1      to handle those cases.

       2             D.C. GINA MARTINEZ:  All of our investigators

       3      are trained thoroughly in conducting confidential

       4      investigations.

       5             And our regional director has been trained

       6      specifically in conducting sexual-harassment

       7      investigations, so she does train her staff.

       8             SENATOR GOUNARDES:  When we held our last

       9      hearing in February, we heard from a different

      10      agency, JCOPE, in which they said that it's, you

      11      know, common for them to ask complainants about

      12      their prior sexual history at the invest -- at the

      13      complaint state, as a potential rebuttal for

      14      defenses raised later on.

      15             Is that a practice that either of your

      16      agencies engage in when you are taking complaints or

      17      doing preliminary investigations or interviews.

      18             D.C. DANA SUSSMAN:  I am not aware of that

      19      practice.

      20             D.C. GINA MARTINEZ:  I am not aware of that

      21      practice either.

      22             SENATOR GOUNARDES:  Thank you.

      23             ASSEMBLYMAN CRESPO:  We've also been joined

      24      by Assemblywoman Linda Rosenthal.

      25             For the next question,







                                                                   59
       1      Assemblywoman Rebecca Seawright.

       2             ASSEMBLYWOMAN SEAWRIGHT:  That you for your

       3      testimony.

       4             I replaced a legislator that was a harasser.

       5             And as a young staff member, I was sexually

       6      harassed by a state legislator.

       7             I have a question.

       8             Do you have recommendations for legislation

       9      that would assist you in your enforcement actions?

      10             D.C. DANA SUSSMAN:  I -- from the City's

      11      position, we are -- you know, we are in the process

      12      of implementing a package of bills from last year,

      13      including the extension of the statute of

      14      limitations for gender-based harassment claims, from

      15      one year, to three years.

      16             And so I think the work that we're doing to

      17      implement that bill package has been informative,

      18      and I think we're seeing the benefits of those new

      19      laws, and increased awareness around the commission,

      20      through that bill package.

      21             So, I don't have any specific recommendations

      22      to share, other than to share the experience that

      23      we've had at the city level.

      24             D.C. MELISSA FRANCO:  I would say, as to DHR,

      25      you know, we're neutral, we're impartial, and we're







                                                                   60
       1      an enforcement agency.  We're not an advisory

       2      agency.

       3             However you decide as legislators to change

       4      the law, we will definitely enforce it.

       5             ASSEMBLYWOMAN SEAWRIGHT:  Thank you.

       6             SENATOR BIAGGI:  Senator Liu?

       7             SENATOR LIU:  Thank you, Madam Chair.

       8             I -- I appreciate these wonderful individuals

       9      for attending our hearing and answering questions.

      10             You know when -- when your superiors put you

      11      in this position, it's potentially unpleasant.

      12             And so let me ask you not to take anything

      13      personally.  Okay?

      14             But I'm listening to this back-and-forth.

      15      I'm listening to the testimony from the State

      16      Division of Human Rights.

      17             And I will say that I really appreciate the

      18      City's Division of Human Rights testimony.

      19             But the testimony that the State is giving

      20      here, it's all about how proud you are, how happy

      21      you are about the work that you do, how efficient

      22      you do things.

      23             It's as if there are no problems whatsoever.

      24             And then you answer the questions from my

      25      fellow legislators here.  They're asking you







                                                                   61
       1      specific things, and sometimes you just sound

       2      defensive.

       3             So my -- and your testimony, towards the end,

       4      at least I'm kind of happy that you at least say,

       5      your -- "the division is also committed to ending

       6      sexual harassment and other forms of discrimination

       7      via outreach and education."

       8             So, are you committed to enforcing the law as

       9      it currently is written, or are you truly enfor --

      10      are you truly committed to ending sexual harassment

      11      and other forms of discrimination?

      12             See, the City's testimony specifically says

      13      that they think the law should be changed, and cites

      14      a specific example, such has, "correcting the

      15      decades of case law establishing unnecessarily high,

      16      severe, or pervasive standard, and explicitly

      17      rejecting the Faragher-Ellerth affirmative defense."

      18             They give examples of how the City thinks

      19      they should -- the state law should change.

      20             You don't cite any examples.  You just talk

      21      about how well the division has been doing.

      22             Even though it is clearly a new day, the laws

      23      haven't changed very much.

      24             We haven't had a hearing until our co-chairs

      25      here put together something a few months ago.







                                                                   62
       1             And it's like the division of -- the State

       2      Division of Human Rights is, like, everything is

       3      fine and dandy.

       4             Am I mischaracterizing you?

       5             I certainly hope I am.

       6             Maybe you can clarify some of your testimony

       7      and the responses that you've given to questions

       8      from these legislators?

       9             Or maybe I can be specific.

      10             Is there one law, or, maybe one of our

      11      proposed bills, about a dozen proposed bills, that

      12      the State Division of Human Rights would like to see

      13      enacted?

      14             D.C. MELISSA FRANCO:  Well, I would say,

      15      I don't take it personal.

      16             SENATOR LIU:  Okay.

      17             D.C. MELISSA FRANCO:  That is --

      18             SENATOR LIU:  Good.  And it is --

      19             D.C. MELISSA FRANCO:  -- that is -- we'll

      20      start from there.

      21             SENATOR LIU:  -- not meant personally.

      22             D.C. MELISSA FRANCO:  Right, we'll start from

      23      there.

      24             But, again, if we're to remain neutral, and

      25      enforce the laws as we are, if any opinion that we







                                                                   63
       1      gave would be inappropriate, right, because it takes

       2      away from that.

       3             So, again, while you would like us to say any

       4      recommendations I'd have to stand by, in order to

       5      remain neutral, we can't.

       6             SENATOR LIU:  Well, you know what?  I've

       7      heard much testimony from police commissioners, from

       8      commissioners of other agencies, that are sworn to

       9      uphold the laws as it -- laws as they currently are,

      10      but have no hesitation to suggest changes or

      11      improvements to current law.

      12             And if you truly are committed to ending

      13      sexual harassment and other forms of discrimination,

      14      as per your testimony, there's got to be some kind

      15      of change.

      16             I mean -- either everything is fine and

      17      dandy, or there's got to be some kind change that

      18      you think would make sense.

      19             So once again, the question is:  Is there at

      20      least one of these bills that you think would make

      21      sense?

      22             We've had -- we've got about a dozen bills on

      23      the docket.  Is there at least one that make sense?

      24             The City cites four specific areas.

      25             I have named two of the four specific areas







                                                                   64
       1      that they've mentioned.

       2             Is there one?

       3             Are you -- even in response to

       4      Chairman Crespo's question about pervas -- pervas --

       5      "severe and pervasive," you kind of said that, oh,

       6      it's not really -- to me, it sounded like you didn't

       7      think it was necessary for the State to adopt that

       8      kind of standard.

       9             D.C. MELISSA FRANCO:  Well, it's definitely

      10      not our position, and I hope you don't take this

      11      personally, but I'm going to stand by my answer.

      12             It is my belief that if any recommendation on

      13      potential changes to the law, or pending

      14      legislation, would be inappropriate.

      15             D.C. GINA MARTINEZ:  Can I -- I'm sorry.

      16             SENATOR LIU:  (Nods head)  Yeah.

      17             D.C. GINA MARTINEZ:  Can I just add,

      18      without -- again, I have to agree, and say, again,

      19      what Deputy Commissioner Franco says, we can't say

      20      anything specific.  We enforce the law; we don't

      21      make the law.

      22             But I also want to respond to the assertion

      23      that we think everything is fine and dandy.

      24             We don't.

      25             We enforce the oldest human rights law in the







                                                                   65
       1      country, and we aggressively enforce it.  But we

       2      know that discrimination exists, and that an

       3      aggressive approach is required.

       4             And it has taken a long time for us to get

       5      here.

       6             And we want to work with all of you to

       7      strengthen the protections that exist, and that's

       8      why we're here.

       9             But it's a multi-prong approach that we need.

      10      There's a culture shift going on right now.

      11             But -- but we're -- we're getting there, but

      12      we're not there.

      13             And that just doesn't go for sexual

      14      harassment.

      15             You know, the discrimination, in and of

      16      itself, is still existing.

      17             Black people are still getting fired from

      18      jobs.  People on public assistance are still losing

      19      their homes.  People in wheelchairs still can't get

      20      into restaurants.

      21             We don't think that things are fine and dandy

      22      by any stretch of the imagination.

      23             SENATOR LIU:  Those forms of discrimination

      24      are -- are terrible --

      25             D.C. GINA MARTINEZ:  Absolutely.







                                                                   66
       1             SENATOR LIU:  -- and you should continue the

       2      enforcement actions against those kinds of

       3      discrimination.

       4             But there is a heightened awareness of sexual

       5      harassment.

       6             D.C. GINA MARTINEZ:  Yes.

       7             SENATOR LIU:  And you can't be doing the same

       8      things as usual.  It's not business as usual.  You

       9      have to change some of the approaches.

      10             And working with the legislative body,

      11      I think is fine.

      12             Maybe, as deputy commissioners, I will allow

      13      this.  Maybe as deputy commissioners you're not

      14      empowered to go beyond this testimony.

      15             But I would encourage you to go back to your

      16      commissioner, and send us some kind of feedback as

      17      to:

      18             Do you absolutely oppose all the bills that

      19      we've proposed?

      20             Or might there be one, two, perhaps a few

      21      bills, that you think would make sense and would

      22      help you do your job better?

      23             The mission that you specifically cite in

      24      your testimony, of ending -- of your commitment to

      25      "ending sexual harassment and other forms







                                                                   67
       1      discrimination via outreach and education."

       2             D.C. GINA MARTINEZ:  Noted.  Thank you.  We

       3      will.

       4             SENATOR LIU:  Thank you.

       5             ASSEMBLYMAN CRESPO:  I want to acknowledge

       6      we've been joined by Assemblyman Harvey Epstein,

       7      who's off to the side beyond the column where I

       8      can't see him.

       9                [Laughter.]

      10             ASSEMBLYMAN CRESPO:  But he's there, he's

      11      there.

      12             Assemblymember Quart.

      13             ASSEMBLYMAN QUART:  Good morning.

      14             My questions are for Ms. Franco.

      15             In your comments to Senator Liu's questions,

      16      you said it is your job or your agency's job to

      17      enforce the law, not write the law.

      18             So let me ask you a couple questions about

      19      enforcement.

      20             If you can turn to page 3 of your testimony,

      21      you talked about 172-day time period.

      22             That's about a six-month time period, from a

      23      complaint being registered, to a final

      24      determination.

      25             Is that correct?







                                                                   68
       1             D.C. MELISSA FRANCO:  I'm Franco, and it was

       2      my testimony.

       3             Yes, it's about six months.

       4             ASSEMBLYMAN QUART:  About six months.

       5             Where in that timeline, generally, is the

       6      probable-cause determination?

       7             D.C. GINA MARTINEZ:  At about the end of it,

       8      that's it's when -- the determination is made, the

       9      172 days.

      10             ASSEMBLYMAN QUART:  So somewhere, month five,

      11      month six, is that fair to say?

      12             D.C. GINA MARTINEZ:  Yes.

      13             ASSEMBLYMAN QUART:  What happens to the

      14      complainant for the first five months while he or

      15      she waits for adjudication?

      16             D.C. GINA MARTINEZ:  Well, we keep in touch

      17      with the complainant, generally.  They can contact

      18      us.  They know who's assigned to their case; the

      19      investigator that's assigned to their case.

      20             They can --

      21             ASSEMBLYMAN QUART:  You keep in touch with

      22      the complainant?

      23             That's -- let me ask it a different way.

      24             D.C. GINA MARTINEZ:  Okay.

      25             ASSEMBLYMAN QUART:  What regulations exist,







                                                                   69
       1      what statutory -- what regulations exist under your

       2      statutory mandate that allow you to prevent

       3      irreparable harm from the complainant during that

       4      five or six months while you wait to make -- while

       5      you investigate, and then make a determination on

       6      probable cause?

       7             D.C. GINA MARTINEZ:  The only statutory

       8      protection that exists is the anti-retaliation

       9      protection that we have --

      10             ASSEMBLYMAN QUART:  So there's no --

      11             D.C. MELISSA FRANCO:  -- where the respondent

      12      is informed that, if they do retaliate against the

      13      complainant for filing a complaint, an additional

      14      action may be brought against them.

      15             ASSEMBLYMAN QUART:  So other than laws

      16      against retaliate -- retaliatate (ph.) --

      17             D.C. GINA MARTINEZ:  Retaliation.

      18             ASSEMBLYMAN QUART:  -- retaliatory laws --

      19             D.C. GINA MARTINEZ:  Yes.

      20             ASSEMBLYMAN QUART:  -- statutes --

      21             D.C. GINA MARTINEZ:  Yes.

      22             ASSEMBLYMAN QUART:  -- do any regulations

      23      exist that allow you, as an agency, to take

      24      preventive action within that 150-day time period to

      25      prevent that complainant from a worsening condition,







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       1      an exacerbation, of why they came to you in the

       2      first place?

       3             D.C. MELISSA FRANCO:  Not that I'm aware of,

       4      no.

       5             ASSEMBLYMAN QUART:  Do you think that would

       6      be a welcomed area that we should legislate in, to

       7      give you greater tools to prevent irreparable harm,

       8      from someone who comes forth and complains, while

       9      you investigate and make a determination on probable

      10      cause?

      11             D.C. GINA MARTINEZ:  That is something to be

      12      considered.

      13             ASSEMBLYMAN QUART:  Thank you.

      14             SENATOR BIAGGI:  Before I hand the microphone

      15      over to Senator Krueger, I just want to make one

      16      comment about what Senator Liu had said.

      17             You had made a comment about being neutral on

      18      the cases.

      19             But it is your job to not to be neutral on

      20      the law.

      21             In fact, as a former counsel and staffer in

      22      Governor Cuomo's counsel's office, one of the things

      23      I did, in fact, when the legislators ended their

      24      session and the bills came to our desk, was I called

      25      the agencies right away, and they weighed in on all







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       1      of the bills.

       2             And, in fact, as a non-subject-matter expert

       3      on many of the bills, the agencies were my allies

       4      and my strongest supporters on those topics.

       5             And without them, the bills wouldn't have

       6      been able to have been passed.

       7             And so I would actually disagree that you

       8      can't be neutral.  In fact, I would implore you to

       9      not to be neutral, because you can't fully

      10      effectuate your roles.

      11             And we, as the Legislature, need your

      12      opinions because, if not you, then who; who should

      13      we go to?

      14             Senator Krueger?

      15             SENATOR KRUEGER:  Thank you, Senator.

      16             Oh, I think this is working.

      17             Thank you.

      18             So it's -- mine is follow-up on a whole

      19      series of the questions.

      20             So given the problem we're hearing -- two

      21      parts of a problem:

      22             One:  Some employers saying, well, there are

      23      good policies now.  There's no reason anyone ever

      24      have to go sue, because they report to someone and

      25      it gets taken care of.







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       1             And then you have the reality that, because

       2      we have the Faragher-Ellerth defense as a viable

       3      employer stance regarding sexual harassment, if the

       4      employee is just completely confused about what

       5      harassment policy is, and where they're supposed to

       6      go, and how they're supposed to report, that the

       7      burden of proof falls on them, and they failed to

       8      meet their responsibilities to report and complain

       9      harassment.

      10             So I want to ask the three of you:  If you

      11      were victims of sexual harassment, and you've

      12      already answered that it's the person's

      13      determination whether they go to courts or whether

      14      they go to one of your agencies, if it was one of

      15      you, would you go to your agency or would you go to

      16      the courts?

      17             D.C. DANA SUSSMAN:  Well, it's hard to be

      18      unbiased.

      19             You know, I think that there -- there's

      20      strengths to either -- or, there's reasons to choose

      21      your venue.

      22             I think what's important here, too, to

      23      recognize is that, while the agencies enforce

      24      their -- our own anti-discrimination laws, courts

      25      are also interpreting these same laws.







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       1             So while the state division is committed to

       2      interpreting the law quite broadly and protectively,

       3      as is the commission, we have no say or influence

       4      over state court judges or federal judges in how

       5      they interpret the standards.

       6             So these standards that you're debating today

       7      will not just impact our work, or the state

       8      division's work, but how judges interpret the laws.

       9             And that's where we see the real stark case

      10      law in which a City Human Rights Law claim survives

      11      a motion to dismiss or a summary judgment, and a

      12      State Human Rights Law claim does not, for the same

      13      behavior, because one standard is so much -- is

      14      higher than the other.

      15             So I think that's an important thing to

      16      recognize, that when you go to state court, you can

      17      bring a City Human Rights Law claim, you can bring a

      18      State Human Rights Law claim, but you may not

      19      prevail on your State Human Rights Law claim as it

      20      currently is interpreted by case law because the

      21      standard is quite different.

      22             I think it's about -- it's all -- it's very

      23      much about resources, and I think it's also very

      24      much about -- about how public the process is.

      25             At the city commission, there's no public







                                                                   74
       1      filing.  There is no online, you know, database

       2      where you could search for someone's complaint.

       3             That may happen some day, and, certainly, we

       4      are subject to FOIL when the case is closed.

       5             But, if you want to -- if -- when you file

       6      with the commission, it's, essentially, a document

       7      that you sign on that -- that an attorney drafts,

       8      and it's served on the responding party.

       9             So it's not -- you can make it public.  It's

      10      not as though anyone is prevented from making it

      11      public.  And the respondent will know.  But it is

      12      not, sort of, going to court and having it be in a

      13      public forum in the same way.

      14             So I think it's both about resources and it's

      15      about how public you wish to be, and many other

      16      factors.

      17             But, I'll leave it at that.

      18             SENATOR KRUEGER:  Other lady?

      19             D.C. MELISSA FRANCO:  Sure -- you want to go

      20      ahead?  Go on.

      21             D.C. GINA MARTINEZ:  Well, I would file with

      22      my agency, given the timing of the investigations,

      23      how quickly they are investigated; and the

      24      probable-cause rate at 25 percent; and the fact that

      25      I know that my staff is very well equipped to handle







                                                                   75
       1      these cases, and trained.

       2             I believe that my agency is the best to

       3      handle my claim.

       4             D.C. MELISSA FRANCO:  For myself, speaking

       5      from personal experience, I was the victim of

       6      discrim -- of sexual harassment.  I chose to file

       7      with my employer first.  Then I consulted with an

       8      attorney, and took it from there.

       9             SENATOR KRUEGER:  So you're, all three, in a

      10      situation also where you work for the agency that's

      11      supposed to being overseeing these cases, but that

      12      doesn't necessarily make you that different than

      13      people I've heard from who work for -- who have

      14      worked for the executive, agencies, or the

      15      Legislature.

      16             Or even, today, we had more exposures about

      17      the Harvey Weinstein case, where you had people

      18      working for very powerful people.

      19             And we've already learned that you can't

      20      necessarily do anything to protect them for five,

      21      six months, even if you're taking the case.

      22             I guess I don't understand why I wouldn't try

      23      to go to a court to get resolution, rather than face

      24      the problems inherent of going to an agency that is

      25      overseen, or agencies that are overseen, by people







                                                                   76
       1      who may be the ones committing the crimes.

       2             So I -- again, I do -- I don't want to have

       3      not multiple options for people.

       4             But I think, particularly because of the

       5      failure to eliminate the Faragher-Ellerth defense,

       6      we are putting victims between a rock and hard

       7      place, where one or the other decision might be the

       8      right one or the wrong one at that moment, but they

       9      can just get caught in -- what's that sci-fi movie

      10      loop, where you just --

      11             I don't -- I'm not good at sci-fi, so I'm

      12      sorry I made the reference.

      13                [Laughter.]

      14             SENATOR KRUEGER:  -- but you're just caught

      15      in this loop.

      16             OFF-CAMERA SPEAKER:  Inception?

      17             SENATOR KRUEGER:  John Liu, do you --

      18             OFF-CAMERA SPEAKER:  I think you're right.

      19             SENATOR LIU:  "Liu."  It's not "Loop."

      20             SENATOR KRUEGER:  -- that loop -- okay, no,

      21      I wasn't attacking you, John Liu.

      22             "Loop."

      23                [Laughter.]

      24             SENATOR KRUEGER:  My colleagues, it's very

      25      hard to work with them.







                                                                   77
       1                [Laughter.]

       2             SENATOR KRUEGER:  Well, you get caught in a

       3      loop, and you've got time frames, and you're not

       4      allowed to do both.

       5             And so I really think this is a critical part

       6      of our assignment as a legislator, to figure out and

       7      make sure that we aren't leaving victims in

       8      different scenarios where neither option is really

       9      the right option, and they're left hanging out

      10      there, and they, potentially, can lose all their

      11      rights and protections, because we didn't make the

      12      law clear enough about what path is the correct path

      13      to take to be protected, and to ensure that you have

      14      rights, and that you don't end up losing your job

      15      when someone else was at fault.

      16             So I think that's what I'm struggling to try

      17      to get an understanding of today from you all.

      18             Thank you.

      19             ASSEMBLYMAN CRESPO:  Assemblywoman Walker.

      20             ASSEMBLYWOMAN WALKER:  Thank you to our

      21      Co-Chairs, and to the witnesses here today for your

      22      testimony.

      23             One of the -- I guess, one of the major

      24      concerns that I have with respect to these issues

      25      are regarding nondisclosure agreements.







                                                                   78
       1             And I understand now that these are

       2      instruments that are frowned upon.

       3             And, you know, we hope, that when litigants

       4      are coming to their settlement arrangements, that

       5      they are instruments that are no longer being

       6      utilized.

       7             When parties are settling, do you have an

       8      opportunity to review their settlement agreements in

       9      order to ensure that NDAs are not used either

      10      affirmatively or in a -- or in a nondescript manner?

      11             D.C. DANA SUSSMAN:  When cases are resolved

      12      through the commission process and a conciliation

      13      agreement is negotiated, that's an agreement between

      14      the complainant, the respondent, and commission.

      15      There is no nondisclosure provision.  It's against

      16      the public interest.

      17             The commission is not prevented from talking

      18      about the case, the complainant or the respondent

      19      are not prevented from talking about the case.

      20             Parties can negotiate -- request to remove

      21      their case from our office and negotiate their own

      22      settlement.

      23             And, currently, that could involve, from what

      24      I understand, nondisclosure agreements in a sort of

      25      private settlement posture.







                                                                   79
       1             The commission still retains the ability to

       2      continue the investigation of the workplace.

       3             If we understand that this is not an isolated

       4      situation, we can continue to work to ensure

       5      training; monitoring; potentially, civil penalties.

       6      We can reach out to see if there are other victims.

       7             But if the parties -- if the two parties

       8      specifically remove the case to negotiate their own

       9      resolution, there may be an NDA in there.

      10             But cases that are resolved through the

      11      commission, there is no nondisclosure provisions in

      12      those agreements.

      13             D.C. GINA MARTINEZ:  With the State, where

      14      there is a settlement agreement done at the regional

      15      level, which is during the investigative stage, the

      16      division is a party to that agreement, so we review

      17      all the provisions.  And the NDA is only a part or a

      18      separate agreement at the -- if it's the

      19      complainant's preference.

      20             As with the city commission, if the

      21      complainant and the respondent wish to enter into a

      22      private agreement, we are not a party to that, and

      23      that is a separate issue.

      24             And we let them know that we cannot enforce

      25      that.







                                                                   80
       1             So if the respondent agrees to do something,

       2      and then they fail to do it, we cannot enforce that.

       3             So with agreements where the case is settled

       4      before a determination is made, you know, before the

       5      investigation is completed, yes, we make sure that

       6      there are no NDAs in there, unless the complainant

       7      wants it.

       8             D.C. MELISSA FRANCO:  It's the same for post

       9      determination as well, it really is the

      10      complainant's preference.

      11             The assigned division attorney explains to

      12      them the ramifications of having one in or not

      13      having one in.

      14             But, again, it is the complainant's

      15      preference that dictates it.

      16             ASSEMBLYWOMAN WALKER:  So even in -- even in

      17      an instant, because I believe I read that if a

      18      complainant does not have an attorney, then the

      19      agency provides them an attorney?  Is that --

      20             D.C. MELISSA FRANCO:  That is correct, and

      21      that's after there is a post determination.

      22             So for the settlement conferences, post

      23      determination, as well as the hearing, an attorney

      24      is assigned to the case.

      25             ASSEMBLYWOMAN WALKER:  So, ultimately, the







                                                                   81
       1      attorney that's assigned has an ability to have a

       2      conversation with the complainant about NDAs, or

       3      encourage them or discourage them, or whatever; but,

       4      either way, they still have the ability to enter

       5      into these types of agreements on behalf of a

       6      complainant?

       7             D.C. MELISSA FRANCO:  Again, the attorneys

       8      do -- when they do reach a settlement in principle,

       9      and, let's say, and they reduce it to writing, we do

      10      send the documents to the complainant.  We go

      11      through each -- all the terms of the settlement,

      12      explain each term to them, including a potential

      13      confidentiality agreement, and explain what would

      14      happen if they agree to it, and what they don't if

      15      they didn't agree to it.

      16             ASSEMBLYWOMAN WALKER:  Have there been

      17      instances where perhaps someone agreed to a

      18      nondisclosure agreement, and then came back again to

      19      the agency, to say, you know, I made a mistake; or,

      20      you know, I want to -- you know, I want say

      21      something, I want to tell someone something?

      22             Have you seen them sort of, you know, recant,

      23      I guess, their feelings with respect to entering

      24      into such an agreements?

      25             D.C. MELISSA FRANCO:  Not that I am aware of.







                                                                   82
       1             D.C. GINA MARTINEZ:  I have not been made

       2      aware of any, any of those instances.

       3             ASSEMBLYWOMAN WALKER:  Do you believe that

       4      we, as a state, should allow liquidated damages if a

       5      victim decides to speak about their experiences?

       6             D.C. MELISSA FRANCO:  I'm sorry, can you

       7      repeat that one more time?

       8             ASSEMBLYWOMAN WALKER:  Do you believe, as a

       9      state, that we should allow liquidated damages if a

      10      victim decides to speak about their experiences with

      11      re -- when there is an NDA agreement established?

      12             D.C. MELISSA FRANCO:  I've never had to deal

      13      with that, so I'm thinking about it a second.  I've

      14      never had that issue brought to me.

      15             So, if you could just give me a moment.

      16             ASSEMBLYWOMAN WALKER:  Perhaps because

      17      there's an NDA?

      18                [Laughter.]

      19             D.C. MELISSA FRANCO:  Not right now.

      20             I mean, it's something to be considered, but,

      21      I take no position on that.

      22             ASSEMBLYWOMAN WALKER:  Say that again?

      23             D.C. MELISSA FRANCO:  I said, it's something

      24      to be considered, but, you know, having not thought

      25      about that, I can't really, like, give an informed







                                                                   83
       1      opinion about it, not knowing the pros and the cons,

       2      and having had time to think about it.

       3             ASSEMBLYWOMAN WALKER:  I guess it's just sort

       4      in the era of, you know, time's up, and, you know,

       5      and -- and encouraging individuals who have gone

       6      through these experiences to -- to come out, and

       7      utilize their story to help other people who are

       8      going through them.

       9             Or, in many instances, it's therapeutic just

      10      for themselves, to be able to have a forum by which

      11      they are able to engage about their experiences, not

      12      just with the sexual assault or harassment that

      13      they've gone through, but, also, as -- you know, to

      14      speak about their experiences through the process,

      15      even with your agencies.

      16             So -- so it's just -- you know, I guess my

      17      concern is, is that we are, as a state, sort of

      18      allowing for, I don't know, the victimization of an

      19      individual to be muted.

      20             And so I'm just trying to figure out, like,

      21      how, or what is it that we can do, in order to

      22      encourage more individuals to come forward, as

      23      opposed to saying, that there's this forum that's

      24      available to you to adjudicate your claims, but once

      25      you go through the process, don't ever talk about







                                                                   84
       1      this again.

       2             And, I mean, it's something that happens in

       3      families.

       4             And I just don't think that it's something

       5      that should -- it happens in church, it happens in

       6      schools, it happens in communities.

       7             And I just don't think that it's something

       8      that we should be allowing, condoning, and, also, as

       9      in the case of the attorneys, really encouraging

      10      someone in their professional lives and in their

      11      careers to be supportive of.

      12             So those are just my thoughts.

      13             And, thank you.

      14             SENATOR BIAGGI:  Senator Carlucci.

      15             SENATOR CARLUCCI:  Thank you.

      16             I want to thank the Co-Chairs, and thank you

      17      Commissioner Sussman, and Commissioners Franco and

      18      Martinez, for testifying here today.

      19             And I share my colleagues' sentiment, and the

      20      frustration, that we want to work together to pass

      21      important legislation.  And we're -- we're excited

      22      about a package of legislation put forth by

      23      Senator Biaggi, that we believe will truly make an

      24      impact in helping and protect survivors.

      25             And to that effort, I'll ask a few questions,







                                                                   85
       1      just to see what guidance we could get.

       2             You know, some of the alarming things that

       3      stand out, of many, but one I'll focus in on, in

       4      terms of statute of limitations, when we talk about

       5      the "one year," and I know it was asked by some of

       6      my colleagues this morning, what would be some of

       7      the unforeseen consequences of extending the statute

       8      of limitations?

       9             And I know it was said that, as time passes,

      10      memories become foggy, not as clear, and that's

      11      understandable; or, that documents might not exist

      12      anymore.

      13             What I'm thinking about is where the memory

      14      is clear three years later, or 12 -- 13 months

      15      later, the documents still are intact, and we've

      16      totally shut the door.

      17             That concerns me, and I think it concerns

      18      many members here today, and looking to extend that

      19      statute of limitations.

      20             Could you give us any type of guidance in

      21      that direction, or things that we should be

      22      concerned about?

      23             D.C. GINA MARTINEZ:  Well, if the statute of

      24      limitations were to be extended, I think, assuming

      25      we could actually find the respondent, and other







                                                                   86
       1      witnesses, then more complaints would be filed.

       2      Obviously, you know, you'd be opening the door to

       3      additional complaints.

       4             But I think, as Commissioner Franco said

       5      before, the concern, and this is a concern in

       6      litigation as well, is that, right, memories do go

       7      stale; respondents go out of business, people die.

       8             It's not that, you know, we're looking to

       9      limit the amount of complaints that we get.  That's

      10      not the case at all, we're not doing that.

      11             It's just that this is -- this is the amount

      12      of time that we've been given.

      13             But, by giving, you know, the additional

      14      time, you're right, we would be getting more

      15      complaints.  The numbers wouldn't necessarily go up

      16      with probable-cause rates.  We would just be getting

      17      more complaints.

      18             But, again, I can't take a position on that.

      19             But if you were to do that, we would

      20      absolutely be open to more investigations.

      21             SENATOR CARLUCCI:  So I'm just trying to

      22      understand that --

      23             D.C. GINA MARTINEZ:  Sure.

      24             SENATOR CARLUCCI:  -- some of the concerns

      25      would be, yes, you would be dealing with a bigger







                                                                   87
       1      caseload.

       2             D.C. GINA MARTINEZ:  Absolutely bigger

       3      caseload.

       4             SENATOR CARLUCCI:  That --

       5             D.C. GINA MARTINEZ:  Resources.

       6             SENATOR CARLUCCI:  -- but any of these

       7      issues, like, a business going out of business --

       8             D.C. GINA MARTINEZ:  Yes.

       9             SENATOR CARLUCCI:  -- or someone passing

      10      away, I mean, that could happen at any time.

      11             D.C. GINA MARTINEZ:  At any time, yes.

      12             But, then, how do we redress the complainant

      13      when that happens --

      14             SENATOR CARLUCCI:  Well, how do you do it

      15      now?

      16             D.C. GINA MARTINEZ:  -- if the respondent

      17      dies --

      18             We can't, unfortunately.

      19             So the three years doesn't --

      20             SENATOR CARLUCCI:  Just to give that

      21      opportunity.

      22             D.C. GINA MARTINEZ:  -- sure, absolutely, the

      23      person is able to file the complaint, at least.

      24             But it's the same thing, right, with the

      25      "one year," if --







                                                                   88
       1             SENATOR CARLUCCI:  You know --

       2             D.C. GINA MARTINEZ:  -- go ahead, please.

       3             SENATOR CARLUCCI:  -- well, I was just moving

       4      on, unless you had any other --

       5             D.C. GINA MARTINEZ:  No, no, no.  Please.

       6             SENATOR CARLUCCI:  When we talk about the

       7      average determination, with 180 days, and -- or

       8      172 days, and we've seen the increase in the past

       9      year, has that number increased in the past year, or

      10      has that been the standard for the past few years?

      11             D.C. GINA MARTINEZ:  I'm sorry, has what

      12      number increased?

      13             SENATOR CARLUCCI:  You -- it says,

      14      "Currently, 97 percent of claims investigated by DHR

      15      are completed and determinations are made within

      16      180 days."

      17             D.C. GINA MARTINEZ:  Correct.

      18             SENATOR CARLUCCI:  And we know that, as was

      19      stated earlier, since 2016 --

      20             D.C. GINA MARTINEZ:  Yes.

      21             SENATOR CARLUCCI:  -- the amount of

      22      complaints have increased by over 60 percent.

      23             D.C. GINA MARTINEZ:  Yes.

      24             SENATOR CARLUCCI:  And so I'm just trying to

      25      understand that -- has that completion time of







                                                                   89
       1      180 days, has that increased since 2016, or has that

       2      stayed about the same?

       3             D.C. GINA MARTINEZ:  No, the -- the 172 days

       4      you're asking, has it increased?

       5             I think that's been -- that's been pretty

       6      steady.  We've been holding -- we've been doing very

       7      well with our investigation times --

       8             SENATOR CARLUCCI:  Okay.

       9             D.C. GINA MARTINEZ:  -- (indiscernible

      10      cross-talking).

      11             SENATOR CARLUCCI:  And then, in there, "We

      12      take into consideration that, if the investigator

      13      finds no probable cause, or lack of jurisdiction,

      14      that the complaint is dismissed."

      15             D.C. GINA MARTINEZ:  Yes.

      16             SENATOR CARLUCCI:  And, obviously, that's

      17      understandable.

      18             Probable cause would take some time to

      19      investigate, and 180 days sounds appropriate.

      20             When we talk about lack of jurisdiction --

      21             D.C. GINA MARTINEZ:  Yes.

      22             SENATOR CARLUCCI:  -- how long does that,

      23      usually, typically take?

      24             D.C. GINA MARTINEZ:  It depends on the

      25      circumstances.  It could take a lot less time.







                                                                   90
       1             I don't have the actual average number for

       2      LOJs, but we can safely say it takes less time

       3      (inaudible).

       4             SENATOR CARLUCCI:  What would be an example

       5      of a lack of jurisdiction?

       6             D.C. GINA MARTINEZ:  What's an easy one.

       7             The respondent is outside of the state.

       8             SENATOR CARLUCCI:  Okay.  And I'm just trying

       9      to figure out, because I think that would be simple

      10      to figure out --

      11             D.C. GINA MARTINEZ:  Yes, yes.

      12             SENATOR CARLUCCI:  -- and it wouldn't take

      13      180 days.

      14             D.C. GINA MARTINEZ:  Yes.

      15             SENATOR CARLUCCI:  Okay.

      16             D.C. GINA MARTINEZ:  Yeah.

      17             Or we are outside of the statute of

      18      limitations.

      19             SENATOR CARLUCCI:  And that's, jurisdiction

      20      includes the statute of limitations?

      21             D.C. GINA MARTINEZ:  Yes.

      22             SENATOR CARLUCCI:  Do you have any ideas of

      23      how many reports are filed each year that are

      24      actually outside the statute of limitations, or are

      25      you trying to deny those from even being filed in







                                                                   91
       1      the first place?

       2             D.C. GINA MARTINEZ:  No, we take all

       3      complaints.  We never turn anyone away.

       4             But I don't have the number regarding how

       5      many cases come in --

       6             SENATOR CARLUCCI:  If it's possible to get --

       7             D.C. GINA MARTINEZ:  -- over the one year.

       8             SENATOR CARLUCCI:  -- that information, that

       9      would be helpful.

      10             D.C. GINA MARTINEZ:  Sure.

      11             SENATOR CARLUCCI:  And then when there is the

      12      lack of jurisdiction, and let's say it's not because

      13      of statute of limitations, but it's because it's

      14      actual jurisdiction, but there might possibly be a

      15      claim that is eligible to be filed, are you able to

      16      walk that person through the process of what they do

      17      if it's not within your jurisdiction?

      18             Is there any mechanism to help them file the

      19      appropriate complaint, maybe with another

      20      jurisdiction?

      21             D.C. GINA MARTINEZ:  Yes.

      22             So we have, when a complainant comes in to

      23      file the complaint, or even when they call in to

      24      inquire about the process, we will let them know --

      25      we'll ask them about the facts of their case, and







                                                                   92
       1      we'll let them know, if they don't -- if they can't

       2      file a complaint, or, if they don't want to pursue

       3      our process, these are the other available avenues

       4      for them.  And then we can give them their phone

       5      number as well.

       6             We do give them their information.

       7             SENATOR CARLUCCI:  And then just one last

       8      question:  When there is a determination of probable

       9      cause and the case is moving forward, do you have an

      10      idea of what percentage of people are represented by

      11      private counsel as opposed to you providing counsel?

      12             D.C. GINA MARTINEZ:  I don't -- when they

      13      file the complaint?

      14             SENATOR CARLUCCI:  No, actual -- after

      15      probable cause.

      16             D.C. GINA MARTINEZ:  Post probable cause?

      17             SENATOR CARLUCCI:  Yeah.

      18             SENATOR BIAGGI:  I don't have that number

      19      with us, but we can get that to you.

      20             SENATOR CARLUCCI:  Okay.

      21             Okay, thank you.

      22             Thank you, Chairman.

      23             ASSEMBLYMAN CRESPO:  Assemblywoman Simon.

      24             ASSEMBLYWOMAN SIMON:  Yes, thank you.

      25             Okay, thank you very much.







                                                                   93
       1             I have a couple of quick questions for you.

       2             Now, the State has already commented about

       3      the -- when the statute of limitations begins to

       4      run; it's the last discriminatory act.

       5             I just wanted to ask the City, is that also

       6      the case?

       7             D.C. DANA SUSSMAN:  That's correct, the last

       8      discriminatory act.

       9             And we can reach back further in time if it's

      10      a continuing violation, a pattern or practice of

      11      behavior.

      12             ASSEMBLYWOMAN SIMON:  And you're taking a

      13      liberal view of a "continuing violation"?

      14             D.C. DANA SUSSMAN:  We do, yes.

      15             ASSEMBLYWOMAN SIMON:  Okay.

      16             D.C. MELISSA FRANCO:  We do as well at the

      17      State.

      18             ASSEMBLYWOMAN SIMON:  Okay.

      19             Well, that's good to know.

      20             It would be nice if the feds did the same

      21      thing.

      22             The other -- another question I have is:  Do

      23      you have any data with regard to the industries from

      24      which these complaints emanate?

      25             So, for example, higher education, there are







                                                                   94
       1      a lot of employment cases, but also other forms of

       2      harassment cases, within institutions of higher

       3      education, which are, actually, fairly major

       4      employers in a whole host of fields.

       5             So I'm particularly curious about higher

       6      education, for some other reasons.

       7             And I'm curious whether you have that data?

       8             D.C. MELISSA FRANCO:  Do not have that data

       9      with us.

      10             ASSEMBLYWOMAN SIMON:  Do you collect that

      11      type of data?

      12             D.C. MELISSA FRANCO:  Well, we just actually

      13      got back jurisdiction for the public schools.

      14             So when you say "higher education," are you

      15      talking about the colleges?

      16             ASSEMBLYWOMAN SIMON:  Colleges and

      17      universities.

      18             D.C. MELISSA FRANCO:  It may be possible for

      19      us to pull that kind of data.

      20             So when I go back, I will find out if it can

      21      be.

      22             ASSEMBLYWOMAN SIMON:  Wonderful; if you do

      23      have the data, I would like to see that.

      24             And then the other question I have for the

      25      State:







                                                                   95
       1             We've talked a little bit about matters

       2      relating to the budget.

       3             And last year I know, in the budget, we

       4      provided funding for three additional attorneys,

       5      I believe, because we were expanding the policies

       6      and requiring the training, and anticipated that

       7      there would be more complaints.

       8             My question is:  What about investigators?

       9             Do you need investigators?

      10             How many more investigators?

      11             I've heard various reports from colleagues

      12      who are practicing in the field, that they believe

      13      more investigators are needed.

      14             D.C. GINA MARTINEZ:  Do you want my wish

      15      list?

      16             ASSEMBLYWOMAN SIMON:  Yes.

      17                [Laughter.]

      18             D.C. GINA MARTINEZ:  Well, to start with,

      19      I would love an additional investigator in every

      20      regional office, absolutely.

      21             ASSEMBLYWOMAN SIMON:  There's 13 regional

      22      offices?  Is that --

      23             D.C. GINA MARTINEZ:  There's 12 regional

      24      offices around the state, yeah.

      25             I think that would be highly beneficial for







                                                                   96
       1      our staff, to kind ease the caseload for everyone.

       2             Ultimately, my wish list is to open

       3      additional regional offices as well.

       4             But I -- I think that, you know, the more --

       5      and I'm sure we'll talk about the outreach in

       6      education that we do.

       7             The more that we do outreach and education,

       8      and we do -- we have a new commissioner, who has big

       9      plans for outreach and education in the future.

      10             And the more outreach and education that we

      11      do, I have a feeling that our 6,000 is going to

      12      skyrocket.

      13             So, I might be better off asking for two or

      14      three additional investigators in every office right

      15      now, if I could predict the future.

      16             We are planning robust outreach and education

      17      all over the state, in hard-to-reach areas,

      18      hard-to-reach populations, that -- where there are

      19      individuals that maybe, necessarily, haven't been

      20      made aware of our process, and who should be made

      21      aware.

      22             So, you know, with this 6,000 complaints that

      23      we get every year, and this 62 percent increase,

      24      I absolutely expect that that will continue to go

      25      up.







                                                                   97
       1             ASSEMBLYWOMAN SIMON:  I just, yesterday, was

       2      speaking with a group of -- who represents

       3      merchants, for example, in a business-improvement

       4      district.  And many of them are small employers,

       5      some of them are larger employers.  And they're all

       6      very confused about the sexual-harassment

       7      provisions.

       8             D.C. GINA MARTINEZ:  Right.

       9             ASSEMBLYWOMAN SIMON:  And were -- they have,

      10      in fact, engaged someone to do training, and so

      11      they've been through training.

      12             But it's very difficult, often, to get shop

      13      owners, for example, to participate in these

      14      programs because they can't leave their businesses

      15      to do that.

      16             And they expressed an interest to have more

      17      robust communications from the State and the City

      18      with regard to these requirements, so that they

      19      could better help their members comply with the law.

      20             So I just wanted to throw that out there for

      21      your consideration.

      22             D.C. GINA MARTINEZ:  Thank you.

      23             And that's exactly the kind of information

      24      that we want to know, so that we can actually go out

      25      there and engage those different organizations.







                                                                   98
       1             That's very helpful.

       2             D.C. DANA SUSSMAN:  And just from the City

       3      side, we will be sending out mailers to all

       4      department of finance-identified businesses, with a

       5      focus on small businesses, in English and Spanish,

       6      which lays out all of the new City requirements,

       7      including providing the English and Spanish poster

       8      that must go up in all businesses, and links to the

       9      online training that we have, which I mentioned is

      10      optimized for smartphone use.

      11             We anticipate people will take it on phones,

      12      crowd around one screen together, take it together,

      13      which is totally compliant.

      14             And so we're trying to make -- we understand

      15      and recognize that laws are changing rapidly.  Very

      16      few small businesses have access to legal counsel to

      17      guide them.

      18             And that we want to work with small

      19      businesses, and provide as much information as we

      20      can, given the resources, to get them up to speed.

      21             ASSEMBLYWOMAN SIMON:  And if I may, just --

      22      and this will be my last point, one of the concerns

      23      that was expressed to me yesterday in this meeting,

      24      was that the department of finance's records for the

      25      addresses of owners, for example, that they would







                                                                   99
       1      send this information to, are hopelessly out of

       2      date.  And that the bids are getting a lot of

       3      returned address -- returned mail, and have no idea

       4      how to reach out to the owners.

       5             And so perhaps you might encourage the

       6      department of finance to step up some efforts to

       7      clarify their records.

       8             D.C. DANA SUSSMAN:  That's helpful.  Thank

       9      you.

      10             ASSEMBLYWOMAN SIMON:  Thank you.

      11             SENATOR BIAGGI:  Senator Mayer.

      12             SENATOR MAYER:  Thank you.

      13             I have a question for the division of human

      14      right's staff.

      15             Within your practice, if you get a complaint

      16      that -- while the person may come to you, thinking

      17      it belongs in your bailiwick, upon review, it is a

      18      potential criminal action, or, potentially, a

      19      criminal action, by the accused, do you ever refer

      20      matters to the district attorney of the county in

      21      which this occurs?

      22             D.C. MELISSA FRANCO:  It's our practice, if

      23      we do come across that -- it's not often that I have

      24      come across it -- but we do, depending on what the

      25      facts are, it could be that I will call the district







                                                                   100
       1      attorney's office and let them know, or, I will

       2      refer it to -- I will inform the complainant that

       3      they should call the district attorney's office.

       4             SENATOR MAYER:  Do you know how many times

       5      the division has referred matters to the district

       6      attorney's office in the past year?

       7             D.C. MELISSA FRANCO:  In my own experience,

       8      just once.

       9             SENATOR MAYER:  Would you support legislation

      10      that explicitly directed the division to report

      11      potential criminal acts to the district attorney?

      12             D.C. MELISSA FRANCO:  It's our practice to do

      13      that.

      14             SENATOR MAYER:  Yeah, but not -- I'm sorry.

      15             D.C. MELISSA FRANCO:  Whether or not

      16      legislation is warranted --

      17             SENATOR MAYER:  I'm asking you --

      18             D.C. MELISSA FRANCO:  -- I don't know, but it

      19      is our practice.

      20             SENATOR MAYER:  -- as someone who gets these

      21      complaints.

      22             This is important.

      23             Someone might come to me and say, This

      24      happened.  I'm going to call the division of human

      25      rights.







                                                                   101
       1             That's all they know.  They don't really know

       2      it may be criminal.

       3             You are the experts in the field.

       4             I'm asking if it would be helpful.

       5             I understand your reluctance to talk about

       6      any legislation, which I would acknowledge with my

       7      colleague Senator Liu, that Executive Law 290,

       8      subdivision 3, and, Article 15 of the Human Rights

       9      Law, makes clear the division is not a neutral

      10      player.  It has a function and a mission.

      11             D.C. MELISSA FRANCO:  Poor choice of words

      12      I guess I used earlier today.  So I apologize.

      13             SENATOR MAYER:  Yes.

      14             But that being said, this agency, and I've

      15      been around long enough to know, was established

      16      with the mission of addressing discrimination in

      17      New York State.

      18             So I would respectfully suggest that your

      19      reluctance to talk about how to improve the law is

      20      not consistent with the mission of the agency.

      21             The second thing is:  Do you ever refer cases

      22      to the attorney general's office when you see a

      23      pattern and practice?

      24             Well, let's say someone calls and they say,

      25      Oh, no, three other people in my shop have the same







                                                                   102
       1      problem with this guy.

       2             You have the authority to have them

       3      individually hire -- file a complaint.

       4             But the attorney general's office can bring

       5      an injunctive action immediately if there's a

       6      pattern and practice.

       7             Do you ever refer matters to the civil rights

       8      bureau?

       9             D.C. MELISSA FRANCO:  We have not.

      10             We have our division-initiated investigation

      11      unit, where we look for systemic cases, and

      12      investigate them, and bring them on behalf of the

      13      State.  So we handle those cases that way.

      14             Uhm --

      15             SENATOR MAYER:  But you --

      16             D.C. MELISSA FRANCO:  -- I'm sorry, go ahead.

      17             SENATOR MAYER:  -- can't go directly into

      18      court?

      19             D.C. MELISSA FRANCO:  Unless it's a housing

      20      case and we filed a complaint.

      21             SENATOR MAYER:  No, no, on these sexual

      22      harassment cases.

      23             D.C. MELISSA FRANCO:  Cannot, no.

      24             SENATOR MAYER:  So would it be helpful, and

      25      strengthen the mission of the agency, to have







                                                                   103
       1      direction, that when there is two or more

       2      individuals with a similar complaint, that you be

       3      directed to file with the attorney general's office,

       4      a notice, so that they can go to court immediately,

       5      to Mr. Quart's issue, and address some systemic

       6      problem that is at -- potentially could impact them?

       7             Would that legislation be helpful?

       8             D.C. MELISSA FRANCO:  Just give me one

       9      second, please?

      10             SENATOR MAYER:  Sure.

      11             D.C. GINA MARTINEZ:  I just want to make sure

      12      I understand what you're saying.

      13             Would a directive to the division of human

      14      rights, where two or more cases --

      15             SENATOR MAYER:  A legislative change.

      16             D.C. GINA MARTINEZ:  Right.

      17             -- two or more cases filed against a

      18      respondent be sent to the attorney general?

      19             SENATOR MAYER:  Could be referred to the

      20      attorney general.

      21             D.C. GINA MARTINEZ:  Could be?

      22             SENATOR MAYER:  Yes.

      23             D.C. GINA MARTINEZ:  Could be?

      24             My hesitation in saying absolutely yes is the

      25      "two or more cases."







                                                                   104
       1             Two or more cases doesn't nec -- it's -- you

       2      know, all of the cases, and -- all of the cases that

       3      we look at are fact- and circumstance-specific.

       4             And I don't necessarily know that we don't

       5      have the capacity to handle those cases.

       6             And I don't necessarily know that the

       7      attorney general would deem those cases something

       8      that they want to handle.

       9             So I don't know that we need a directive.

      10             I think that we have the discretion, and we

      11      use the discretion properly to handle cases the way

      12      we deem fit.

      13             And if we have to refer cases out, I think we

      14      do so appropriately.

      15             SENATOR MAYER:  But you dodge -- you can't

      16      bring an action for immediate injunctive relief,

      17      civilly?

      18             Correct?  Right?

      19             D.C. GINA MARTINEZ:  Yeah, that is correct.

      20             SENATOR MAYER:  Okay.

      21             And you mentioned you have your own

      22      sexual-harassment unit.

      23             Is that a physical --

      24             D.C. GINA MARTINEZ:  Yes, it's a physical

      25      office.







                                                                   105
       1             SENATOR MAYER:  Where is it?

       2             D.C. GINA MARTINEZ:  It's 55 Hanson Place in

       3      Brooklyn.

       4             SENATOR MAYER:  And how would --

       5             D.C. GINA MARTINEZ:  (Indiscernible)

       6      government building.

       7             SENATOR MAYER:  And how would someone know

       8      about it, a complainant?

       9             D.C. GINA MARTINEZ:  It's on our website.

      10      It's on our literature.  We let people know that it

      11      exists when we do outreach and education.

      12             They can call.  And if they let us know what

      13      the nature of their complaint is, we let them know

      14      that they can file directly at the office of

      15      sexual-harassment issues.  Or, they can file at any

      16      office, and it will be forwarded to that office for

      17      investigation.

      18             SENATOR MAYER:  Okay.  Thank you.

      19             D.C. GINA MARTINEZ:  You're welcome.

      20             ASSEMBLYMAN CRESPO:  Assemblyman Buckwald.

      21             ASSEMBLYMAN BUCHWALD:  Thank you,

      22      Mr. Chairman, to you and your fellow co-chairs, for

      23      convening this hearing.

      24             And my thanks to all of the deputy

      25      commissioners for being here.







                                                                   106
       1             I'll be direct in my questions, primarily at

       2      our state deputy commissioners, not being myself a

       3      representative from New York City.

       4             I'll admit to being a little bit confused,

       5      first, on a point of basic math, which is, as

       6      earlier stated, and Chairman Crespo accurately

       7      calculated, that, with 6,000 individual

       8      complaints -- or, over 6,000 individual complaints,

       9      the 63 investigators, that works out to,

      10      approximately, 95 per investigator.

      11             And the response back was that, if you

      12      exclude housing, it would be about 50 to 60.

      13             But in the written testimony it says that,

      14      approximately, 80 percent of complaints relate to

      15      employment.

      16             So by my math, at least 76 complaints per

      17      investigator are those that exclude housing.

      18             So I just want to note that.

      19             Though my question, which also I'm at a point

      20      of confusion, relates to the questioning earlier

      21      from Senator Liu, and the observations made by a

      22      number of legislative colleagues, about the role the

      23      division plays with regards to recommendations for

      24      legislation.

      25             I'm aware that the division of human rights







                                                                   107
       1      itself puts out departmental bills, recommendations

       2      for legislation.

       3             My -- I guess my first question is:  Are

       4      either of you aware of how many bills, in total, the

       5      division has put forward this year to the

       6      Legislature?

       7             And secondary to that:  How many of those

       8      bills relate to sexual harassment?

       9             D.C. MELISSA FRANCO:  I do not.  I don't

      10      participate in that.  I don't.

      11             D.C. GINA MARTINEZ:  I am not aware of that

      12      either.

      13             ASSEMBLYMAN BUCHWALD:  Just based on public

      14      information, as far as I can tell, the division's

      15      put out at least four bills, in total.

      16             The only two bills that are published are --

      17      relate to housing discrimination, not the topic of

      18      this hearing directly.

      19             I guess what I don't understand, as a general

      20      matter, is how the response of the department, with

      21      regards to legislators' proposals, or public

      22      proposals, is, "we don't get involved in

      23      legislation."

      24             But, the division feels appropriate, and

      25      I think it is indeed appropriate, to put forward







                                                                   108
       1      legislation, another guise.

       2             I totally get that there might not be a total

       3      syncing, and any particular piece of legislation has

       4      to go through a review process.

       5             But there is a process, is there not, for the

       6      division to opine on legislation, and to come up

       7      with its own legislation?

       8             Are either of you aware of any discussions

       9      whatsoever in the division on putting forward

      10      legislation on this topic?

      11             D.C. MELISSA FRANCO:  I am not aware.

      12      I don't participate in that.  That would be our

      13      general counsel's office.

      14             So I don't have -- I'm not privy to it, so

      15      I don't know.

      16             D.C. GINA MARTINEZ:  We're not involved in

      17      those discussions.

      18             ASSEMBLYMAN BUCHWALD:  How is it possible

      19      that any part of the division could put forward

      20      legislation related to sexual-harassment

      21      enforcement, as is done, in general, through one of

      22      your offices, deputy commissioner, or through the

      23      regional offices, for the other deputy commissioner,

      24      without consulting either of you?

      25             Is it conceivable that some other part of the







                                                                   109
       1      division has put forward proposals, or is

       2      considering putting forward proposals, without

       3      consulting either of you on this topic?

       4             D.C. MELISSA FRANCO:  We are -- I oversee the

       5      attorneys and I do the DII.

       6             So, you know, we enforce it.  You know, here

       7      is our statutes, this is what we have to enforce,

       8      this is our process.

       9             It is conceivable that it happens.

      10             Again, I'm not a part of it.

      11             In the past, may -- I'm trying to think if

      12      I've participated in it, and I can't recall that,

      13      but I won't speak for Miss Martinez.  I don't know.

      14             D.C. GINA MARTINEZ:  Unfortunately, no, we're

      15      not involved in that process.

      16             We are involved in, respectively, overseeing

      17      our units.

      18             ASSEMBLYMAN BUCHWALD:  Would either of you

      19      plan, after today, to go to the able counsel, and

      20      others, maybe under the commissioner's direction,

      21      and inquire whether it's appropriate that, when

      22      proposals are put forward by the division to the

      23      Legislature, that some consultation be made with the

      24      folks out in the field that you help oversee?

      25             D.C. MELISSA FRANCO:  Sure, I'll let them







                                                                   110
       1      know.

       2             D.C. GINA MARTINEZ:  I believe that will take

       3      place after today.

       4             ASSEMBLYMAN BUCHWALD:  I suspect it might.

       5             On the other proposals that are -- have been

       6      put forward by the division, say, related to housing

       7      discrimination, which both your offices deal with as

       8      well, is there any consultation with your office?

       9             Some of these proposals have existed for a

      10      number of years.

      11             D.C. MELISSA FRANCO:  I was not consulted.

      12             ASSEMBLYMAN BUCHWALD:  Might then your

      13      inquiry already pending of supervisors and

      14      colleagues, with regards to consultation on

      15      sexual-harassment legislation, also extend to making

      16      sure the consultation extends on these other topics?

      17             Because, frankly, as a legislator, it is

      18      disheartening to learn that the imprimatur of the

      19      department, on the rare occasions when the

      20      department -- excuse me, the division -- on rare

      21      occasions when the division wants to get involved,

      22      it turns out, it is not based on the broad expertise

      23      of the division.

      24             Is that fair to say?

      25             D.C. GINA MARTINEZ:  I believe that we will







                                                                   111
       1      extend that discussion as well.

       2             ASSEMBLYMAN BUCHWALD:  And what -- what --

       3      I would, then, maybe, through the collective

       4      legislative Chairs, you know, request that, if at

       5      any point, the Assembly and Senate are informed of

       6      new proposals from the division, or updated

       7      proposals on the ones even outside the realm of

       8      sexual harassment that come from the division, that

       9      we learn whether those proposals are, in part,

      10      informed by the broader expertise.

      11             Which, in general, I commend.  The division

      12      has an office in my district in White Plains.  I'm,

      13      you know, very pleased that that's available to my

      14      constituents.

      15             Nonetheless, I'd like there to be some

      16      greater, you know, consultation between the handful

      17      of legislative proposals and what folks are

      18      experiencing out in the field.

      19             And, obviously, the broader point that

      20      colleagues have already made, which is, the division

      21      has the capacity to chime in on legislation.

      22             Maybe that's to create its own, and to leave

      23      legislators and the public to create their own, and

      24      so forth.

      25             I understand a lot of deference, certainly,







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       1      to our state's Chief Executive.

       2             And I'm not saying there shouldn't be

       3      consultation in that regard too, and shouldn't

       4      necessarily be divisions and departments going off

       5      on their own.

       6             But, nonetheless, I think the process has not

       7      been as robust, is could be to say the least.

       8             And unless there is any further comment,

       9      I yield back, and thank the Chairs for their time

      10      for these questions.

      11             SENATOR BIAGGI:  Thank you.

      12             I'm going to actually ask a few questions

      13      now, after hearing from several of my colleagues.

      14             So, I think I would like to begin with the

      15      State.

      16             In your testimony you mentioned that you

      17      spoke with survivor groups.

      18             Which survivor groups did you speak with?

      19             D.C. MELISSA FRANCO:  And that's the -- that

      20      was, I believe, when they were doing the drafting

      21      and the policymaking for the DOL.  We weren't

      22      involved in that part of the process.

      23             SENATOR BIAGGI:  Who was involved?

      24             D.C. MELISSA FRANCO:  That would be our

      25      general counsel's office, and perhaps our outreach







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       1      office.

       2             SENATOR BIAGGI:  How often do you communicate

       3      with your general counsel's office?

       4             D.C. MELISSA FRANCO:  Quite frequently on

       5      cases, and the stuff that we deal with, in terms of

       6      whether it's a matter of a particular case or a

       7      particular clause, but, for what we do.

       8             SENATOR BIAGGI:  So would it be common

       9      practice for your general counsel to ask you --

      10      either of you, what approach to take on a specific

      11      initiative, as this kind of laid out, so that he or

      12      she would be able to know what questions to ask or

      13      what issues have come up, probably because, I'm

      14      assuming, the general counsel is not in the field,

      15      but in an office?

      16             D.C. GINA MARTINEZ:  It would probably be

      17      more appropriate for the general counsel to consult

      18      with the outreach and education individuals.

      19             SENATOR BIAGGI:  And who -- who do the

      20      outreach and education individuals report to?

      21             D.C. GINA MARTINEZ:  The first deputy

      22      commissioner and the commissioner.

      23             SENATOR BIAGGI:  And who do both of you

      24      report to?

      25             D.C. GINA MARTINEZ:  I report to the first







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       1      deputy commissioner.

       2             D.C. MELISSA FRANCO:  And I report to the

       3      commissioner.

       4             SENATOR BIAGGI:  So, presumably, there is an

       5      opportunity in your communication structure where

       6      you are able to have these dialogues back and forth,

       7      right, to make recommendations of things that you

       8      see in the field, where you would be having these

       9      conversations.

      10             And the reason I highlight this is because

      11      one of the frustrations that the public often has

      12      with government, is that information is in silos.

      13             And I would recommend -- it would be my

      14      recommendation, that any findings that you have or

      15      make or things that you see, especially on a topic

      16      as important as sexual harassment, especially as

      17      timely as it is, that there -- the conversations are

      18      transparent, that they are open, that they are

      19      inclusive, and that no walls are erected to prevent

      20      any type of progress from moving forward.

      21             You also mentioned that anyone can file in

      22      the state.  And I heard several times you discussed

      23      the different offices throughout the state.  And

      24      I believe you said that there are 12 regional

      25      offices, and I'm happy to learn about this







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       1      55 Hanson Place office as well.

       2             And you mentioned also that you do outreach

       3      and you do mailings.

       4             Do you use social media; and if so, how?

       5             Because I -- the reason I ask is because

       6      I haven't heard of this outreach, and I haven't seen

       7      this outreach.  And I'm on the -- at least I would

       8      like to think I'm on the pulse of this issue.  I'm

       9      not an expert yet, but I'm on my way, hopefully.

      10             D.C. GINA MARTINEZ:  Yes, we have a Twitter

      11      account, we have a Facebook account, we have an

      12      Instagram account.  And I believe, if I'm not

      13      mistaken, we have a LinkedIn account, or we are in

      14      the process of creating a LinkedIn account.

      15             I'm not really good with social media, but

      16      I think those are the main ones.

      17             SENATOR BIAGGI:  Okay, thank you.

      18             D.C. GINA MARTINEZ:  You're welcome.

      19             SENATOR BIAGGI:  In -- with relation to

      20      communication, again, going back to that point, at

      21      any point in time, does New York State communicate

      22      with New York City?

      23             D.C. MELISSA FRANCO:  We definitely

      24      interacted on drafting the model policies and the

      25      model training under the new deal -- DOL law.







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       1             D.C. DANA SUSSMAN:  Yes, I'm regularly in

       2      touch with, unfortunately, not my two colleagues up

       3      here today, but the general counsel and first deputy

       4      commissioner.

       5             On our side, we're regularly in touch.

       6             SENATOR BIAGGI:  So just to be clear, so

       7      you're in touch with the general counsel at the

       8      State --

       9             D.C. DANA SUSSMAN:  Yes.

      10             SENATOR BIAGGI:  -- on these issues?

      11             D.C. DANA SUSSMAN:  That's right.

      12             SENATOR BIAGGI:  Okay.

      13             And, then, does the general counsel often

      14      communicate to the State the information that is

      15      learned from the City?

      16             D.C. GINA MARTINEZ:  It depends on what it

      17      is.

      18             I don't get regular briefings from the

      19      general counsel about that.

      20             And to answer your question, I do communicate

      21      with other members of the New York City commission,

      22      other deputy commissioners.  And, also, we see each

      23      other quite a bit when we attend the EEOC

      24      conferences.

      25             SENATOR BIAGGI:  Okay, if you wanted to make







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       1      a recommendation, let's say, perhaps to make it so

       2      that it's regular communication between the City and

       3      the State, how would you go about doing that?

       4             This question is directed to the State.

       5             D.C. GINA MARTINEZ:  There actually is a

       6      regular communication.  If I'm not mistaken, there

       7      is something called "The Civil Rights Roundtable."

       8             D.C. DANA SUSSMAN:  Uh-huh, that's right.

       9             D.C. GINA MARTINEZ:  I believe that you --

      10      our first deputy commissioner attends that.

      11             I'm not really sure how often that is, but,

      12      members from the EEOC, HUD, our agency, and the

      13      New York City Commission attend.

      14             Have you attended those meetings?

      15             D.C. DANA SUSSMAN:  I have not, but my

      16      colleagues regularly do, yes.

      17             D.C. GINA MARTINEZ:  I haven't attended.

      18             SENATOR BIAGGI:  And any information from

      19      those meetings, how is that disseminated to all --

      20      to the State or the City?

      21             D.C. DANA SUSSMAN:  In my office, it's

      22      typically our law enforcement leadership that

      23      attends, because it's quite law enforcement-focused,

      24      as opposed to my side, which is policy.

      25             And we're regularly briefed on the topics







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       1      that will be discussed, and the conversation that's

       2      had there, in our executive team meetings.

       3             SENATOR BIAGGI:  And for the State?

       4             D.C. GINA MARTINEZ:  And I get occasional

       5      information when I meet with my supervisor as to

       6      what occurred during those meetings.

       7             D.C. MELISSA FRANCO:  If there's relevant

       8      case law that they may have discussed, she may bring

       9      it back to us.

      10             If there's an outreach event, she would talk

      11      to the outreach people.

      12             Things like that.

      13             SENATOR BIAGGI:  So you could see where there

      14      could be some type of issues if there's not a clear

      15      communication or a report after every meeting.

      16             And I think that one of the most important

      17      things that we can do, especially --

      18             And this is with no disrespect to the State,

      19      I am obviously a representative of the State.

      20             -- that we could do better as a state, by

      21      taking the lead from New York City, who has led in

      22      so many ways.

      23             And, of course, you know, smaller area, but

      24      lots of people, still, and has been a real

      25      trailblazer, I think, in so many ways.







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       1             And the State can definitely learn from that

       2      type of bravery.

       3             So going back to the data that DHR collects,

       4      in terms of collecting sexual-harassment reporting

       5      data, and I won't go -- I won't belabor you through

       6      all the statistics and the numbers that you do, but,

       7      at the end of each year, where does that data go?

       8             So, does it go to the general counsel, and

       9      then does the general counsel report that to the

      10      commissioner?

      11             And then who does the commissioner, perhaps,

      12      report that to?

      13             D.C. GINA MARTINEZ:  So we have database on

      14      our fiscal year, calendar year.  We have what we

      15      call an "annual report," and that is actually posted

      16      on our website, but it has to be reviewed by our

      17      general counsel.  All of our --

      18             SENATOR BIAGGI:  Who else is it reviewed by?

      19             D.C. GINA MARTINEZ:  The commissioner.

      20             SENATOR BIAGGI:  I'm sorry?

      21             D.C. GINA MARTINEZ:  The commissioner.

      22             SENATOR BIAGGI:  The commissioner?

      23             D.C. GINA MARTINEZ:  Yes.

      24             SENATOR BIAGGI:  And who else?

      25             D.C. GINA MARTINEZ:  I'm not really aware if







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       1      there are other people.

       2             I submit my own report from my units.

       3             D.C. MELISSA FRANCO:  I submit from my units,

       4      we review them.  We give them to -- they combine

       5      them all, and reviewed by the commissioner and

       6      general counsel.  After that, I'm not aware.

       7             SENATOR BIAGGI:  Is it probable that the

       8      annual report, before being made public, would be

       9      reviewed by the Executive?

      10             D.C. GINA MARTINEZ:  I can't answer that

      11      because I don't know the process.

      12             I know my process.

      13             SENATOR BIAGGI:  Has anything that you have

      14      created or done been reviewed by the Executive in

      15      your normal course of business?

      16             D.C. MELISSA FRANCO:  No.

      17             SENATOR BIAGGI:  Nothing that you have

      18      done --

      19             D.C. MELISSA FRANCO:  Not that I'm aware of.

      20             SENATOR BIAGGI:  -- in the course of your

      21      business has been --

      22             D.C. MELISSA FRANCO:  Not that I'm aware of.

      23             I mean --

      24             SENATOR BIAGGI:  -- discussed with the

      25      Executive, ever?







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       1             D.C. GINA MARTINEZ:  I don't know what

       2      happens after it goes from me to my boss.

       3             It's possible.

       4             SENATOR BIAGGI:  Okay.

       5             Going back to the point, I don't want to

       6      belabor this too much, but I think this is -- are --

       7      very important to be very succinct on these issues:

       8             Are you familiar with Executive Law 294?

       9             D.C. MELISSA FRANCO:  I'm not -- if you tell

      10      me what the law is.

      11             SENATOR BIAGGI:  So the law is, The Statutory

      12      Mandated Powers and Duties of DHR, your agency, and

      13      Executive Law 294, says:  The division shall

      14      formulate policies to effectuate the purposes of

      15      this article, and may make recommendations to

      16      agencies and officers of the state or local

      17      subdivisions of government in aid of such policies

      18      and purposes.

      19             Are you familiar with Executive Law 295?

      20             D.C. GINA MARTINEZ:  Would you mind reading

      21      it, please?

      22             SENATOR BIAGGI:  Sure.

      23             D.C. GINA MARTINEZ:  Thank you.

      24             SENATOR BIAGGI:  So, Executive Law 295, there

      25      are two relevant provisions, Section 8 and







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       1      Section 9.

       2             In Section 8 it discusses advisory councils,

       3      and it empowers the division to go through all kinds

       4      of different issues, but to discuss and study

       5      problems, such as the ones that we're discussing

       6      today, and then make recommendations accordingly.

       7             In Section 9 it says, that you have the power

       8      to develop human rights plans and policies for the

       9      state, and to assist in your execution, and to make

      10      investigations and studies appropriate to effectuate

      11      this article, to issue such publications and such

      12      results of investigations and research, as, in its

      13      judgment, will tend to inform persons of the rights

      14      assured and remedies provided under this article to

      15      promote good will, and minimize or eliminate

      16      discrimination because of age, race, creed, color,

      17      national origin, sexual orientation, gender identity

      18      or expression, military status, sex, disability, or

      19      marital status.

      20             And are you familiar with the submission of

      21      program bills?

      22             D.C. MELISSA FRANCO:  I know that they get

      23      submitted, but I don't participate in them, so

      24      I can't really speak them.

      25             SENATOR BIAGGI:  But are you familiar with







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       1      them?

       2             D.C. MELISSA FRANCO:  Sure.

       3             SENATOR BIAGGI:  So Senator Liu's not in the

       4      room at the moment, but, this year, DHR actually

       5      submitted a program bill for Senator Liu and

       6      Senator Martinez.

       7             And so I will double down on what

       8      Assemblymember Buchwald had asked you, and I would

       9      really encourage you, because we would like to be

      10      your partners in this fight, it's an incredibly

      11      important effort, to please weigh in on the package

      12      of legislation that we've put forward because, we

      13      cannot wait any longer, and we need your input, it's

      14      valuable to us; your opinions are valuable to us,

      15      your expertise is valuable to us.  And we want to be

      16      your partners in the state.

      17             And I as a legislator am going to break down

      18      that wall that is oftentimes put between us, and I'm

      19      inviting you in.

      20             D.C. GINA MARTINEZ:  We're happy to work with

      21      you.

      22             SENATOR BIAGGI:  Thank you.

      23             ASSEMBLYMAN CRESPO:  Assemblywoman Cruz.

      24             ASSEMBLYWOMAN CRUZ:  Thank you.

      25             I have a couple of questions related to the







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       1      process.

       2             The first one:  What percentage of the

       3      complaints that actually get to you represent folks

       4      who have been fired by the time that they actually

       5      file a complaint?

       6             D.C. GINA MARTINEZ:  I don't have those

       7      numbers for you, but I can try to get them from the

       8      regional office.

       9             ASSEMBLYWOMAN CRUZ:  Thank you.

      10             D.C. DANA SUSSMAN:  And, unfortunately,

      11      I don't have those numbers either.

      12             But, anecdotally, most people do come to us

      13      after they've left the situation involving the

      14      harassment, whether it's, as I mentioned earlier, a

      15      constructive discharge, where the circumstances were

      16      so unpleasant and so degrading that people were,

      17      essentially, forced to resign or forced to quit,

      18      versus being fired, versus, you know, some other

      19      kind of separation.

      20             I don't have those numbers, but, anecdotally,

      21      I can say that it's the majority of cases, that

      22      people come to us after they've left.

      23             ASSEMBLYWOMAN CRUZ:  And now I want to talk

      24      about what happens to the cases that actually make

      25      it to the end portion.







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       1             For a brief stint, I was an ALJ, so I can

       2      tell you that there is a lot of latitude with what

       3      happens inside a room when there's a settlement

       4      process.

       5             My concern, and what I often hear from

       6      advocates, and when we worked together on the task

       7      force, was, I can't afford to hire a lawyer to go

       8      with me to one of these agency meetings, settlement

       9      meetings, unofficial hearings, or, actually,

      10      official hearings.

      11             And so one of these proposals that had been

      12      discussed, as -- actually as a departmental, was

      13      legal fees for the plaintiffs, for the folks who are

      14      coming forward, and being able to file the claim.

      15             Did that ever go anywhere with the State; can

      16      someone get legal fees for representation to come in

      17      front of your agency?

      18             D.C. MELISSA FRANCO:  In housing cases, yes.

      19             And now in sexual-harassment cases as well.

      20             ASSEMBLYWOMAN CRUZ:  In sexual-harassment

      21      cases you can?

      22             D.C. MELISSA FRANCO:  Yes.

      23             ASSEMBLYWOMAN CRUZ:  And for the City?

      24             D.C. DANA SUSSMAN:  Yes, it's a recent

      25      change.  All cases brought to the commission on







                                                                   126
       1      human rights, the complainant's attorney may be able

       2      to recover attorney's fees.

       3             ASSEMBLYWOMAN CRUZ:  And what is the -- is

       4      there a procedure to connect folks/complainants with

       5      an attorney, be it low bono, where there are fees

       6      that are getting -- get back; pro bono; or any other

       7      way?

       8             D.C. MELISSA FRANCO:  In terms of assigning

       9      an attorney to a case prior to probable cause, the

      10      State doesn't assign an attorney.  But once there is

      11      a probable-cause determination, we do handle it.

      12             If a complainant is interested in hiring a

      13      private attorney, I've never dealt with it, we

      14      usually don't make recom -- I would say we don't

      15      make a recommendation as to it.

      16             But if they went to legal aid, or if they

      17      went to someone like that, they could use those

      18      attorneys at our agency.

      19             ASSEMBLYWOMAN CRUZ:  I mean, my concern with

      20      an answer like that, is that, when you have someone

      21      who doesn't understand the system, expecting them to

      22      go out on their own and actually find a lawyer on

      23      their own is nearly impossible.

      24             And the power dynamics of what happens inside

      25      a settlement room, when you have someone who has an







                                                                   127
       1      attorney versus someone who doesn't, especially if

       2      they're not familiar with the system, it's going to

       3      be skewed in favor of the employer who can actually

       4      afford to have a lawyer there representing them.

       5             D.C. MELISSA FRANCO:  Sure, if I may, I'm

       6      sorry, I didn't necessarily understand the whole

       7      thing.

       8             ASSEMBLYWOMAN CRUZ:  (Indiscernible) -- yeah.

       9             D.C. MELISSA FRANCO:  So we would definitely

      10      appoint an attorney post PC.  And if they said that,

      11      you know, they -- they, you know, want a private

      12      attorney, when I say we wouldn't recommend somebody,

      13      I mean, like an individual law firm.  We could refer

      14      them to the bar, you can call, or you can call legal

      15      aid.

      16             That's what I meant.

      17             ASSEMBLYWOMAN CRUZ:  And once you get to the

      18      settlement conference, what's the procedure for a

      19      settlement conference?

      20             D.C. MELISSA FRANCO:  On the prehearing

      21      settlement conference, it's set up ahead of time.

      22      Notices are sent out to all the parties, including

      23      the complainant, as well as well as the respondents.

      24             It's scheduled, we have Wednesdays and

      25      Thursdays.







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       1             We assign an attorney.

       2             They -- conferences are for one hour.  The

       3      administrative law judge begins the call.

       4             The attorney would have spoken to the

       5      complainant beforehand, reviewed the facts of the

       6      case, determined what kind of damages they are

       7      interested in.

       8             Once everybody calls in, and the ALJ leads

       9      that call, then discussions are held about whether

      10      or not, you know, they can come to terms on an

      11      agreement or not.

      12             ASSEMBLYWOMAN CRUZ:  And, you know, one of

      13      the things that quite never happened during my brief

      14      stint as an ALJ, was some sort of training about

      15      trauma-informed decision-making.

      16             Is that happening in either one of the

      17      agencies?

      18             Because, when you sit there and you have to

      19      hear some of the -- some of what's coming in front

      20      of you, some cases may be very non-controversial;

      21      others can tug at your heartstrings.

      22             And we want to make sure, not only that the

      23      judgment isn't clouded, but that the ALJ is

      24      understanding that who is in front of them is a

      25      survivor.  And they need to have that knowledge.







                                                                   129
       1             Are you providing any sort of trauma-informed

       2      decision-making training?

       3             D.C. MELISSA FRANCO:  Are you talking to the

       4      ALJ --

       5             ASSEMBLYWOMAN CRUZ:  Yes, for the ALJs.

       6             D.C. MELISSA FRANCO:  -- or the attorneys?

       7             So we do do our yearly training.

       8             The ALJs that we've had have been there for

       9      several years.  They have been dealing with all of

      10      our cases where the victims are of discrimination.

      11      Not only sexual harassment, but any kind of

      12      discrimination is really personal.

      13             But they do receive training.

      14             Whether or not it's specific to trauma, I'm

      15      not sure.

      16             ASSEMBLYWOMAN CRUZ:  Okay.

      17             I would encourage you to do that, and

      18      not just do it yearly.  A yearly training for

      19      three hours, it's not gonna to cut it.

      20             I mean, I am assuming it's a short training,

      21      but it's not going to cut it for a topic that's this

      22      important to our community, and that truly is that

      23      traumatic for all of the parties involved.

      24             Does the City do anything like that?

      25             D.C. DANA SUSSMAN:  We are in touch with our







                                                                   130
       1      counterparts at OATH -- it's the office of

       2      administrative trials and hearings -- for the city.

       3             But we, as far as I'm aware, are not

       4      providing them with training.

       5             But I will take this recommendation back.

       6             ASSEMBLYWOMAN CRUZ:  Thank you.

       7             Thank you.

       8             ASSEMBLYMAN CRESPO:  Senator Bailey.

       9             SENATOR BAILEY:  Thank you, Madam Chair, and

      10      thank you to the Co-Chairs.

      11             And thank you for coming before us today.

      12             I have a couple of questions.

      13             One is a brief comment and follow-up to

      14      Senator Mayer's position.

      15             I know you said you don't make recommendation

      16      or legislation, but I would implore you to look at

      17      Senate Print 24 -- 2874A, which establishes the

      18      crime of sexual harassment.

      19             That relates specifically to what

      20      Senator Mayer was indicating about referrals or

      21      indications to the district attorneys.  It's

      22      something that advanced with the Codes Committee

      23      just a couple of weeks ago.

      24             And I would ask that you take a serious look

      25      into that, and how it would affect your roles and







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       1      what you're doing there.

       2             That is by Senator Biaggi.

       3             My main question is about demographics.

       4             For the State:  Do you aggregate data via

       5      democrat -- via demographics?

       6             D.C. MELISSA FRANCO:  You speak so fast.

       7             What?

       8             SENATOR BAILEY:  I'm sorry.

       9             D.C. MELISSA FRANCO:  When you say

      10      "demographics," are you talking about the types of

      11      cases we have? locations?

      12             We have the ability to pull the data.

      13             If you're talking demographics in terms of

      14      locations, we can pull them from what our regional

      15      office sees.

      16             If you're talking about, we want to pull the

      17      types of cases, like sexual harassment, or housing,

      18      we can pull those kind of data as well.

      19             SENATOR BAILEY:  Let me be a little more

      20      specific.  I apologize.

      21             Demographics related to race, gen -- not

      22      gen -- race, gender, age, along those lines, do you

      23      have -- do you aggregate data along those lines?

      24             D.C. MELISSA FRANCO:  Do we have any data

      25      with us today?  No.







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       1             But we do have the ability to pull that data.

       2             SENATOR BAILEY:  That would be very helpful.

       3             And my final question is related to language

       4      access.

       5             Language access is huge in any context, but

       6      especially in the context where people who are a

       7      victim of sexual harassments, are -- they're already

       8      scared, they're already fearful.

       9             If English is not your first language,

      10      I believe that would create another barrier to an

      11      individual coming forth.

      12             Is there any, like -- what is your agency --

      13      are your agencies doing?

      14             I heard it from the City in context about

      15      having signs in English and Spanish.

      16             But, in a city of 8 million people, in a

      17      state of 19 million people, we are so diverse.

      18             And as our workforce diversifies, we should

      19      make sure that we are more in touch with the number

      20      of languages that are -- that -- that are spoken in

      21      the state.

      22             Is -- what is being done in either agency

      23      about that?

      24             D.C. DANA SUSSMAN:  Sure, I can address the

      25      Spanish and English posters.







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       1             The legislation that was passed last year

       2      mandates that all employers, even if you have one

       3      employee, must post a notice of rights in English

       4      and Spanish.  That's the mandate.

       5             And so we are sending those posters.

       6             We've actually done business, walk-throughs,

       7      where we're physically handing business owners the

       8      posters in English and Spanish.

       9             We've additionally translated that document

      10      into the local law, 30 languages.  So additional

      11      languages are available on our website.

      12             Just for the cost associated with mailing it

      13      in so many languages, we couldn't do it by mail, but

      14      we have them available on our website in upwards of

      15      10 or 11 languages at this point.

      16             In addition, at the commission, we speak

      17      about 35 languages.  That's up from six languages

      18      when our commissioner started in 2015.  For a

      19      relatively small agency, that was a massive

      20      priority, that we ensure we have as many languages

      21      covered.  It's not all.

      22             And our commissioner is constantly trying to

      23      up that number.

      24             And, also, to reflect, not only linguistic

      25      competency, but cultural competency, to ensure that







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       1      we are bringing in people to work at the commission

       2      that reflect the communities that we serve.

       3             So we've built positions around Muslim, Arab,

       4      South Asian, lead advisor; an African communities'

       5      lead advisor; a Jewish communities' liaison.

       6             The list goes on.

       7             A trans communities' leader.

       8             So we take that mandate very seriously.  We

       9      could always do better.

      10             If someone comes in that does not speak a

      11      language of a staff member that's available to meet

      12      with them in that moment, we obviously will use

      13      LanguageLine, and we have contemporaneous telephonic

      14      interpretation.

      15             We know that that's not always the best, but,

      16      again, we try to match people with someone on our

      17      staff who speaks the language they speak.

      18             ASSEMBLYMAN BUCHWALD:  Certainly.

      19             And to the State?

      20             D.C. MELISSA FRANCO:  With the State, we have

      21      a language-access policy.  That is our mandate.  It

      22      comes in at least eight different languages.

      23             My understand -- I know that, when someone

      24      comes into our office, the first thing they try to

      25      do is figure out what language they are speaking.







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       1             If we don't have someone available, we do use

       2      the language access line.

       3             We do have available to us, any important

       4      documents.  Or, documents, if a complainant needs

       5      something translated, we get that translated for

       6      them as well.

       7             In addition, our front-line staff, attorneys,

       8      are trained in sensitivity, yearly.  And we do have

       9      discussions with our individual groups about it as

      10      well.

      11             ASSEMBLYMAN BUCHWALD:  I remain concerned

      12      about, again, individuals who are already speaking

      13      about a very sensitive issue.  And if they have to

      14      wait any time further than that moment of urgency,

      15      that moment of crisis, that they're facing.

      16             In the event there is not a language that you

      17      have in either a speaker in your office or an

      18      individual that you can access via the language

      19      line, how long would that process take to be able to

      20      translate that document, and be able to at least put

      21      that person who is complaining of sexual harassment

      22      at a little bit of ease?

      23             D.C. MELISSA FRANCO:  I don't have an exact

      24      date, but from experience, what we try to do, if

      25      it's a language that's not so common, such as







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       1      Fukienese, and we had to find someone, we would work

       2      around the complainant's schedule, and so, this way,

       3      they're not sitting there; or perhaps the next day.

       4             But we would work with an urgency because we

       5      do realize this is a sensitive topic.  They do want

       6      to say what they want to, you know, express, and

       7      file complaints.

       8             So we try to work with a sense of urgency,

       9      but an exact time frame, I can't give you.

      10             I would hope that it's at least within a

      11      week, if not shorter.

      12             ASSEMBLYMAN BUCHWALD:  Sure.

      13             I would hope that it would be within

      14      24 hours, which would be my hope.

      15             Would an individual who has language issues,

      16      would they be precluded or permitted to bring an

      17      individual who was -- would be able to translate in

      18      their native language?

      19             D.C. MELISSA FRANCO:  No, it would be

      20      helpful.

      21             But if it is a matter of an interpretation of

      22      official document, or the signing under a jurat, we

      23      would have an official interpreter.

      24             ASSEMBLYMAN BUCHWALD:  I guess I would have

      25      just one more comment concerning the -- your -- the







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       1      demographic data that, hopefully, we'll be obtaining

       2      soon.

       3             I would implore you once again to -- as the

       4      City has mentioned, going to certain communities

       5      that may be at higher risk for harassment, that may

       6      be -- that may have reported these incidences in --

       7      in -- in more -- in greater frequency, and maybe

       8      increase your outreach.

       9             Because as Senator Biaggi questioned, the

      10      outreach is appreciated, but it seems rather

      11      nebulous as to what the nature of the outreach

      12      actually is.

      13             So, again, I would implore you to -- to --

      14      continue to -- and I understand the cost

      15      constraints, we all work in state government, I get

      16      it.  But we have to make sure that we are

      17      communicating effectively to those individuals who

      18      we want to make sure that we hear them.

      19             So, I appreciate your time.

      20             D.C. MELISSA FRANCO:  If I may just follow

      21      up, the demographics that you want, is that for

      22      race, age, sexual-harassment cases?

      23             Just so I -- or, how do you want that?

      24             ASSEMBLYMAN BUCHWALD:  I would appreciate

      25      sexual-harassment data, yes.







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       1             D.C. GINA MARTINEZ:  And I just -- thank you.

       2             I just wanted to add, in terms of our

       3      outreach, we do partner with other agencies and

       4      community organizations.

       5             For example, we've done outreach with the

       6      Office of New Americans, for people that have newly

       7      come to New York, just to make sure that they

       8      understand their rights.

       9             As I stated earlier, for individuals that may

      10      not feel comfortable, because we are a state agency,

      11      we do go work with the Office of New Americans to

      12      let them know, when someone comes to their agency,

      13      here, this is what you can do if you feel afraid,

      14      you can call us, if you feel like you've been

      15      discriminated against.  If not, here are your rights

      16      in case it does come up.

      17             ASSEMBLYMAN BUCHWALD:  Thank you very much.

      18             D.C. GINA MARTINEZ:  You're welcome.

      19             ASSEMBLYMAN CRESPO:  Assemblywoman Niou,

      20      patiently waiting.

      21             ASSEMBLYWOMAN NIOU:  I know (indiscernible).

      22             Hello.

      23             So I -- I mean, I just wanted to say a couple

      24      things before I start my questions.

      25             But, I want to echo my colleagues, because







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       1      every single agency that comes before us to testify,

       2      we hear from so many across different issues, right,

       3      housing, finance, economic development, et cetera,

       4      but they all give us recommendations on the

       5      legislation that we have put forth, or speak to

       6      them.

       7             And so I just want to, you know, also echo

       8      their shock.

       9             I also want to address a couple of words that

      10      you guys used.

      11             I know you guys had that, you know, with the

      12      statute of limitations, you know, one year, people

      13      might have worse memories, or things might go stale,

      14      or things aren't as fresh.

      15             And I -- I -- I just wanted to address that

      16      really quick, because, as a sexual-assault survivor

      17      myself, I will say that it was over 20 years before

      18      I could even speak up about it.

      19             And there has not been a single moment that

      20      I haven't lived with it.  And, there's -- the

      21      memories of it are -- are very fresh, and they won't

      22      go stale.

      23             I remember what he smells like.  I remember

      24      what he looked like.  I remember the desk, and the

      25      color that -- the color of the desk that I was







                                                                   140
       1      grabbing onto.

       2             And -- and -- I -- I just want to -- I just

       3      want to put that out there for you before we

       4      continue.

       5             And using that kind of language is hurtful

       6      for the folks in the room.

       7             Uhm -- so -- so, for some questions:

       8             I also wanted to kind of touch base a little

       9      bit on the doubling of the cases.

      10             You know, you guys said that it was due to a

      11      culture shift.

      12             I mean, I personally use different language.

      13      I call it the "end of systemic silence."

      14             But I just -- I have -- I have a question on

      15      why, then, the agencies are not proactive, instead

      16      of just reactive, knowing that there are so many

      17      folks who are silenced for so long?

      18             D.C. DANA SUSSMAN:  I think -- first of all,

      19      thank you for centering us back to, really, the

      20      heart of the issue, and for sharing.

      21             I think, you know, the -- our commission has

      22      taken this issue seriously from the very start of

      23      our commissioner's leadership.

      24             The case I cited in my testimony earlier was

      25      the first order that our commissioner issued,







                                                                   141
       1      I worked with her on that order, where we issued the

       2      highest civil penalties in the history of the

       3      commission; the only time the commission has issued

       4      civil penalties of $250,000, which is the maximum

       5      allowable.

       6             And we were not sure if the State -- it was

       7      appealed to state court.  We were not sure if the

       8      state court would affirm it.

       9             And we waited three-plus years for that

      10      decision -- not we -- the complainant had to wait

      11      three-plus years for that decision.

      12             But from that 2015 moment, to 2019 when that

      13      decision was issued, #MeToo relaunched.

      14             And it has not -- this is not a new issue, as

      15      we know.  This is not an issue that -- that sort of

      16      reemerged as a problem.  It's simply that people are

      17      talk -- like you, and so many others, people are

      18      talking about it.

      19             And, you know, judges are humans too;

      20      government folks are humans too.

      21             And I don't know if #MeToo had an impact on

      22      that judge's decision, but I'd like to think, in

      23      maybe my naive way, that -- that -- the movement has

      24      made an impact on the judiciary.

      25             So, I guess to go back to your question, this







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       1      has been an issue, regardless of whether it's in the

       2      public, it's the story of the day, or not.

       3             And what I'm grateful for is that it

       4      continues to be the story of the day, day after day.

       5      This movement has not stopped.

       6             It's -- and, so, you know, we have been

       7      committed to this issue.  It's one that we take

       8      incredibly seriously, and have since the

       9      commissioner's very start at our agency; and it will

      10      continue to remain a focus.

      11             D.C. MELISSA FRANCO:  I would say, as for the

      12      State, of course, more can always be done.

      13             As I previously stated, what we have done

      14      with the outreach, our new commissioner, she's now

      15      with us for a month and a day, and she's made it

      16      clear, our mandate is going to be, we're gonna get

      17      out there into the public; we're going to educate,

      18      we're going to let them know that we're here, and

      19      how we could help.

      20             But -- our position -- not our position --

      21      but, you will be seeing more of the division under

      22      this commissioner; she's going to make it her point.

      23             ASSEMBLYWOMAN NIOU:  Okay, so I guess, just

      24      to follow up, three-plus years is a long time.

      25             And then, also, with the numbers of the







                                                                   143
       1      three years that the statute of limitations for

       2      going to court comes up, it brings me to another

       3      question of:  How -- how do you guys present all the

       4      options to folks?

       5             Like, how do you -- I mean, I kind of wonder

       6      more, because I heard a little bit about how you

       7      present, you know, the options to folks, but -- on

       8      the City side.

       9             But on the State side, how do folks even know

      10      what their options are, and how do you guys present

      11      them to them?

      12             Because you're saying that you do when you're

      13      are talking to folks.

      14             But, is there an encouragement to do things

      15      within the agency, or is there encouragement to go

      16      to court?

      17             Like, how does that -- how does that work?

      18             Like, you guys can role-play if you want.

      19             D.C. GINA MARTINEZ:  I think -- well, when we

      20      do -- or -- when we do an outreach, an education

      21      event, we let people know what their rights are.

      22      And then we let them know what the complaint process

      23      is.

      24             And, many times, we have an investigator at

      25      the event, so that if someone actually wishes to







                                                                   144
       1      file a complaint on-site, they can.

       2             We also have other additional staff there as

       3      well.

       4             And we listen to them right then and there.

       5             And, depending on what they tell us, we give

       6      them their options.

       7             If they say, "Yeah, I want to talk to you

       8      right now.  I'm not ready to file right now," we'll

       9      give them a complaint form, we'll give them our

      10      literature, and we'll say, Take your time.

      11             We ask them --

      12             ASSEMBLYWOMAN NIOU:  But when that happens,

      13      do you -- do you tell them, Well, this is the

      14      statute of limitations?

      15             D.C. GINA MARTINEZ:  Absolutely.  And that's

      16      actually what I was just going to say.

      17             We ask them what the dates are, and we say,

      18      Okay, well, this is what you're dealing with in

      19      terms of your time frames.  If you don't want to

      20      file with us, this -- you know, this is the date

      21      that you have.  If it's ongoing, that's fine.  If

      22      it's something that --

      23             Not that it's fine.  I didn't mean it's fine.

      24             ASSEMBLYWOMAN NIOU:  (Indiscernible

      25      cross-talking.)







                                                                   145
       1             D.C. GINA MARTINEZ:  It's never fine.

       2             But if it's a finite event, that someone was

       3      discharged -- that's a finite event -- then we need

       4      to use that date, for purposes of the statute of

       5      limitations and purposes of filing.

       6             And we let them know that they can also go to

       7      court, and, you know, we have to use that date for

       8      the three-year mark.

       9             We give them the information up front so that

      10      they're armed with the knowledge.

      11             If they need to go home and think about it or

      12      talk to someone else, they can do that.

      13             We give them our contact information as well.

      14             ASSEMBLYWOMAN NIOU:  Can you tell me what

      15      kind of language you guys use, though?

      16             That's -- I want -- I want specifics.

      17             I mean, I wasn't kidding about the role-play.

      18             Like, can you just let me know, like, how --

      19      what kind of language you would use at one of those

      20      events, if somebody -- if I was to say, you know,

      21      Something's happening with me at work.  I want to

      22      see if I could file a complaint.  I want to know

      23      what my rights are.  Can you let me know?

      24             D.C. GINA MARTINEZ:  Go ahead.

      25             D.C. MELISSA FRANCO:  Oh, I thought you were







                                                                   146
       1      going to play the -- okay.

       2             I was at work.  Uhm, you know, I just came

       3      from work.  Several things are happening to me that

       4      I'm not necessarily comfortable about talking.  But

       5      I need to speak to somebody about it.

       6             D.C. GINA MARTINEZ:  Okay.  It's very brave

       7      of you to come to us today.  I'm glad you came.

       8      Let's talk about it.

       9             Do you want to tell me a little bit more

      10      about what happened?

      11             Did this happen today?

      12             D.C. MELISSA FRANCO:  No, it's been ongoing

      13      for a while, and it's been, my colleagues, my male

      14      colleagues, have been making me feel uncomfortable

      15      by doing certain acts.

      16             D.C. GINA MARTINEZ:  Okay.  Are you

      17      interested in filing a complaint, taking formal

      18      action?  Have you spoken to someone else about this

      19      yet?

      20             D.C. MELISSA FRANCO:  No, I haven't spoken to

      21      anyone else about it, but I'd like to speak to you,

      22      and here's what happened.

      23             Just, I'll -- just assume that I told her

      24      everything that happens, please.

      25             D.C. GINA MARTINEZ:  Okay.  What I can do is,







                                                                   147
       1      I can talk to you about your options.

       2             So you can file a formal complaint with the

       3      division of human rights, and we can actually

       4      conduct a formal investigation, and we can talk to

       5      witnesses if you have witnesses.  We can help to

       6      stop the bad actor and the uncomfortable harassment.

       7             D.C. MELISSA FRANCO:  Do I have any other

       8      options?

       9             D.C. GINA MARTINEZ:  You can also file

      10      a formal complaint in state court.  You have

      11      three years to do that as well.

      12             D.C. MELISSA FRANCO:  Will that cost money,

      13      do I need an attorney?

      14             D.C. GINA MARTINEZ:  With the division of

      15      human rights, you don't need an attorney to file a

      16      complaint with us.  You don't need an attorney in

      17      state court.  But we can also put you in touch with

      18      agencies where you can find an attorney.

      19             ASSEMBLYWOMAN NIOU:  Okay.  Thank you for

      20      that, and thank you for taking the time to do that.

      21             Potentially, I mean, this is for the City and

      22      the State, can the process, internally, delay, and

      23      the -- and the use of the process, internally, can

      24      that potentially delay or be used against victims,

      25      you know, when they -- if they want to go to court,







                                                                   148
       1      in the end?

       2             Could it potentially be used against them to

       3      meet that statute of limitations of three years?

       4             D.C. DANA SUSSMAN:  I'll have to get back to

       5      you specifically.

       6             But it's my understanding that, as

       7      I mentioned earlier, if you file with the

       8      commission, you still have the opportunity to go to

       9      state or federal court, because we, essentially,

      10      (indiscernible) jurisdictional can cross-file with

      11      the EEOC.  So we're preserving your federal claims

      12      as well, up to a certain point in the process.

      13             So if we make a determination on your case,

      14      you've, essentially, chosen your venue with the

      15      commission.

      16             The time that it stays with the commission

      17      during that process I think may count against that

      18      three-year period.

      19             And I just want to clarify that, at the

      20      commission, for gender-based harassment claims, you

      21      have three years to come to the commission, just

      22      like you would if you were going to state court.

      23             And what we found, again -- this is anecdotal

      24      from our law enforcement bureau -- that the

      25      three-year extension has been useful.  People have







                                                                   149
       1      been coming forward in that sort of 1-year to 2 1/2,

       2      3-year period.

       3             Recog -- and this was one of the legis --

       4      pieces of legislation that we were supportive of at

       5      the City level, in recognition of how long it takes

       6      people to leave that situation, understand their

       7      options, come to terms with it, decide what they

       8      want to do.

       9             And so that's been a successful amendment to

      10      our law, from our perspective.

      11             ASSEMBLYWOMAN NIOU:  Okay.

      12             D.C. MELISSA FRANCO:  I'm not sure of the

      13      answer, but I can get that for you.

      14             ASSEMBLYWOMAN NIOU:  Could you?

      15             Because I kind of -- I kind of wonder,

      16      because of the fact that, you know, just -- as we're

      17      hearing, that some of the cases take so long.

      18             And -- I mean, when -- when -- sometimes it

      19      should take longer, and that's why I think a lot of

      20      my colleagues are asking about the statutes, and

      21      what we should be looking at, because I know that

      22      you guys used, in your testimony, the words were,

      23      I believe, "efficient and effective investigation."

      24             And I just -- I sometimes I just -- I worry

      25      that -- that -- that it means something else; that







                                                                   150
       1      it means that it's quick and they want to stop them.

       2             And so I -- I -- I wonder, you know, same as

       3      my colleagues on that.

       4             And I also wonder, you know, is it DHR's job

       5      to also train all of the other state agencies on how

       6      to deal with these issues within their agencies?

       7             D.C. MELISSA FRANCO:  I know that DHR, in the

       8      training that is given to all state agencies, I know

       9      that, on sexual harassment, DHR took the lead in

      10      drafting that training.

      11             Perhaps the witness who comes after me could

      12      tell you more about it, but I know that DHR has

      13      participated.

      14             And if any other -- we have worked with DHCR

      15      in the cross-training.

      16             So if any other agency asked us to come in

      17      and help, DHR would.

      18             ASSEMBLYWOMAN NIOU:  So when something

      19      happens, say, for example, at the MTA, do they --

      20      do -- should people be filing with you, or should

      21      they be filing with the MTA?

      22             D.C. MELISSA FRANCO:  They could file with

      23      us.

      24             ASSEMBLYWOMAN NIOU:  But do they usually file

      25      with the MTA?







                                                                   151
       1             D.C. MELISSA FRANCO:  What they usually do,

       2      I don't know.

       3             I know that we do get cases from the MTA, by

       4      employees.

       5             ASSEMBLYWOMAN NIOU:  So do you think that

       6      maybe there should be some research, or, could you

       7      guys get me that answer on how many people file with

       8      the MTA rather than file with you, and if they have

       9      an internal process, et cetera?

      10             Like, I mean, with all the state agencies,

      11      I kind of wonder because, we've heard, I've

      12      personally heard, a lot of different stories with

      13      different state agencies, where the internal process

      14      within an agency, there's promises made, obviously,

      15      or, like, people are, like, saying, Oh, you don't

      16      have to go and report to this place or that place,

      17      or you don't have to go to court.  We can handle it

      18      here.  We promise it will be taken care of.

      19             And, instead, it takes years and years and

      20      years, statute of limitations runs out, and, on top

      21      of that, they get nothing, and they get no closure,

      22      no resolutions.  And people end up being take -- you

      23      know, fired, et cetera.

      24             D.C. MELISSA FRANCO:  Okay, we'll do our best

      25      to get that.







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       1             ASSEMBLYWOMAN NIOU:  Yeah, and I also want to

       2      know the percentage of complainants that have

       3      already been fired when they come to you, and what

       4      percentage are current employees, unless you guys

       5      have that?

       6             D.C. MELISSA FRANCO:  No, I believe that was

       7      the same questions as Ms. Simon, as to the

       8      percentage that come to us already fired.

       9             That, I'm going to -- we're going to try and

      10      get the answer for that as well.

      11             ASSEMBLYWOMAN NIOU:  And is there a

      12      difference in how you guys handle certain cases when

      13      an employee is a member of more than one protected

      14      class?

      15             Like, a transgender, older, African-American

      16      woman?

      17             D.C. DANA SUSSMAN:  We -- so we assess the

      18      facts of the case.  And at the complaint-filing

      19      stage, we will -- you know, again, we interpret our

      20      law quite broadly and protections broadly.

      21             So we will, in an effort to ensure that we

      22      are as inclusive as possible of the potential

      23      violations of the law, we will likely add as many

      24      protected categories as we think appropriate, based

      25      on the experience of that person.







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       1             So it could be race and gender and age and

       2      disability.

       3             And, in fact, we do see a lot of cases where

       4      we've got multiple intersecting violations.

       5             So, you know, women of color are particularly

       6      vulnerable.  Undocumented people are particularly

       7      vulnerable.  Young -- younger employees.  LGBTQ

       8      employees.

       9             So we -- we will "charge," is what the

      10      language is, we will charge multiple protected

      11      categories in the complaint to ensure that we're

      12      capturing the behavior.

      13             And if, as we -- as we do the violation, some

      14      of those may drop out because it might -- you know,

      15      the claim may not be as broad or as all-encompassing

      16      as we had originally understood, and that's okay.

      17      But we want to make sure that we capture it all at

      18      the outset.

      19             D.C. GINA MARTINEZ:  The same -- the same for

      20      the State.

      21             In terms of the way we conduct the

      22      investigation, it's the same across all bases in

      23      filings.  We do a thorough investigation, despite

      24      how many bases, protected classes, we include.

      25             ASSEMBLYWOMAN NIOU:  Okay, I appreciate that.







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       1      Thank you.

       2             And one last question, and I know I'm taking

       3      up so much time, and I have a lot more, but I'm

       4      going to defer to my colleagues.

       5             But -- so on -- on the state level, I mean,

       6      I was a staffer.  I also, you know, have a lot of

       7      friends across the board on -- you know, who are

       8      lobbyists or advocates, et cetera.

       9             And I just kind of wonder, you know, you had

      10      mentioned that employers can be held liable for --

      11      under the Human Rights Law, to non-employees

      12      performing work in the workplace, et cetera, on the

      13      State side.

      14             In -- in our -- in our workplace, can members

      15      of the LCA also report to DHR?

      16             D.C. MELISSA FRANCO:  I'm sorry, "LCA"?

      17             ASSEMBLYWOMAN NIOU:  Yeah, that's the --

      18      that's the -- the legislative correspondents.

      19             D.C. MELISSA FRANCO:  Yes.  We have

      20      jurisdiction over legislative members, yes.

      21             ASSEMBLYWOMAN NIOU:  No, no.  The

      22      correspondents, like, news --

      23             D.C. MELISSA FRANCO:  Oh, (indiscernible

      24      cross-talking) --

      25             ASSEMBLYWOMAN NIOU:  -- news folks, yeah, the







                                                                   155
       1      press?

       2             D.C. MELISSA FRANCO:  Yes, they can file.

       3             ASSEMBLYWOMAN NIOU:  So they're supposed to

       4      file with you, or they're supposed to file somewhere

       5      else?

       6             Because they have their own bosses,

       7      et cetera, in their newspaper (indiscernible).

       8             D.C. MELISSA FRANCO:  If you could just give

       9      me an example of what you're saying, maybe I'll

      10      understand better.

      11             ASSEMBLYWOMAN NIOU:  So, uhm -- so, you know,

      12      there's a couple of young people in the pressroom

      13      that have told me that certain things have happened

      14      with certain people.

      15             Like, how do -- where do they go to file, and

      16      do they file with you?

      17             D.C. GINA MARTINEZ:  We have jurisdiction

      18      over public- and private-sector employees, so they

      19      can file with us.

      20             ASSEMBLYWOMAN NIOU:  So should they be filing

      21      with you?

      22             D.C. GINA MARTINEZ:  Yes, absolutely.

      23             ASSEMBLYWOMAN NIOU:  So they should be?

      24             That's like the -- what they're -- where they

      25      should go?







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       1             D.C. GINA MARTINEZ:  Yes.

       2             ASSEMBLYWOMAN NIOU:  Okay.

       3             D.C. GINA MARTINEZ:  Yes.

       4             D.C. DANA SUSSMAN:  Just to clarify, is the

       5      question around, they're experiencing harassment by

       6      their supervisors, or by other -- in -- with -- with

       7      respect to different, sort of like, organizational

       8      relationships?

       9             ASSEMBLYWOMAN NIOU:  It could be

      10      organizational, it could be within the pressroom, it

      11      could be within the Legislature, it could be within

      12      staff.

      13             I don't.

      14             But I'm just saying, like, for example,

      15      within -- we have a lot of different roles in the

      16      Legislature, for example.  There's a lot of

      17      different folks working around each other.

      18             You know, so what happens when there's

      19      somebody from organizations or from corporations

      20      that are not within our body, like, there's

      21      something that happens to them, where should they

      22      file?

      23             That was the question.

      24             D.C. GINA MARTINEZ:  Yeah, I would -- I would

      25      advise them to file with us.  Like I said, we don't







                                                                   157
       1      turn anyone away.

       2             And if it's not something under our

       3      jurisdiction, we would advise them where to go.

       4             ASSEMBLYWOMAN NIOU:  Would that be under your

       5      jurisdiction, I guess?

       6             D.C. GINA MARTINEZ:  I'd have to hear the

       7      facts of the case first, yeah.

       8             ASSEMBLYWOMAN NIOU:  So, for -- I mean,

       9      (indiscernible) -- so, for example, a person who is

      10      in the pressroom, and, something happened to them

      11      with, say, you know, another press person within the

      12      LCA.

      13             ASSEMBLYMAN BUCHWALD:  Different employer.

      14             ASSEMBLYWOMAN NIOU:  Different employers,

      15      different newspapers.

      16             D.C. GINA MARTINEZ:  When did this happen?

      17             ASSEMBLYWOMAN NIOU:  I don't know.

      18                [Laughter.]

      19             ASSEMBLYWOMAN NIOU:  I don't know.

      20             D.C. DANA SUSSMAN:  So, if I can jump in, if

      21      this happened within New York City --

      22             ASSEMBLYWOMAN NIOU:  Yeah, within New York

      23      (indiscernible).

      24             D.C. DANA SUSSMAN:  -- uhm -- the -- uhm --

      25      so employers are responsible to protect their







                                                                   158
       1      employees from discrimination or harassment,

       2      based -- even when it's conducted by non-employees,

       3      when they're aware of the conduct, and, essentially,

       4      have acquiesced in the conduct.

       5             So that would -- that would happen in the

       6      context of, a customer at a restaurant, who

       7      regularly harasses a server, or, you know, one press

       8      outlet and another press outlet, and the employer of

       9      the person who is being harassed knows that this is

      10      happening and doesn't do anything about it.

      11             So we interpret our law, and the standards of

      12      liability require, that, if you are aware that your

      13      employee is experiencing harassment or

      14      discrimination, based on any of our protected

      15      categories, by a non-employee; by a client, a

      16      customer, a vendor, an independent contractor, you

      17      are obligated to intervene, and, if you don't, you

      18      could be liable.

      19             D.C. GINA MARTINEZ:  And that's the same for

      20      us.

      21             ASSEMBLYWOMAN NIOU:  Uhm -- so, I mean,

      22      I just wondered if it would be helpful, since we go

      23      through orientation, our staff go through

      24      orientation, like, people who work around us, should

      25      they go through orientation?  Should there be some







                                                                   159
       1      kind of training?

       2             We have ethics training, but...

       3             D.C. GINA MARTINEZ:  I think the more that a

       4      person is trained and knows their rights, and the

       5      law, the better off everyone is.

       6             Yes, absolutely.

       7             ASSEMBLYWOMAN NIOU:  Is there any suggestions

       8      on that?

       9             D.C. DANA SUSSMAN:  Well, I mean, I think I'm

      10      outside of my purview, geographically.

      11             But, you know, the commission does free

      12      in-person trainings.  We have our online training

      13      now as well.

      14             Anywhere within the five boroughs we will go,

      15      and we will train people on their rights or their

      16      obligations under the City Human Rights Law.

      17             ASSEMBLYWOMAN NIOU:  Thank you.

      18             D.C. MELISSA FRANCO:  Thank you.

      19             SENATOR BIAGGI:  Senator Skoufis.

      20             SENATOR SKOUFIS:  Thanks very much,

      21      Madam Chair, and thanks for your leadership on this,

      22      and my fellow Co-Chairs.

      23             I thank you for your testimony today, and

      24      your willingness to answer questions.

      25             I have a number of questions about, building







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       1      off of some of my colleagues, sort of the

       2      legislative role of the division, and these

       3      questions are for the State, pardon me.

       4             But first I want to ask a parochial question,

       5      if I may.

       6             So I pulled up your website when you

       7      mentioned the regional offices that you have in the

       8      division, to see where they are.

       9             It was news to me that you had regional

      10      offices.

      11             So, correct me if I'm wrong, but it looks

      12      like you have three in New York City, two in

      13      Long Island, one in White Plains, one in Albany.

      14             And then there are two, sort of, enormous

      15      swaths of the state where you do not have any

      16      physical presence:

      17             One, which I don't represent, so I'm not

      18      going to speak about, is in the North Country, where

      19      there is no presence at all in the entire

      20      north-of-Albany area.

      21             And there's zero presence in the Mid-Hudson

      22      Valley, you know, which I think is larger than the

      23      size of Connecticut.

      24             So that's concerning to me.

      25             And I don't know if I have a question







                                                                   161
       1      associated with this, but feel free to respond if

       2      you'd like.

       3             But, you know, I do encourage you to please

       4      consider that fact, that, you know, you have this

       5      enormous Hudson Valley Region, basically, north of

       6      White Plains, in between White Plains and Albany,

       7      that has no presence.

       8             D.C. GINA MARTINEZ:  Thank you for that.

       9             I had mentioned earlier that, you know, part

      10      of my wish list was additional regional offices.

      11             We do have memorandum of understanding with

      12      other local human-resources commissions -- sorry,

      13      local human rights commissions, and relationships

      14      with local human rights commissions around the

      15      state.

      16             We are actually going to be conducting an

      17      outreach event with the Orange County Human Rights

      18      Commission very soon.

      19             So we do, despite us not having actual

      20      offices, DHR offices, in those areas, we do work

      21      with the local offices, to make our presence known.

      22      And we also do receive complaints from the local

      23      offices around the country.

      24             But I do appreciate that.

      25             And as I stated, I would love additional







                                                                   162
       1      resources to open more offices.

       2             SENATOR SKOUFIS:  Okay, thank you.

       3             D.C. GINA MARTINEZ:  Thank you.

       4             SENATOR SKOUFIS:  You know, you made it clear

       5      that you two, as deputy commissioners, don't have

       6      the authority, by the sounds of it, to weigh in on

       7      the legislative proposals that we're all discussing

       8      here, that we're certainly discussing, the

       9      Legislature.

      10             Do you believe the acting commissioner would

      11      have the authority, if she were here, to weigh in on

      12      the division's position?

      13             D.C. MELISSA FRANCO:  I don't know if she'd

      14      have the authority; but, more so, I don't know if

      15      she'd have the knowledge yet, since she just -- she

      16      just started a month ago.

      17             And, she's incredibly bright and smart --

      18             SENATOR SKOUFIS:  Yeah, no, I'm not speaking

      19      specific to the individual.

      20             I'm speaking specific to the position in the

      21      division.

      22             Does the commissioner, by virtue of the

      23      position, you know, have the wherewithal and the

      24      authority to, you know, answer us in a way that you

      25      can't vis-a-vis these bills?







                                                                   163
       1             D.C. GINA MARTINEZ:  I can say that she would

       2      probably have more authority than we do to speak on

       3      certain questions that you haven't gotten an answer

       4      from us on, yes.

       5             SENATOR SKOUFIS:  Okay.

       6             You've made it clear -- similarly, you've

       7      made it clear that, while you're aware, you're not

       8      familiar with the program-bill process within the

       9      division.

      10             Is the commissioner typically familiar with

      11      that process?

      12             D.C. GINA MARTINEZ:  I can't say with

      13      certainty if she's familiar with that process

      14      because I'm not involved in the process.

      15             SENATOR SKOUFIS:  Okay.

      16             It's commonplace, when we in the Legislature

      17      pass bills that touch on either agency operations or

      18      an agency's purview, that, while the bill is

      19      pending, and the governor has yet to sign or veto a

      20      bill, the executive chamber will reach out to that

      21      agency for a recommendation as to whether to sign or

      22      veto that particular bill.

      23             Does that -- do you know if that happens with

      24      the division, when there are bills that pass the

      25      Legislature, does the executive chamber reach out to







                                                                   164
       1      the division for a recommendation?

       2             D.C. MELISSA FRANCO:  (Indiscernible)

       3      Senator Biaggi today, that there is communications.

       4             However, as to anything particular to DHR on

       5      that, I don't know.  I'm not privy to those

       6      conversations.

       7             SENATOR SKOUFIS:  Do you suspect that if any

       8      or all of the bills in the package that have been

       9      proposed here, pass, do you expect, or suspect, that

      10      the executive chamber would reach out to the

      11      division for a recommendation as to whether to sign

      12      or veto those bills?

      13             D.C. MELISSA FRANCO:  Again, not being not

      14      familiar with the procedures, I really can't give an

      15      answer, but it sounds like they will be reaching

      16      out.

      17             SENATOR SKOUFIS:  Okay.

      18             So it sound -- if, indeed, that is what

      19      happens, the division will have a position on these

      20      bills.

      21             But it just so happens, at least till now,

      22      the position won't be helpful to us in the

      23      Legislature as we consider whether to pass the

      24      bills.  It will exclusively be helpful to the

      25      Governor as to whether to sign or veto the bills.







                                                                   165
       1             So it doesn't seem like it's a matter of

       2      whether the division is comfortable taking a

       3      position; it's a matter of timing.

       4             And I would encourage you to go back to the

       5      commissioner and your higher-ups, and accelerate

       6      that timing.

       7             Now, if I may ask, in light of these

       8      questions, can I ask where the commissioner is

       9      today, the acting commissioner?

      10             And, no, I understand, if there was a family

      11      emergency, or something came up.

      12             Is there a reason she is not here?

      13             D.C. GINA MARTINEZ:  I am not aware of where

      14      she is today.

      15             D.C. MELISSA FRANCO:  I came straight from

      16      home, so I don't know.  She may be at the office.

      17             SENATOR SKOUFIS:  Where's the office?

      18             D.C. MELISSA FRANCO:  It's in The Bronx.  And

      19      I come from Brooklyn.

      20             SENATOR SKOUFIS:  Okay.

      21             All right.  That's all I have.

      22             I look forward to taking up, as Chair of the

      23      Government Operations Committee, the acting

      24      commissioner's nomination.

      25             Thanks.







                                                                   166
       1             ASSEMBLYMAN CRESPO:  Assemblyman Epstein.

       2             ASSEMBLYMAN EPSTEIN:  Thank you all for being

       3      here for so long.  I really do appreciate all your

       4      time.

       5             I wanted to go back to the conversation about

       6      nondisclosure agreements, and the usefulness of them

       7      for complainants.

       8             I'm wondering what, both, on the City and

       9      State level, how you feel about them, and whether

      10      they've exceeded their useful life, in regards to

      11      ongoing issues of harassment, and NDAs really

      12      covering that up as a strategy?

      13             D.C. DANA SUSSMAN:  I think -- you know, from

      14      my perspective, I'm a former employment lawyer,

      15      representing plaintiffs, and I think that it's a

      16      real -- there's a real challenge here.

      17             I think some people really do want to resolve

      18      cases quietly, and move on.

      19             And, in some circumstances, there are workers

      20      who have leverage in that, and they will bargain

      21      that.  And that is something that happens in

      22      negotiations; that is, I'm talking outside of the

      23      commission process.

      24             On the other side, the systemic silencing of

      25      victims is something -- and survivors, is something







                                                                   167
       1      that I think we are all, you know, coming to terms

       2      with, and thinking about whether this is sort of, we

       3      need to really shift the paradigm around how

       4      these -- how we have these conversations, how these

       5      settlements are negotiated.

       6             And so I think, whenever proposals are made

       7      around monitoring of nondisclosures or eliminating

       8      them, I think there is a balancing, or at least a

       9      recognition, that, in some -- in some context,

      10      people -- it -- it -- it could potentially remove

      11      some -- some leverage, for lack of a better word,

      12      for plaintiffs when they're seeking to resolve cases

      13      more expeditiously or quietly.

      14             I'm not taking any position one way or the

      15      other.

      16             I'm just acknowledging that that is a

      17      consideration as we think about nondisclosures.

      18             From the City perspective, it is not -- it is

      19      our position that it is not in the public interest

      20      to ever include nondisclosure agreements in

      21      conciliations that the City is a party to, for that

      22      exact reason; that public disclosure and information

      23      is vital.

      24             But -- so I'm just putting out there, that

      25      I think that this is quite a complex issue, and I'm







                                                                   168
       1      glad that we're having this conversation.

       2             D.C. GINA MARTINEZ:  I have to agree with

       3      that.

       4             And I'm also very satisfied that, you know,

       5      with the new law from last year, that it's the

       6      complainant's preference; they're given that power

       7      to decide if they want it.  You know, it's not

       8      something where the respondent can say, you have to

       9      put it in.

      10             You know, they're using that as some kind of

      11      leverage.

      12             So, I'm glad that the complainants are given

      13      that option, and it's only the complainant's

      14      preference.

      15             The respondent can bring it up, but it's only

      16      up to the complainant to make that decision.

      17             So that makes me happy.

      18             ASSEMBLYMAN EPSTEIN:  But don't you think

      19      sometimes respondents have bargaining power in that

      20      conversation, and want to use the NDA as a leverage

      21      tool to get to that agreement?

      22             D.C. GINA MARTINEZ:  I think they, yeah,

      23      respondents definitely do.

      24             But, when we're a party to those agreements,

      25      we have to make sure that the complainants want to







                                                                   169
       1      be, or are satisfied with all of the provisions of

       2      the settlement agreement.

       3             Absolutely, they try with the bargaining

       4      power.

       5             ASSEMBLYMAN EPSTEIN:  And have you seen

       6      situations where that's the reason that a settlement

       7      agreement falls apart, is the failure for a

       8      complainant to want to sign an NDA?

       9             D.C. MELISSA FRANCO:  I have not.

      10             I could find out from the attorneys who

      11      handle the case, where they do.

      12             But, personally, I have not.

      13             ASSEMBLYMAN EPSTEIN:  Yeah, it would be good

      14      to know how often this comes up where a complainant

      15      doesn't want to sign the NDA, and it's in a

      16      situation where the settlement will fall apart

      17      without the signing of an NDA.

      18             So this issue about, going back to statute of

      19      limitations as well, you know, obviously, we've

      20      heard a lot, especially around abuse situations

      21      in -- you know, in faith-based institutions, a lot

      22      around people becoming much aware of the abuse, and

      23      really come to terms with it, especially with

      24      someone who is a leader, like a faith leader or a

      25      mentor.  And, really, it takes a long time for







                                                                   170
       1      people to get to that space where they can really

       2      process it.  Lots of people, you know, we know are

       3      in therapy.

       4             I'm wondering if, based on more information

       5      we have right now, we really need to relook at the

       6      statute of limitations, based on a whole host of

       7      information, realizing that the victim, who is

       8      really likely to be in a, you know, powerless

       9      position against the victimizer, really suppresses

      10      the information, and it does takes extended periods

      11      of time?

      12             D.C. DANA SUSSMAN:  So as the agency that's

      13      now implementing a longer statute of limitations,

      14      specifically for gender-based harassment claims and

      15      employment, I think that that was the recognition,

      16      that this -- while -- you know, that is not to

      17      minimize the trauma of all the other forms of

      18      discrimination, so I want to be clear about that.

      19             And -- and -- we are thinking about this as

      20      sort of a first-in-time process, so that, you know,

      21      we're -- we've now implemented extended statute of

      22      limitations in this area.

      23             And I think it's a continuing conversation

      24      around maybe moving up every other protected

      25      category to that same extension, or that same new







                                                                   171
       1      reality.

       2             But I think that, again, because of the

       3      bravery and the courage of so many people here

       4      today, we have a renewed recognition that one year

       5      to file with the commission was just insufficient

       6      for these kinds of claims.

       7             And I think a broader conversation around

       8      bringing in other kinds of claims into that

       9      extension is well worth having.

      10             But, you know, as my colleagues mentioned,

      11      the truth of the matter is, the broader you make the

      12      statute of limitations, the more cases we will get.

      13             We are getting more cases, just as we -- as

      14      we brought in the categories of protected

      15      categories.

      16             And so we really want to ensure that there

      17      are resources; that it's met with these broadened --

      18      our broadened powers and jurisdiction mean more

      19      cases, and that could mean longer processing times.

      20             That's just the reality, and a challenge that

      21      we face.

      22             ASSEMBLYMAN EPSTEIN:  And that -- and, again,

      23      that will be our job, to ensure there are additional

      24      resources.

      25             But just to hear from the State on that







                                                                   172
       1      issue.

       2             D.C. MELISSA FRANCO:  Sorry, in terms of the

       3      statute of limitations, could you repeat that

       4      question?

       5             I got caught up (indiscernible

       6      cross-talking).

       7             ASSEMBLYMAN EPSTEIN:  Yeah, I just -- just --

       8      we -- you know, we were just talking a lot about

       9      abuse and, you know, sexual assaults, in the context

      10      of religious institutions, we've seen extending of

      11      the statute of limitations because it takes a long

      12      time to -- especially with someone who's in a

      13      position of power or a mentor or a religious leader,

      14      for people to be able to process that abuse.

      15             And in some -- you know, multiple years, in

      16      some situations, we've seen people take decades,

      17      especially when they're younger and dealing with

      18      someone who's in that position of power.

      19             Is it really a time to really look at these

      20      statute of limitations and think about this in that

      21      context, knowing all the trauma that people are

      22      experiencing?

      23             D.C. MELISSA FRANCO:  I mean, it's awful.

      24      I know people who have been subjected to it.

      25             And to hear that your claim can't brought is







                                                                   173
       1      heartbreaking.

       2             That being said, if it's changed, we'll

       3      enforce it.  That's what I can say on it.

       4             I mean, it's awful.

       5             ASSEMBLYMAN EPSTEIN:  Thank you.

       6             Just one more question, if I can,

       7      I appreciate that.

       8             So, I know we've talked about, that statute

       9      of limitation runs from the last, you know...

      10             D.C. GINA MARTINEZ:  Date of

      11      discrimination --

      12             ASSEMBLYMAN EPSTEIN:  ...the day of

      13      discrimination.

      14             D.C. GINA MARTINEZ:  -- alleged

      15      (indiscernible cross-talking).

      16             ASSEMBLYMAN EPSTEIN:  But people in power

      17      positions have ongoing power against people.  You

      18      know, someone who's a former employer can be a

      19      reference for years, and that -- hold that, or,

      20      reputational interests.

      21             I mean, how do you view that, someone who can

      22      use their power and privilege against someone to --

      23      you know, is that an ongoing abuse?

      24             Because you can say, well, if you disclose

      25      this, I'm going to tarnish your name.  I'm not







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       1      provide good reference.

       2             And, how does that play out in that

       3      conversation?

       4             D.C. DANA SUSSMAN:  So, unfortunately, the

       5      stand -- or, the statutory framework under the City

       6      law is, employee or applicant, essentially.  So it

       7      does require that relationship.

       8             I think, when that relationship ends, it's

       9      likely that that would be the last adverse action in

      10      the employment context.

      11             There may be other torts, potentially, around

      12      reputational harm or intentional infliction of

      13      emotional distress, or other causes of action.

      14             But, from my understanding, and maybe there

      15      is area for case law to develop, or other, you know,

      16      ways to get at this issue, that the statute assumes,

      17      essentially, that employee-employer relationship or

      18      applicant-employer relationship.

      19             D.C. GINA MARTINEZ:  It's basically the same,

      20      when the employer-employee relationship terminates,

      21      I think the ability to file terminates.

      22             ASSEMBLYMAN EPSTEIN:  Thank you, all.

      23             And thank you both, for the Assembly and the

      24      Senate Chairs, for your leadership here.

      25             Thank you.







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       1             ASSEMBLYMAN CRESPO:  Assemblywoman Rosenthal.

       2             ASSEMBLYWOMAN ROSENTHAL:  (Microphone off.)

       3             Okay, can you hear me?

       4             Sort of?

       5             Okay.

       6             Thanks for being here.

       7             I just have a couple of questions.

       8             Do you record the interviews you conduct with

       9      people who come forward?

      10                (Microphone on.)

      11             ASSEMBLYWOMAN ROSENTHAL:  Oh, thank you.

      12             Do you record interviews?

      13             D.C. GINA MARTINEZ:  No, we do not.

      14             ASSEMBLYWOMAN ROSENTHAL:  (Microphone off.)

      15             Do you think you -- what is your view on that

      16      policy?

      17             D.C. GINA MARTINEZ:  It's not our policy to

      18      record interviews.

      19             ASSEMBLYWOMAN ROSENTHAL:  Right, do you think

      20      that's the right policy, or not?

      21             D.C. MELISSA FRANCO:  I mean, it's -- if I

      22      take it from -- back to my litigation days, you

      23      know, the issue with recording any statement is, is,

      24      perhaps, you know, you really are locking your

      25      witness in to the statement.  And if they are to







                                                                   176
       1      take the stand, it becomes a matter of

       2      cross-examination, not only if they're different,

       3      but about things they didn't say.

       4             So I, potentially, could see an issue, as a

       5      former litigator, being that way.  But it's just not

       6      our policy to record the witnesses.

       7             ASSEMBLYWOMAN ROSENTHAL:  And the City as

       8      well?

       9             D.C. DANA SUSSMAN:  I will have to confirm

      10      the practices with our deputy commissioner for law

      11      enforcement.

      12             I can get back to you on that.

      13             ASSEMBLYWOMAN ROSENTHAL:  Okay, great.

      14             You mentioned 8 languages, and 45 languages.

      15             What -- what do you -- how do you treat

      16      people who are hearing- and visually-impaired?

      17             D.C. DANA SUSSMAN:  So we have systems in

      18      place where we can do video conferencing, bring in

      19      ASL interpreters.

      20             We have looped rooms, with a hearing loop.

      21             And we do have, I believe, on staff at least

      22      one staff person who is ASL-fluent.

      23             So we have accommodations that we make, so

      24      that, in real time, people are able to file with us.

      25             And, again, if we -- we will call -- we will







                                                                   177
       1      screen folks on the phone, or however they reach us,

       2      either via e-mail or on the phone or in person, and

       3      make those accommodations available for that initial

       4      interview so that there's no delay.

       5             ASSEMBLYWOMAN ROSENTHAL:  Okay.  And

       6      sometimes ASL is not enough.

       7             So do you -- how do you treat people who --

       8      for whom that is not enough?

       9             D.C. DANA SUSSMAN:  What we will do on the

      10      call, on the intake call, which is, typically, about

      11      a 5- to 15-minute screening call, before they will,

      12      either, come in to meet with an attorney, or, set up

      13      a call -- a subsequent call to speak with an

      14      attorney if they are unable to come to the office,

      15      we will identify any accommodations that they need.

      16             And we have contracts with providers of

      17      accommodations, whether it -- whatever -- whether

      18      it's CART services, an interpreter, or any other

      19      need for that person, we will make that available to

      20      them for their -- for whatever they are meeting with

      21      our attorneys.

      22             ASSEMBLYWOMAN ROSENTHAL:  Okay.

      23             And did you mention, visually-impaired, what

      24      you do for them?

      25             D.C. DANA SUSSMAN:  So we have trained staff







                                                                   178
       1      who can work with people who -- if they are -- if

       2      they choose, or are unable to come into the office,

       3      for an interview, which is our typical practice,

       4      they -- we will -- we can do it over the phone.  We

       5      can do it by video conference if that's a

       6      preference.

       7             And then, you know, if they do come to meet

       8      with us one-on-one, we can work with them.  And we

       9      have disability-rights specialists who we work with.

      10             Whether the claim relates to the disability

      11      or not, we ensure that they are given the same

      12      access to resources and to attorney time and

      13      everything else as any other person.

      14             ASSEMBLYWOMAN ROSENTHAL:  (Microphone on.)

      15             Have you had such cases?

      16             D.C. DANA SUSSMAN:  I can say with almost

      17      certain confidence that we have.

      18             I don't have the numbers with me today, but

      19      I'm happy to check back in.

      20             ASSEMBLYWOMAN ROSENTHAL:  Okay.  Thank you.

      21             What about the State, same question?

      22             D.C. MELISSA FRANCO:  Very similar.

      23             If it's a hearing-impaired, we make sure we

      24      have the translators.

      25             Our website is also accessible for both.







                                                                   179
       1             If they're visually-impaired, we have video

       2      conferencing.  We have the telephonic conferences.

       3      We can go visit them.

       4             Very similar to the City as well.

       5             ASSEMBLYWOMAN ROSENTHAL:  Okay.  And have you

       6      had cases?

       7             D.C. MELISSA FRANCO:  I'm trying to think, in

       8      particular, it would be the hearing side of it.

       9             I believe we have had the hearing-impaired,

      10      and we have brought in a tran -- a sign-language

      11      interpreter.  I'm sorry.

      12             ASSEMBLYWOMAN ROSENTHAL:  And --

      13             D.C. MELISSA FRANCO:  I can find out if --

      14      more data, if you'd like.

      15             ASSEMBLYWOMAN ROSENTHAL:  -- okay, that would

      16      be great.

      17              I apologize if this was addressed earlier.

      18             Do you have interns from various legislators,

      19      agencies, do they file with you?  Do they know to

      20      file with you?  Have they filed with you?

      21             On both levels.

      22             D.C. MELISSA FRANCO:  We do have

      23      jurisdictions over interns.

      24             In our education, and whenever we go out to

      25      our conferences, where we're actually meeting







                                                                   180
       1      interns and, potentially, bringing them on, we bring

       2      all our literature to all the different places we

       3      go.

       4             When we hold events at the different schools,

       5      such as New York Law School, or Touro Law School, or

       6      different colleges, we bring all of that out to try

       7      and make the interns aware.

       8             But we do have jurisdiction over interns.

       9             ASSEMBLYWOMAN ROSENTHAL:  But -- because --

      10      and I have legislation on this:

      11             If there's a college student, and he or she

      12      goes to work at a private corporation, they are

      13      usually not trained.

      14             How would they even know to come to speak

      15      with you?

      16             D.C. MELISSA FRANCO:  I guess it would be a

      17      matter of looking at our website, but we have to do

      18      more education and outreach to let the colleges

      19      know.

      20             ASSEMBLYWOMAN ROSENTHAL:  But -- but --

      21      right.  And that's my -- my legislation would

      22      require training of interns.

      23             But, actually, there should be training of --

      24      of everyone in every setting, whether they're

      25      not-for-profit, corporate, university.







                                                                   181
       1             But in terms of, do you know if any

       2      universities undertake training of people who will

       3      go on to be interns?

       4             D.C. MELISSA FRANCO:  I am not aware, but

       5      maybe Dana knows.

       6             D.C. DANA SUSSMAN:  We partner pretty closely

       7      with the CUNY system and with other educational

       8      institutions.

       9             But, I'm not aware of internal practices at

      10      those institutions around sort of a "know your

      11      rights" component when they go out into the

      12      workforce or into summer internships.

      13             What we do every year, and I'm just making a

      14      note to myself to make sure that this is teed up

      15      for -- for our agency, is a social-media campaign.

      16      You know, not -- not -- we don't have the resources

      17      to sort of place ads, but to at least to promote the

      18      rights of interns to be protected from

      19      discrimination and harassment in the workplace,

      20      which we usually do around this time every year, in

      21      advance of, sort of, the summer-work and internship

      22      season.

      23             And we also partner with our city agencies

      24      that place young people in with internships and work

      25      experiences, like the department of youth and







                                                                   182
       1      community development, to make -- to get trained and

       2      understand what their rights are.

       3             And for the employers who sign up to receive

       4      interns and students, that they understand what

       5      their obligations are.

       6             ASSEMBLYWOMAN ROSENTHAL:  So there's no

       7      requirement to, for example, have a poster that

       8      says, you are protected, or, here are the rules that

       9      your emp -- your -- maybe not employer, because many

      10      are not paid, but, the people who work for you, you

      11      know, for a period of time, have to -- are protected

      12      by, or have to follow, this is what you have to

      13      follow?

      14             I mean, there's no such provision in City or

      15      State law; right?

      16             D.C. DANA SUSSMAN:  There is a notice

      17      requirement in City law, specifically around sexual

      18      harassment, and that is, a notice you receive upon

      19      employment, and a poster that goes up in English and

      20      Spanish, and we have languages, but the mandate is

      21      English and Spanish, that has your rights, your

      22      resources, some common scenarios of sexual

      23      harassment.

      24             And that should -- that is supposed to be up

      25      in all places of employment, regardless of whether







                                                                   183
       1      you have unpaid staff or paid staff or interns.

       2      That is a requirement as of last year, 2018.

       3             ASSEMBLYWOMAN ROSENTHAL:  And the State?

       4             D.C. MELISSA FRANCO:  We do have

       5      jurisdiction, whether they are paid or unpaid.

       6             As to the requirement, I would have to get

       7      back to you on that, unless my colleague knows.

       8             D.C. GINA MARTINEZ:  I'm not aware of the

       9      requirement.

      10             ASSEMBLYWOMAN ROSENTHAL:  Okay, I'd be

      11      interested, because interns often feel they have no

      12      leverage, they have no rights.  They're dependent on

      13      their boss's, you know, attitude toward them, if

      14      they want to build a career, or, examine that

      15      business to see if they want to proceed with that

      16      kind of a job.

      17             And they might even be more hesitant than a

      18      paid employee because they really don't have rights.

      19             D.C. DANA SUSSMAN:  Well, I would just

      20      clarify, they do have rights.

      21             ASSEMBLYWOMAN ROSENTHAL:  Well, I'm saying

      22      it, in their mind.

      23             D.C. DANA SUSSMAN:  Understood.

      24             I just want to make clear.

      25             ASSEMBLYWOMAN ROSENTHAL:  Yes, you're right,







                                                                   184
       1      you are correct.

       2             D.C. DANA SUSSMAN:  Yes.

       3             ASSEMBLYWOMAN ROSENTHAL:  But, you know, they

       4      can just be --

       5             D.C. DANA SUSSMAN:  Understood.

       6             ASSEMBLYWOMAN ROSENTHAL:  -- fired.

       7             And if a person is an employee, they might

       8      have rights that an intern may not think that they

       9      do.

      10             D.C. DANA SUSSMAN:  Understood.

      11             ASSEMBLYWOMAN ROSENTHAL:  Okay.

      12             Thank you.

      13             ASSEMBLYMAN CRESPO:  Assemblywoman Walker.

      14             ASSEMBLYWOMAN WALKER:  Wow, I guess that

      15      means we've gone around the world, and we're back

      16      again.

      17             So, I wanted to thank you for your time here

      18      today, and I understand it's been long.

      19             But I did just want to ask a couple of

      20      questions, now that I feel like -- I feel a little

      21      bit better now, I'm in my mojo.

      22             #MeToo -- the #MeToo movement sort of was

      23      brought about by Tarana Burke, in reference to Black

      24      women and girls being able, and being comfortable,

      25      with coming forward with our stories, because, in







                                                                   185
       1      many instances, we're left out of the conversation.

       2             We've seen in imagery, and in many societal

       3      norms, that Black women and girls are in -- we're

       4      unable to be violated, sexually.  We are, you know,

       5      portrayed as natural sexual beings and/or oversexed.

       6             We're categorized in those sort of languages

       7      as well.

       8             And, so, one of the most pervasive locations

       9      where I've been able to hear stories of sexual

      10      violence taking place against Black women and girls

      11      are in the criminal justice system.

      12             So -- so I have two questions.

      13             One:  When you're doing your outreach, are

      14      there any particular organizations that you work

      15      with in terms of promoting your policy directives?

      16             And I'll say, with the State, now that, you

      17      know, you guys are going to be recalibrating,

      18      I would imagine, what the outreach and coordination

      19      is amongst groups, are there any organizations that

      20      you've worked with in order to address the

      21      particular instances of women of color?

      22             And, in addition to that, with respect to

      23      instances where they're reported, do you keep -- do

      24      you keep records with respect to tracking --

      25      race-based tracking of your complaints, and







                                                                   186
       1      throughout different agencies?

       2             And, lastly, with respect to the criminal

       3      justice system, are we going into the correctional

       4      facilities, juvenile detention facilities, and

       5      providing training therein to, both, the individuals

       6      who are incarcerated there, as well as to the

       7      employees -- employ -- yes, employees of the

       8      institution?

       9             D.C. DANA SUSSMAN:  I can start, and try to

      10      answer as much as I can.

      11             So the organizations that we've worked with,

      12      I was just kind of doing a mental list of the

      13      organizations that we've worked with specifically on

      14      sexual harassment, and I can list them if that -- if

      15      that's is useful.

      16             And many of them are here, or will be

      17      speaking shortly, I hope.

      18             You know, Girls for Gender Equity, The Sexual

      19      Harassment Working Group, National Domestic Workers

      20      Alliance, Make the Road a Better Balance, and other

      21      initiatives.  We're working with LDF.

      22             We work with -- with respect to going into

      23      spaces where there are young people incarcerated, we

      24      do a lot of work in the correctional facilities

      25      in New York City, specifically focused on the







                                                                   187
       1      Fair Chance Act, you know, the "Ban the Box"

       2      protections in New York City.  So once you leave --

       3      once you have -- well, in many circumstances it's,

       4      once you've been incarcerated, you have employment

       5      protections in the workplace.  You can't be asked

       6      about your criminal history.

       7             So we focus much of our education on that

       8      in -- in facilities.

       9             But, I recognize that we should be doing

      10      more, and it's not that -- you are not only your

      11      criminal record, and so we should be recognizing.

      12             And I think we do speak to more protective

      13      categories in that outreach.

      14             But, certainly, I take your direction here,

      15      that we can be doing far more -- more, sort of,

      16      comprehensive education outreach in corrections

      17      facilities.

      18             And then, tracking, so one of the complicated

      19      factors for us in tracking is that, we don't ask for

      20      demographic information.  We -- people will

      21      self-identify, and that's recorded as part of their

      22      case, essentially.

      23             So it's, really, protections under our law

      24      are actual or perceived race, gender, disability,

      25      and everything else.







                                                                   188
       1             And so -- and especially, you know,

       2      particularly with respect to something like

       3      immigration status, we do not keep any records of

       4      that.  And a claim, because you are being

       5      discriminated against based on your immigration

       6      status, we would charge as actual or perceived in --

       7      very intentionally, to make sure that we are not

       8      highlighting anyone's actual or perceived

       9      immigration status.

      10             So, you know, the -- I think we can look at

      11      cases alleging race discrimination, and then look at

      12      those individual case files and see sort of what the

      13      facts are.

      14             But, from a 1,000-foot view, or 10,000-foot

      15      view, the demographic information is not something

      16      that we are tracking, both for privacy reasons, and

      17      also because it's not -- it's not vital to -- to the

      18      case across the board.

      19             It may -- certain aspects of your -- of your

      20      personal identity are, but not all of it.  And so we

      21      aren't keeping that information, as far as --

      22             ASSEMBLYWOMAN WALKER:  So I guess what makes

      23      me think, you know, whether or not -- you know,

      24      tracking, whether it's important or it's not

      25      important I guess is yet to be seen.







                                                                   189
       1             But, in many instances, I would imagine, not

       2      all, that the sexual harassment of Black women can

       3      also be coupled as, you know, race-based

       4      discrimination as well.

       5             And so, I guess, to the extent that, you

       6      know, they may or may not be mutually exclusive,

       7      it's important to be -- to know this information.

       8             And -- and I'll -- and I'll say that, you

       9      know, a lot of -- in a lot of instances, we like to

      10      say, you know, we don't see color.  Right?

      11             So that's almost what I hear, like, the

      12      agency is representing.

      13             But the fact of the matter remains, is

      14      that -- that we are a community of many hues.

      15             And a part of the conversation is being sort

      16      of left out of a very important conversation, and

      17      that -- and that community are Black -- is -- is --

      18      represents Black women.  Right?

      19             And, so, I just want to, I guess, you know,

      20      put -- put a -- a -- a -- I don't, a star, or a

      21      point, or something, to be able to say that, you

      22      know, I appreciate the space; like, I appreciate the

      23      fact that #MeToo has arisen, Time's Up is here.

      24             But also the National Black Women's Justice

      25      Institute released a very good report about -- it







                                                                   190
       1      was called "Expanding Our Frame: Deepening Our

       2      Demands for Safety and Sexual in" -- "Safety and

       3      Healing for Black Survivors of Sexual Violence."

       4             And so I guess this is the one place where

       5      I would appreciate, you know, for the agency to see

       6      color, and to recognize that this may be a coupling

       7      of maybe some race-based discrimination as well

       8      sexual violence in the workplace.

       9             D.C. DANA SUSSMAN:  And I would just like to

      10      put an extra exclamation point, or a checkmark, or a

      11      star, that, you know, I think the -- again, speaking

      12      anecdotally, and speaking with, and being very -- in

      13      very close touch with the supervisor for our

      14      gender-based harassment unit, highlights exactly

      15      that point: that most of the cases we see,

      16      gender-based harassment intersects with race, or

      17      immigration status, or national origin, or a

      18      multiple of those things.

      19             That it is more -- and -- and the statistics

      20      bear out, as we've seen, that women of color are

      21      more vulnerable to and experience sexual harassment

      22      at higher rates than White women.

      23             And that is what we see at the commission,

      24      and we recognize that, and -- and find -- and that

      25      is central to the work that we do.







                                                                   191
       1             And so I just want to reiterate that that is

       2      very much at the center of our work.

       3             SENATOR BIAGGI:  Senator Liu.

       4             ASSEMBLYWOMAN WALKER:  Hi -- oh.

       5             SENATOR LIU:  Thank you, Madam Chair.

       6             I apologize.  I --

       7             SENATOR BIAGGI:  Sorry, Senator Liu, one

       8      moment.

       9             D.C. MELISSA FRANCO:  As to whether, and

      10      where, we've done the outreach, whether -- and to

      11      the particular group, I would have to get back to

      12      you on that.

      13             In terms of tracking, we -- I wouldn't call

      14      it tracking, but, our data, we should be able to

      15      pull based on race or based on sexual harassment.

      16             We likely could pull that data if you'd like

      17      us to get back to you with it.  I don't have it

      18      today.

      19             D.C. GINA MARTINEZ:  We do have that data.

      20             But I believe the commissioner's assessment

      21      indicated, we also have individuals that file on

      22      multiple bases; so, people will file based on race

      23      and sexual harassment.

      24             So it's hard to take apart specific cases

      25      because, oftentimes, people are discriminated on







                                                                   192
       1      multiple bases.

       2             But we do have the data.

       3             As for us going into juvenile and

       4      correctional agencies to train, not since -- not

       5      that I'm aware of.

       6             But I can bring that suggestion back under

       7      advisement.

       8             SENATOR BIAGGI:  My apologies to

       9      Assemblywoman Walker.

      10             Senator Liu.

      11             SENATOR LIU:  Thank you, Madam Chair.

      12             I just have one more question to follow up,

      13      and that is:

      14             On more than one occasion,

      15      Commissioner Martinez, you had mentioned that --

      16      once again, you're proud that you have a relatively

      17      high rate of cases with probable cause at

      18      25 percent?

      19             Did I hear you correctly?

      20             D.C. GINA MARTINEZ:  Yes.

      21             SENATOR LIU:  All right.

      22             So does that mean 75 percent of complaints

      23      are unfounded; have no probable cause?

      24             What does that mean?

      25             D.C. GINA MARTINEZ:  Well, basically, for all







                                                                   193
       1      of the cases that we do investigate, that go through

       2      the investigation stage, 25 percent of them we find

       3      probable cause in.

       4             Some of the cases do not finish the

       5      investigation stage; they settle.

       6             Some of them are withdrawn by the

       7      complainants.  They decide to maybe pursue other

       8      avenues, or, they settle outside, privately.

       9             But, yes, that's a higher rate than most

      10      other cases.

      11             SENATOR LIU:  Okay, so "25 percent," that

      12      means that your division, ultimately, has to

      13      adjudicate, prosecute, I don't know what the words

      14      are, but, those -- it's 25 percent of the complaints

      15      that come to the division that, ultimately, you take

      16      action on?

      17             D.C. GINA MARTINEZ:  Sexual-harassment

      18      complaints.

      19             So --

      20             SENATOR LIU:  Okay, so these are

      21      specifically --

      22             D.C. GINA MARTINEZ:  Correct.

      23             SENATOR LIU:  -- because that was my next

      24      question.

      25             These are not all complaints; these are







                                                                   194
       1      specifically sexual-harassment complaints?

       2             D.C. GINA MARTINEZ:  Correct.

       3             So after a probable-cause determination is

       4      made, and the 25 percent is unique to

       5      sexual-harassment complaints, then those cases move

       6      along to a public hearing.

       7             So those -- those are the -- 25 percent of

       8      those cases are the ones that don't settle before

       9      the investigation ends.  They could settle

      10      afterwards.

      11             SENATOR LIU:  And that's great about the

      12      25 percent.

      13             I'm just worried about the 75 percent.

      14             And you're saying that -- it's not -- it's

      15      not, as I characterize it, that they were

      16      unfounded --

      17             D.C. GINA MARTINEZ:  Right, right.

      18             SENATOR LIU:  -- but, in fact, a lot of

      19      them --

      20             D.C. GINA MARTINEZ:  Yep.

      21             SENATOR LIU:  -- get settled before it

      22      actually gets to the public-hearing phase, which is

      23      what you're talking about with the 25 percent?

      24             D.C. GINA MARTINEZ:  Yes.

      25             SENATOR LIU:  And so -- I mean, are most of







                                                                   195
       1      that 75 percent settled beforehand?

       2             Because, you know, the -- at least the

       3      newfound wisdom, is that it's very hard for somebody

       4      to claim sexual harassment, and it's almost always

       5      true.

       6             So that's -- I'm trying to reconcile the

       7      75 percent that are not considered cases with

       8      probable cause, to our, you know, widely-accepted

       9      thinking that people are not going to file

      10      sexual-harassment assaults without probable cause.

      11             D.C. GINA MARTINEZ:  Right.

      12             Well, you know, the hard truth of the matter

      13      is, there are more cases that do get dismissed than

      14      do lead to probable cause.  That is the fact of the

      15      matter.

      16             SENATOR LIU:  And is that dis -- okay.

      17             Do you know why they get dismissed?

      18             Is it because of a deficiency in the law?

      19             D.C. GINA MARTINEZ:  Not necessarily.

      20             It could be for an abundance of reasons.

      21      It's different for each case.

      22             SENATOR LIU:  But they're -- they're --

      23      I mean, it seems like one of those reasons would be

      24      failure to meet this "severe and pervasive"

      25      standard.







                                                                   196
       1             Would that be one of the reasons?

       2             I mean, if some -- you know, if a woman feels

       3      like they've been sexually harassed on the job, they

       4      make a complaint, but, they don't -- they don't meet

       5      the "severe or pervasive" standard, just as one

       6      example, they would fall into that 75 percent

       7      "without probable cause."

       8             Is that correct or not correct?

       9             D.C. GINA MARTINEZ:  It -- it's -- it's our

      10      position that we take a very liberal interpretation

      11      of the law.

      12             So I -- I -- I can't -- I can't -- what's the

      13      word I'm looking for?

      14             SENATOR LIU:  All right, look, I'm not trying

      15      to badger anybody, but, Madam Chair --

      16             D.C. GINA MARTINEZ:  (Indiscernible

      17      cross-talking) understand.

      18             SENATOR LIU:  -- I think we need to get the

      19      commissioner here, somebody who -- you know,

      20      I understand your -- your -- your responsibilities,

      21      and the constraints that come with it.

      22             But we need the commissioner to respond, if

      23      not in a hearing, directly in writing, to these

      24      kinds of questions.

      25             And my last quick question is:  How many







                                                                   197
       1      deputy commissioners are there?

       2             Because you're -- there's two of you right

       3      now.

       4             How many deputy commissioners are there?

       5             D.C. GINA MARTINEZ:  There's two deputy

       6      commissioners --

       7             SENATOR LIU:  That's it?

       8             D.C. GINA MARTINEZ:  -- and one first deputy

       9      commissioner.

      10             Yes.

      11             SENATOR LIU:  Okay.  So there's, basically --

      12      so there's a deputy -- a first deputy commissioner

      13      above you, below the commissioner?

      14             D.C. GINA MARTINEZ:  Correct.

      15             SENATOR LIU:  Okay.

      16             I mean, I was hoping you would tell me that

      17      there would be like 10 deputy commissioners,

      18      because, in response to some of the legislators'

      19      questions earlier, you kept saying:  Well, I'm not

      20      in charge of that, or, I don't know about this.

      21      This is what I focus on.  That's some -- that's

      22      somebody else's job.

      23             And that would be a stronger defense for

      24      yourselves if there were like 10 deputy

      25      commissioners.







                                                                   198
       1             But there are only two of you.

       2             So you got the commissioner, you have the

       3      first deputy commissioner, and then there's the two

       4      of you.

       5             So, you know, between the two of you, you

       6      actually should be aware of everything that the

       7      division is responsible for.

       8             You may not know the exact details, but you

       9      can't say "that's not my area," I'm sorry to say.

      10             Thank you.

      11             ASSEMBLYMAN CRESPO:  So a couple -- couple

      12      follow-ups.

      13             If a settlement is involved --

      14             Am I using the right term, "settlement"?

      15             -- do those usually involve an admission of

      16      some sort of wrongdoing?

      17             D.C. MELISSA FRANCO:  No, they do not.

      18             ASSEMBLYMAN CRESPO:  They do not.

      19             D.C. MELISSA FRANCO:  They do not.

      20             ASSEMBLYMAN CRESPO:  Okay.  I'll have a

      21      follow-up to that later, I'll ask another panel.

      22             But let me switch gears a little bit on

      23      something else: the data.

      24             Again, when -- the 25 percent where there's

      25      probable cause, you find, and you go after the







                                                                   199
       1      incident, whatever complaint it was.

       2             That usually leads to a charge or a penalty

       3      or what -- what does it mean for the individual who

       4      committed the harassment and/or the employer who

       5      allowed it to happen?

       6             D.C. GINA MARTINEZ:  After the probable cause

       7      is made?

       8             ASSEMBLYMAN CRESPO:  Yes.

       9             D.C. GINA MARTINEZ:  So after the probable

      10      cause is made, it goes to the next stage, which is

      11      the hearing stage, or the settlement before the

      12      hearing.  And that's when that is decided between

      13      the parties, or, by the judge.

      14             ASSEMBLYMAN CRESPO:  And then once a decision

      15      is made there, what could it look like?

      16             D.C. MELISSA FRANCO:  When you say

      17      "decision," what do you mean, I'm sorry?

      18             D.C. GINA MARTINEZ:  You mean a hearing

      19      decision?

      20             ASSEMBLYMAN CRESPO:  Yes.

      21             D.C. GINA MARTINEZ:  By the judge.  Okay.

      22             D.C. MELISSA FRANCO:  So, a recommended

      23      order, after a review of all the evidence that was

      24      heard, any cross-examination, documentation, the ALJ

      25      will make a recommended order.







                                                                   200
       1             It is then sent to both parties, the

       2      respondent, as well as the complainant.  They are

       3      given 21 days to object to it in writing.

       4             Once they do, their objections, plus the

       5      record, is submitted to the commissioner's office,

       6      where two adjudication counsels review the record,

       7      and make a recommendation to the commissioner, which

       8      could be, she could adopt it as it stands; she can

       9      modify the ruling; and she could award more damages

      10      or less damages, based on that.

      11             And then once she makes the decision, the

      12      order gets sent to the -- both sides.

      13             ASSEMBLYMAN CRESPO:  So the damages could

      14      involve certain a payment to the victim and/or

      15      certain actions to be taken by the employer --

      16             D.C. MELISSA FRANCO:  Correct, it could --

      17             ASSEMBLYMAN CRESPO:  -- either internal,

      18      or --

      19             D.C. MELISSA FRANCO:  -- front pay, back pay.

      20      For mental health -- I mean, mental pain and

      21      suffering, there could be damages for that.  Order

      22      to desist from the, or stop the, bad actions --

      23             ASSEMBLYMAN CRESPO:  Okay.

      24             D.C. MELISSA FRANCO:  -- instill a policy.

      25             ASSEMBLYMAN CRESPO:  The reason I'm asking







                                                                   201
       1      this line of questions, I would like to -- I would

       2      hope that we could discuss how to create an

       3      environment where we could really try to stop the

       4      pervasiveness of this when it involves individuals

       5      who may come before you more than once.

       6             So, as Labor Chair, I would like to -- you

       7      know, we talk a lot about how to create a better

       8      environment for job applicants, how to give them an

       9      ability to know what environment they're going into,

      10      or, an employer who wants to make sure that they

      11      maintain a safe work environment, and not

      12      inadvertently bring somebody onboard who has been

      13      before your agency, you know, on multiple occasions.

      14             So I would like to, at some point, maybe have

      15      a follow-up conversation with you about this idea,

      16      because I believe that we should provide that

      17      information.

      18             And if the data is made available or public

      19      in some way, where, whether it's an affirmative

      20      action that takes place, a particular step that

      21      happens in an employment process, or, something

      22      that's researchable, right, that's available to

      23      folks, if I'm interested in working in a law firm:

      24             How do I know -- how would I find out or be

      25      aware of how many instances that firm, or employees







                                                                   202
       1      of that firm, have been before your agency?

       2             Or, how would I be able to verify that the

       3      supervisor that I'm going to be assigned to is

       4      someone that I may not want to work for because of

       5      his history.

       6             That kind pressure point would really

       7      encourage employers to address these issues much

       8      more forcefully because, now, the reputation of

       9      their environment is on the line.

      10             Vice versa, the employer should have an

      11      ability to know if the applicant that, on paper,

      12      looks like well-rounded applicant, may be somebody

      13      who has been in previous employment opportunities,

      14      on multiple occasions, accused of something.

      15             And there's really no mechanism for us, in

      16      anything we've discussed so far, unless I'm wrong,

      17      that would allow that information to be used the

      18      right way; to prevent the wrong people to be in the

      19      wrong places before this continues to occur.

      20             D.C. MELISSA FRANCO:  Sure.

      21             I don't know that there is a mechanism.  And

      22      it does sound like this is definitely a larger

      23      conversation that can be had here.

      24             It's one of those issues where a lot of what

      25      you said makes sense, but I would have to think







                                                                   203
       1      about, what -- what's the flip side of what you're

       2      saying.

       3             So, I don't think you're asking for a

       4      question, but I definitely think it deserves a

       5      greater conversation.

       6             ASSEMBLYMAN CRESPO:  I just want to put it

       7      out there.  I think it's relevant to how data is

       8      used, and how it's reported, when it's all settled,

       9      or, at least for those percentages where there was

      10      probable cause.

      11             So it's something that I would love to

      12      explore as a follow-up.

      13             But, you've been incredibly --

      14             You have a question?

      15             SENATOR BIAGGI:  (Nods head.)

      16             ASSEMBLYMAN CRESPO:  -- incredibly patient on

      17      our end, and we really want to thank you for the

      18      time and your testimony.

      19             SENATOR BIAGGI:  Just one comment.

      20             Thank you, again.

      21             I want to echo what my Assembly Co-Chair just

      22      said.

      23             Thank you for sitting and listening to us,

      24      and answering all of our questions.  It's incredibly

      25      important.







                                                                   204
       1             I encourage you to stay, to hear from all of

       2      the other individuals in this room who will be

       3      testifying, not only because it's important for you

       4      to have access to this information, but because,

       5      again, we want to be partners in this journey with

       6      you as well.

       7             And, to anybody in the room who has a

       8      complaint, we would encourage you to please speak to

       9      these individuals in the room before the end of the

      10      day.

      11             Or, if anybody who's watching would like to

      12      do that in the future, please, we encourage you to

      13      use the resources that we have before us, which are

      14      the State and the City.

      15             Thank you very much.

      16             D.C. DANA SUSSMAN:  I'd just like to make a

      17      quick note.

      18             I'm going to be stepping back to my office

      19      across the street to pump, and I will be returning

      20      to hear the rest of the testimony.

      21             So, just to -- I wanted to -- I will be back.

      22             SENATOR BIAGGI:  Thank you.

      23             ASSEMBLYMAN CRESPO:  Remember, 5:30 is the

      24      deadline.

      25             D.C. DANA SUSSMAN:  Right.







                                                                   205
       1             SENATOR BIAGGI:  Thank you.

       2             ASSEMBLYMAN CRESPO:  Thank you for your

       3      testimony.

       4             While the next presenter, who will be the

       5      New York State Governor's Office of Employee

       6      Relations, Michael Volforte, the director, comes up,

       7      I want to make two quick announcements.

       8             We have been joined by Assemblymember

       9      Felix Ortiz and Assemblywoman Natalia Fernandez.

      10             I want to thank them for joining us.

      11             A reminder that, 5:30, security issues, you

      12      will be able to exit at any point, but after 5:30

      13      not return to the building.

      14             And an acknowledgment of the fact that we

      15      will be here for quite some time, and not all of you

      16      have somebody available to go grab lunch for you.

      17             I have ordered pizza for everyone.  I think

      18      there should be enough coming.  It will be in

      19      another room.  We'll announce when it's available.

      20             So...

      21                [Applause.]

      22             OFF-CAMERA SPEAKER:  That's very nice.  Thank

      23      you.

      24             ASSEMBLYMAN CRESPO:  As long as my counsel

      25      tells me it's a legitimate campaign expense, so...







                                                                   206
       1                [Laughter.]

       2             ASSEMBLYMAN CRESPO:  Appreciate your

       3      patience.

       4             We're going to continue, so if we could

       5      settle down.

       6             MICHAEL VOLFORTE:  I was ambitious with my

       7      lead --

       8             OFF-CAMERA SPEAKER:  You see what you did

       9      with the pizza announcement?

      10             MICHAEL VOLFORTE:  -- where it said "Good

      11      morning."

      12             ASSEMBLYMAN CRESPO:  Too excited.  It will be

      13      a while.

      14             MICHAEL VOLFORTE:  I was ambitious.

      15             SENATOR BIAGGI:  You can begin.

      16             Thank you.

      17             MICHAEL VOLFORTE:  Thank you.

      18             Good afternoon.

      19             SENATOR BIAGGI:  If we could just have quiet

      20      and silence in the room.

      21             Thank you.

      22             MICHAEL VOLFORTE:  Good afternoon,

      23      Chair Skoufis, Chair Biaggi, Chair Salazar,

      24      Chair Titus, Chair Crespo, and Chair Walker, and

      25      other members of the Senate and Assembly here today.







                                                                   207
       1             My name is Michael Volforte, and I am the

       2      director of the Governor's Office of Employee

       3      Relations, also known as "GOER."

       4             Thank you for the opportunity to participate

       5      in this hearing on sexual harassment in the

       6      workplace.

       7             In these remarks I'd like to detail some of

       8      the very important steps we've taken under

       9      Governor Cuomo's leadership to tackle the issue of

      10      discrimination in the workplace.

      11             Shortly after the Governor was elected, we

      12      created a compilation of all the rights and

      13      protections that executive-branch state employees

      14      have from employment-based discrimination called

      15      "Equal Employment Opportunity in New York State:

      16      Rights and Responsibilities," a handbook for

      17      employees of the state of New York, also called

      18      "The Handbook."

      19             The Handbook informs state employees of their

      20      rights and responsibilities when it comes to

      21      protecting employees from discrimination.

      22             In 2013 we implemented a standard

      23      investigation process for agencies to follow in

      24      investigation of complaints of protected-class

      25      employment discrimination.







                                                                   208
       1             We also created a small unit within GOER to

       2      assist agencies in completing those investigations

       3      pursuant to that process, and to provide technical

       4      guidance to both investigators and agency counsel

       5      alike.

       6             In 2013 we revised our

       7      sexual-harassment-prevention training program, and

       8      mandated that all executive-branch employees

       9      complete that training on a yearly basis.

      10             The next year we added two additional

      11      mandated annual training courses on all

      12      protected-class employment rights and reasonable

      13      accommodation for both disability and religious

      14      reasons.

      15             In August of 2018 we took another step

      16      forward in the investigation of complaints of

      17      employment-related protected-class discrimination

      18      with the Governor's issuance of Executive Order 187,

      19      with the goals of achieving more independent

      20      investigations of employment-discrimination

      21      complaints, but ensuring that the investigative body

      22      has knowledge and understanding of the state

      23      workforce, employer-employee relationship.

      24             Executive Order Number 187 transferred the

      25      responsibility for conducting investigations of all







                                                                   209
       1      employment-related protected-class discrimination

       2      complaints, in agencies and departments over which

       3      the Governor has executive authority, to GOER.

       4             These investigations include discrimination

       5      complaints based upon protected-classes filed by

       6      employees, including contractors, interns, and other

       7      persons engaged in employment at these agencies and

       8      departments.

       9             The protected classes are those set forth in

      10      the applicable federal, New York State, laws;

      11      executive orders; and other policies; including

      12      those based on age, arrest, conviction record,

      13      color, creed, disability, domestic-violence victim

      14      status, gender identity, marital and family status,

      15      military status, national origin, predisposing

      16      genetic characteristics, pregnancy-related

      17      conditions, race, retaliation, sex, sexual

      18      orientation, and sexual harassment.

      19             Pursuant to Executive Order 187, effective

      20      December 1, 2018, all complaints of protected-class

      21      employment-related discrimination are being

      22      investigated by GOER's anti-discrimination

      23      investigations division (ADID).

      24             This responsibility covers approximately

      25      130,000 executive-branch employees, but does not







                                                                   210
       1      include employees of SUNY, CUNY, SED (the State

       2      Education Department), the Legislature, office of

       3      attorney general, or the office of state

       4      comptroller.

       5             GOER investigates complaints executive-branch

       6      employees file internally within these -- within

       7      state agencies, and external complaints, like those

       8      filed with the division of human rights or the Equal

       9      Employment Opportunity Commission.

      10             Complainants may include employees, interns,

      11      contractors, delivery people, consultants; anyone

      12      whose workplace involves the state agency location

      13      or interaction with state employees consistent with

      14      state law and policy.

      15             In preparation for its new responsibility,

      16      GOER received 41 affirmative-action administrators

      17      called "AAOs" from state agencies, who are already

      18      investigating -- already engaged, excuse me, in the

      19      investigation of employment-discrimination

      20      complaints; and hired another six employees to help

      21      manage these employees.

      22             We also created an independent investigation

      23      process, developed a new complaint form entitled

      24      "New York State Employee Discrimination Complaint

      25      Form," for employees to use, and revised







                                                                   211
       1      The Handbook, all the while making sure that our

       2      training, policy, and procedures comport with the

       3      2018 sexual-harassment prevention laws that were

       4      enacted by the Legislature and signed into law by

       5      the Governor.

       6             Both the New York State Employee

       7      Discrimination Complaint Form and The Handbook are

       8      posted prominently on the GOER agency web page of

       9      our -- homepage of our website, and agencies have

      10      been instructed to regularly distribute them to

      11      their employees as well.

      12             Individuals now file complaints directly with

      13      GOER without ever going through the chain of command

      14      at their employing agency.

      15             We've established an online fillable form

      16      that can be e-mailed directly to a dedicated e-mail

      17      box.  Employees can also mail complaints to GOER.

      18             We have AAOs located in a number of agencies,

      19      and employees are also free to speak with them and

      20      file complaints directly with them.

      21             We also mandate that any supervisor or

      22      manager who observes, witnesses, or hears about

      23      discriminatory conduct, report the conduct by filing

      24      a discrimination complaint with GOER.

      25             Agencies send out reminders to their







                                                                   212
       1      employees regularly, to remind them to whom they can

       2      complain, where the form and policy on

       3      discrimination prevention is located.

       4             GOER investigates complaints pursuant to our

       5      established 10-step investigative process.

       6             Agencies must cooperate with GOER, and

       7      provide access to employee's information and

       8      documentation relevant to each complaint.

       9             When GOER receives a complaint, the

      10      complainant receives an acknowledgment of receipt of

      11      the complaint, and agency general counsel is also

      12      notified of the complaint as well.

      13             A respondent is notified at the point in the

      14      investigation when it is necessary to inform them,

      15      or when interim administrative action is being

      16      taken.

      17             The parties are notified of the outcome when

      18      the investigation is concluded.

      19             Once a complaint is concluded, if it is

      20      substantiated, we work with the agency to ensure

      21      that they are implementing corrective or

      22      disciplinary action that we determine.

      23             Confidentiality is important in our

      24      investigations.  Complainants, respondents,

      25      witnesses, and administrators at agencies are







                                                                   213
       1      advised not to discuss complaints while the

       2      investigation is ongoing, to prevent anyone from

       3      trying to try to influence the outcome and to avoid

       4      instances of retaliation.

       5             Of course, complainants and respondents,

       6      where represented, are free to speak with their

       7      representatives.

       8             We are clear about prohibiting retaliation.

       9             Every employee, whether a witness,

      10      complainant, or respondent, is advised during the

      11      investigation process that retaliation is

      12      prohibited.

      13             Statistically, we have seen a rise in the

      14      number of complaints overall.  This is not

      15      unexpected, and was anticipated, given a number of

      16      factors, not the least of which, we think is, we are

      17      providing regular reminders of where employees can

      18      complain.  And, additionally, employees now have

      19      someone external to their own employing agency to

      20      report discrimination to.

      21             This is consistent with what we are hearing

      22      anecdotally from other entities that handle

      23      complaints of discrimination: increasing awareness

      24      of what constitutes discrimination leads to more

      25      people filing complaints.







                                                                   214
       1             Also, we determine whether the allegations in

       2      each complaint, if substantiated, violate the policy

       3      set forth in The Handbook; not whether they actually

       4      violate the law.

       5             GOER investigates every allegation of

       6      discrimination, whether the complainant overheard a

       7      single sexual comment or joke, to other than -- to

       8      other far more involved and complex allegations of

       9      discrimination.

      10             We take our role in investigating and

      11      resolving complaints of discrimination extremely

      12      seriously.  No employee should have to endure

      13      harassment based on their protected-class status.

      14             And we are committed to furthering efforts to

      15      both ensure that the State's policies concerning

      16      discrimination, harassment, and discrimination in

      17      the workplace are followed, and holding individuals

      18      accountable who violate our policies.

      19             Thank you for the opportunity to appear, and

      20      I'll answer any questions that you have.

      21             SENATOR BIAGGI:  Senator Salazar.

      22             SENATOR SALAZAR:  Thank you.

      23             And thank you for testifying.

      24             We missed GOER at the first hearing in

      25      February, so I really appreciate you coming here







                                                                   215
       1      today.

       2             I first wanted to ask about the complaint

       3      form that was mentioned.

       4             I've seen the complaint form online, and

       5      I know it's two pages.  It includes the division's

       6      e-mail and mailing address, but there's no --

       7      there's no phone number on the form.

       8             I also noticed that there is no disclaimer on

       9      the form or any language that might inform an

      10      employee of their rights.

      11             And I'm just wondering, who exactly developed

      12      the form, and -- or who was consulted by GOER in

      13      creating it?

      14             MICHAEL VOLFORTE:  GOER developed the form

      15      itself.

      16             SENATOR SALAZAR:  Right.  Okay.

      17             And could you perhaps tell me, like, who

      18      within GOER, maybe not by name, but what the role is

      19      (indiscernible cross-talking) --

      20             MICHAEL VOLFORTE:  Sure.

      21             Myself and my anti-discrimination

      22      investigation's division leadership developed the

      23      form.

      24             SENATOR SALAZAR:  Excellent.  Thank you.

      25             And there was one other question I wanted to







                                                                   216
       1      ask you.

       2             MICHAEL VOLFORTE:  On the information on

       3      other rights and responsibilities, that's contained

       4      in that handbook that I referenced, which is a

       5      44-ish-page document, which is located on our

       6      website.

       7             And all the agencies post on their own

       8      intranets where the location of that handbook is.

       9             SENATOR SALAZAR:  Excellent.  Thank you.

      10             Another question I had was with regard to,

      11      ahead of -- of actually taking responsibility for

      12      these complaints, GOER, it says, received

      13      affirmative-action administrators from state

      14      agencies.

      15             I'm wondering what happened to any active

      16      investigations from other agencies, after this --

      17      after the executive order went into effect, any

      18      active investigations from other agencies, such as

      19      DHR or JCOPE.

      20             MICHAEL VOLFORTE:  We don't handle DHR or

      21      JCOPE investigations.

      22             But if it was an internal complaint, the

      23      investigation was finished by the individuals doing

      24      that investigation, or one of our investigators.

      25             And if it was an external complaint, meaning,







                                                                   217
       1      somebody filed with DHR, but before there was an

       2      employer response, those same individuals would have

       3      completed that.

       4             We would have no role with JCOPE.

       5             SENATOR SALAZAR:  I see.

       6             So -- so then GOER has not received any,

       7      like, active investigations that were transferred

       8      over from, or referred by, either by one of these

       9      agencies or an agency that was just not equipped and

      10      not responsible for handling complaints?

      11             MICHAEL VOLFORTE:  We -- if an -- if an

      12      indiv -- if an agency didn't have an AAO, we will

      13      assign an AAO to investigate anything from that

      14      agency.

      15             That was the general process before, except,

      16      they might get somebody from a different agency.

      17             This time, as of now, they'll get somebody

      18      from GOER to do that.

      19             And we took steps, and are taking steps, to

      20      make sure all of those open issues were closed after

      21      the transfer of the 41 individuals to GOER.

      22             SENATOR SALAZAR:  Thank you.

      23             ASSEMBLYMAN CRESPO:  So, uhm, just want to be

      24      clear.

      25             So, state agencies will no longer have their







                                                                   218
       1      own internal process?

       2             MICHAEL VOLFORTE:  Every state agency has an

       3      internal process, and it's the same: it's the one

       4      that GOER has dictated is the process.

       5             ASSEMBLYMAN CRESPO:  So you've given them a

       6      process, they all have to follow it.

       7             But if a -- if I work for an agency, I cannot

       8      go to my agency to file; I have to go to your office

       9      to file?

      10             MICHAEL VOLFORTE:  You can still go to your

      11      agency to file.

      12             So that's not an option, except that that

      13      agency is mandated to report it to GOER, and GOER

      14      will investigate it, so that the agency isn't

      15      investigating themselves.

      16             ASSEMBLYMAN CRESPO:  So they can only serve

      17      as a recipient of the complaint?

      18             MICHAEL VOLFORTE:  Correct.

      19             ASSEMBLYMAN CRESPO:  You handle it --

      20             MICHAEL VOLFORTE:  They --

      21             ASSEMBLYMAN CRESPO:  -- you enforce it, you

      22      investigate it?

      23             MICHAEL VOLFORTE:  Sorry, I won't interrupt.

      24             ASSEMBLYMAN CRESPO:  No, no, just --

      25             MICHAEL VOLFORTE:  Yes, you're absolutely







                                                                   219
       1      right, they are the recipient of it.

       2             They either try to have the individual fill

       3      out a complaint form, or they're instructed to fill

       4      out the complaint form themselves with the

       5      information they have, and forward it to GOER.

       6             ASSEMBLYMAN CRESPO:  So that -- that an

       7      employee would not have a recourse to go to the

       8      agencies we just heard from, human rights

       9      commission?

      10             MICHAEL VOLFORTE:  That's different.

      11             What my role as -- is, is the employer is

      12      investigating ourselves --

      13             ASSEMBLYMAN CRESPO:  Okay.

      14             MICHAEL VOLFORTE:  -- so to speak, and they

      15      are external agencies.  Think of them as law

      16      enforcement, just like the courts.

      17             Our process does not restrict an employee

      18      from -- an employee could go to somebody in their

      19      own agency.  That gets filed to GOER; an AAO there

      20      within GOER.

      21             They could come to GOER themselves by

      22      e-mailing it, to the -- mailing or -- or e-mailing.

      23             They could file a separate complaint with DHR

      24      or the EEOC, and follow their procedures.

      25             Or, they could go to court in accordance with







                                                                   220
       1      whatever rules are applied.

       2             Those are all options, and those are things

       3      that are highlighted also in our handbook.

       4             ASSEMBLYMAN CRESPO:  So DHR and GOER could,

       5      essentially, be making the same investigation

       6      simultaneously?

       7             MICHAEL VOLFORTE:  If the person, yes, goes

       8      to both of us at the same time, it -- it -- for all

       9      intents and purposes, it will be the same

      10      investigation, except that, in the internal

      11      complaint, we will be -- we will be reporting, so to

      12      speak, to ourselves, and we'll issue a report to the

      13      agency, telling them we found "X" happened, and this

      14      is how you fix it.

      15             In the DHR context, what will happen is, is

      16      the agency will use whatever information we put

      17      together as an investigation to file their response

      18      with DHR.

      19             We are not conversing with DHR regarding

      20      investigations.  We're just investigating on behalf

      21      of the agency, to give them the facts, to answer

      22      that.  And those facts will either be discrimination

      23      occurred or discrimination didn't occur, and then

      24      they'll -- then the agency themselves will follow

      25      the DHR process.







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       1             ASSEMBLYMAN CRESPO:  Thank you.

       2             Assemblywoman Simotas.

       3             ASSEMBLYWOMAN SIMOTAS:  Thank you for joining

       4      us today.

       5             How does your office track numbers and

       6      outcomes of reports of every state agency, and will

       7      any of that information become public?

       8             SENATOR CARLUCCI:  We -- we keep track of it

       9      internally now that we're -- we've taken over this

      10      investigative process.  And, we've built a system to

      11      track that, and give data to us, so that it informs

      12      future decisions we make, in terms of training and

      13      efforts we have make to root out, you know, systemic

      14      problems that exist maybe in an agency, in an

      15      office, and things like that.

      16             So we have that information.

      17             We have no current mandate to publish that

      18      data, but it's some -- you know, we certainly always

      19      review that and plan on reviewing it in the future.

      20             ASSEMBLYWOMAN SIMOTAS:  Would it something

      21      that's FOILable?

      22             Is that -- obviously, the random public

      23      couldn't get it.

      24             But can we as legislators get it if we asked

      25      for it?







                                                                   222
       1             MICHAEL VOLFORTE:  Uhm...

       2             ASSEMBLYWOMAN SIMOTAS:  Well, how about

       3      this --

       4             MICHAEL VOLFORTE:  I can't answer the

       5      question totally on FOIL, 'cause it's -- there will

       6      be things.

       7             Statistical information could be available.

       8             Specifics won't be.

       9             ASSEMBLYWOMAN SIMOTAS:  Well, then, I make

      10      the request right now for the Legislature, I can

      11      speak on behalf of the Assembly, that we would like

      12      that information.

      13             Hopefully, we'll figure out a way to make it

      14      public, because I think that society -- the public

      15      should know about how many complaints are filed

      16      regarding state agencies.

      17             But, nonetheless, I would make that request

      18      right now.

      19             MICHAEL VOLFORTE:  Okay.

      20             ASSEMBLYWOMAN SIMOTAS:  My next question is:

      21      What efforts has your office made to implement best

      22      practices for trauma-informed investigations?

      23             We heard at our last hearing, a lot of people

      24      who've been through the process, who weren't

      25      satisfied with being kept up to date, with some of







                                                                   223
       1      the questions that were inappropriate.

       2             Clearly, these investigations are asking

       3      sensitive questions.

       4             And it would behoove your office to make sure

       5      that people who are trauma -- who are experts in

       6      this trauma are doing the investigations.

       7             So what steps have -- has your office taken

       8      to do so?

       9             MICHAEL VOLFORTE:  All of the investigators

      10      either have a background in this field.

      11             And if they -- if they don't, they're all

      12      trained by my office now so the training is

      13      consistent.

      14             The term, the "trauma-based" --

      15      "trauma-informed training," we don't, technically,

      16      do that exact training.  But we do train our

      17      investigators in how to be, you know, sensitively

      18      asking questions to be inquisitive.

      19             Everyone realizes it's very sensitive, both

      20      in the sexual-harassment field and in other fields.

      21             You know, I did view the last testimony.

      22             I'm not sure that people who spoke about the

      23      process were speaking about our process, so I can't

      24      really comment on the questions about what specific

      25      questions were and were not asked.







                                                                   224
       1             I know I heard some earlier testimony on what

       2      JCOPE asked, but that's not what we do.

       3             ASSEMBLYWOMAN SIMOTAS:  I know, specifically,

       4      a lot of the people who testified talked about being

       5      kept up to date, being informed, of the whole

       6      process of the determinations.

       7             What is your process in your 10 steps that

       8      you follow to make sure that complainants are kept

       9      up to date?

      10             MICHAEL VOLFORTE:  Sure.

      11             They're informed at the beginning, they're

      12      consulted during it.  They're often interviewed, and

      13      sometimes multiple times.  And then they're informed

      14      at the end whether their complaint is substantiated

      15      or unsubstantiated.  And if it's substantiated, that

      16      we're taking action.

      17             There is not a regular updating process as

      18      part of that, other than what I've described.

      19             ASSEMBLYWOMAN SIMOTAS:  Thank you.

      20             SENATOR BIAGGI:  Senator Mayer.

      21             SENATOR MAYER:  Thank you.

      22             Thank you for being here.

      23             Question on your testimony, on page 3, and

      24      this is a question I just don't know the answer,

      25      but, you say, "We mandate that any supervisor or







                                                                   225
       1      manager who observes, witnesses, or hears about

       2      discriminatory conduct report the conduct by filing

       3      a discrimination complaint with GOER."

       4             Now, is the -- so mandatory reporting, which

       5      I think is extremely critical, is that required by

       6      Executive Order 187, or is that a GOER imposition?

       7             MICHAEL VOLFORTE:  It's -- it's required in

       8      our policy, and it's required by GOER.

       9             I'd have to -- I didn't -- I don't have the

      10      executive order with me, but it may -- it may

      11      reference that in the executive order.

      12             But it is in our policy, and it is in GOER

      13      pronouncements to the agencies.

      14             SENATOR MAYER:  And so with respect to every

      15      executive agency, and I recognize GOER doesn't go

      16      beyond that, there is a mandatory reporting

      17      requirement of -- by a supervisor or manager of any

      18      discriminatory conduct of which they are made aware?

      19             MICHAEL VOLFORTE:  Yes.

      20             SENATOR MAYER:  And when you are made aware

      21      of conduct which is, arguably, or potentially,

      22      criminal, do you -- what steps do you take with

      23      respect to that conduct?

      24             MICHAEL VOLFORTE:  We refer it to law

      25      enforcement, and then we wait for an a law







                                                                   226
       1      enforcement determination to go ahead with an

       2      administrative investigation, so as to not disturb

       3      the criminal investigation.

       4             SENATOR MAYER:  And how many times has GOER

       5      done that in the last year?

       6             MICHAEL VOLFORTE:  I don't have -- I don't

       7      have a statistic off the top of my head.

       8             SENATOR MAYER:  Any -- anytime?

       9             MICHAEL VOLFORTE:  At least one, that I'm

      10      aware of.

      11             SENATOR MAYER:  And not withstanding the fact

      12      that this is executive agencies, again, do you ever

      13      refer -- let me rephrase that.

      14             In the case of a pattern or practice of

      15      discrimination alleged against a supervisor or

      16      manager of a state agency, what steps do you take

      17      that are distinguishable from an individual

      18      complaint against a supervisor or manager?

      19             MICHAEL VOLFORTE:  If an investigation, or

      20      investigations, led to a conclusion that an

      21      individual supervisor or manager had a pattern or

      22      practice, that individual would be brought up on

      23      administrative action.  And depending on their --

      24      their job, they could be -- they might be in a unit

      25      where we have to file notice of disciplinary







                                                                   227
       1      charges.  Or, if they're a high-ranking individual,

       2      if the conduct is of a level, they'll be

       3      disciplined/terminated.

       4             SENATOR MAYER:  Since this policy, I think

       5      it's 2018 the Governor's executive order went into

       6      effect, do you know how many employees of state

       7      agencies have been terminated as a result of their

       8      discriminatory conduct?

       9             MICHAEL VOLFORTE:  No.

      10             SENATOR MAYER:  Do you have any -- any idea

      11      that -- could we be provided with that number?

      12             MICHAEL VOLFORTE:  I can see if we have that

      13      number.

      14             I don't know that GOER has that number,

      15      'cause the agencies themselves handle disciplines.

      16             So it's not -- it's not a -- we don't have

      17      prosecutors that prosecute notices of discipline for

      18      the agency.

      19             SENATOR MAYER:  I understand.

      20             But you do the investigation.

      21             MICHAEL VOLFORTE:  We do the investigation.

      22             SENATOR MAYER:  Do you make a recommendation

      23      with respect to what action should follow?

      24             MICHAEL VOLFORTE:  Yes.

      25             SENATOR MAYER:  So are there cases in which







                                                                   228
       1      you have recommended termination?

       2             MICHAEL VOLFORTE:  Yes.

       3             SENATOR MAYER:  How many?

       4             MICHAEL VOLFORTE:  I don't have that

       5      information.

       6             SENATOR MAYER:  Could you provide it?

       7             MICHAEL VOLFORTE:  Certainly.

       8             SENATOR MAYER:  Thank you.

       9             ASSEMBLYMAN CRESPO:  Assemblywoman Fernandez.

      10             ASSEMBLYWOMAN FERNANDEZ:  Good afternoon.

      11             Following up with, I guess, a topic that

      12      Chair Crespo brought, and what we've talked about of

      13      you handling your investigation and the agency doing

      14      their own investigation, what happens if you come to

      15      a decision that is different than what the agency

      16      decides?

      17             MICHAEL VOLFORTE:  The agency is not

      18      investigating.

      19             ASSEMBLYWOMAN FERNANDEZ:  They don't?

      20             MICHAEL VOLFORTE:  So --

      21             ASSEMBLYWOMAN FERNANDEZ:  Okay, I thought

      22      I heard (indiscernible cross-talking) --

      23             MICHAEL VOLFORTE:  -- but -- so just in case

      24      I was unclear:

      25             We get the complaint.  We investigate the







                                                                   229
       1      complaint.  We render a factual determination as to

       2      what we think occurred.

       3             The agency can say to us, Well, we think you

       4      should investigate, this.

       5             Maybe there's something particular to that

       6      agency that we didn't look at in terms of that.

       7             There's a final determination as to what

       8      facts occurred.

       9             GOER determines what those facts are.

      10             The agency does not get an opportunity to

      11      have a vote or overrule GOER.

      12             ASSEMBLYWOMAN FERNANDEZ:  Okay.

      13             And Senator Mayer kind of took my question

      14      with determinations, and how often those happen.

      15             But, would you say that that's a successful

      16      assessment to a case of sexual harassment if the

      17      person gets terminated?

      18             Or, has there been instances where they don't

      19      get terminated, but they just go through, I guess,

      20      more training or policy amendments?

      21             Can you give me an example of, I guess,

      22      results from a complaint that does not end in

      23      termination, but what do you do --

      24             MICHAEL VOLFORTE:  Oh, sure.

      25             ASSEMBLYWOMAN FERNANDEZ:  -- with the







                                                                   230
       1      complainer and the victim?

       2             MICHAEL VOLFORTE:  Since the overwhelming

       3      majority of our workforce are unionized, they all --

       4      the -- that vast majority have tenure rights and

       5      due-process rights.

       6             So you have to bring -- in order to take the

       7      ultimate action, termination, for those employees,

       8      you have to file written charges.  They have to be

       9      fairly specific.  And then you have to prove them in

      10      front of an independent arbitrator, and then that

      11      arbitrator is to award termination.

      12             Those are -- you know, in serious cases,

      13      those are things that we go for.

      14             So if there was an -- if there was an

      15      incident where a -- you know, a man grabs a woman,

      16      we're gonna -- and that's proven, factually, to have

      17      occurred, we're going to file charges and we're

      18      going to seek termination.

      19             There are levels below that,

      20      administratively, we can go through.

      21             If someone is a -- and it's not to

      22      characterize the content as -- or, the action as

      23      good or bad, but, if an individual makes one

      24      sexually-explicit joke, that typically won't amount

      25      to a violation of law.  We would still investigate







                                                                   231
       1      that, make a conclusion.  And if it occurred, we

       2      would take action.

       3             Sometimes that would be, the individual is

       4      counseled, which base -- they receive a memo, that

       5      goes in their file, that alerts them that it was

       6      improper, that they shouldn't do that.  And they are

       7      retrained on that.

       8             So that would be -- that would be the type of

       9      thing that wouldn't go to a disciplinary process, on

      10      those limited facts.

      11             If that individual has some other history,

      12      that all gets taken into account and could change

      13      that -- that -- the compass on where we go.

      14             But if you're talking about an employee with

      15      28 years of service, and had never done anything

      16      incorrect or bad in their career, and made that one

      17      poor choice to tell that one joke, that might be the

      18      result in that case if it was founded.

      19             ASSEMBLYWOMAN FERNANDEZ:  Say, if this person

      20      continues -- they get the first warning, go through

      21      training, counseling, they do it again -- do you

      22      have like a "three strikes, you're out" type of

      23      motto?  Or, is there some type of limit or statute

      24      that you use to take a stronger --

      25             MICHAEL VOLFORTE:  We try to be consistent







                                                                   232
       1      across lines.

       2             It's all going to be dependent on what their

       3      history was, and what they did this time.

       4             So if somebody did that comment, and then the

       5      next day they're doing another comment, or, you

       6      know, maybe they -- then, that's going to -- that

       7      timing, in our mind, would ratchet up how we take

       8      action on that individual.

       9             If there's a long period of time, if we're

      10      talking years, that's going to be a factor.

      11             The years an employee has, the type of

      12      conduct, all of that goes in.

      13             So there's no stead answer, and there's no

      14      specific chart of, you do X, and you do Y.

      15             We do certain things we take extremely

      16      seriously, and go to the end, such as complaints of

      17      retaliation.

      18             If you think you've retaliated against

      19      somebody, we will seek your termination.

      20             ASSEMBLYWOMAN FERNANDEZ:  I've seen how

      21      certain people working in a certain agency might

      22      move to another agency in the time of their -- you

      23      know, (indiscernible) working for the State.

      24             If they do have a record of these type of

      25      reports and complaints, is the next employer or







                                                                   233
       1      supervisor made aware of them before hiring and

       2      accepting them?

       3             MICHAEL VOLFORTE:  I don't know what occurred

       4      in the past.

       5             Certainly, those, that information is now

       6      centralized in my office, and it's certainly

       7      something we can look at in terms of how that --

       8      that's handled.

       9             Certainly, that information, now that it's

      10      within GOER, becomes relevant if there's another

      11      complaint that's in our purview, and so that we'll

      12      have that individual's history (inaudible) those

      13      make those informed decisions about how to handle

      14      that next case, so to speak.

      15             ASSEMBLYWOMAN FERNANDEZ:  Thank you.

      16             SENATOR BIAGGI:  Thank you.

      17             I have several questions, and I want to just

      18      start at the top.

      19             So, I think that -- I'm a little bit

      20      confused, and I read a lot of the documents before

      21      to prepare for this.  So, if you could just bear

      22      with me and humor me, that would be much

      23      appreciated.

      24             So how many agencies are currently under

      25      GOER's purview?







                                                                   234
       1             Or, perhaps, maybe it would be easier this

       2      way:  How many agencies or entities are not under

       3      GOER's purview?

       4             MICHAEL VOLFORTE:  I've listed them in my

       5      testimony, and most authorities are not.

       6             SENATOR BIAGGI:  So from -- at least from

       7      what I have found, is it accurate to say that the

       8      MTA and the judiciary are not under GOER's purview?

       9             MICHAEL VOLFORTE:  Correct.

      10             SENATOR BIAGGI:  Okay.  So if a member of the

      11      judiciary, or, a staffer in the judiciary, had a

      12      problem or an issue, would they just go to DHR?

      13             MICHAEL VOLFORTE:  They could -- I -- at

      14      this -- based on last year's legislation, if they

      15      hadn't done it before --

      16             SENATOR BIAGGI:  Sure.

      17             MICHAEL VOLFORTE:  -- the judiciary should

      18      have their own policy where somebody could make an

      19      internal complaint.

      20             They could go to DHR.

      21             SENATOR BIAGGI:  Got it, got it.

      22             MICHAEL VOLFORTE:  They could go

      23      (indiscernible cross-talking) --

      24             SENATOR BIAGGI:  And the same for MTA;

      25      correct?







                                                                   235
       1             MICHAEL VOLFORTE:  Correct.

       2             SENATOR BIAGGI:  Okay.

       3             So who oversees the MTA and the judiciary?

       4             Who's going to be doing that oversight?

       5             MICHAEL VOLFORTE:  I don't know the answer to

       6      that question.

       7             SENATOR BIAGGI:  So there's currently no

       8      entity in the state government overseeing any of the

       9      complaints and investigations for the MTA and the

      10      judiciary; is that correct?

      11             MICHAEL VOLFORTE:  I know that GOER is not

      12      overseeing it.  I don't know if anybody else is.

      13             SENATOR BIAGGI:  Okay.

      14             How many employees currently are under your

      15      purview?

      16             MICHAEL VOLFORTE:  In terms of, that are

      17      covered by -- that we might investigate complaints

      18      of?  Or (indiscernible cross-talking) --

      19             SENATOR BIAGGI:  No, how many individuals are

      20      within GOER to be going through the investigations

      21      and the complaints?

      22             MICHAEL VOLFORTE:  There are

      23      41 investigators.

      24             SENATOR BIAGGI:  I saw that, yes.

      25             MICHAEL VOLFORTE:  And there are a staff of







                                                                   236
       1      nine individuals that are above those investigators,

       2      performing oversight, administrative functions.

       3             SENATOR BIAGGI:  So about 50, and then you,

       4      is 51.

       5             So 51 individuals overseeing almost every

       6      state agency in the state of New York, and all of

       7      the investigations and complaints that come through;

       8      is that correct?

       9             MICHAEL VOLFORTE:  Correct.

      10             SENATOR BIAGGI:  Okay.

      11             What sexual-harassment policy do you have in

      12      place for the executive-branch staff?

      13             MICHAEL VOLFORTE:  The executive-branch

      14      staff, it's in our EEO handbook.

      15             SENATOR BIAGGI:  Okay.  Does it go further

      16      than the model policy or what's in The Handbook?

      17             MICHAEL VOLFORTE:  It's consistent with the

      18      model policy, but I'm not certain it goes further,

      19      other than, we would -- a complaint of that single

      20      joke that I stated before, would not, generally, be

      21      a violation with DHR.  But we could find it to be a

      22      violation of policy and take action based on it.

      23             SENATOR BIAGGI:  Okay.

      24             On -- so on December 1, 2018, that was when

      25      the inspector general's office switched its cases







                                                                   237
       1      from the inspector general's office to GOER?

       2             MICHAEL VOLFORTE:  No.

       3             SENATOR BIAGGI:  So can you tell me what the

       4      date is?

       5             MICHAEL VOLFORTE:  On December 1, all of the

       6      investigators transferred from their agencies to

       7      GOER, a physical -- a physical paper move that made

       8      them GOER employees.

       9             SENATOR BIAGGI:  So what was the role, then,

      10      of the inspector general's office at that time?

      11             MICHAEL VOLFORTE:  The inspector general's

      12      office operates pursuant to its operating statute,

      13      and investigates those things that fall within its

      14      purview under, I think it's Executive Order --

      15      excuse me, Executive Law 55.

      16             They were not handling administrative

      17      complaints of -- administrative investigations of

      18      discrimination complaints.  That was being done by

      19      the agencies themselves.

      20             SENATOR BIAGGI:  Okay.

      21             So you mentioned the 41 affirmative-action

      22      administrators.

      23             What is the role of the EEOs with relation to

      24      those affirmative-action administrators?

      25             Because my understanding was that the EEOs







                                                                   238
       1      reported each complaint to GOER.  So those were the

       2      individuals within each agency, right, that would

       3      receive a complaint.  And then that complaint would

       4      go from the EEO officer to, then, GOER.

       5             So, what is the communication structure

       6      between the EEOs and the affirmative-action

       7      administrators, if any?

       8             MICHAEL VOLFORTE:  For the most part, those

       9      individuals were the same.

      10             SENATOR BIAGGI:  They were the same?

      11             MICHAEL VOLFORTE:  They were the same.

      12             They're -- the term "EEO officer" and "AAO"

      13      were largely used interchangeably.  There weren't

      14      distinct groups of that.

      15             What happened with the -- so -- so what

      16      happened with the transfer of function was, those

      17      41 AAOs became GOER employees.  And, if they had

      18      existing complaints, brought the complaints with

      19      them.

      20             SENATOR BIAGGI:  Okay.

      21             So -- I mean, since the first

      22      sexual-harassment hearing, I'm sure you can probably

      23      make an inference that many individuals have reached

      24      out to my office about different issues that they've

      25      faced as it relates to their complaints with DHR,







                                                                   239
       1      and whether we can help, and what we can do; and in

       2      particular, FOIL requests.

       3             And so you had said that GOER does not

       4      investigate DHR.

       5             So why is it, then, that GOER had sent

       6      complaints to -- to -- or, DHR had sent

       7      complaints -- their complaints to GOER for this

       8      response to a FOIL request that was made?

       9             MICHAEL VOLFORTE:  I -- I think we're mixing

      10      metaphors.

      11             SENATOR BIAGGI:  Metaphors?

      12             MICHAEL VOLFORTE:  So, GOER doesn't

      13      investigate cases that are filed with DHR in terms

      14      of DHR's statutory responsibilities.

      15             SENATOR BIAGGI:  But what if the -- what if

      16      the individual had worked for the agency?

      17             MICHAEL VOLFORTE:  That complaint would get

      18      referred to GOER and we would investigate that.

      19             So if -- if it was a state employee

      20      complaining -- choosing to use the internal process,

      21      and saying, My supervisor within DHR did X and Y,

      22      GOER would investigate that employee's complaint,

      23      and investigate the supervisor, and render a

      24      determination that DHR would implement as an

      25      employer.







                                                                   240
       1             If that employee said, I don't want to go

       2      through GOER.  I want to -- and I don't want to file

       3      with DHR, or, I want to file with DHR, they're

       4      filing with DHR in that capacity, with their --

       5      DHR's statutory responsibility to investigate

       6      complaints of discrimination, in general, or, the

       7      EEOC.

       8             We wouldn't investigate in that second

       9      circumstance contemporaneously with DHR.  That would

      10      be them in their capacity, and maybe they have some

      11      process set up as to how they handle that.

      12             But that would not be us.

      13             So that's why, what you're looking at may be

      14      that there's a DHR complaint.  That would be a --

      15      what we call an "internal complaint," which is

      16      internal to the State, the employer investigating

      17      its own actions, which now GOER is doing.

      18             SENATOR BIAGGI:  So -- I mean, please excuse

      19      me, but I feel like you are speaking in tongues.

      20      I really do not understand.

      21             So can you just lay it out for me in a way

      22      that is like very simple, as if I had never read

      23      anything before, had no idea, and I am you, right

      24      and your relationship to DHR is...?

      25             Go.







                                                                   241
       1             MICHAEL VOLFORTE:  If you as an employee

       2      of -- well, I'll go back to the example you gave.

       3             I'm an employee of DHR.  I feel --

       4             SENATOR BIAGGI:  For an employee of an

       5      agency, let's just say.  An employee of an agency.

       6             MICHAEL VOLFORTE:  Take another -- take

       7      another -- whatever example you want, I'll run

       8      through.

       9             So another agency that's covered under our

      10      purview, depending on that agen -- on what agency

      11      that employee works for, you have a number of

      12      options.

      13             One:  You can file a complaint, which we call

      14      an "internal complaint," which is a complaint not

      15      filed pursuant to law or statute, which is what we

      16      consider DHR's process, EEOC process, or court.

      17             So those processes are not what we

      18      characterize as internal.

      19             So you, as an employee in an agency, can file

      20      directly with GOER.  You can mail it to us.  You can

      21      e-mail it to us.

      22             Depending on what agency you're located in,

      23      GOER may have an investigator on-site.  You can go

      24      to that investigator, give them your form, or they

      25      will help you fill out that form, so you can







                                                                   242
       1      investigate that.

       2             And then that GOER investigator will file

       3      that form with GOER, and then that gets

       4      investigated.

       5             You also have the ability, if you so choose,

       6      you can go to your supervisor, and your manager,

       7      your general counsel, of your agency; you could file

       8      that complaint with them.  They're obligated to send

       9      that to GOER.

      10             Or, if you don't want to do any of those

      11      things, you could go to the division of human rights

      12      and they'll assign somebody, pursuant to their

      13      processes, to look at what the employer does, go

      14      through that probable-cause determination that was

      15      talked about in the previous testimony, make that

      16      determination, and go through their procedures.

      17             Or, you can go to the EEOC.

      18             Or, you can file with court.

      19             SENATOR BIAGGI:  Okay.

      20             MICHAEL VOLFORTE:  Those would be all the

      21      potential options.

      22             SENATOR BIAGGI:  Got it.

      23             All right, that's very helpful.  Thank you.

      24             So -- so, now, going back to the -- where we

      25      started:  Does GOER track the investigations and







                                                                   243
       1      complaints that DHR oversees?

       2             MICHAEL VOLFORTE:  Only if it's in that

       3      first, what I'll call, "bucket" I spoke to, before

       4      you get to a technical legal filing with DHR or with

       5      the EEOC.

       6             So if it is -- if it's a DHR employee, and

       7      they want to file with their supervisor in the

       8      internal complaint process; if they want to file

       9      with an on-site AAO, if there is one; if they want

      10      to mail it to GOER; if they want to mail it to --

      11      or, e-mail it to GOER; all of those would be

      12      tracked.

      13             If DHR is getting a complaint on their form,

      14      pursuant to their procedures and the law, from an

      15      employee of any state agency, we don't track DHR in

      16      that.

      17             SENATOR BIAGGI:  Okay.

      18             Can you just hold on for one moment?

      19             ASSEMBLYMAN CRESPO:  While we're on a break,

      20      I'll just mention the pizza did arrive.

      21             Courage, everyone, not to go at once.

      22             It's a room back in this corner direction

      23      (indicating).

      24             But...

      25                (Inaudible comments being made.)







                                                                   244
       1                [Laughter.]

       2             ASSEMBLYMAN CRESPO:  Only in Puerto Rico.

       3                [Laughter.]

       4             SENATOR BIAGGI:  Okay.  I will -- I'm going

       5      to hand it over to Yuh-Line, to -- or, excuse me,

       6      Line -- Assemblywoman Niou --

       7             ASSEMBLYWOMAN NIOU:  We're roomies, that's

       8      okay.

       9             SENATOR BIAGGI:  -- to ask the question.

      10             I think that I -- I think I get it; I just

      11      want to make sure that I get it.

      12             And if I don't, I know where to find you.

      13             So, thank you.

      14             ASSEMBLYWOMAN NIOU:  Hi.

      15             So I just -- just a couple of brief

      16      questions.  I know that you're running out of time.

      17             So what did you mean -- when responding to

      18      Assemblymember Simotas's question on trauma-informed

      19      training, what did you mean when you said

      20      "a background in this field"?

      21             I just wanted to kind of get a feel.

      22             MICHAEL VOLFORTE:  A number of the people

      23      that we transferred had numerous years investigating

      24      complaints of discrimination, either with the State

      25      or came from other areas where they had those







                                                                   245
       1      backgrounds.

       2             So --

       3             ASSEMBLYWOMAN NIOU:  There's like no

       4      certification?

       5             Is there anything that you --

       6             MICHAEL VOLFORTE:  Some of them -- I mean,

       7      we've had people from work -- who worked with the

       8      EEOC, who've worked in private industry, who've

       9      worked with the division of human rights, and had

      10      whatever training there was there.

      11             So that's what I meant on the background

      12      (indiscernible cross-talking) --

      13             ASSEMBLYWOMAN NIOU:  Oh, okay.  So it's not

      14      standardized?

      15             MICHAEL VOLFORTE:  It's not -- where we get

      16      folks from is not the training we give them is.  But

      17      it -- I just want to make it -- it does not include,

      18      technically, what everyone is referring to in terms

      19      of that "trauma-informed training."

      20             ASSEMBLYWOMAN NIOU:  Okay.

      21             How long does an investigation usually take?

      22             MICHAEL VOLFORTE:  There is no "usual."

      23             We -- it -- it -- we have -- because of

      24      the -- what's involved, it really depends on

      25      complaints, and how -- what -- the number of







                                                                   246
       1      complainants, the number of respondents, the

       2      complexity.

       3             If it's a -- if it's an issue that perhaps

       4      involves something that was a criminal matter, that

       5      got referred back to us, that might jump the line.

       6             So all those things work into it.

       7             Eventually, we'd like to work towards a goal

       8      of 30 days.

       9             ASSEMBLYWOMAN NIOU:  30 days, okay, goal of

      10      30 days?

      11             MICHAEL VOLFORTE:  Goal of 30 days.

      12             ASSEMBLYWOMAN NIOU:  Okay.

      13             And what's the procedure for investigation?

      14             Do you start with the complainant?

      15             MICHAEL VOLFORTE:  Yes, the complainant gets

      16      an acknowledgment of their -- so they send us the

      17      form, and we send them a note back that we received

      18      their form, with notice that they should not receive

      19      retaliation.

      20             The investigator, I'm going to truncate,

      21      makes a game plan to investigate.  The matter gets

      22      investigated.

      23             We are in consultation with the agency's

      24      general counsel because, since we're investigating

      25      other agencies, we need documents that are in their







                                                                   247
       1      possession, e-mails.

       2             So that takes part of the process.

       3             There is interviewing of individuals

       4      involved.

       5             We then wind up with a report, and a

       6      recommendation as to how to bring the matter to a

       7      conclusion at the end.

       8             ASSEMBLYWOMAN NIOU:  And you're hoping to do

       9      all of that in 30 days?

      10             MICHAEL VOLFORTE:  At least complete the

      11      initial investigative report and -- or,

      12      investigation, and start the report write-in.

      13             When it comes to things that are going to the

      14      EEOC or DHR, because of the statutory time frames,

      15      we have to ramp those investigations up, and those

      16      also sometimes move in front of other investigations

      17      because of time limits that those agencies impose on

      18      the State to get back to them.

      19             ASSEMBLYWOMAN NIOU:  And since it might take

      20      a lot longer, do you provide investigations, like

      21      status updates or, anything, to those that you've

      22      interviewed, the complainant's -- with the witness

      23      or the complainant?

      24             MICHAEL VOLFORTE:  Formally, it's the

      25      beginning and the end.







                                                                   248
       1             And, informally, if the individual calls, we

       2      tell them (indiscernible cross-talking) --

       3             ASSEMBLYWOMAN NIOU:  So they have to

       4      instigate?

       5             MICHAEL VOLFORTE:  Yes, there's no

       6      (indiscernible cross-talking) --

       7             ASSEMBLYWOMAN NIOU:  They have to call you?

       8             You don't update them regularly if there's

       9      any movement on their cases?

      10             MICHAEL VOLFORTE:  No.

      11             ASSEMBLYWOMAN NIOU:  Okay.

      12             Uhm -- okay.

      13             So -- I mean, I -- I'm just saying all this

      14      because, we read recently, the "Times Union,"

      15      Gina Bianchi's case, GOER had claimed that the

      16      investigation of the case is ongoing for more than a

      17      year later.

      18             MICHAEL VOLFORTE:  As I discussed with

      19      individuals, we're not commenting on any ongoing

      20      investigations -- on any litigation.

      21             ASSEMBLYWOMAN NIOU:  I know.

      22             I'm talking about the length.

      23             And that's -- is that normal?  Is that --

      24             MICHAEL VOLFORTE:  I'm not going to comment

      25      on anything in litigation.







                                                                   249
       1             ASSEMBLYWOMAN NIOU:  Okay.

       2             All right, thank you.

       3             SENATOR BIAGGI:  One final question for me.

       4             Okay, so, you stated that GOER does not track

       5      DHR complaints.  Correct?

       6             MICHAEL VOLFORTE:  I said GOER doesn't track

       7      what DHR is investigating, generally.

       8             That's what I -- that's what my intent was,

       9      that we're not tracking what they are doing,

      10      generally.

      11             If it relates --

      12             SENATOR BIAGGI:  What does that mean,

      13      "not doing, generally"?

      14             MICHAEL VOLFORTE:  If it relates to a State

      15      agency; so, in those examples, when an employee

      16      would go to DHR, in their statutory capacity, and

      17      file a complaint with them, we would have that

      18      information because the agency would report that

      19      they had an employee go to DHR.

      20             We would investigate that, and provide

      21      information to the agency.

      22             So we have information of when State

      23      employees file stat -- what I'll call a "statutory

      24      complaint."

      25             SENATOR BIAGGI:  What is a stat -- so, what







                                                                   250
       1      is a "statutory complaint"?

       2             MICHAEL VOLFORTE:  DHR and the EEOC exists

       3      pursuant to law, to investigate complaints --

       4             SENATOR BIAGGI:  Okay.

       5             MICHAEL VOLFORTE:  -- that come to them.

       6             SENATOR BIAGGI:  So a complaint that's under

       7      their purview?

       8             MICHAEL VOLFORTE:  It's under their purview.

       9             SENATOR BIAGGI:  So just a complaint?

      10             MICHAEL VOLFORTE:  It's a complaint --

      11             SENATOR BIAGGI:  So can we simplify when

      12      we're speaking, so that I can stay with you on this

      13      page.

      14             So GOER -- you had said GOER does not track

      15      DHR complaints?

      16             MICHAEL VOLFORTE:  I -- I -- we don't track

      17      complaint -- we don't track all complaints to DHR.

      18             If a State employee makes a complaint to DHR,

      19      we have that information.

      20             SENATOR BIAGGI:  Okay, thank you.

      21             So I have a response to a FOIL Request, that

      22      proves that, from 2015 to the present, GOER has been

      23      tracking DHR complaints.

      24             MICHAEL VOLFORTE:  As I just stated, we have

      25      information on --







                                                                   251
       1             SENATOR BIAGGI:  But you -- but you -- see --

       2      but do you understand why this is confusing to me?

       3             Because you first stated that you're not

       4      tracking it.  And now you're stating that you do

       5      track it.

       6             MICHAEL VOLFORTE:  I think your question was,

       7      or at least I interpret it to be, from a general

       8      perspective.

       9             SENATOR BIAGGI:  A general per -- I don't

      10      understand what that even means.

      11             MICHAEL VOLFORTE:  DHR --

      12             SENATOR BIAGGI:  GOER -- wait, let me finish.

      13             Complaints that DHR had, that are made to

      14      DHR, does GOER track those complaints?

      15             MICHAEL VOLFORTE:  Only if it's made by a

      16      State employee.

      17             SENATOR BIAGGI:  Only if it's made by a State

      18      employee?

      19             MICHAEL VOLFORTE:  Yes.

      20             SENATOR BIAGGI:  So that was not clarified

      21      earlier.

      22             So I would just recommend that you be precise

      23      with your words, because that is -- that could

      24      potentially lead to something very confusing, and

      25      not helpful to the inquiry that we're trying to make







                                                                   252
       1      here.

       2             So, thank you.

       3             ASSEMBLYMAN CRESPO:  I know your time is

       4      precious.

       5             Senator Liu and Assemblyman Buckwald to

       6      close.

       7             OFF-CAMERA SPEAKER:  (Inaudible.)

       8             SENATOR LIU:  No, that's okay.

       9             Thank you very much, Mr. Chair.

      10             I want to go with what our Chairwoman has

      11      talked about.

      12             The testimony is really not that clear.

      13             I know you're trying.

      14             It just sounds like a lot of legalese.

      15             Generally.  Sometimes.  Sometimes not.

      16             I mean, are you crossing your fingers too?

      17             MICHAEL VOLFORTE:  (Holds up open hands.)

      18             SENATOR LIU:  Okay.  And no toes?

      19             MICHAEL VOLFORTE:  No toes.

      20             SENATOR LIU:  All right, good.

      21             Let me ask the question that I asked the DHR

      22      also, which is, that, you know, I understand you're

      23      running us through your procedures, what you've

      24      done, what you haven't been doing.

      25             But what about what more you could do?







                                                                   253
       1             What about complaints that, for example, are

       2      probably legitimate complaints, but just don't meet

       3      the current legal standard: that's "severe and

       4      pervasive."

       5             I mean, how does GOERS (sic) deal with that?

       6             MICHAEL VOLFORTE:  As I stated earlier, we --

       7      we take our investigations at a policy level.

       8             And to kind of go back a little bit,

       9      complaints before DHR can be for any public or

      10      private employer in New York State.

      11             I over -- our process deals with a segment of

      12      only 130,000.

      13             So when I talked earlier, what I meant to

      14      communicate was, those 130,000, if those people file

      15      complaints, I, certainly, we, have that information.

      16             For a town, an authority, we probably,

      17      generally, don't have that information.

      18             A private entity, we definitely don't have

      19      that information.

      20             So, there is -- there -- you know, that's --

      21      in terms of that, that is legalese, but, again,

      22      that's from our process.

      23             But in terms of what an individual might

      24      experience in terms of discrimination, what I'm

      25      doing is -- in our agency, is, we -- we're







                                                                   254
       1      investigating as the employer, and we're looking at

       2      whether conduct occurred, regardless of whether it

       3      was the con -- what the conduct was, and not

       4      focusing so much on that "severe and pervasive"

       5      standard.

       6             So, for example, if an individual comes to us

       7      and complains, and says, "Somebody told me a

       8      sexually-explicit joke, and I'm offended," they file

       9      a complaint, we'll investigate that.

      10             If it's found to have occurred, we will make

      11      a finding that it occurred, and we will remedy it

      12      administratively, as the employer, and take

      13      appropriate action.

      14             SENATOR LIU:  So does that -- does that imply

      15      that the policy, that these 130,000 employ -- State

      16      employees are subject to, could be more rigorous or

      17      comprehensive than the law currently is?

      18             MICHAEL VOLFORTE:  Yes.

      19             SENATOR LIU:  Would that be -- would it be

      20      too onerous a standard to apply to private employers

      21      in this state?

      22             MICHAEL VOLFORTE:  I mean, I know you heard

      23      the earlier responses.

      24             I have a similar response in terms of

      25      commenting on existing legislation.







                                                                   255
       1             But what --

       2             SENATOR LIU:  No, I'm not asking you to

       3      comment on existing legislation.

       4             I'm just comment -- asking you to comment on

       5      your policy, and whether it is feasible to extend it

       6      to all employers in this state.

       7             Forget about bills.

       8             MICHAEL VOLFORTE:  And I can't speak for all

       9      the employers.  (Indiscernible cross-talking) --

      10             SENATOR LIU:  I'm not asking you to speak for

      11      all your employers.

      12             MICHAEL VOLFORTE:  (Indiscernible

      13      cross-talking) --

      14             SENATOR LIU:  Just as somebody who is expert

      15      in this field, who is an expert in administering it,

      16      I mean, just from your own knowledge.

      17             Forget the legalese.

      18             Look, your fingers are all clear (holding up

      19      open hand).

      20             Okay?

      21             Just from your conscience, what do you think?

      22             Is it unreasonable to expect a private

      23      employer to uphold these same kinds of standards

      24      that we expect our State employees -- the vast

      25      majority of our State employees to uphold?







                                                                   256
       1             MICHAEL VOLFORTE:  I really can't comment on

       2      whether it's reasonable or unreasonable for a

       3      private employer to adopt what the State has

       4      adopted.

       5             SENATOR LIU:  Okay.

       6             All right, thank you.

       7             Thank you, Madam Chair.

       8             SENATOR BIAGGI:  Assemblymember Buckwald.

       9             ASSEMBLYMAN BUCHWALD:  Thank you.

      10             My question, I believe, will be very quick,

      11      and I preface it by only saying, it's a question out

      12      of curiosity, not based on any specific incident or

      13      otherwise.

      14             Just curious, an employee of GOER, if there

      15      were to be any harassment, sexual harassment or

      16      otherwise, within the GOER workplace, where do they

      17      go for -- other -- obviously, they have the same

      18      abilities that anyone, even outside New York State

      19      does, of going to DHR and so forth.

      20             But is there any -- just like GOER serves as

      21      an independent function within, for other state

      22      agencies, is there some arrangement that's made for

      23      GOER employees to have someone outside of GOER

      24      provide that same sort of function?

      25             MICHAEL VOLFORTE:  What we would consider an







                                                                   257
       1      internal complaint --

       2             ASSEMBLYMAN BUCHWALD:  Yes.

       3             MICHAEL VOLFORTE:  -- in another agency, a

       4      GOER employee could have that investigated by a law

       5      firm we've retained -- we are retaining.

       6             ASSEMBLYMAN BUCHWALD:  You've retained a law

       7      firm, and you're employees have information on that,

       8      as -- as a matter of just, like, your -- the policy

       9      procedures that you provide?

      10             Or -- or is it, they go to the internal

      11      person that's designated, and then they refer it to

      12      outside counsel?

      13             MICHAEL VOLFORTE:  We're in the procurement

      14      process, but they would -- they -- they would go

      15      file it with our administrative officer, and she

      16      send it to the law firm.

      17             ASSEMBLYMAN BUCHWALD:  So that law firm is,

      18      essentially, serving the same function, as far as

      19      you're concerned, vis-a-vis GOER -- that GOER is

      20      serving vis-a-vis other agencies that are within

      21      your purview?

      22             MICHAEL VOLFORTE:  They will, yes.

      23             ASSEMBLYMAN BUCHWALD:  Okay.

      24             Thank you very much.

      25             Thank you, Madam Chair.







                                                                   258
       1             SENATOR BIAGGI:  Last question for me:

       2             So we've just established that GOER does

       3      track the internal complaints of DHR?

       4             MICHAEL VOLFORTE:  Yes.

       5             SENATOR BIAGGI:  Okay.  And not the external

       6      complaints; correct?

       7             That's what you had said?

       8             MICHAEL VOLFORTE:  Not the external

       9      complaints -- and I'm going to get -- not external

      10      complaints that are filed by anybody else other than

      11      state agencies.

      12             If it's a state agency, and they go to DHR,

      13      we track that.

      14             SENATOR BIAGGI:  Okay.  So what is the

      15      difference between internal and DHR?

      16             MICHAEL VOLFORTE:  An "internal complaint" is

      17      somebody who files -- who -- who follows the

      18      complaint process that's established by law, that

      19      says that all employers have to have a complaint

      20      process.

      21             SENATOR BIAGGI:  Uh-huh?

      22             MICHAEL VOLFORTE:  If it is -- if the

      23      document you're looking at says "DHR," that means

      24      some State employee has filed directly with DHR,

      25      pursuant to their statutory and regulatory







                                                                   259
       1      procedures.

       2             SENATOR BIAGGI:  Thank you.

       3             Senator Liu.

       4             SENATOR LIU:  Thank you for your indulgence,

       5      Madam Chair.

       6             So, clearly, in your testimony, you have been

       7      very clear, the policy that GOERS (sic) enforces

       8      does not apply to legislative employees?

       9             MICHAEL VOLFORTE:  Correct, yes.

      10             SENATOR LIU:  Is there any reason why this

      11      Legislature should not adopt similar kinds of

      12      policies?

      13             MICHAEL VOLFORTE:  I think even --

      14             SENATOR LIU:  Forget about what your boss

      15      might tell you.

      16             Just tell us.

      17             Free yourself.

      18                [Laughter.]

      19             MICHAEL VOLFORTE:  I'm even more reticent to

      20      advise a coequal branch of government as to how they

      21      should run their HR --

      22             SENATOR LIU:  It's perfectly fine for us to

      23      ask you advice.

      24             We may -- we may to choose to take or

      25      choose -- not take it.







                                                                   260
       1             It's perfectly fine for us to ask, and it's

       2      perfectly fine for you to answer.  You're not

       3      tying -- binding us to anything.

       4             MICHAEL VOLFORTE:  I would not answer it this

       5      way:  I think it's incumbent upon employers to

       6      prevent discrimination, and one way you do that, is

       7      to prevent it when smaller incidents happen, before

       8      they blow up into a bigger incident.

       9             So in that regard, I think it's in an

      10      employer's interest to do that.

      11             SENATOR LIU:  Okay, but if -- say, if there

      12      is an incident, or alleged incident, or a complaint,

      13      under your department, and the 130,000 employees

      14      that you have some kind of authority over, would

      15      there be a case where a complaint would just be in

      16      limbo, like, indefinitely, or is there always a

      17      clear time frame for things to be resolved?

      18             MICHAEL VOLFORTE:  There's -- we don't have

      19      an established end date.

      20             But, you know, if -- and not that there are

      21      many of these, but if a complaint came in, and it

      22      was of such a nature that it was criminal, and that

      23      got -- that would get referred out, how long that

      24      criminal process would leave the internal complaint

      25      in limbo, because we wouldn't interfere with -- for







                                                                   261
       1      various -- for any number of reasons, with the

       2      criminal complaint by investigating at the same time

       3      the police were.

       4             SENATOR LIU:  All right.

       5             MICHAEL VOLFORTE:  So in that regard, that

       6      could be one that's out there.

       7             SENATOR LIU:  Okay.  Thank you.

       8             Thank you, Madam Chair.

       9             ASSEMBLYMAN CRESPO:  Thank you so much for

      10      your testimony --

      11             MICHAEL VOLFORTE:  Thank you very much.

      12             ASSEMBLYMAN CRESPO:  -- and your time.

      13             National Economic and Social Rights

      14      Initiative, Noelle Damico, senior fellow.

      15             REV. NOELLE DAMICO:  Good afternoon.

      16             I'm Noelle Damico, the senior fellow at the

      17      National Economic and Social Rights Initiative, and

      18      a member of the board of the Fair Food Standards

      19      Council.

      20             And I wish to thank you for this opportunity

      21      to testify on behalf of the Fair Food Program that

      22      was created by the Coalition of Immokalee Workers, a

      23      farmworker-founded human rights organization that

      24      was awarded a Presidential Medal in 2015, and to

      25      share the remarkable success of this program's







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       1      Worker-driven Social Responsibility paradigm in

       2      ending and preventing gender-based violence.

       3             In addition to my testimony, I have also

       4      submitted 20 copies of 2 additional reports that

       5      will provide quantitative and qualitative data on

       6      both WSR and the Fair Food Program.

       7             At a moment when our society is reckoning

       8      with sexual harassment as never before, with these

       9      hearings, the New York State Senate and Assembly

      10      have stepped forward to declare our state is

      11      prepared to combat these abuses vigorously.

      12             The #MeToo movement has exposed the chronic

      13      infection of sexual harassment and assault in the

      14      workplace.

      15             What is now needed is an antibiotic capable

      16      of helping our body politic work together to create

      17      healthy, thriving workplaces.

      18             The good news is, we have the cure and we

      19      know it works.

      20             The cure of Worker-driven Social

      21      Responsibility emerged not from the offices of a

      22      Manhattan NGO, but from the sweltering tomato fields

      23      of Immokalee, Florida, from an approach developed by

      24      workers themselves, the true experts on human rights

      25      abuses in their workplace.







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       1             In isolated, under-regulated environment of

       2      U.S. agriculture, gender-based violence is severe

       3      and ubiquitous.

       4             As many as 80 percent of farmworker women

       5      surveyed reported being sexually harassed or

       6      assaulted.  That's four out of five women.

       7             Earning low wages, fearing retaliation, and

       8      facing barriers to filing legal complaints, many

       9      women elect to suffer abuse rather than report it

      10      and risk the consequences.

      11             As one woman put it, "You allow it or they

      12      fire you."

      13             But that chilling reality began to change in

      14      2011 with the advent of the Fair Food Program.

      15             Through the Fair Food Program, sexual assault

      16      has been virtually eliminated and sexual harassment

      17      has been dramatically reduced for 35,000 workers

      18      laboring on program farms in seven states,

      19      stretching from Florida to New Jersey.

      20             Let me say that again:  Cases of sexual

      21      harassment by supervisors with physical contact of

      22      any kind have been virtually eliminated, and workers

      23      consistently report dramatic reductions in all forms

      24      of harassment.

      25             In U.S. agriculture, a profoundly







                                                                   264
       1      male-dominated industry notorious for sexual and

       2      economic exploitation, in this industry, the

       3      Fair Food Program has gotten to the point of

       4      prevention of sexual assault and harassment.

       5             The story of the Fair Food Program begins

       6      with the Immokalee farmworkers' determination to use

       7      the market power of retailors at the top of supply

       8      chains to realize their rights.

       9             The Coalition of Immokalee Workers united

      10      with tens of thousands of consumers of conscience to

      11      convince 14 brands, including McDonald's, Aramark,

      12      and Walmart, to sign legally-binding agreements,

      13      committing them to purchase only from growers who

      14      implement a farmworker-defined code of conduct with

      15      zero-tolerance provisions for sexual assault, and a

      16      range of other protections, including the right to

      17      work free of sexual harassment and to raise

      18      complaints without retaliation.

      19             Growers who fall out of compliance lose the

      20      ability to sell to all 14 of these massive brands.

      21             Participating growers, for their part, commit

      22      to implement the code and to cooperate with the

      23      program's monitoring organization.

      24             These legally-binding agreements form the

      25      backbone of the Fair Food Program which has







                                                                   265
       1      generated a sea change in rights realization,

       2      leading "Harvard Business Review" to name the

       3      Fair Food Program among the 15 most-important

       4      social-impact stories of the last century.

       5             The Fair Food Program works because it is a

       6      system-level intervention that ends the imbalance of

       7      power between employers and workers that is at the

       8      root of sexual harassment, sexual assault, and other

       9      abuses.

      10             In short, it shifts the risk, from the worker

      11      who reports sexual harassment, to the employer who

      12      fails to address sexual harassment.

      13             It put billions of dollars of purchasing

      14      power behind guaranteeing a workplace free of

      15      gender-based violence and other abuses.

      16             What does this mean for workers?

      17             One worker put it simply, "Now the fear is

      18      gone."

      19             A transgender worker spoke at length about

      20      the respect that she and others on her crew receive.

      21             A male worker, who observed that, at so many

      22      farms, women risk losing their job if they speak out

      23      against harassment or reject the advances of a

      24      supervisor, he remarked how different the

      25      environment is at FFP Farms.  He added that, as a







                                                                   266
       1      man, he believes that a more respectful work

       2      environment benefits him as well, and he is very

       3      relieved to work in a place where women are not

       4      treated poorly.

       5             Because of the Fair Food Program's phenomenal

       6      success in addressing sexual harassment and assault,

       7      the Equal Employment Opportunity Commission's Select

       8      Task Force singled out the Fair Food Program,

       9      calling it "a radically different accountability

      10      mechanism," and adopted many of those mechanisms as

      11      core recommendations in its landmark 2016 report.

      12             The Fair Food Program's groundbreaking

      13      approach was distilled by the Coalition of Immokalee

      14      Workers into a new paradigm called "Worker-driven

      15      Social Responsibility," that is translating and

      16      adapting core rights mechanisms successfully in

      17      other industries.

      18             WSR was strengthened through the design and

      19      implementation of the Accord on Fire and Building

      20      Safety in Bangladesh, demonstrating the paradigm's

      21      exponential potential for realizing human rights for

      22      millions of workers.

      23             In Vermont, Migrant Justice has adopted

      24      the WSR model to the dairy industry through the

      25      Milk with Dignity program, where it has proved







                                                                   267
       1      singularly successful in combating sexual violence

       2      among a largely immigrant workforce on isolated

       3      dairy farms.

       4             Construction workers in Minneapolis are

       5      poised to launch their own WSR program, as are

       6      female garment workers in the southern African

       7      country of Lesotho.

       8             And in New York, the Model Alliance is

       9      adapting WSR to create a truly inclusive safe and

      10      fair place to work through their RESPECT Program.

      11             You'll be hearing from them shortly.

      12             As the magazine "Civil Eats" recently said,

      13      "It's a template that, when you adjust it, can be

      14      applied to almost any work situation."

      15             And, indeed, that's just what's happening.

      16             In response to the hearings (indiscernible)

      17      for strategies to combat sexual harassment, here are

      18      a few lessons from our experience that can be put to

      19      work elsewhere:

      20             One:  Redress the imbalance of power through

      21      legally-binding agreements, with consequences.

      22             Whether in a government office or on a

      23      factory floor, change does not come from voluntary

      24      good will, but from binding agreements with serious

      25      consequences for refusing to address sexual







                                                                   268
       1      harassment or assault.

       2             Two:  Provide worker-to-worker training and

       3      rights, and the ability to report without fear of

       4      retaliation.

       5             Sexual assault and harassment are crimes of

       6      power and opportunity.

       7             Trained in their rights and equipped with the

       8      ability to report problems through multiple

       9      channels, including a 24-by-7 confidential hotline,

      10      and protected from retaliation, thousands of

      11      farmworkers have become front-line monitors of their

      12      own rights, leaving bad actors nowhere to commit

      13      their crimes.

      14             Workers in other workplaces can be similarly

      15      empowered and protected.

      16             Third:  Monitor conditions, swiftly

      17      investigate, require and assist compliance, report

      18      findings.

      19             The Fair Food Standards Council, which

      20      oversees the Fair Food Program, undertakes deep-dive

      21      audits, interviewing 50 to 100 percent of workers on

      22      farms.

      23             Fair Food Standards Council investigators

      24      also staff the 24-by-7 complaint hotline in Spanish,

      25      English, and Creole.







                                                                   269
       1             Upon receipt of a complaint, they immediately

       2      open an investigation, whatever of the hour of day

       3      or night.

       4             Almost 80 percent of all complaints are

       5      resolved within one month, 50 percent within

       6      2 weeks.

       7             The FFSC is empowered to render judgments on

       8      compliance and design resolutions.  They provide

       9      assistance to help farm employers thoroughly address

      10      problems so that they don't arise in future.

      11             FFSC updates its website regularly to reflect

      12      current compliance by participating growers, and

      13      publishes reports, providing maximum transparency.

      14             Finally:  Such serious consequences for

      15      perpetrators and employers who fail to remedy and

      16      prevent.

      17             Since the program's inception, 42 supervisors

      18      have been disciplined for sexual harassment, and

      19      11 of those supervisors have been terminated, and

      20      are, therefore, no longer able to work on FFP farms

      21      in any state.

      22             The removal of notorious supervisors who

      23      preyed on women increased worker confidence in the

      24      confidential complaint system.

      25             The program also requires field supervisors







                                                                   270
       1      who witness sexual abuse to intervene and report, or

       2      else face disciplinary action themselves.

       3             Any employer that refuses to terminate an

       4      employee confirmed by the Fair Food Standards

       5      Council to have committed sexual harassment with

       6      physical contact of any kind, will be suspended.

       7             People will trust compliance systems when

       8      they see them working.

       9             As the New York Senate and Assembly consider

      10      legislation to address sexual harassment in

      11      government offices, I hope you'll consider these

      12      lessons, and that you will also consider the

      13      important role government can play in ending and

      14      preventing gender-based violence in the workplace by

      15      encouraging private-sector uptake of WSR by

      16      employers, and in corporate supply chains, as well

      17      as adopting WSR for government procurement.

      18             With your commitment, we will surely step

      19      closer to that day when all workers will labor in

      20      respectful and dignified workplaces.

      21             Thank you.

      22             SENATOR BIAGGI:  Thank you so much,

      23      Reverend Damico.

      24             This is an incredible paradigm for what we

      25      can apply to different workplaces across the state,







                                                                   271
       1      including state government.

       2             I'm very much looking forward to hearing from

       3      The Model Alliance, who I know, last time, wanted to

       4      testify, and couldn't, because the day just went on

       5      so long.

       6             I'm curious how --

       7             And if you don't have an answer, it's not

       8      meant to put you on a spot yet.

       9             -- but how do you think we as legislators can

      10      implement this in the state of New York?

      11             What can we do; what type of legislation can

      12      we pass, and what would it look like?

      13             To start this out, would it be a -- like a

      14      test program first; and, if so, where would we

      15      begin?

      16             REV. NOELLE DAMICO:  That's a wonderful

      17      question, and I'd actually like to give it some

      18      additional thought --

      19             SENATOR BIAGGI:  Sure.

      20             REV. NOELLE DAMICO:  -- and consult with my

      21      colleagues.

      22             SENATOR BIAGGI:  Sure.

      23             REV. NOELLE DAMICO:  But what I would say is,

      24      one place to start is with some of the principles

      25      that I mentioned in my testimony, and think about







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       1      how they might be comprehensively applied and

       2      piloted.

       3             Before the Fair Food Standards Program went

       4      into full operation, we did have a pilot stage, and

       5      that stage was very helpful for one year, working

       6      very closely with two growers, in order to get this

       7      underway.

       8             And once we had it implemented, then it could

       9      be expanded very well.

      10             So I think a pilot approach is a great way to

      11      start.

      12             And what I will say is that, this paradigm is

      13      very adaptable in flat workspaces, in supply chains,

      14      and whatnot.

      15             SENATOR BIAGGI:  One follow-up question:

      16             I think that one of the most significant

      17      parts of what you just shared with all of us, and

      18      I hope it wasn't lost on my colleagues, but I don't

      19      think it will be, and I don't think it was, is the

      20      effect of a legally-binding agreement, and how

      21      incredibly consequential that can be to the entity

      22      that has the deep pockets, or that is really just

      23      focused on profit.

      24             So much of what we see, when it comes to

      25      sexual harassment in the workplace, is an imbalance







                                                                   273
       1      of power, and an end and abuse of power.

       2             And having a legally-binding agreement,

       3      I mean, as I'm sitting here, one of the thoughts

       4      that I had, that came through my head, I -- I can

       5      only imagine the day where this would happen, but

       6      anything is possible -- we are here now, after

       7      all -- is, imagine if you were running for office;

       8      you were a candidate and you ran for office, or, you

       9      had won, and you were then the elected official, and

      10      you had signed an agreement with your constituents,

      11      that you would not do any of the behaviors that are

      12      often -- so often, tie the hands of the Legislature,

      13      which is such an interesting place, because none of

      14      us in the Legislature are employed by the

      15      Legislature, if that makes sense.

      16             Right?

      17             We are, technically, employed by the State of

      18      New York, but, the employer is not the Legislature.

      19             It makes it very challenging.

      20             And, historically, at least in the New York

      21      State Legislature, so many individuals who have --

      22      who have conducted in quite egregious behavior, have

      23      not been able to be held to account because the

      24      standards in our laws are so high, which is what

      25      we're aiming to change.







                                                                   274
       1             But more importantly, because of the dynamic,

       2      there's really not many mechanisms to use.

       3             So -- and there's political implications, and

       4      we all know what they are.

       5             It's very challenging, as an environment, to

       6      enforce any policies against one another.

       7             But it's also one of the reasons why I am

       8      proud to chair the Ethics Committee.

       9             So I just -- I appreciate, that I would love

      10      for you to think about what that would look like,

      11      and how we can put that forward in the state of

      12      New York.

      13             REV. NOELLE DAMICO:  One thing I will say is,

      14      it's important to know, this program's been in

      15      operation for eight years now.

      16             And over the course of its implementation and

      17      operation, what we've seen is an increase in calls

      18      coming in to the hotline, and a decrease in the

      19      severity of the problems being reported.

      20             Simultaneously, we now are operating in such

      21      a collaborative manner with growers and

      22      corporations, who have come to recognize that

      23      cleaning up human rights abuses in the field are the

      24      best form of risk management.

      25             Right?  Actually getting in there and







                                                                   275
       1      cleaning them up.

       2             And every actor in the supply chain, in this

       3      instance, has been incentivized to put their

       4      shoulder to the plow of ending this; and, indeed,

       5      it's working.

       6             And so if there is one message that I want to

       7      give to this wonderful group that is assembled, with

       8      so much power and possibility before us, this can be

       9      done.

      10             And these mechanisms have proven themselves

      11      in one of the most inhospitable industry, as well as

      12      are being demonstrated in other industries and types

      13      of workplace configurations.

      14             So, I also want to invite you to become -- to

      15      start thinking about this, and saying, Where would

      16      this make sense inside our government system?

      17             SENATOR BIAGGI:  Thank you so much.

      18             REV. NOELLE DAMICO:  You're welcome.

      19             ASSEMBLYMAN CRESPO:  I'll briefly just thank

      20      you for your testimony, for the work of the

      21      organization.

      22             This really is -- it's amazing, the results

      23      you have.

      24             Just, you mentioned there was a couple of

      25      other industries that have applied your model.







                                                                   276
       1             Have you seen any government; municipal,

       2      state, government, apply this model --

       3             REV. NOELLE DAMICO:  Not yet.

       4             ASSEMBLYMAN CRESPO:  -- anywhere in the

       5      country yet?

       6             REV. NOELLE DAMICO:  We've had some informal

       7      conversations with different government officials in

       8      different settings, but it has not been applied yet.

       9             But, we'd love to make New York the first.

      10             ASSEMBLYMAN CRESPO:  We'll take that back.

      11             Thank you.

      12             Assemblyman Buchwald.

      13             ASSEMBLYMAN BUCHWALD:  Thank you,

      14      Mr. Chairman.

      15             And I will take the privilege to ask briefly

      16      of my constituent, Reverend Damico, who I'm proud to

      17      call a neighbor in White Plains, about the

      18      monitoring portion of the setup here, because

      19      I think that's one of the topics that,

      20      legislatively, we tend not to just focus on, mostly

      21      because we like to set policy.  But the

      22      implementation policy is, obviously, extremely

      23      important, and monitoring is crucial for that.

      24             Can you go into, so what you feel are the

      25      right metrics, in general?







                                                                   277
       1             You reference in your -- there's metrics to

       2      monitor.

       3             You reference in your remarks earlier,

       4      monitoring time for review of complaints.

       5             We've had some discussion of that, obviously,

       6      in different contexts today.

       7             But you also -- the FF -- FFSC website says

       8      "updates regularly, current compliance by

       9      participating growers."

      10             What level of detail is provided?

      11             Like, is it just, in compliance or not in

      12      compliance?

      13             Or -- or is it like an ongoing, you know,

      14      tracking of how many complaints there, and what the

      15      process is, and so forth?

      16             And, more generally, for an employer, in or

      17      out of government, of what you feel is the right

      18      level of transparency into this, given

      19      (indiscernible) also sensitivities, you know, as you

      20      referenced.

      21             It's not just a matter of tracking numbers of

      22      complaints.  In fact, you know, an increasing number

      23      of complaints could be a good sign for things.

      24             So what would you just say, broadly, on that

      25      topic that would be informative to us?







                                                                   278
       1             REV. NOELLE DAMICO:  Well, what I would say

       2      is, we have extensive data that we use.

       3             And we -- first of all, let me talk about how

       4      we get the information, and then the kinds of data

       5      that we report, and then how we make that available.

       6             First, you'll notice I mentioned the 24-by-7

       7      hotline.

       8             This is an extremely important vehicle

       9      because it, essentially, provides a real-time camera

      10      feed, if you will, to ongoing situations.  It's

      11      available to all workers.

      12             When workers, at the point of hire, are

      13      trained with "Know Your Rights" booklets, and

      14      provided a sexual-harassment video training, where

      15      they see farmworkers, like themselves, speaking in

      16      their own languages, acting out scenarios, to show

      17      how those rights need to be respected in the field,

      18      they also receive an ID badge.  And on that badge is

      19      the Fair Food Standards' hotline.

      20             Also, the growers in the program are required

      21      to establish, if they don't have one already, and

      22      I'll just say at the beginning of this process, none

      23      of them had it, a hotline to report.

      24             And then they also have a third number to

      25      call, which is the worker organization, the







                                                                   279
       1      Coalition of Immokalee Workers.

       2             In addition to those hotlines, we also have

       3      other points at which workers can have the

       4      opportunity to bring a problem forward.

       5             One of those points is when Fair Food

       6      Standards Council auditors go into the field to

       7      interview, both on- and off-site, 50 to 100 percent

       8      of a farm's workforce.

       9             In that time, on those interviews, workers

      10      are able to bring forth any complaints they might

      11      have.

      12             In addition, when auditors are there, they're

      13      looking at back-office processes; things that

      14      farmworkers themselves, or workers in general, are

      15      not going to have access to.  They're going to look

      16      at payroll records, for example, and make sure

      17      things are in order.

      18             So it's a very comprehensive audit that's

      19      going on.

      20             Another place where farmworkers can bring

      21      forward complaints, is they can bring them forward

      22      through the health and safety committees that are

      23      operating on each of the farms where the Fair Food

      24      Program is in operation.  These are worker-led

      25      organizations that gather to discuss conditions in







                                                                   280
       1      the field.

       2             Now, you might be hearing me say workers can

       3      bring forward complaints, but how do workers know

       4      what their rights are, and how do they know how to

       5      access this?

       6             They're trained in their rights.

       7             We've distributed over 250 "Know Your Rights

       8      and Responsibilities" booklets, which are

       9      culturally-sensitive, in terms of their preparation,

      10      keeping in mind that a large number of our workforce

      11      is not going to necessarily be literate.  There are

      12      many different pictures and symbols.  They are in

      13      three languages, and they're also available through

      14      audio.

      15             In addition to that, on the farms, at least

      16      once a season, and often twice a season, workers get

      17      worker-to-worker, face-to-face training, with

      18      leaders from the Coalition of Immokalee Workers,

      19      using popular education methodologies and other

      20      interactive ways.

      21             That's another place where complaints or

      22      questions arise and can be addressed.

      23             So workers are thoroughly educated on their

      24      rights, both at the point of hire, then once they

      25      hit the field.







                                                                   281
       1             By the way, that training, worker-to-worker

       2      training, is done on the clock on company time, so

       3      workers are paid for that time they're in there.

       4             Crew leaders and supervisors and a farm

       5      representative are also present.

       6             That way, the workers know that these

       7      standards are to be abided by, and they know that

       8      their supervisors know, this is the right way.  And

       9      the farm supervisor, himself or herself, can step

      10      forward and say, Our farm is committed to making

      11      sure that you're working in a dignified and

      12      respectful environment.

      13             So that's how they know, and some of the

      14      points of introduction.

      15             In terms of metrics, we report different

      16      types of complaints.  For example:  Harassment.

      17      Violence.  Sexual harassment with touching.  Sexual

      18      harassment without physical contact.

      19             There are a variety of different kinds of

      20      disciplinary actions that we report on.

      21             We will report on:

      22             Whether a grower is in compliance.

      23             Whether they're on probation.  There's a

      24      progressive discipline process within the Fair Food

      25      Program.







                                                                   282
       1             We provide elaborate tables.

       2             Now, we're not going to say, so and so at

       3      this farm; so we're not using names, and we're not

       4      using farm identifiers.  But we are giving numbers,

       5      to give you a sense of how much compliance; what

       6      that looks like, and what the results are.

       7             And so, in the annual report of the Fair Food

       8      Standards Council on the Fair Food Program, and this

       9      is an executive summary of it --

      10             A new 2018 report is just about to be

      11      released, and I'll be sure to send it to you.  It

      12      has all the latest metrics.

      13             -- it will give you volume information:  How

      14      many calls have come in?  How quickly have these

      15      complaints been resolved?

      16             When a call or a complaint gets reported,

      17      guess what?  There's no delay in investigating.

      18      People don't have to sit around.  It, immediately,

      19      an investigator is on this, pursuing it.

      20             So it's -- this is to say that it's a very,

      21      very deep audit.

      22             In fact, it -- I almost hesitate to call it

      23      an audit because, when you think of auditing that

      24      goes on, especially in corporate- or social

      25      responsibility-type check-box monitoring, it just







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       1      doesn't even compare to that in terms of its depth.

       2             Finally, the reporting that comes out the

       3      other end is available in the Fair Food Standards

       4      Council website.  It's published.  It's available

       5      for researchers as well.

       6             So anyone can go to FairFoodStandards.org or

       7      to FairFoodProgram.org and take look at the results.

       8             We have very high-level results that are

       9      quickly published --

      10             What growers are in compliance, and which are

      11      not.

      12             Who are the participating buyers?

      13             -- so that consumers as well, who, frankly,

      14      have powered this movement, by pressuring

      15      corporations to stand up and do the right thing, and

      16      put their purchasing behind realizing human rights,

      17      consumers want to know what's going on here as well.

      18             And so we have different ways of representing

      19      that data to them.

      20             But I will certainly make sure that you have

      21      the 2018 update as soon as it's published, and then

      22      you can enjoy, like me, looking through all the

      23      tables, because it is a beautiful thing to see this

      24      data.

      25             This is so beautiful; this data is showing







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       1      that it is working in a material and real way in

       2      people's lives.

       3             For every bit of data, there is a

       4      transformation.

       5             Workers are being protected.

       6             Workers have a new day, where, instead of,

       7      before, when they had to trade their dignity in

       8      order to put food on the table for their families,

       9      women are walking with their heads upright, knowing

      10      that they are protected.

      11             And this is important, because we can't keep

      12      putting workers on the front line and asking them to

      13      sacrifice.

      14             Your questions earlier about, what happens

      15      between a report and when this finally gets

      16      processed?

      17             That's a critical time.

      18             In the Fair Food Program, phoom (claps hands

      19      together) it's eliminated to zero.

      20             And we're working together with workers to

      21      protect them, and to help them through any ancillary

      22      processes with employers.  Or, also, if, in cases of

      23      criminal behavior, the government.

      24             ASSEMBLYMAN BUCHWALD:  Reverend, thank you

      25      for the answer, and thanks for the work you and your







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       1      colleagues are doing.

       2             Thank you, Chairs, for the time.

       3             SENATOR BIAGGI:  Senator Mayer.

       4             SENATOR MAYER:  Thank you, Reverend Damico.

       5             And your energy and passion, and your faith

       6      in this program, is infectious to everyone here.

       7             It's a welcome -- welcome after some of the

       8      things we've heard.

       9             And two things I just want to say.

      10             One is, this program relies on market

      11      consequences if there's a failure to comply.  And

      12      that's a model that's a little bit more difficult

      13      for us to transfer, but I'm very interested in your

      14      thoughts.

      15             But the second point, which you sort of

      16      alluded to, looking at Senator Liu, is the workers

      17      have faith that this process will work for them.

      18             And I think that is a factor we are

      19      struggling with.

      20             We have some establishments set up for

      21      complaints, but there's a cynicism among ordinary

      22      folks about whether these things work.

      23             So I think it's -- we look forward to seeing

      24      the data to show, for example, you say that

      25      50 percent of complaints are ajud -- determined in







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       1      in two weeks.

       2             REV. NOELLE DAMICO:  Yep.

       3             SENATOR MAYER:  Compared to what we heard

       4      earlier, about a sig -- you know, six months, you

       5      know, and sometimes longer, for equally-challenging

       6      factual complaints, I assume, with people, frankly,

       7      who have more power than I suspect a farmworker

       8      might have.

       9             So, I think we want to learn from your model

      10      of how to do it quickly.  How to give confidence to

      11      both complainants and respondents, that it's a fair

      12      process.

      13             So I don't mean to do all the talking, but

      14      I just -- we want to translate some of your passion

      15      and effectiveness to ours, and we look forward to

      16      your suggestions.

      17             REV. NOELLE DAMICO:  Well, I look forward to

      18      working with you on this.

      19             I think what's so exciting is that, I had,

      20      well, the unfortunate privilege of seeing what it

      21      was like before, and I see the difference today.

      22             And I can tell you that some of these claims,

      23      I mean, there's one case vignette in the report that

      24      you already have now, "The Fear is Gone," where

      25      there was a field-level supervisor who had made







                                                                   287
       1      unwanted advances toward a woman.  And then her

       2      husband complained.

       3             And he said, Oh, hey, I've got a gun here and

       4      I'm not afraid to use it.

       5             That supervisor was terminated within days.

       6             So as soon as that complaint came in, it was

       7      investigated, verified; that guy was gone.

       8             The (indiscernible) -- people have confidence

       9      in processes when they see them working.

      10             So part of this is, let it -- the

      11      worker-to-worker education piece is important, but

      12      worker's own experience will just help other workers

      13      have the courage to come forward.

      14             Hey, this worked for me.  This is what

      15      happened.

      16             Getting rid of notorious actors in a given

      17      industry also sends a very strong signal that this

      18      behavior will no longer be tolerated.

      19             SENATOR MAYER:  Thank you.

      20             ASSEMBLYMAN CRESPO:  Assemblywoman Niou.

      21             ASSEMBLYWOMAN NIOU:  Hello.

      22             REV. NOELLE DAMICO:  Hi.

      23             ASSEMBLYWOMAN NIOU:  I wanted to ask a couple

      24      more practical questions, I guess.

      25             You guys have to work so much with folks from







                                                                   288
       1      different cultures, backgrounds, languages.

       2             REV. NOELLE DAMICO:  Yes.

       3             ASSEMBLYWOMAN NIOU:  How does -- how do you

       4      implement that, and how do you do your outreach on

       5      that part?

       6             REV. NOELLE DAMICO:  That's a wonderful

       7      question, and a really critical one.

       8             We have the blessing, in the Coalition of

       9      Immokalee Workers, of having people that speak not

      10      only Spanish and Haitian Creole, but multiple

      11      indigenous languages.  Kichai, Q'anjob'al,

      12      et cetera, that are -- Mam, from Guatemala, because

      13      the workforce itself is comprised of individuals who

      14      speak indigenous languages as well.

      15             And so what we've done is, both, with the

      16      Fair Foods Standards Council, which is an

      17      independent third-party monitor, we have hired

      18      investigators who are fluent in those languages, and

      19      we have buttressed that support with the Coalition

      20      of Immokalee Workers itself, leaders from the

      21      workers' organization, who are also fluent in those

      22      languages.

      23             Further, we've really done a lot in terms of

      24      making different "Know Your Rights" materials

      25      available in those languages; again, not just in







                                                                   289
       1      written form, and not just in pictoral (sic) form,

       2      but also in audio form, which is very, very

       3      important.

       4             So those are some of the ways that we've done

       5      it.

       6             But if you're a Haitian worker who has a

       7      complaint, and you call at 2 a.m., guess what?

       8      You're going to find someone who is capable of

       9      responding and opening an investigation right then,

      10      and you can speak in your language.

      11             ASSEMBLYWOMAN NIOU:  And how long did it take

      12      you guys to implement language access on that level?

      13             REV. NOELLE DAMICO:  Well, at that level it's

      14      been progressive.

      15             We began with a pilot program in 2010.  And

      16      then the program went into effect in the fall of

      17      2011.  And, at that point, we were fully Spanish-

      18      and English-compliant, with Haitian Creole kind of

      19      on the side.

      20             And then, in the subsequent years, we're able

      21      to bring that forward more fully.

      22             And now we have a full-time Haitian Creole

      23      investigator -- -speaking investigator with the

      24      Fair Food Standards Council.

      25             ASSEMBLYWOMAN NIOU:  How many languages do







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       1      you guys help folks in?

       2             REV. NOELLE DAMICO:  Our principle ones,

       3      because the predominant majority speak, are Spanish,

       4      Haitian Creole, and English.

       5             However, there are 12 or 13 indigenous

       6      languages to which we can reach for additional

       7      support as necessary.

       8             ASSEMBLYWOMAN NIOU:  That's great.

       9             And, you know, I was reading through your

      10      report, and your materials here, and I just kind of

      11      wanted to ask about your audits and transparency.

      12             And, what are some of the things that you

      13      guys have implemented to make it so that there's

      14      more transparency on all levels?

      15             And, then -- and -- and when -- when --

      16      I guess, when you're auditing, like, what are you --

      17      what are some of the things that you're looking for?

      18             REV. NOELLE DAMICO:  Well, one reason that we

      19      gained such access and insight into grower

      20      operations is because they have signed a

      21      legally-binding agreement, saying that they have

      22      agreed to give the Fair Food Standards Council that

      23      kind of access in order to assure their buyers that

      24      their operations are, indeed, in keeping with the

      25      Fair Food Standards' code of conduct.







                                                                   291
       1             So one thing is, we don't have to fight for

       2      access.  That is part of what's in the agreement to

       3      begin with; so it's expected.

       4             Of course, you know, it takes a while for

       5      employers to get used to this.

       6             So, on day one, you know, it was, oh, really,

       7      you have this?  And -- you know.

       8             You have to work through it.

       9             But at this point, it's a very regularized

      10      and respected operation, one reason being, that the

      11      growers have found it incredibly helpful for their

      12      own operations.

      13             So, when we go in, we're going in in a

      14      variety of ways.

      15             We're going in with individuals who are

      16      interviewing workers in the fields.

      17             We're going to take a look at the back-office

      18      processes that has to do with hiring, firing,

      19      transportation.  It would have to do with payroll

      20      decisions, and a number of other decisions that they

      21      would be making.

      22             And we have different metrics by which we are

      23      assessing their operation, and they need to be able

      24      to demonstrate a very, very high level of

      25      compliance.







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       1             And if they don't, the Fair Food Standards

       2      Council doesn't just say, All right, you're gone.

       3      We work on compliance assistance.

       4             Now, on the zero-tolerance offenses, if

       5      there's a situation of forced labor, oh, you're

       6      gone.

       7             But, then, there is the opportunity for such

       8      employers to come back into the program, and regain

       9      access, by the way, to the buying from all those

      10      14 massive brands that they will have lost by --

      11      from being kicked out, if they are able to

      12      demonstrate that their systems have undergone a

      13      renovation.

      14             And that's also true of supervisors or

      15      co-workers who may be fired due to

      16      sexual-harassment, for example.  They can come back

      17      in after going through a retraining.

      18             But if they have a second violation, then

      19      they're gone for the year, and, a third, they're out

      20      permanently.

      21             And, so, having that progressive kind of

      22      discipline also underguards again the idea that it's

      23      better for us to be open and transparent as a

      24      grower-employer, because that's going to benefit us,

      25      it's going to clean up the circumstances in the







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       1      field, get rid of any bad actors, and then help us

       2      become more productive.

       3             So in terms of some of the things that we're

       4      measuring for, those are some examples.

       5             And, I mean, it's such a comprehensive

       6      list -- there are, like, 37 different categories --

       7      that I think it's most easy to take a look at in the

       8      tables that I provided.  You can have a quick

       9      look-see in the Fair Food Program report, and then

      10      in the subsequent report that I provide.

      11             ASSEMBLYWOMAN NIOU:  And I -- and I love

      12      that, you know, you were saying that more people

      13      were willing to report.  And, then, that the things

      14      that were reported have been decreasing in their --

      15      I guess -- their --

      16             REV. NOELLE DAMICO:  Severity.

      17             ASSEMBLYWOMAN NIOU:  -- severity.

      18             And that means that more people are actually

      19      talking about their -- the issues that are coming

      20      up.

      21             And I also love that your goal is for things

      22      to be "just expected."

      23             And, also, that you're looking for trust and

      24      for faith in your system.

      25             I think that folks also probably hope that







                                                                   294
       1      they have -- can have trust and faith in their

       2      government, and, also, that things should be "just

       3      expected," that they can be in a harassment-free

       4      workplace.

       5             And, so, I -- I wanted to say thank you for

       6      your efforts on this.

       7             And -- and I wanted to kind of ask, also,

       8      this is my final question, because I know there's so

       9      many others, but:

      10             When did you start to see that difference?

      11             And how many years did it take to start

      12      seeing that there was an increase in -- in -- in

      13      folks who are willing to -- to speak up, but also a

      14      decrease in the severity?

      15             REV. NOELLE DAMICO:  I would say we got to

      16      point of prevention, specifically on sexual

      17      harassment and assault, in year three.

      18             In terms of the use of the hotline, I want to

      19      emphasize, it's a hotline that is used for many

      20      different kinds of complaints, not only for sexual

      21      harassment.

      22             It's the same one that you would call if you

      23      had some problem and felt that you were missing

      24      wages that you were owed as well.

      25             And, so, as workers use the hotline for other







                                                                   295
       1      abuses that they encounter, or problems that they

       2      encounter, they gain confidence that way as well.

       3             ASSEMBLYWOMAN NIOU:  Thank you so much.

       4             REV. NOELLE DAMICO:  You're very welcome.

       5             ASSEMBLYMAN CRESPO:  Assemblywoman Simon.

       6             ASSEMBLYWOMAN SIMON:  Thank you very much for

       7      your testimony.  It's very joyful, and it's

       8      wonderful, to watch you and to listen to you.

       9             Thank you so much for your work.

      10             I was not here when you started, so I don't

      11      actually have a copy of your testimony.

      12             But I wanted to ask, how many farms are

      13      involved in this program?

      14             REV. NOELLE DAMICO:  There are about

      15      35 farms, that are stretching, from Florida, all the

      16      way up to New Jersey, that employ about

      17      35,000 farmworkers.

      18             ASSEMBLYWOMAN SIMON:  Okay, that was my next

      19      question.

      20             35,000.  Okay.

      21             And you said the program went into effect

      22      fully in 2011?

      23             REV. NOELLE DAMICO:  2011, yes.

      24             ASSEMBLYWOMAN SIMON:  Okay.

      25             And what are you doing next; like, what's







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       1      your next big move?

       2             REV. NOELLE DAMICO:  Ah-ha.

       3             ASSEMBLYWOMAN SIMON:  Now that this is

       4      working, how do you plan to expand it?

       5             REV. NOELLE DAMICO:  Well, it's -- it's began

       6      with the Florida tomato industry.  And we began to

       7      expand, first, to tomato fields beyond Florida that

       8      were under the purview of growers who were based in

       9      Florida, already participating in the program.

      10             So that was our first wave of expansion.

      11             And then we went with those growers into

      12      other crops, such as strawberries and bell peppers.

      13             And we're in the process of expanding to

      14      other states and other crops.

      15             In our work, it's a matter of getting a

      16      combination of the growers and the buyers to do that

      17      expansion.

      18             We also have an active consumer wing that is

      19      working to bring new corporations on board.  We have

      20      14, some of the biggest-named corporations.

      21             You've heard of McDonald's; Burger King;

      22      Subway; Whole Foods Market; Ahold, which owns

      23      Stop & Shop and Giant and Martins; Walmart; Aramark;

      24      Sodexo.

      25             So there are a lot of companies that are in.







                                                                   297
       1             Unfortunately, Wendy's has refused to join

       2      the program, is an outlier.  It's beyond

       3      disappointing, frankly, it's shameful, given that

       4      this is a program that is working so effectively

       5      right now.

       6             But that's the other way the program expands.

       7             When a new company comes in, it -- our --

       8      that supply chain then opens, and the possibility

       9      opens anew.

      10             And so we're really looking forward to

      11      bringing Wendy's on board and expanding there as

      12      well.

      13             ASSEMBLYWOMAN SIMON:  Great.

      14             And I have another question, sort of very

      15      practical, sort of "back to when you started"

      16      question --

      17             REV. NOELLE DAMICO:  Sure.

      18             ASSEMBLYWOMAN SIMON:  -- and that is:  How

      19      did you physically get your workers to organize?

      20             That can be very, very difficult.  It's just

      21      labor-intensive.  Can be expensive.  And workers who

      22      have never experienced having any power in their

      23      lives are going to have, I would imagine, a much

      24      more difficult time getting their heads around how

      25      this could actually, fundamentally, change things.







                                                                   298
       1             I'm curious if you could talk about how that

       2      happened.

       3             REV. NOELLE DAMICO:  Absolutely.

       4             The story begins about 25 years ago,

       5      actually, back in 1993, when some individuals, who

       6      had come to the United States from Mexico,

       7      Guatemala, and Haiti, began meeting together, to

       8      talk about violence that they were experiencing in

       9      the fields in the Immokalee region.

      10             Now, what was interesting about these

      11      workers, is that each of them had had experienced

      12      defending their human rights in their home country.

      13             So we had some individuals who had been

      14      popular educators from the Mouvman Peyizan Papay in

      15      Haiti.  It's the Haitian small-farmer movement that

      16      was very instrumental in resisting the Duvalier

      17      regime, and is a very -- has very advanced

      18      methodology for analyzing one's political situation,

      19      and taking action to change it.

      20             We also had workers from Chiapas, and workers

      21      from Guatemala, who had been through the civil war.

      22             And these were all workers who had

      23      experience, not defending their individual rights,

      24      but defending their community rights.

      25             So they had a very human rights, large-scale







                                                                   299
       1      model that they brought.  It was a -- kind of a

       2      reverse-technology transfer, if you will, from the

       3      global self to the fields of Immokalee.

       4             As they began to meet, they first were

       5      ignited because, a young farmworker, in his teens,

       6      was beaten within an inch of his life for asking for

       7      a drink of water in the fields.

       8             And the worker group, the Coalition of

       9      Immokalee Workers, had just formed, you know, a few

      10      years prior, and was getting off the ground, and

      11      thinking about how it would move next, when this

      12      happened.

      13             And that ignited the entire community.

      14             And the worker stumbled into the office of

      15      the Coalition of Immokalee Workers in a bloody

      16      shirt.  And they picked up the shirt, and they

      17      helped the worker, and they decided to march to the

      18      crew leader's house that night.

      19             And they started off with about 25 people in

      20      front of their offices.

      21             And by the time they got to the crew leader's

      22      house, there were several hundred workers, shouting,

      23      "An injury to one is an injury to all."

      24             And that was the day, really, when, for the

      25      first time, the workers in Immokalee felt the power







                                                                   300
       1      of what it meant to act together.

       2             And they refused to go to work any longer in

       3      that crew leader's farm who had harmed that worker

       4      so badly.

       5             There was a change at that moment, because

       6      those crew leaders who operated like petty dictators

       7      in the fields, who had divided them between race and

       8      language and stature; there's all kinds of

       9      discrimination that was used to keep workers

      10      separate from each other.

      11             The reason the Coalition of Immokalee Workers

      12      is named the" "coalition" is because they came

      13      together in that moment and stood together, moving

      14      forward.

      15             That's how it began.

      16             And they further were empowered to do several

      17      hunger strikes, a 30-day hunger strike; two massive

      18      work stoppages.

      19             Of course, they didn't have any money, no

      20      strike funds, so they could only stay out for a

      21      week.  And during that time, one of the growers was

      22      heard to say to another, "Why don't we just maybe

      23      sit down at the table with these workers?"

      24             And the other one replied, "The tractor

      25      doesn't tell the farmer how to run the farm."







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       1             ASSEMBLYWOMAN SIMON:  Wow.

       2             REV. NOELLE DAMICO:  That's where things

       3      were.

       4             Now think of where things are.

       5             From people thought of as mere implements,

       6      actual machines, to be used, expendable, to full

       7      partners in an industry where their unique position

       8      as workers provides the critical insight necessary

       9      to making human rights real on the ground in a

      10      granular way.

      11             Not just a lofty statement of, fair wages,

      12      but a, no overfilling of the buckets.  Not a great

      13      statement as, we're against sexual harassment.

      14             But this is what it looks like: this is how

      15      it manifests, and this is how we're going to stop

      16      it.

      17             It's an extraordinary story.

      18             Susan Marquis, who is the dean of the

      19      Pardee RAND Graduate School, wrote a book, "I Am Not

      20      a Tractor," which tells the most in-depth telling of

      21      this.

      22             And so I would commend that to you, if you're

      23      interested.

      24             And I'm happy to tell more stories and give

      25      you more insight.







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       1             But when those workers saw, not only that

       2      they could stand together, but that consumers were

       3      ready to move with them, that became important.

       4             And I think there's an analogy here with

       5      government.

       6             To think, you know, we have, as citizens and

       7      residents, we care about these matters.  This is

       8      about our lives, our families' lives.  You're not

       9      just out there alone.

      10             Just remember, there are so many of us that

      11      are counting on you, and are prepared to step

      12      forward and support this really important work that

      13      you're doing.

      14             ASSEMBLYWOMAN SIMON:  Thank you very much.

      15             REV. NOELLE DAMICO:  You're welcome.

      16             ASSEMBLYMAN CRESPO:  Thank you.

      17             Oh, you have a question.

      18             SENATOR BIAGGI:  I have one final question,

      19      it's just a technical question.

      20             How are -- how is the organization funded?

      21             REV. NOELLE DAMICO:  That's a great question.

      22             We're funded in two different ways.

      23             We receive some foundation grants for the

      24      Fair Food Program.

      25             And then the other source is, we're funded at







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       1      the grassroots, through the Fair Food Sustainer

       2      Program.

       3             So, thousands of consumers across the

       4      country, people of good will, pledge to support this

       5      work by making a monthly donation.

       6             And you can read more about all of that on

       7      FairFoodProgram.org.

       8             SENATOR BIAGGI:  Thank you so much,

       9      Reverend Damico.  We appreciate you, and your

      10      testimony today.

      11             REV. NOELLE DAMICO:  You're very welcome.

      12             Thank you for this, and, thank you, please,

      13      all of the -- the work that you're doing here.

      14             All of those late nights that you spend

      15      pouring over the details, it matters, it matters so

      16      much.

      17             Thank you to all of you for the extraordinary

      18      opportunity that you're taking in this moment.

      19             This is the time!

      20             We can do it!

      21             We can do it!

      22             The people in this room, are ready to help

      23      you!

      24             Don't give up!

      25             We're going forward together, we're going to







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       1      end this.

       2             Thank you.

       3             SENATOR BIAGGI:  Thank you.

       4                [Applause.]

       5             SENATOR BIAGGI:  Next up is the

       6      Model Alliance, and, Sara Ziff, the founder and

       7      executive director of the Model Alliance, will be

       8      testifying.

       9             SARA ZIFF:  Good afternoon.

      10             Thank you for hosting this hearing, and for

      11      giving me the opportunity to testify today.

      12             My name is Sara Ziff, and I am a longtime

      13      model, and the founder and executive director of the

      14      Model Alliance, which is a non-profit research,

      15      policy, and advocacy organization that advances fair

      16      treatments and equal opportunity in the fashion

      17      industry.

      18             Too often, models are treated as objects, and

      19      not as legitimate members of the workforce who

      20      deserve to be treated with the same dignity,

      21      respect, and basic legal protections that other

      22      workers enjoy under New York State's sexual

      23      harassment and employment laws.

      24             Not withstanding the success that I've had as

      25      a model over the last 20 years, I, like many of my







                                                                   305
       1      peers, have experienced inappropriate demands,

       2      including routinely being put on the spot to pose

       3      nude and provide sexual favors.

       4             In some cases, modeling agencies are sending

       5      models to known predators, and putting them in

       6      compromising situations that no person, and

       7      certainly no child, should have to deal with.

       8             Essentially, all professional models operate

       9      under fixed-term exclusive contracts to their

      10      modeling agencies who exert a great deal of control

      11      over their working lives.

      12             The agencies then contract with a client -- a

      13      brand, a magazine, department store, or the like --

      14      for the model's work.

      15             If a model is harassed in the workplace, to

      16      whom can she turn?

      17             Is it the agency, who will blame the client

      18      for the unsafe workplace?

      19             The client, who will say that they have no

      20      contractual relationship with the model?

      21             For models and other independent contractors

      22      in this type of triangular relationship, there's

      23      still no clear remedy.

      24             Moreover, most modeling agencies assert that

      25      they are not regulated by New York State laws







                                                                   306
       1      governing employment agencies, which would subject

       2      them to the necessary licensing and regulation.

       3             Even though the primary purpose of modeling

       4      agencies is to obtain employment for their models,

       5      they claim that these activities are incidental to

       6      the general career guidance that they provide as

       7      management companies, and, therefore, are not

       8      subject to the State's regulation.

       9             I believe that this is an issue, and I've

      10      been banging the drum on this for almost a decade

      11      now.

      12             This is something that should be investigated

      13      by the New York State Department of Labor.

      14             So two years ago, I brought these concerns to

      15      Assemblywoman Nily Rozic.

      16             I had done a research project with the legal

      17      clinic at Fordham Law School on the working

      18      conditions of models.  And when it came to sexual

      19      harassment, the law professors there were all

      20      mortified by what they found, and surprised by the

      21      very limited scope of the law.

      22             The Model Alliance has since worked with

      23      Assemblywoman Rozic to introduce the Models

      24      Harassment Protection Act.

      25             If enacted, it would extend certain







                                                                   307
       1      protections to models, putting designers,

       2      photographers, and retailors, among others, on

       3      notice that they would be liable for abuses

       4      experienced on their watch.

       5             The bill would amend the current law to

       6      explicitly include models, explicitly forbid sexual

       7      advances and remarks or other forms of

       8      discrimination linked to their employment, and it

       9      would require clients to provide models, upon

      10      booking, with a contact and avenue for filing any

      11      complaints.

      12             Now, models in New York State need specific

      13      provisions because they work in this very convoluted

      14      employment chain.

      15             Agencies in New York say that the models are

      16      independent contractors, not employees.

      17             The agencies also claim to act merely in this

      18      advisory capacity, saying that bookings are

      19      incidental to them providing advice.

      20             When a client books a model through an

      21      agency, the model has no direct contract describing

      22      the scope of work with her client.

      23             So, essentially, we have fallen through the

      24      holes of the existing statutory safety net, and that

      25      means that, until now, in New York, which is







                                                                   308
       1      regarded as the heart of the American modeling

       2      industry, it's been unclear where legal liability

       3      for job-related sexual-harassment lies.

       4             There's been a very long history of

       5      institutional acceptance, or, at a minimum,

       6      recklessly ignoring sexual harassment by both

       7      agencies and clients.

       8             We believe that models should have the same

       9      recourse as all employees to sue employers.

      10             They should have a direct mechanism for

      11      making complaints, and should be assured that courts

      12      are willing and able to hold the agency and the

      13      client, their joint employers, responsible for the

      14      abuses they have suffered.

      15             Regardless how we're classified, it's

      16      imperative that we have an enforceable right to work

      17      in a safe and fair environment.

      18             So New York State can remedy these

      19      shortcomings by passing the Models Harassment

      20      Protection Act, and the perceived glamour of this

      21      business, and the gaps in the law, should no longer

      22      be used to deny models a safe workplace or

      23      appropriate recourse if abuse occurs.

      24             We really deserve no less than any other

      25      member of New York's workforce.







                                                                   309
       1             And this wasn't part of my prepared remarks,

       2      but, I know you just heard in the last testimonial

       3      about Worker-driven Social Responsibility.

       4             We have learned a lot from the farmworker

       5      women, from CIW and the Fair Food Program.  Over the

       6      last year, we have adapted that model for the

       7      fashion industry.

       8             That's also another initiative that we're

       9      excited about.

      10             Our program is called the "RESPECT" program,

      11      and RESPECT is like the Fair Food Program; a

      12      legally-binding program that will provide a

      13      much-needed safety net, not just for models, but for

      14      freelance creatives working in the fashion industry,

      15      more broadly.

      16             It includes a neutral third party to

      17      investigate and resolve claims of sexual harassment

      18      and retaliation.

      19             And we believe that if a company is serious

      20      about protecting us, that they will be willing to

      21      commit to enforceable standards with real teeth.

      22             We've campaigned for the last year.  It's

      23      very difficult to get a company to sign on to make

      24      that -- you know, be the first one to jump.

      25







                                                                   310
       1             ASSEMBLYMAN CRESPO:  Thank you.

       2             So the Models Harassment Protection Act, has

       3      any other state implemented a model like this, or a

       4      policy like this?

       5             SARA ZIFF:  This is something we've been

       6      working on for the last couple of years, at least.

       7             We did champion legislation in California,

       8      the Talent Protections Act, last year.  That

       9      legislation looks a little bit different, in part,

      10      just because there isn't quite the same issue with

      11      management companies and how they're structured in

      12      California, versus here.

      13             ASSEMBLYMAN CRESPO:  So, look, I'll -- I'll

      14      just say this, and -- my wife did some modeling when

      15      she was younger, and would tell me some horror

      16      stories of what she experienced, even as a minor,

      17      participating in some events.

      18             And it is -- it's mind-boggling that an

      19      industry as relevant, where -- and particularly here

      20      in New York, to your point, right, and you made it

      21      in your testimony, with the biggest players in the

      22      market operating or based in New York, and that this

      23      issue has not been more thoroughly addressed,

      24      especially in this movement, right, with #MeToo and

      25      with Time's Up, and with everything else that's gone







                                                                   311
       1      on, that more hasn't been done around this industry

       2      in particular.

       3             So I'm -- I'm -- as -- I'm new to the

       4      Committee on Labor, but I'm going to immediately go

       5      back and take a look at the differences, and why we

       6      are not treating modeling agencies as employment

       7      agencies.

       8             And I think you've made some very good

       9      points, that we're very interested to go back and

      10      look at.

      11             So I appreciate your testimony.

      12             SARA ZIFF:  Thanks, I appreciate it.

      13             SENATOR BIAGGI:  I just have a few quick

      14      questions, and just one -- uhm, just overall broad

      15      comment on your work that you've done for so many

      16      years, through the Fashion Law Institute, and the

      17      modeling law class that I actually took at Fordham

      18      Law, with Doreen and Ally (ph.) --

      19             SARA ZIFF:  Oh, okay.

      20             SENATOR BIAGGI:  -- in 2008, that you had

      21      come to speak at.

      22             And I think that one of the most glaring

      23      things that was so clear to me, was that there are

      24      these known abusers in every single industry.

      25             And with modeling, it's everywhere.  It's the







                                                                   312
       1      photographers, it's the agents; it's all over the

       2      place.

       3             And one of the things that seems to be so

       4      challenging, especially if you are a disruptor in

       5      that system, where you clearly know, this is the way

       6      that we can change it.

       7             Passing this law would create a

       8      relationship -- or, a legal chain of a relationship

       9      that can hold someone to account.

      10             And this kind of goes a little bit to what we

      11      just heard in terms of that testimony.

      12             It's -- and I think Assemblywoman Simon had

      13      touched on this, too, in your question of:  How do

      14      we get -- how do they know how to organize?

      15             So my question is:

      16             It's one step after that.

      17             It's -- you know, after you organize, how do

      18      you get people who are in the system to join you?

      19             Because there's such a culture around just

      20      letting -- like, letting it go, because, again, of

      21      the imbalance of power.

      22             And I know that you're using this, the

      23      RESPECT model.

      24             But it is -- it's incredibly challenging.

      25      Right?







                                                                   313
       1             So if we pass -- let's say we pass the

       2      Model's Harassment Protection Act, that's -- that's

       3      a huge step in the right direction.

       4             But before that point, and then after that

       5      point, how do we continue to make sure that people

       6      are able to feel safe when they can speak up, and

       7      still have their livelihood?

       8             Because so many men and women in the modeling

       9      industry, and agent -- and -- and world, rely on the

      10      agencies and the photographers.  And, you know, some

      11      of the best photographers are some of the worst

      12      abusers.

      13             Just like some of the best legislators are

      14      some of the worst abusers.

      15             Right?

      16             It's everywhere; it's everywhere in the whole

      17      world.  And I've always said this, but it's an

      18      epidemic.

      19             And so I really would be curious to hear your

      20      point on that, because that really matters when

      21      we're thinking about laws, because we can change

      22      laws till kingdom come.

      23             But the cult -- like -- I would argue that

      24      the culture has reached the point, but it hasn't met

      25      everybody where they're at.







                                                                   314
       1             SARA ZIFF:  Right.

       2             Yeah, no, that's an important point.

       3             And I think, at the moment, people --

       4      there's -- people just feel that they can act with

       5      impunity --

       6             SENATOR BIAGGI:  Right.

       7             SARA ZIFF:  -- because they can.

       8             And, you know, I remember calling out a

       9      well-known photographer who shoots for -- has shot

      10      for many of the, you know, biggest brands and

      11      magazines, and even photographed the President of

      12      the United States; and, yet, was known, it was just

      13      an open secret, was sexually harassing and

      14      assaulting even minors.

      15             And, you know, I know because I saw it

      16      firsthand.

      17             And yet all of these, you know, big

      18      prestigious companies continued to work with this

      19      person.

      20             And -- and it's not just about any one

      21      person.  This is pervasive throughout the industry.

      22             And it's really not until the #MeToo and

      23      Time's Up movements, through the power of publicity,

      24      that we've been able to be heard, despite pushing

      25      this forward for a very long time.







                                                                   315
       1             SENATOR BIAGGI:  I have one just follow-up

       2      question.

       3             Have you considered, and I think the answer

       4      is yes, but I'm not sure, the unionization of

       5      models?

       6             SARA ZIFF:  Uh.

       7             Before I started the Model Alliance,

       8      I approached established unions and asked if they

       9      would extend membership to us.

      10             They said it was impossible because we're

      11      told that we're independent contractors.  And under

      12      federal law, we cannot unionize.

      13             SENATOR BIAGGI:  So what makes models

      14      different from actors and actresses?

      15             SARA ZIFF:  That's a very good question.

      16             Under -- so, legally, actors are actually

      17      considered employees.

      18             SENATOR BIAGGI:  Of whom?

      19             SARA ZIFF:  I would believe of the

      20      production.

      21             SENATOR BIAGGI:  That is so remarkably

      22      ridiculous because it's an analogous structure.  It

      23      makes no sense.

      24             SARA ZIFF:  It makes no sense.

      25             SENATOR BIAGGI:  Wow.







                                                                   316
       1             SARA ZIFF:  Yeah.

       2             SENATOR BIAGGI:  Thank you.

       3             ASSEMBLYMAN CRESPO:  Assemblywoman Simotas.

       4             ASSEMBLYWOMAN SIMOTAS:  Sara, thank you for

       5      coming to tell us the truth about what happens in

       6      your industry.

       7             My question is very specific about,

       8      potentially, what we can do about retaliation,

       9      which, in your business, would be blacklisting

      10      somebody.

      11             I could see how it could -- would be easy for

      12      a photographer or for some -- for some label to say,

      13      Well, you don't look the part.

      14             But it could be because you're trying to

      15      complain about, you know, a predator.

      16             SARA ZIFF:  Uh-huh.

      17             ASSEMBLYWOMAN SIMOTAS:  How would we be able

      18      to structure?

      19             We have strong retaliation laws in the state

      20      of New York.  Like, you're not supposed to retaliate

      21      against people if you complain about something, that

      22      you feel like you're being harassed.

      23             But I think in the modeling industry it's

      24      going to be different, because of just the way that

      25      the business is run.







                                                                   317
       1             How do -- do you -- have you thought about

       2      how we can prevent blacklisting of models, and maybe

       3      create a repository, something, that could be more

       4      helpful than just claiming that you're being

       5      retaliated against, or blacklisted, and not really

       6      being able to prove it?

       7             SARA ZIFF:  Sure.

       8             Yeah, it's a tricky question when you're

       9      talking about the gig economy, and -- where you

      10      don't have, necessarily, regular work, or one steady

      11      client.

      12             And I think -- we do, however, have exclusive

      13      multi-year contracts with our agencies.

      14             And I think, you know, I've seen -- I saw

      15      myself, while working as a model, and also in other

      16      cases that have come to us through our grievance

      17      reporting line, that agencies have, you know,

      18      dropped models after they have reported sexual

      19      harassment or assault.  They have failed to, like,

      20      promote models' careers any longer, submit them for

      21      jobs.

      22             So I think -- I think there are some clear

      23      indications that -- that -- you know, that would

      24      show retaliation, at least from the agency side.

      25             But maybe that's something that the last







                                                                   318
       1      person who testified, and the folks at the Fair Food

       2      Program, could speak to more, since they also deal

       3      with contract workers.

       4             ASSEMBLYMAN CRESPO:  Assemblymember Quart.

       5             ASSEMBLYMAN QUART:  Yeah, just a quick

       6      question.

       7             Thank you for your testimony.

       8             Having just had the benefit of reviewing a

       9      modeling contract, it really shocked me how unequal,

      10      what the leverage is, almost to the extent that the

      11      young person, and it usually is a young person, is

      12      almost as if an indentured servant in some sort of

      13      way.

      14             I think changing the labeling, from an

      15      independent contractor, to employee, is a good

      16      start.

      17             But in other areas of the law in the state,

      18      we, the Legislature, can step in when the balances

      19      of power between two parties are imbalanced, if you

      20      will.

      21             Has any -- have you or your organization

      22      given any thought to things that the Legislature

      23      should do, policy-wise, on the contract end of

      24      things?

      25             Because we do legislate in that area, in







                                                                   319
       1      insurance law, and other places, to try and give

       2      more power to young, mostly young women, who are

       3      going to become models, because, based upon the

       4      contract, it is a desperate situation as I read

       5      those contracts.

       6             SARA ZIFF:  Yeah, no, thanks for raising that

       7      point.

       8             The contracts tend to be entirely one-sided

       9      in favor of the agency.

      10             Often it's, you know, 16-, 17-, 18-year-old

      11      girls who are signing these contracts.  It's an

      12      aspirational industry.  They don't -- they sign on

      13      the dotted line, they don't negotiate.  And,

      14      frankly, they don't have any bargaining power.

      15             And I question whether many of these

      16      contracts are even enforceable, frankly.

      17             But that's -- you know, certainly, the

      18      contracts that these models are held to, where they

      19      are, essentially, working in debt to their agencies.

      20             And some of these are children, who are, you

      21      know, here, sponsored by these modeling agencies to

      22      work here, from Eastern Europe, Brazil, and

      23      elsewhere.

      24             It's -- yes, thank you for recognizing that.

      25             I'm not quite sure what the answer is, but







                                                                   320
       1      it's certainly on our radar.

       2             ASSEMBLYMAN QUART:  Thank you.

       3             SENATOR BIAGGI:  I have just one follow-up

       4      question.

       5             That was an excellent question, and,

       6      Assemblymember Quart, thank you for raising that.

       7             When -- when child models are signing

       8      contracts, is a par -- a parent, I'm assuming, is

       9      required to be present?

      10             SARA ZIFF:  Yeah, I mean, it's not -- it's

      11      not enforceable if you sign it when you're under 18.

      12             SENATOR BIAGGI:  Right.

      13             SARA ZIFF:  Right.

      14             SENATOR BIAGGI:  Because that's 'cause child

      15      labor is illegal.

      16             That's quite interesting.

      17             I wonder if there's a mechanism in contract

      18      law?

      19             You know, we'll see.

      20             Thank you.

      21             SARA ZIFF:  Thanks.

      22             ASSEMBLYMAN CRESPO:  Thank you.

      23             SARA ZIFF:  Thanks so much.

      24             SENATOR BIAGGI:  Next we will be hearing from

      25      Marissa Hoechstetter.







                                                                   321
       1             Thank you.

       2             I hope I pronounced your name correctly.

       3             MARISSA HOECHSTETTER:  Hoechstetter.

       4             SENATOR BIAGGI:  Hoechstetter?

       5             MARISSA HOECHSTETTER:  It's okay.

       6             SENATOR BIAGGI:  Hoechstetter.  Okay.

       7             ASSEMBLYMAN CRESPO:  Hi.  Yep, you can begin.

       8             MARISSA HOECHSTETTER:  Okay.

       9             Thank you for the opportunity to address you

      10      today about how the lack of oversight of physicians

      11      and other licensed medical professionals puts

      12      employees and patients in danger.

      13             I chose to testify because, while the

      14      hospital and clinics where I was sexually assaulted

      15      were not my workplace, they are someone's workplace.

      16             I'm going to do the best I can today.

      17             No hospital or doctor's office, no workplace,

      18      should ever put their reputation and profit ahead of

      19      their patient's safety.

      20             Real improvements must be made so that

      21      workers and patients, particularly the most

      22      vulnerable among us, are not needlessly and

      23      repeatedly exposed to sexual harassment and assault.

      24             Most doctors are well-intentioned, caring

      25      people dedicated to their field, but the minute you







                                                                   322
       1      walk into a doctor's office they have power over

       2      you.

       3             It's a unique profession.

       4             There are often legitimate reasons for a

       5      doctor's hands to be on or in your body.

       6             Those who abuse this do not deserve

       7      protection.

       8             I'm going to briefly share a little bit of my

       9      story, and then, in the context of this hearing,

      10      share what I've learned about sexual harassment and

      11      sexual assault in health care.  And, I'm going to

      12      refer to a number of studies that I have included in

      13      the attachments.

      14             As a patient at Columbia University and

      15      New York Presbyterian Hospital from 2009 to 2012, my

      16      OB/GYN performed overly-touchy exams, made

      17      inappropriate comments about my body, examined me

      18      without nurses in the room, and, on my last visit,

      19      undoubtedly, sexually assaulted me.

      20             When I realized what was happening, I never

      21      went back.

      22             The assaults and the experience of coming

      23      forward have fundamentally changed my life.

      24             I know now that what happened to me was

      25      allowed to transpire because of a lack of action by







                                                                   323
       1      his employers and a lack of oversight by regulators.

       2             For 20 years this predator retained power

       3      over patients and staff, and used that for sexual

       4      gratification.

       5             Despite more than 20 women reporting to the

       6      police and the Manhattan District Attorney, Hadden

       7      ultimately only pled guilty to crimes against just

       8      one victim, two minor counts called down from a long

       9      list, a list that would have been longer had the DA

      10      included me and others in the case.

      11             Nurses who worked with him claimed to have

      12      reported his behavior to supervisors going back

      13      decades.

      14             His employers have yet to take any

      15      responsibility, and victims continue to come

      16      forward, even as recently as last week.

      17             There are probably hundreds, or even

      18      thousands, of others out there.  It's a sickening

      19      list.

      20             Some of us like me were pregnant.  Some were

      21      minors, including one that he himself had delivered.

      22      Some had their babies in the room with them.

      23             His own defense attorney said during the

      24      criminal trial that he -- Hadden had over

      25      30,000 patient visits.







                                                                   324
       1             Okay.

       2             A recent study found that most sexual

       3      misconduct by doctors involves a combination of

       4      important factors.

       5             100 percent of the perpetrators were male,

       6      and 85 percent of them examined patients alone.

       7             96 percent of known cases involved repeat

       8      offenses, And the abuse was often accompanied by a

       9      milder, more visible behavior, such as comments and

      10      touching, over 90 percent of the time.

      11             Yet these same researchers wrote, "It's not

      12      possible to provide an accurate estimation of the

      13      frequency of sexual violations in medicine.  Most

      14      patient-victims do not report."

      15             And one study estimated that fewer than one

      16      in 10 victims come forward, which is much lower than

      17      an overall rate of cases of rape and sexual assault

      18      in the United States.

      19             When you pair this information with reports

      20      from the National Academy of Sciences, Engineering,

      21      and Medicine that says up to half of medical

      22      students have experienced some form of sexual

      23      harassment, and another study published in the

      24      "Annuls of Internal Medicine," that up to 70 percent

      25      of female physicians have reported sexual







                                                                   325
       1      harassment, it is clear that health care has a

       2      sexual-harassment and sexual-assault problem.

       3             In New York, the education department issues

       4      licenses to practice medicine.

       5             Discipline is split between two offices under

       6      the department of health:

       7             The office of professional and medical

       8      conduct (OPMC), which investigates reports of

       9      incompetent or unethical doctors;

      10             And the board of professional medical

      11      conduct, which adjudicates those cases and decides

      12      on punishments.

      13             This is not just a few people in a backroom

      14      somewhere, it's a whole system; staff,

      15      investigators, board members, administrative law

      16      judges reviewing cases, all using public money with

      17      a mission to protect the public.

      18             New York is one of only six states that does

      19      not conduct a background check as a requirement of

      20      initial licensure for medical professionals.

      21             This might make New York attractive for those

      22      with a criminal record to seek licensure here.

      23             The National Practitioner Databank, a

      24      resource only available to state boards, established

      25      by Congress in 1986 to prevent practitioners from







                                                                   326
       1      moving state to state without disclosure or

       2      discovery of previous damaging performance.

       3             A survey of databank users found that about

       4      21 percent of matched query responses contain new

       5      information.

       6             This means that in states that reviewed --

       7      when states reviewed a doctor's application for

       8      licensure, they found new information that had not

       9      been self-reported on applications about a quarter

      10      of the time.

      11             A quarter of the time they're not telling you

      12      the whole story.

      13             If New York doesn't conduct background checks

      14      and doesn't sufficiently query the databank, we are

      15      letting physicians get away with lies and omissions

      16      and putting the public at risk.

      17             In 2014 the New York Public Interest Research

      18      Group found that over 77 percent of doctors

      19      sanctioned for negligence by OPMC were allowed to

      20      continue to practice.

      21             Think about that: 77 percent of doctors that

      22      were sanctioned were allowed to continue to

      23      practice.

      24             Nearly 60 percent of those actions were based

      25      on sanctions by other states, the federal







                                                                   327
       1      government, or the courts; not the result of some

       2      action that OPMC had actually taken.

       3             So an example of that is, the plea that my

       4      abuser made, a condition of that was him

       5      surrendering his license to the State.

       6             OPMC had nothing to do with the loss of his

       7      license.

       8             And because of a lack of transparency,

       9      there's no way to know if he had been previously

      10      reported or disciplined.

      11             In New York, staff and peers are required to

      12      report to the OPMC any information that reasonably

      13      appears to show that a doctor is guilty of alleged

      14      professional misconduct within 30 days.

      15             Hospitals are also required to report when a

      16      doctor's clinical privileges have been curtailed or

      17      have -- they've resigned to avoid discipline.

      18             It's very common that they resign before

      19      they're actually disciplined and then there's

      20      something on their record.

      21             But, there's no penalty for not doing so, and

      22      there's no way to know if they're following the law.

      23             In my case, Columbia and New York

      24      Presbyterian had plenty of notice, but it does not

      25      appear that they ever reported Hadden to OPMC.







                                                                   328
       1             And, I'd ask people to think if it's

       2      realistic to imagine the hospital is going to raise

       3      its hand and self-report that they've been employing

       4      a sexual criminal.

       5             Because I speak publicly about my assault,

       6      victims regularly contact me, seeking help, and most

       7      have never heard of the OPMC.

       8             I've spoken with OPMC staff who do not

       9      understand or could not clearly communicate what is

      10      in their jurisdiction.

      11             I specifically asked if sexual harassment of

      12      a hospital staff member by a doctor, for example,

      13      was reportable, and I was told, that "it depends."

      14             People should report the harassment so that

      15      OPMC can review the complaint and determine if it's

      16      in their jurisdiction or not.

      17             How can we expect patients or employees to

      18      know what and where to report when we're not clear

      19      about whose responsibility it is to investigate or

      20      discipline?

      21             One thing that's unique, as I understand it,

      22      there's actually no time limit, so no statute, on

      23      being able to seek justice from the OPMC for a

      24      doctor who has abused or sexually harassed you.

      25      They are required to investigate all complaints







                                                                   329
       1      regardless of when they occurred.

       2             We encourage victims to speak up, but when

       3      they do, they are often met with a justice system

       4      that doesn't offer much relief or, as I've learned,

       5      much justice.

       6             In addition to mustering the courage to come

       7      forward, we must overcome mountains of disbelief,

       8      inertia, and prosecutorial discretion.

       9             Despite OPMC's flaws, the public should be

      10      aware of the office as a resource, especially when

      11      other criminal justice systems are likely to let us

      12      down.

      13             Last year, "The Village Voice" reported on an

      14      osteopathic doctor from Great Neck who admitted to

      15      verbally harassing a patient and sending her

      16      inappropriate text messages.  He was fined $10,000,

      17      and required to be chaperoned anytime he saw a

      18      female patient.

      19             He then broke that rule two years later, and,

      20      as of yesterday when I checked, his license is still

      21      active.

      22             Time and again we see abuse happen even when

      23      others are present.

      24             Think of the Nassar cases.

      25             In addition to putting a patient in a







                                                                   330
       1      vulnerable position with a previously abusive

       2      doctor, the chaperon, the person assigned to follow

       3      them, who themselves has an employer-employee

       4      relationship with the doctor, has to themselves work

       5      in a potentially toxic environment.

       6             Boards are knowingly putting criminals back

       7      in private situations with their previous victims.

       8             Think of what we know now about the Catholic

       9      Church, where clergy, with credible allegations of

      10      abuse, were simply moved to new environments to,

      11      supposedly, perform differently under new

      12      supervision.

      13             The public doesn't know enough about the

      14      practice of chaperons to be outraged, but they

      15      should be.

      16             And, I'll note, that it's not public

      17      information why the chaperon is there.

      18             So you go in, and there's just another person

      19      in the room.

      20             And I think many of us, you go into a

      21      doctor's office and, you know, there might be other

      22      nurses, other staff.

      23             So it's not publicly known why that person is

      24      assigned to be there.

      25             So if you could choose between two doctors,







                                                                   331
       1      one with a chaperon and one without, I think most of

       2      us would choose the one who had not been

       3      disciplined, requiring a person to be there with

       4      them.

       5             I could go on.

       6             Patients and medical staff who visit or work

       7      with a doctor have a right to know their full

       8      disciplinary history.

       9             California recently became the first state to

      10      require that doctors notify their patients if they

      11      are on probation by the Medical Board of California

      12      for wrongdoing, including sexual misconduct.

      13             The Patient's Right to Know Act puts the onus

      14      to inform the public on the provider and the state

      15      board, not on the victim.

      16             A 2016 Consumer Report survey showed that

      17      82 percent of Americans favor the idea of doctors

      18      having to tell patients they're on probation, and

      19      why.

      20             Doctors' offices could be required to post

      21      signage about patients' rights, promoting OPMC's

      22      website as a resource.

      23             We know that victims turn to the Internet

      24      privately, seeking information about sex crimes,

      25      statutes, and reporting our support resources.







                                                                   332
       1             OPMC must also update its website.

       2             The word "sex" only appears in one buried

       3      place.  There is nothing that explicitly mentions

       4      sexual harassment or assault of -- as professional

       5      medical conduct that is within their purview.

       6             Think about that:  It's an office.  I mean...

       7             The word "sex" appears only in one buried

       8      place as an example of something.

       9             The site does offer a link to relevant state

      10      laws which could potentially offer more clarity for

      11      those who can understand them.

      12             Under relevant education law, which offers a

      13      definition of "professional misconduct" applicable

      14      to physicians, the word "sex" only appears in

      15      relation to a definition of "misconduct" under the

      16      field of psychiatry.

      17             There is a statement that professional

      18      misconduct can be willfully harassing, abusing, or

      19      intimidating a patient either physically or

      20      verbally.

      21             Again, I don't think it's explicit enough.

      22             Under the relevant Public Health Law, which

      23      explains the penalties for misconduct and

      24      proceedings for the OPMC, neither the word "sex" or

      25      "harassment" appear anywhere.







                                                                   333
       1             The word "abuse" appears only in relation to

       2      drug and alcohol abuse.

       3             The relevant laws should clearly state sexual

       4      harassment and sexual abuse as crimes that are

       5      considered professional misconduct for physicians.

       6             I hope that my remarks today help shed light

       7      on sexual harassment and sexual assault in medicine.

       8             Doctors are an important part of our lives,

       9      and have specialized knowledge that we rely on to be

      10      happy, healthy, and productive, but they're not gods

      11      who deserve to be protected at all costs.

      12             There's a lot more I can say, but, for now,

      13      I'll share that it's my hope that state re -- that

      14      the state resources already set up to protect us

      15      can, at a minimum, be made more visible and

      16      accessible, and that the role in curbing these

      17      crimes can be clarified, and that we can work

      18      together to support victims.

      19             Thank you.

      20             ASSEMBLYMAN CRESPO:  Thank you.

      21             Wow.

      22             First of all, thank you for coming forward

      23      and telling your personal story.  But, you've shed

      24      light on an area that I think a lot of us would

      25      easily overlook.







                                                                   334
       1             I assume, whenever I walk into a

       2      medical-facility, appointment, whatever, when my

       3      daughters go there, that the people there are

       4      highly, you know, regulated, they're licensed, there

       5      must be tremendous amounts of oversight.

       6             What you've presented shatters all of those

       7      beliefs and raises significant questions.

       8             I just want to share that.

       9             I think we have to do a lot of follow up

      10      on -- on -- you present a lot of ideas that can lead

      11      to potential legislation.

      12             But, simply, I just want to thank you for --

      13      for bringing forward something unique to this whole

      14      conversation.

      15             MARISSA HOECHSTETTER:  Thank you for

      16      listening.

      17             SENATOR BIAGGI:  I echo my Assembly

      18      Co-Chair's sentiment, and thank you for being so

      19      incredibly brave, for sharing your story.  It's not

      20      ever easy, and it doesn't necessarily get easier.

      21             But, you create a space for so many other

      22      people when you speak up, and we're very grateful

      23      for that.

      24             And you -- that's -- I mean, you put a light

      25      in an area that I would never even think about.







                                                                   335
       1             I mean, I'm thinking now about all the

       2      doctors that I have gone to, dentists.  I mean, if

       3      you just -- now it's just -- goes down the list of

       4      things.

       5             How many times has somebody been in a room

       6      with me and the doctor?

       7             That's alarming.

       8             That's alarming, and it's negligence in so

       9      many different ways.

      10             And the way that you laid out your testimony

      11      is so helpful to what we're trying to achieve here

      12      right now, because you do it in a way that gives us

      13      clear gaps in the law, so that we can put bills in

      14      place for these types of things.

      15             And, you know, all of your examples go

      16      through, and then you mentioned California so many

      17      times.

      18             And I really would be remiss if I didn't say

      19      how incessantly disappointed I am as a legislator,

      20      and as a New Yorker, that New York is constantly

      21      second to California's lead on so many things.

      22             They are trailblazing in ways that I don't

      23      even think we know yet.

      24             But it's great that we have --

      25             MARISSA HOECHSTETTER:  California, you can







                                                                   336
       1      sign up to get text messages if there's a

       2      disciplinary action against your doctor.

       3             SENATOR BIAGGI:  Oh, my goodness.  I mean,

       4      that's remarkable.  That's good to know.

       5             MARISSA HOECHSTETTER:  They have challenges

       6      for sure there with the medical board, but they

       7      are -- they have some really great ideas I think

       8      that could be looked at.

       9             SENATOR BIAGGI:  Sure.

      10             I mean, that's incredibly helpful for us.

      11             And I think the fact that California has done

      12      it already means that we have a model.

      13             So even though we can be a little envious of

      14      their leadership, we can still use them as a ally

      15      and as like a sister state for us.

      16             One of the things I just want to ask you

      17      about, if you are comfortable --

      18             MARISSA HOECHSTETTER:  Sure.

      19             SENATOR BIAGGI:  -- responding to, you

      20      mentioned that -- well, first of all, I want to just

      21      say, this doctor, and the behavior of this doctor,

      22      is incredibly egregious, and it's criminal.

      23             To have, as one of the lines in your

      24      testimony, that some of them were minors, including

      25      one that the doctor had delivered, is disgusting.







                                                                   337
       1             It's disgusting.

       2             And that person should not be able to have

       3      the privilege of practicing medicine in the state of

       4      New York.

       5             So going back to what you had mentioned in

       6      that paragraph, which was the Manhattan District

       7      Attorney's Office:

       8             So 20 women reporting to the police and the

       9      Manhattan District Attorney.

      10             Okay.

      11             I have several friends who have reported

      12      these types of acts to the police.

      13             And I think one of the things that's very

      14      clear is that police officers are not necessarily

      15      trauma-informed in this specific subject, so that's

      16      a different topic.

      17             But when you talk about the Manhattan DA, and

      18      the application of the law to specific facts and

      19      circumstances, that is what a lawyer and an ADA

      20      should be able to do.

      21             So I'm curious about, when the Manhattan

      22      District Attorney had, I guess, reviewed these

      23      cases, if you -- I don't know of the extent to which

      24      you know, so any details surrounding that, because

      25      that's alarming, in so many ways, seeing what's in







                                                                   338
       1      front of us, and knowing that it went to the

       2      Manhattan DA.

       3             And do you know the timing of when it went

       4      there?

       5             MARISSA HOECHSTETTER:  There's a lot I could

       6      say about that.

       7             SENATOR BIAGGI:  You don't have to if you're

       8      not comfortable.

       9             MARISSA HOECHSTETTER:  No, I can.

      10             It's something I think that's worthy of a

      11      whole other hearing.

      12             SENATOR BIAGGI:  Wow.

      13             MARISSA HOECHSTETTER:  I -- what I have

      14      learned since going forward to the DA, and

      15      subsequent litigation that I'm currently involved

      16      in, and other things, the extent to which -- and

      17      some has been made of this, you know, publicly, the

      18      extent to which political contributions,

      19      friendships, networks, and effort, I believe,

      20      really, to -- I don't think anybody cared about this

      21      doctor.  I think it was an effort to protect the

      22      reputation of his employers.

      23             And I hope that our litigation will provide

      24      an opportunity to reveal some of what we believe,

      25      this case was handled very badly.







                                                                   339
       1             When I went in and reported what happened to

       2      me, I was told that I was outside of the statute of

       3      limitation.

       4             I know now that that was a lie.

       5             And part of what spurs me on to talk about

       6      all the parts of my experience; reporting to the DA,

       7      learning about the medical board, you know, talking

       8      to people, I mean, this is all stuff that I have

       9      just learned and taught and sought out for myself,

      10      because I was not able to get justice through the

      11      criminal justice system.

      12             I mean, we tell people to report.  We have

      13      ridiculously short statutes of limitation.

      14             And we have people that, when you come

      15      forward to report a crime, I believe that most of

      16      the people, I mean, people who are report -- you

      17      know, presenting to you earlier today, I believe

      18      that they look at someone like me as work.  I'm one

      19      more person; I am somebody that now is going to

      20      require them to do more work.

      21             And that's how I see it.

      22             And so I think there's a real incentive for

      23      some of these people to look at the case and say, if

      24      they can win or not, or, you know, there's a lot of

      25      factors there.  I mean, there's a lot to talk about.







                                                                   340
       1             But --

       2             SENATOR BIAGGI:  Can you talk a little bit

       3      about the statute of limitations, a piece of it?

       4             So the statute of limitations you were told

       5      was expired.

       6             MARISSA HOECHSTETTER:  It depends on how you

       7      define what the crime against me was.

       8             I define it as first-degree rape.

       9             So I don't think there's a statute of

      10      limitation against that.

      11             How the -- and, honestly, I know we're

      12      talking about statutes right now.

      13             I think one of the reasons to get away from

      14      all these different little definitions, is that

      15      people use different things against you, and they

      16      can say, Well, I see it this way, and so, therefore,

      17      it's this crime, or, it's misconduct, or, it's

      18      forcible touching, or, all these other things.

      19             It's all wrong.

      20             And as a victim, I mean, I really did

      21      research.  I tried to understand the law before

      22      I came forward, and, it's confusing.

      23             It's confusing.

      24             And that's why, I mean, I've said it here,

      25      like, the fact that the med -- the state office







                                                                   341
       1      responsible for disciplining doctors does not have

       2      the word "sex" anywhere on there.  Not "sexual

       3      harassment," not "sexual abuse," not sexual

       4      misconduct."

       5             Nothing.

       6             Why would I think that they're an office that

       7      has a resource for me?

       8             In my case, it is unique, he did lose his

       9      license.

      10             He -- I got to sit in court and watch him

      11      plead guilty, not to crimes against me, but to

      12      someone else.

      13             That is extremely rare.

      14             I'm, like, following a trajectory that almost

      15      nobody gets.

      16             And I do feel a responsibility because, I've

      17      seen that, and I've learned from this process.

      18             I feel a responsibility to tell the story.

      19             It's a -- it's almost like a privilege that

      20      I can say that and do that.  And I really believe

      21      that, if I can't, you know, who can?

      22             And so I'm trying.

      23             But -- so in this context and this

      24      opportunity, I wanted to talk about the state

      25      medical board.







                                                                   342
       1             I think there is a lot to be said and

       2      discussed about statutes, about prosecutorial

       3      discretion.  Our lack of recourse is none, there's

       4      none.

       5             If they don't pursue your accusation, you

       6      have no recourse, except, for example, this is one

       7      way you could go get justice, right, you could go to

       8      the state medical board.

       9             But nobody knows about them.

      10             No one -- I mean, I didn't know that they

      11      existed until I read that as a detail of the plea,

      12      and then I looked into it.

      13             So it's not a resource that people know

      14      about.

      15             SENATOR BIAGGI:  Wow.

      16             I think that some of the notes that you

      17      touched on, I won't go into details about them at

      18      all.

      19             But, the criminal justice system not serving

      20      justice is a theme that I think all of us here are

      21      very much aware of, and are working on, and have

      22      worked on significantly this year.

      23             The influence of political contributions and

      24      money in politics, the -- it's -- you know, it's not

      25      surprising that it's shown up here in this room, but







                                                                   343
       1      it's something that is on our radar.

       2             And I think this is also one of the

       3      challenges -- analogous challenges in the

       4      Legislature as well, that I'm glad that you brought

       5      it up in this instance, because I think it's

       6      important to take it out of the context of politics

       7      and put it into, you know, the normal course of

       8      business.

       9             And I just want to really thank you for

      10      sharing all of your testimony, and being so

      11      forthcoming.

      12             And to your point of, it's a privilege, it

      13      is, but it is also not required.

      14             So, it's really remarkable and transformative

      15      that you are using that for good.

      16             So thank you for doing that.

      17             MARISSA HOECHSTETTER:  Thank you.

      18             Thank you.

      19             ASSEMBLYMAN CRESPO:  Assemblywoman Simotas.

      20             ASSEMBLYWOMAN SIMOTAS:  Marissa, thank you

      21      for being here.

      22             You said that you're a victim.

      23             You're not a victim; you're a survivor.  And

      24      that's really important.

      25             I've been working in the arena of rape laws







                                                                   344
       1      and sexual-assault laws now for quite a while, and

       2      I've met a lot brave individuals who've been willing

       3      to come forward and tell their story.

       4             And what you provide to us, and to the rest

       5      of society, is a spotlight on the problems.

       6             And we happen to be the people who can try to

       7      fix them, but without you, we would never have been

       8      made aware of these gaping holes.

       9             I want to ask you a little bit about the

      10      office of professional medical conduct and your

      11      experience reporting, and just ask you:  How can we

      12      do a better job telling the public that this office

      13      exists, and allowing people who may have complaints

      14      to navigate the process?

      15             I assume that it wasn't so easy for you to

      16      report or navigate the system.

      17             How could we make it better?

      18             MARISSA HOECHSTETTER:  So thank you for

      19      saying that, and thank you for that question.

      20             I have seen, and I think it was

      21      North Carolina, that did a study, that only -- and

      22      only 10 percent of the public knew about their

      23      medical board.

      24             So I think, at a minimum, people need to know

      25      the office exists.







                                                                   345
       1             There are some states that require signage to

       2      be posted, with a website.

       3             Again, I think the website needs to be

       4      improved.

       5             But, I mean, at a minimum, I think there's

       6      some public-relations work that needs to happen.

       7             You know, we think a lot about health care,

       8      like, what happened to me was in a big hospital,

       9      there's people around.  You imagine that there might

      10      be somebody to go to.

      11             A lot of this -- these things happen, I mean,

      12      individual doctors have private offices.  There's

      13      one staff member, or two staff members, there.

      14             And you're putting the onus of reporting or

      15      knowing where to report on someone who themselves is

      16      an employee of that -- that physician.

      17             So it's tricky, but I think that there's

      18      some, you know, minute -- like, public-relation

      19      stuff, having it available.

      20             Making sure that different support groups,

      21      like, you know, birth groups, people that work with

      22      mothers.  There's different -- there's -- excuse me,

      23      there's different -- there's the AMA; there's ACOG;

      24      there's different organizations that work in

      25      medicine.  All of the medical schools.







                                                                   346
       1             I mean, I tried to keep my remarks to my

       2      personal experience, but, I mean, Times of Health

       3      Care just launched.  There's incredible data and

       4      stories of how pervasive -- I listed a few

       5      statistics -- how pervasive sexual harassment is for

       6      medical residents and students.

       7             That's not something that I, you know,

       8      personally can speak to, but I think there's an

       9      opportunity to educate people before they are

      10      officially in the workforce.

      11             You know, you can have mandated chaperons.

      12             So not in the sense that I said, but you can

      13      require that, for certain types of exams, there's

      14      alway -- there always has to be a second person in

      15      the room.

      16             I don't know that that will always curtail

      17      this.  And a lot of what we see, I think it's

      18      probably almost impossible to prevent a first

      19      occurrence, but it surely should be possible to

      20      prevent repeat occurrences, especially when you see

      21      the statistics of how frequently these people are

      22      repeat offenders.

      23             So I think informing the public, which is

      24      part of why I'm here and trying to do this.

      25             I think making the law and the language







                                                                   347
       1      around OPMC more visible.

       2             And I think, when you have it, the

       3      responsibility spread out between the department of

       4      education, and then these two offices under the

       5      department of health, it's not clear where to go.

       6             So perhaps the department of education and

       7      the department of health could also have a

       8      responsibility, even if they're not the office

       9      responsible, to be responsible for informing the

      10      public of where to go.

      11             Uhm... yeah.

      12             ASSEMBLYWOMAN SIMOTAS:  One more question.

      13             Is information that's filed, or complaints

      14      filed, with OPMC, is it public?  Is there any way we

      15      can go and check to see who filed the complaint

      16      against who?

      17             MARISSA HOECHSTETTER:  No.

      18             What you can see publicly is final actions.

      19             Now, again, this is how I understand it, you

      20      can see a final action; so if a doctor's license was

      21      revoked, suspended, or surrendered.

      22             You cannot see if there were files --

      23      complaints filed that didn't result.

      24             I mean, right, again, you might want to see a

      25      pattern of behavior.







                                                                   348
       1             And I think the number I shared was something

       2      like 77 percent of doctors are allowed to continue

       3      practicing.

       4             So there's a lot of people out there who

       5      probably have a disciplinary history.

       6             And I'm speaking from a sexual-assault, you

       7      know, perspective.

       8             There -- this also -- a lot of what I'm

       9      talking about applies to the opioid epidemic, for

      10      example.  There are examples of doctors prescribing

      11      medication in exchange for sex.

      12             So, like, there's an intersection of a lot of

      13      things related to health care that I think could

      14      be -- could benefit from some legislation here.

      15      It's not just sexual assault, because they leverage

      16      that power for people who are the most vulnerable.

      17             But, yeah, it's -- it's not public.

      18             I mean, there's some information online, but

      19      it's pretty limited.

      20             ASSEMBLYWOMAN SIMOTAS:  Marissa, again,

      21      I can't thank you enough for being here and publicly

      22      sharing your story.

      23             MARISSA HOECHSTETTER:  Thank you.

      24             ASSEMBLYWOMAN SIMOTAS:  Thank you.

      25             ASSEMBLYMAN CRESPO:  Quick question, before







                                                                   349
       1      I go to the next.

       2             MARISSA HOECHSTETTER:  Yeah.

       3             ASSEMBLYMAN CRESPO:  The chaperon component,

       4      we talked about it in terms of, if a chaperon

       5      requirement is imposed on a doctor.

       6             But does a patient have the right at any

       7      given time to bring a chaperon with them to a test

       8      or an appointment, that you're aware of?

       9             MARISSA HOECHSTETTER:  I believe that, yes,

      10      you can request that.

      11             It is -- I under -- I mean, someone else here

      12      might know it.

      13             It's my understanding that you can always

      14      request that.

      15             I think it could be mandated, especially in

      16      certain circumstances.

      17             What's tricky, and, again, I'm telling you my

      18      experience, there can be someone in the room, and

      19      then they leave, and you're already in a vulnerable

      20      position.

      21             So it's not perfect, but I think if you say,

      22      you know, there has to be someone in the room for

      23      these certain types of exams, or, that you can

      24      always request it, that is the law as I understand

      25      it, but there's no signage, for example.







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       1             So, you know --

       2             ASSEMBLYMAN CRESPO:  In theory (indiscernible

       3      cross-talking) --

       4             MARISSA HOECHSTETTER:  -- you might not know

       5      that that's available to you.

       6             So I do think that that's something, again,

       7      we need more, you know, education around.

       8             ASSEMBLYMAN CRESPO:  Appreciate that.

       9             Assemblyman Gottfried.

      10             ASSEMBLYMAN GOTTFRIED:  Question, just sort

      11      of mechanical:  Do we have your testimony

      12      electronically?

      13             MARISSA HOECHSTETTER:  I did submit it, yes.

      14             ASSEMBLYMAN GOTTFRIED:  Oh, okay.

      15             MARISSA HOECHSTETTER:  But I can get it to

      16      you also.  And I submitted all the various

      17      attachments too.

      18             ASSEMBLYMAN GOTTFRIED:  Okay.

      19             Well, if -- if the Chairs have it, I can get

      20      it from them.

      21             Uhm -- you know, as I've chaired the

      22      Health Committee in the Assembly for quite some,

      23      and, from time to time, we've tried to deal with

      24      legislation relating to the physician discipline

      25      system.







                                                                   351
       1             You know, in my experience, OPMC, you know,

       2      it's kind of like, if you were talking about a

       3      sheriff in some rural county in Mississippi, if you

       4      discovered that there were some people in the town

       5      that the sheriff, you know, treated extraordinarily

       6      harshly, and other people in town, who the sheriff

       7      left them do anything they wanted, you would

       8      understand what was going on.

       9             And in some ways, OPMC is like that.

      10             There are people in the medical profession

      11      that they come down on very hard, and people in the

      12      medical profession who they never touch.

      13             And the -- the secrecy of the proceedings,

      14      including, not letting the complainant know what's

      15      going on, is certainly a major problem.

      16             So bottom line is, we'll look into this, and,

      17      I imagine, be in touch with you.

      18             I think there's a lot here that needs to be

      19      looked at.

      20             So I appreciate your raising these issues

      21      with us.

      22             MARISSA HOECHSTETTER:  Thank you.

      23             As I understand it, you know, a number of the

      24      things I've raised have been considered for decades

      25      in the state.  Some of these are not new.







                                                                   352
       1             But I do think, as we've seen with some of

       2      the other testimony, we're at a different moment

       3      where we need to recognize.

       4             That's why, even just putting some of the

       5      language online.

       6             I didn't include this here, and I don't

       7      remember the number exactly, but if I remember

       8      correctly, it's something like 260 days that it

       9      takes to do an investigation.  So, that's almost a

      10      year, often -- well, I'm going to round up a little

      11      bit -- when that person is still practicing.

      12             So another thing, as you mentioned, they come

      13      down really hard on some people, and not on others.

      14             Most -- as I understand most of the board,

      15      it's something like two-thirds professionals and a

      16      third public.

      17             So, you're -- you're, essentially, having

      18      peers/doctors discipline other doctors.

      19             And even the publicly-appointed members, the

      20      public members, often have ties to the medical

      21      industry in some way.

      22             I think that's something that, you know,

      23      I would question.

      24             I'm not saying those people are not well

      25      intentioned, but, that's, I think, a lot of the







                                                                   353
       1      reason why you see people, they're saying:

       2             Well, you know, it was a mistake;

       3             Or, we're going to send this person to, you

       4      know, training, and they're gonna go back to work

       5      with a chaperon, and it's going to be fine.

       6             You know, at some point, I think we have to

       7      care more about the people that they're harming than

       8      this one person's career.

       9             And I get the doctors are an expensive

      10      investment, but, our lives are.

      11             And I think we need to see a shift on what

      12      their priority is.

      13             Thank you.

      14             ASSEMBLYMAN GOTTFRIED:  Thank you.

      15             ASSEMBLYMAN CRESPO:  Assemblyman Quart.

      16             ASSEMBLYMAN QUART:  Marissa, thank you for

      17      being here.

      18             The State of New York has given you every

      19      reason never to step foot in this state again, but,

      20      here you are.

      21             And thank you for your testimony.

      22             I want to talk a little bit about

      23      Columbia University, and our large, sacred

      24      institutions in this city and state.

      25             Now, I know you have a civil lawsuit.







                                                                   354
       1             But the civil courts are a difficult place to

       2      seek justice because the end result is usually

       3      compensation.  It will unlikely end with an

       4      admission or a change of policy.  And we have to

       5      deal with statute of limitations in civil court,

       6      which -- beyond the army of lawyers that you and

       7      your attorneys will have to deal with.

       8             But this Legislature is not bound by a

       9      statute of limitations to conduct its oversight

      10      responsibilities of our large institutions, which,

      11      in this very building, through the council, I'm sure

      12      has received largess and land use, and all of that,

      13      through state government as well.

      14             What would you like to see this Legislature

      15      do with respect to holding large institutions, like

      16      Columbia University, accountable for what I'll

      17      describe as its likely failures to provide any

      18      oversight over a sexual predator that was in its

      19      midst for two decades?

      20             MARISSA HOECHSTETTER:  It's a hard question

      21      for me to answer.

      22             You know, the State already has mandated

      23      reporting, so, you have that.

      24             But because none of this is -- it's not

      25      public to see if somebody's even been reported, it's







                                                                   355
       1      very hard to hold anyone accountable.

       2             Another example in California, if it's found

       3      to be that a hospital knew, and did not report, they

       4      have fines of, I think, around $100,000.  There's

       5      some different fines.

       6             That's actually not that much money,

       7      considering how much money these nonprofits make.

       8             And health care is -- they make a lot of

       9      money on health care.

      10             The hospital and the university, their

      11      partnership, I mean, a lot of this is in their

      12      annual report.

      13             And their reputation matters a lot.

      14             And so I think when you have a system that

      15      is, essentially, asking them to self-report,

      16      especially in an environment where people bring

      17      lawsuits, again, that's one of the only tools that

      18      we often have to hold people accountable.

      19             It's tricky.

      20             So I think there has to be real consequences.

      21             When you are found to have known something,

      22      to have had notice --

      23             And, in my case, I really believe that they

      24      had notice for decades.

      25             -- and when you have been found to have had







                                                                   356
       1      notice, and not reported it, you have to be held

       2      accountable.

       3             So, I don't know if that is monetarily or

       4      through, you know, different accreditation.

       5             Uhm... yeah.

       6             It's a tricky thing, especially, I think, in

       7      New York City, where you have such a concentration

       8      of the money and politics and these employers, and

       9      it's all just so connected.

      10             So, if the chair of Columbia's board is a law

      11      partner with Harvey Weinstein's lawyer, and they're

      12      all making contributions to the DA, like, it's

      13      all -- it's all the same thing, it's all a network.

      14             So, I mean, that question is hard to answer.

      15             Like, how do -- how do you hold people

      16      accountable?  How do you infiltrate that?

      17             You know, I -- you have to expose it, and you

      18      have to hold people accountable.

      19             And people have to feel like coming forward

      20      matters.

      21             I have been really fortunate over the last

      22      year since speaking publicly, that I do feel like

      23      people are listening to me.

      24             And I'm the only non-anonymous person of

      25      dozens.  I mean, I talk to a lot of these other







                                                                   357
       1      women.

       2             It's crazy that I find myself and my life

       3      being the only non-anonymous person, but that's

       4      where I am.

       5             And hearing from all these other women makes

       6      me feel -- makes me able to, you know, keep going.

       7             But I do not feel like people have been held

       8      accountable yet.

       9             And what I'm doing has to matter, and so I'm

      10      not going to stop talking about it.

      11             I'm not going to stop talking about it until

      12      there are different people in certain elected

      13      offices, I'm not going to stop talking about it

      14      until the influence of money and politics is

      15      changed, and until patients are really safe, and

      16      feel like they have recourse, somewhere to go.

      17             And that comes down to statutes, it comes

      18      down to state offices, it comes down to holding

      19      people accountable when they have notice and they

      20      don't act.

      21             So, that's probably more of an answer than

      22      you wanted, but that's how I feel about it.

      23             ASSEMBLYMAN QUART:  No, it's -- I think

      24      it's important for people to know that,

      25      Dr. Hadder (sic) -- accountability, which you talked







                                                                   358
       1      about, Dr. Hadder (sic) was a 63-year-old doctor.

       2      Okay, so they took away his law (sic) license, but,

       3      he was able to retire to his home in New Jersey.

       4      And nobody sought --

       5             MARISSA HOECHSTETTER:  I mean, is he -- is he

       6      getting a pension?

       7             Is he -- I mean, there's some real questions

       8      that, again, the criminal case had an opportunity,

       9      I think, to look at that, and they didn't.

      10             And so there's a limit to what, you know,

      11      civil litigation can do.

      12             But I believe that we have yet to see the

      13      worst of it, unfortunately.

      14             ASSEMBLYMAN QUART:  And it's my hope, under

      15      the leadership our Chairs, that, in future hearings,

      16      we can poss -- we can seek to explore the

      17      accountability, or lack thereof, of our large-scale

      18      institutions in this city and state who have failed

      19      you.

      20             MARISSA HOECHSTETTER:  Thank you.

      21             Thank you.

      22             ASSEMBLYMAN CRESPO:  Assemblyman Epstein.

      23             ASSEMBLYMAN EPSTEIN:  I also want to thank

      24      you for being here, and really bringing issues to

      25      light.







                                                                   359
       1             And -- so what we're talking, like, is

       2      systemic change, and I understand the struggle about

       3      figuring how to get to it.

       4             But do you think more ways to hold

       5      institutions accountable for the behaviors of

       6      their -- you know, their employers to figure out

       7      systems and structures?

       8             Like insurance -- like, if you want to change

       9      how people drive, insurance companies affect how

      10      people operate their vehicles; they create rules.

      11             And, so, do we hold hospitals and

      12      institutions accountable for the acts of their

      13      staff, maybe they would do better training, go back

      14      to medical school?

      15             Is there -- are -- so just I'm trying to

      16      think through some of the structural things that we

      17      need to be doing to prevent people in those

      18      positions to be happening in the first place.

      19             Have you thought through those issues, and

      20      where the structural changes has to happen to ensure

      21      that people are not put in these positions?  Or

      22      people who think that --

      23             MARISSA HOECHSTETTER:  I have ideas about

      24      that.

      25             I appreciate that question because I think







                                                                   360
       1      you bring up important points.

       2             I don't know that I am, as an individual, you

       3      know, an expert to say enough.

       4             I know that some of the things that I've

       5      raised have come before the Senate and the Assembly

       6      before, and have been taken out of legislation by

       7      the insurance industry, by the medical industry,

       8      themselves.

       9             So it is, you know, medical malpractice.

      10             I mean, there's -- there's -- we're talking

      11      about a whole area, I think, with insurance.  It's

      12      expensive, and there's a lot of liability there.

      13             So I don't know that I'm the best person to

      14      talk about that.

      15             I think, also, my -- because I'm in

      16      litigation, I don't really want to talk about that.

      17             But, as I understand, there is history with

      18      some of what I'm talking about.

      19             And there have been industries that you would

      20      think are supposed to help protect the public, are

      21      themselves lobbying to keep this stuff out of it.

      22             ASSEMBLYMAN EPSTEIN:  And what role do you

      23      think the medical schools have to -- and nursing

      24      schools have, in this conversation?

      25             MARISSA HOECHSTETTER:  I think they have a







                                                                   361
       1      huge role.

       2             We saw the launch in -- I believe in

       3      December, or just recently, of Times of Health Care.

       4      They're working to get hospitals and medical schools

       5      to sign, you know, pledges.

       6             As I understand it -- and I have a family

       7      member in medical school, actually, right now --

       8      there's no classes, there's no training, there's

       9      really nothing, about how to interact with patients.

      10             I mean, it should be obvious that you should

      11      not abuse your patients, but, it apparently needs to

      12      be explicitly stated.

      13             The Federation of State Medical Boards, which

      14      is an association of groups like the OPMC, they

      15      actually use a definition called "sexual

      16      misconduct."

      17             I think, you know, we're not even really

      18      using the real words, and so some of this is like

      19      getting really basic, like, putting the word "sex"

      20      and "sexual harassment" and "sexual abuse" on the

      21      website.

      22             Doing some basic, sort of, you know, PR work

      23      around -- around these offices.

      24             Working with medical schools.

      25             Yeah, it's a big challenge, and I'm sorry







                                                                   362
       1      I don't have all of the answers.

       2             I've appreciated learning, and I want to

       3      continue learning, and I think work with people who

       4      are experts and maybe have more history, you know,

       5      in this than I do.

       6             But I wanted to sort of raise some of these

       7      questions because I think they matter.

       8             We're talking a lot about health care in a

       9      lot of other context at the moment, and this is part

      10      of it, you know, for me, and many other people.

      11             ASSEMBLYMAN EPSTEIN:  Thank you.

      12             MARISSA HOECHSTETTER:  Thank you.

      13             ASSEMBLYMAN CRESPO:  Assemblywoman Niou.

      14             ASSEMBLYWOMAN NIOU:  Hi.

      15             MARISSA HOECHSTETTER:  Hi.

      16             ASSEMBLYWOMAN NIOU:  Is it okay if I ask a

      17      couple of more personal questions?

      18             MARISSA HOECHSTETTER:  Of course.

      19             ASSEMBLYWOMAN NIOU:  I don't want to -- if

      20      you're ever uncomfortable, just, please, feel

      21      like -- you know, you don't have to answer.

      22             So going back to OPMC, how -- and the BPMC,

      23      how did you even find out that they existed?

      24             MARISSA HOECHSTETTER:  I found out they

      25      existed because, in the plea agreement that he







                                                                   363
       1      signed, it said he had to surrender his license.

       2             And I wanted to see that that had actually

       3      happened.

       4             And so I found the office.  I found -- they

       5      do -- this is something that is there.  I can

       6      actually see the letter that they sent him, saying,

       7      Send in your license.

       8             And it's really funny because it says, Don't

       9      send us the frame that it's in.

      10             It's, like -- anyways.

      11             It actually says:  Don't mail the frame in

      12      with us.  We don't store your frame.  But send us

      13      the actual paper license.

      14             That's how I realized there was an office.

      15             And then I started, you know, looking into

      16      it.

      17             And I'm a member now of a group called the

      18      Medical Board Roundtable, which is a national group

      19      of advocates really committed to understanding

      20      medical boards.

      21             ASSEMBLYWOMAN NIOU:  And -- so how did you

      22      report, since you couldn't use what they had set up?

      23             MARISSA HOECHSTETTER:  So I did not report to

      24      the medical board.

      25             I reported to the district attorney's office,







                                                                   364
       1      and at that point I was led to believe that my

       2      reporting to them was all that I could do at that

       3      point.  I mean, they never suggested, for example,

       4      that I go to the OPMC.

       5             Uhm... yeah.

       6             And then -- yeah.

       7             ASSEMBLYWOMAN NIOU:  So what -- what led --

       8      what did they say to lead you to believe that that

       9      was all you could do?

      10             MARISSA HOECHSTETTER:  They said that my

      11      accusation was outside of the statute of limitation.

      12      And they appreciated me coming forward.  And that

      13      perhaps I could be used in Molineux -- that my

      14      statement could be used in Molineux.

      15             That was it.

      16             There are other women who saw the same

      17      doctor, who did report to the state medical board.

      18             Within a few months of -- he was arrested in

      19      2012, and he stopped practicing within a few months.

      20             So at that point he wasn't actually

      21      practicing, even though he was still employed by the

      22      university.

      23             ASSEMBLYWOMAN NIOU:  I mean, when

      24      Senator Biaggi was talking about how (indiscernible)

      25      somebody else didn't have to be in the room, I was,







                                                                   365
       1      like, just as stunned about learning that we didn't

       2      need to conduct a background check.

       3             MARISSA HOECHSTETTER:  It's kind of crazy.

       4      Right?

       5             I mean, I don't know why you wouldn't do that

       6      as a condition of initial licensure.

       7             ASSEMBLYWOMAN NIOU:  Sure.

       8             MARISSA HOECHSTETTER:  Yeah.

       9             ASSEMBLYWOMAN NIOU:  So it's not a condition

      10      of initial licensure.

      11             It's not a condition of -- I mean, for law

      12      school, for law students, you know, you're not

      13      allowed to have committed a felony.  And there's a

      14      lot of different things that make it so that you

      15      can't get your law license.

      16             So I would think that there should be

      17      something.

      18             So I really appreciate you're bringing that

      19      up.

      20             I'm working on a bill now.

      21             MARISSA HOECHSTETTER:  Thank you.

      22             ASSEMBLYWOMAN NIOU:  But I -- I also wanted

      23      to ask:  So when -- when you -- when you found out

      24      that they -- so, that these organizations existed,

      25      the OPMC, the BPMC, when you found that out, what --







                                                                   366
       1      what -- did -- when you -- did you talk to them?

       2      Like, what was the -- did you go before them?

       3             MARISSA HOECHSTETTER:  I did reach out to

       4      them because I wanted to know if other people had

       5      reported him.

       6             So I understood that he lost his license as a

       7      condition of this plea.

       8             And now I understand why the DA made such a

       9      big deal about that being "a win," because it is, in

      10      fact, quite common for doctors to lose licensure in

      11      one state and go seek it in another state,

      12      especially a state without background checks.

      13             So I -- sorry, ask the question again?

      14             ASSEMBLYWOMAN NIOU:  Did you go to -- did --

      15      how did you reach them?  What did you say to them?

      16      How did you --

      17             MARISSA HOECHSTETTER:  Oh, right.

      18             So I reached out, I called.  I've also --

      19      I called, and wanted to know, you know, could I see

      20      anything else?

      21             And, no, you -- you know, you're -- you

      22      can't.  You can only see final actions.

      23             I have also -- I've spoken publicly at

      24      events, and I've met members of the OPMC's board,

      25      and I've asked them questions.







                                                                   367
       1             And I've also called and spoken with other

       2      staff members since, just in sort of a personal

       3      advocacy way.

       4             Like, for example, asking if sexual

       5      harassment is covered, you know, in their

       6      jurisdiction.

       7             And them basically saying, "It depends."

       8             And maybe there's good reason for that,

       9      I don't know.

      10             I just think we need to be clear about what

      11      is and what isn't covered.

      12             ASSEMBLYWOMAN NIOU:  So they never asked,

      13      like, to hear more about what happened to you?

      14             MARISSA HOECHSTETTER:  No, uh-uh.

      15             No.

      16             ASSEMBLYWOMAN NIOU:  Interesting.

      17             MARISSA HOECHSTETTER:  No.

      18             Uhm... yeah.

      19             ASSEMBLYWOMAN NIOU:  And --

      20             MARISSA HOECHSTETTER:  In fact, in one

      21      instance, and I don't want to make this personal,

      22      but, there is one person who was very proud to tell

      23      me that they were responsible for him losing his

      24      license.

      25             And I replied by saying, that OPMC had







                                                                   368
       1      nothing to do with it.

       2             Right?

       3             I mean, it was because of the plea.

       4             They might have signed the paper, saying he

       5      had to turn it in, but they -- it was not because of

       6      anything they did.

       7             And they might say that they never knew about

       8      it, and that might be true.

       9             But the point is, there were plenty of

      10      opportunities along the way when they should have

      11      been notified and been able to act, especially if

      12      you have mandated reporting within 30 days.

      13             But, if no one does it, then there's no way

      14      to follow up on it.

      15             ASSEMBLYWOMAN NIOU:  That's right.

      16             You gave us a lot to work on.

      17             Thank you.

      18             MARISSA HOECHSTETTER:  Thank you.

      19             ASSEMBLYWOMAN NIOU:  And since they never

      20      followed up with you, what would you have liked to

      21      have seen coming from them?

      22             Like, what would you have liked to have seen

      23      coming from them?

      24             And is there something that would have been

      25      helpful in your case?  Like dream scenario.







                                                                   369
       1             MARISSA HOECHSTETTER:  Yeah, I mean, I think

       2      that the information available online needs to be

       3      much more user-friendly, modern, accessible.

       4             I think information needs to be transparent.

       5             Or, if there's information that can't be

       6      shared, at least to say what is and is not

       7      available.

       8             Simply linking to the relevant law puts a

       9      huge, you know, burden on the individual to be able

      10      to read and understand that law.

      11             It's only in English -- well, I think there

      12      are parts of the website that might be in multiple

      13      languages, but it's just really not very accessible.

      14             So I think the information needs to be more

      15      clear.

      16             It needs to be shared and pushed out to the

      17      public in another way.

      18             I think there's bigger questions about why

      19      the licensing and disciplining, and all this is

      20      spread across these three different, something is

      21      department of ed, something is department of health.

      22             I mean, those are bigger conversations to

      23      have.

      24             But, this is not a small endeavor.  I mean,

      25      there are hundreds of people who do this work in







                                                                   370
       1      these offices.

       2             So I feel like that's something to look at,

       3      and understand, why does it take almost a year to

       4      investigate a case?

       5             Especially because I think we have a really

       6      unique opportunity; there isn't a statute in coming

       7      forward.

       8             I mean, medical records could be gone.  Yes,

       9      there's other things that may go over time.  But

      10      this is actually, as I understand it, you know, you

      11      can come forward and seek some justice.

      12             And so I think that's pretty unique, but not

      13      something that is promoted or readily visible.

      14             ASSEMBLYWOMAN NIOU:  There were like no

      15      signs, nobody telling you, like, hey, this is

      16      available to you.  Right?

      17             MARISSA HOECHSTETTER:  No.

      18             ASSEMBLYWOMAN NIOU:  And how would you hope

      19      that they are populated?

      20             MARISSA HOECHSTETTER:  You mean the staff

      21      people?

      22             ASSEMBLYWOMAN NIOU:  Well, and the -- well,

      23      the boards.

      24             I mean, I know that Mr. Gottfried had just

      25      talked about it being the Wild, Wild West.







                                                                   371
       1             MARISSA HOECHSTETTER:  It's -- as

       2      I understand, compared to other states, it's really

       3      great, actually, the ratio of public members to --

       4      I mean, you need people with specialized knowledge.

       5      I mean, they're also looking at cases of medical

       6      harm, right, they're looking all kinds of different

       7      kinds of behavior.

       8             So you need people who understand the

       9      specialties of the different boards, and everything,

      10      but having public members is good.

      11             I think we need to look at whether or not

      12      those public members have connections to the medical

      13      industry.  They might not be doctors, but they have

      14      other connections.

      15             And I think that is something that I would

      16      question.

      17             There's also, I think, almost 100 people.  It

      18      just seems like a lot.

      19             As I understand it, part of that is because

      20      you need a certain number of people to look and

      21      review each complaint.  And so -- and there's a

      22      volume.

      23             And so there might be good reason for that,

      24      but it feels to me like it's a really big endeavor

      25      that is not having an impact.  And if it is, it's







                                                                   372
       1      not visible.

       2             So how can we protect people and respect

       3      privacy, but also make their work more visible, so

       4      that people see results, see them as a resource, and

       5      are willing to come forward.

       6             And then we might start to understand the

       7      extent of the problem.

       8             ASSEMBLYWOMAN NIOU:  And what would have been

       9      some flag that they would could have helped to post

      10      up so that you would know that you're not alone?

      11             MARISSA HOECHSTETTER:  I mean, I think if

      12      there was signage in doctors' offices about

      13      resources, someone might see that, you know, you

      14      might see that.

      15             I think that the district attorney -- I mean,

      16      I would think if you're reporting to the police and

      17      the district attorney, perhaps they should also

      18      direct you to that resource.

      19             I mean, it's not exactly like a Title 9

      20      complaint, but I think of it a little bit the same.

      21      Like, you might report to the police, but you might

      22      also might report on campus.

      23             Right?

      24             So I think there -- there's some value to

      25      asking law enforcement to also encourage people to







                                                                   373
       1      report, because they might not be able to help you

       2      in a criminal way, but this is a way to get this

       3      person, you know, away from patients.

       4             So they should be promoting that to people

       5      who come forward with these complaints.

       6             ASSEMBLYWOMAN NIOU:  Thank you so much.

       7             I'm sorry I had to ask so many.

       8             MARISSA HOECHSTETTER:  That's okay.

       9             ASSEMBLYWOMAN NIOU:  I just wanted to make --

      10             MARISSA HOECHSTETTER:  Thank you for asking.

      11             ASSEMBLYWOMAN NIOU:  -- make a --

      12             MARISSA HOECHSTETTER:  Very few people want

      13      to talk about this stuff, so I appreciate you asking

      14      questions.  Thank you.

      15             ASSEMBLYWOMAN NIOU:  Well, I appreciate your

      16      being brave enough to, you know, open up your story.

      17             Thank you so much.

      18             ASSEMBLYMAN CRESPO:  Assemblywoman Simon.

      19             ASSEMBLYWOMAN SIMON:  Thank you.

      20             And thank you again for your testimony.  This

      21      is really very powerful.  And, it's also a little

      22      bit different than -- from some the testimony we've

      23      heard before.

      24             And I think it raises one of the issues that

      25      I have talked about, and that is, our institutions,







                                                                   374
       1      our institutions of higher education in particular,

       2      are like cities.

       3             They have doc -- they have medical centers.

       4      They have law clinics.  They do research.  They --

       5      you have co-worker problems, faculty and staff and

       6      student; faculty-on-student discrimination,

       7      employer-employee relationships.  You have campus

       8      security, so you have that issue of law enforcement.

       9      And you have sports, which is another whole scene.

      10             And so it strikes me that today's hospital

      11      systems are all linked to a university.  There are

      12      almost no small community hospitals anymore that are

      13      not linked to a bigger institution.

      14             And I'm curious whether you have a sense

      15      that, the size of the institution, the power of the

      16      institution itself, played a significant role in the

      17      perpetuation of this doctor's actions?

      18             MARISSA HOECHSTETTER:  Sure.

      19             Thank you for that question.

      20             Yes, I believe it did.

      21             I think the bigger the institution, the

      22      easier it is for people to reassign someone, move

      23      them around, look the other way, sort of bury it,

      24      leadership changes.  You know, someone, that history

      25      might not be passed on.  I mean, uhm... yeah.







                                                                   375
       1             You know, I read recently, I think Columbia

       2      has -- their insurance rate has like more than

       3      quadrupled in the last few years because of the

       4      number of sexual-assault and harassment cases they

       5      have, but from faculty and students and staff.

       6             You know, it's so big, and each one is in a

       7      different area, and no one sort of puts it all

       8      together.

       9             But at some point you kind of wonder, like,

      10      what is your commitment here?

      11             And I think, especially with really big

      12      institutions --

      13             You know, I work in higher ed, I understand

      14      some of endowments and, you know, financing, the

      15      donations.  I mean, I work in fundraising.

      16             -- when you have really big endowments and

      17      you can just sort of throw money at problems, and

      18      make things go away, make people sign NDAs, yeah,

      19      you can get away with more when you're a really big

      20      institution.

      21             ASSEMBLYWOMAN SIMON:  It also strikes me that

      22      we have repeat offenders who are allowed to

      23      repeatedly offend.

      24             And I'm curious whether, in your experience,

      25      and, certainly, talking to the women that you spoke







                                                                   376
       1      to, and there are likely to be other people in the

       2      environment, whether it's the nurse or another

       3      physician in the practice, who would have a sense

       4      that there was something going on that shouldn't be

       5      going on, whether there's a need for greater

       6      whistle-blower protection?

       7             Whether you had looked at that at all in the

       8      work that you've been doing, and in the

       9      conversations you've been having?

      10             MARISSA HOECHSTETTER:  So I can't speak too

      11      specifically.

      12             I will say that part of our complaint, we

      13      drafted suggestions for things that the university

      14      and the hospital system should do to have anonymous

      15      reporting, to have protection for employees who come

      16      forward.

      17             I mean, you're putting a lot of the

      18      responsibility of reporting on the nurses in these

      19      situations, or the sort of orderlies, or people, and

      20      they're, like, often the lowest on the chain, and

      21      you're asking them to come forward.

      22             So, again, in this context, it might not be

      23      sexual harassment of those people, but I thought it

      24      was relevant, in that they were having to work in

      25      this environment, and be afraid of reporting







                                                                   377
       1      something that they saw.

       2             And so I think there needs to be a way for

       3      people to be encouraged to report.  I mean, really,

       4      you need to explicitly say you have a no-tolerance

       5      policy, or, a zero, you know.

       6             So the fact that the state board lets

       7      77 percent of its people go back -- you know, the

       8      physicians go back, like, you're saying "we don't

       9      have a zero-tolerance policy."

      10             So I think most people in any -- anywhere in

      11      the chain are not going to say it's worth it to

      12      report, because you're putting yourself at risk.

      13             Uhm... yeah.

      14             So there needs to be reporting mechanisms

      15      that are anonymous.

      16             I don't know, really, how it relates, like,

      17      if you work at New York Presbyterian, you know,

      18      partnership with Columbia, are you reporting to the

      19      university? are you reporting to the hospital?

      20             I really don't know how that works, and

      21      I think maybe that's part of the problem.

      22             When you have these big institutions with all

      23      these partnerships, it might not be clear where you

      24      go.

      25             ASSEMBLYWOMAN SIMON:  That's why they hire







                                                                   378
       1      lawyers, to figure that out.

       2             MARISSA HOECHSTETTER:  Yeah.

       3             ASSEMBLYWOMAN SIMON:  Somebody --

       4             MARISSA HOECHSTETTER:  Well --

       5             ASSEMBLYWOMAN SIMON:  Somebody can figure it

       6      out, and they ought to be figuring it out.

       7             And it strikes me that a lot of what happens

       8      when they do these deals, is that they don't figure

       9      those kinds of things out.

      10             And it's clear that there needs to be a

      11      better intersection between the various entities, or

      12      units, of these large entities, so that people

      13      don't -- the institutions -- entities within the

      14      institutions are in that cross-purposes, and leaving

      15      people to pay the price.

      16             MARISSA HOECHSTETTER:  Yeah.

      17             I mean, Nassar was at a public institution.

      18             The gynecologist at USC was in a school, you

      19      know, higher ed.

      20             There's something to be said about that: why

      21      are they able to get away with this in those

      22      institutions for so long?

      23             ASSEMBLYWOMAN SIMON:  Thank you very much.

      24             MARISSA HOECHSTETTER:  Thank you.

      25             ASSEMBLYMAN CRESPO:  Thank you.







                                                                   379
       1             MARISSA HOECHSTETTER:  Thanks so much.

       2             ASSEMBLYMAN CRESPO:  Just a reminder, it's

       3      4:53.  5:30 is the magic hour for security

       4      downstairs.

       5             SENATOR BIAGGI:  Next, we're going to shuffle

       6      some of the order.

       7             We will be hearing from the National

       8      Employment Lawyers' Association, also known as

       9      "NELA"; the National Women's Law Center; and

      10      A Better Balance.

      11             MIRIAM CLARK:  I don't know where A Better

      12      Balance is.

      13             ASSEMBLYWOMAN SIMON:  You could start,

      14      whenever you're ready.

      15             MIRIAM CLARK:  I don't know where A Better

      16      Balance is.

      17             SENATOR BIAGGI:  We're just waiting for

      18      A Better Balance.

      19             We'll wait a moment.

      20             MIRIAM CLARK:  I don't know where A Better

      21      Balance went, but we're here.

      22             SENATOR BIAGGI:  That's all right, we can get

      23      started.  And then, when they come back to the room,

      24      that's okay, they can share their testimony.

      25             ANDREA JOHNSON:  My name is Andrea Johnson,







                                                                   380
       1      and I am senior counsel for state policy at the

       2      National Women's Law Center.

       3             The law center, we're located in D.C., but we

       4      work all across the county, and we've been working

       5      for over 45 years to advance and protect women's

       6      equality and opportunity, and we've long worked to

       7      remove barriers to equal treatment of women in the

       8      workplace, including workplace harassment and

       9      discrimination.

      10             And since January of last year, the National

      11      Women's Law Center fund has been housing and

      12      administering the Time's Up legal defense fund,

      13      which has received over 5,000 requests for

      14      assistance just since January of 2018, almost 400 of

      15      which are from workers in New York, related to

      16      workplace sex discrimination, and the vast majority

      17      involve sexual harassment and related retaliation.

      18             And over one-third of those requests into the

      19      Time's Up legal defense fund from New York have been

      20      from workers in the arts and entertainment fields,

      21      health care, and education services.

      22             And significant numbers of individuals

      23      working in local government, food services, finance

      24      and insurance, and information and communication,

      25      have also sought assistance, and the majority







                                                                   381
       1      identified as low-income.

       2             One thing that I really want to underline is

       3      that the requests that we've received into the fund

       4      confirmed that sexual harassment does not occur in a

       5      vacuum, but it often occurs alongside or in

       6      combination with other forms of harassment and

       7      discrimination, like pay discrimination or pregnancy

       8      discrimination.

       9             It also occurs at the intersection of

      10      identities, like race and sex, or national origin

      11      and sex, or disability and sex.

      12             A report that the law center published

      13      recently, analyzing EEOC charge data, indicates that

      14      women of color, and Black women in particular, are

      15      disproportionately likely to experience sexual

      16      harassment at work, highlighting how race and sexual

      17      harassment can be intertwined.

      18             I want to underline that because our #MeToo

      19      policy response cannot just focus narrowly on sexual

      20      harassment.  It must be intersectional, it must

      21      cover all forms of harassment and discrimination,

      22      because legislation that would focus exclusively on

      23      sexual harassment would have the odd and impractical

      24      result of providing a worker who experiences

      25      multiple intersecting violations with only partial







                                                                   382
       1      protection, I think a point that was made earlier

       2      today.

       3             New York, as you all know, passed a number of

       4      really important protections last year, and in years

       5      prior, to cover independent contractors and

       6      employees of smaller employers, those are really

       7      important protections, and, to limit the use of

       8      NDAs, but they were all focused on sexual

       9      harassment.

      10             So we urge the Legislature to extend these

      11      protections to all forms of harassment and

      12      discrimination, and make sure the same is done of

      13      future policy reforms that you're considering, so we

      14      can truly address the inequities and harassment in

      15      the workplace.

      16             And in addition to administering the

      17      Time's Up legal defense fund, the law center has

      18      also been working with federal and state legislators

      19      and advocates all across the country to really

      20      harness the energy of the #MeToo movement, to make

      21      real change, and stop and prevent sexual harassment,

      22      both in legislatures and the general workforce.

      23             Last year alone, over 100 bills were

      24      introduced in states across the country, and by

      25      October 2018, 11 states had enacted some of those







                                                                   383
       1      measures into law.

       2             And at the beginning of this year, over

       3      300 state legislators, representing 40 states,

       4      signed a letter of commitment, pledging to

       5      strengthen protections against sexual harassment and

       6      violence at work, in schools, in homes, and

       7      communities in 20 states by 2020; a call to action,

       8      #20Statesby2020, which is very exciting.

       9             There's a lot of momentum in the states.

      10             And the Congress has also introduced

      11      legislation to address the many inadequacies in our

      12      federal laws, but little has moved.  So it's really

      13      fallen to the states to carry the torch of real

      14      reform.

      15             And New York has enacted several important

      16      protections already, but for the state to be a

      17      leader in fighting for workplace equality and

      18      against harassment, many of these protections need

      19      to be strengthened, and additional protections are

      20      needed.

      21             And I'll just touch quickly on a few that we

      22      think are particularly important.

      23             One is that, much needs to be done to remove

      24      the barriers to survivors accessing justice, like

      25      the short statutes of limitations, which we've heard







                                                                   384
       1      about today.

       2             Many workers don't come forward immediately,

       3      or even within months, to report, either due to fear

       4      of retaliation, or as a result of the trauma they're

       5      experiencing.  And it's just difficult for workers

       6      to -- without resources to easily find and consult

       7      with advocates or attorneys about their rights.

       8      That can take time.

       9             We see with the Time's Up legal defense fund,

      10      that many people seeking assistance have run out of

      11      time and no longer have legal options.

      12             Fortunately, we're seeing states, from Texas

      13      to Oregon, working to rectify this; working on

      14      legislation this session.

      15             We saw New York City last year extended the

      16      statute of limitations.

      17             In April, Maryland extended their statute of

      18      limitations for filing an administrative claim to

      19      two years.

      20             And yesterday, you might have heard, the

      21      California Assembly passed a bill that will very

      22      likely become law, that will extend their statute of

      23      limitations to three years.

      24             So, I know you watch what California does,

      25      they are moving ahead.







                                                                   385
       1             The comprehensive anti-harassment bill that

       2      was recently introduced in Congress, the Be Heard

       3      Act, which is something that we worked closely on,

       4      it would extend the statute of limitations to

       5      four years, and also has provisions dealing with

       6      federal government employees who have a much shorter

       7      statute of limitations, only 45 days, presently, to

       8      initiate a complaint.  And it would ensure that they

       9      would have the same time as others.

      10             So we really urge New York to join this

      11      movement to extend the statute of limitations.

      12             Another important thing is, addressing the

      13      "severe/pervasive" standard, which has become unduly

      14      narrow.

      15             And my colleagues at the table will speak

      16      more to that.

      17             We urge the Legislature to pass legislation

      18      that rectifies the standard, and really ensures that

      19      courts' analysis of workplace harassment focuses on

      20      the impact of the conduct, and the individual's

      21      terms, conditions, or privileges of employment; that

      22      it's based on the record as a whole and the totality

      23      of the circumstances, and that recognizes that the

      24      wide -- a wide range of circumstances may alter the

      25      terms and conditions of employment, and that no







                                                                   386
       1      single type or frequency of conduct is required.

       2             New York City, as we've heard, has taken a

       3      different standard.

       4             California passed legislation last year, also

       5      addressing the "severe/pervasive" standard.

       6             And the federal Be Heard Act is another bill

       7      that has not passed, but has been introduced, that

       8      we think provides a model for guiding courts away

       9      from the standard -- the "severe/pervasive"

      10      standard.

      11             And we encourage you to take a look at that.

      12             The Faragher-Ellerth defense is something we

      13      think is very important, to allowing for punitive

      14      damages, which I know will be mentioned.

      15             But I'll end by emphasizing the need for

      16      measures that increase transparency as a mechanism

      17      to really increase employer accountability, and

      18      incentivize employers to proactively prevent

      19      harassment.

      20             So, what we've seen around non-disclosure

      21      agreements we think is incredibly important.

      22             And we're happy to see that New York is

      23      taking some important steps in that regard.

      24             We are concerned that, how the law was

      25      drafted, leaves it open to -- leaves open to







                                                                   387
       1      employees being still coerced into signing an NDA.

       2             So we encourage the Legislature to, for

       3      example:

       4             Ensure that workers who breech an NDA are not

       5      subject to liquidated damages;

       6             Ensure that the agreement to keep a

       7      settlement confidential provides independent

       8      consideration for that agreement;

       9             And also ensure that any settlement agreement

      10      clearly includes an explanation in it, that an NDA

      11      does not prohibit the worker from filing a complaint

      12      or participating in an investigation with the state

      13      or federal agency, or in federal or state

      14      litigation, or using collective action, to address

      15      workers' rights violations.

      16             Vermont took -- passed legislation last year

      17      that takes that approach.

      18             So, all these things we think are some

      19      additional important procedural protections to try

      20      to address this fear that maybe this actually

      21      doesn't shift the balance of power necessarily in

      22      the negotiation, to try to give more power to the

      23      survivor.

      24             And there are other transparency measures

      25      that we're seeing in other states, such as requiring







                                                                   388
       1      employers to report about the number of claims and

       2      settlements, and how claims were resolved, as a

       3      mechanism, again, for accountability.

       4             And Maryland passed legislation to this

       5      effect last year, that would require employers of

       6      50 or more employees to report about settlements to

       7      the Maryland Civil Rights Commission, which would

       8      then aggregate and publish those responses.

       9             So, some interesting work going on in other

      10      states I'd be happy to talk more about.

      11             But we do think that transparency is a really

      12      important accountability measure, and would

      13      encourage you to look more in that respect.

      14             Thank you.

      15             MIRIAM CLARK:  I'm Miriam Clark.  I'm the

      16      president of the New York affiliate of the National

      17      Employment Lawyers' Association.

      18             I've been representing employees in New York

      19      for more than 30 years.

      20             And so it's striking that we're hearing so

      21      much at the last hearing, and today, and in the

      22      press, this outcry against workplace sexual

      23      harassment.  It's wonderful to hear.

      24             I've been doing this work for a very long

      25      time, and I have to say that, when I first started







                                                                   389
       1      out as a lawyer, I thought that, eventually, I would

       2      be out of a job because sexual harassment would end.

       3             Who knew?

       4             But the point is, that we can't change

       5      culture without changing the law.

       6             Outrage without meaningful legislation is

       7      just this year's noise.

       8             So what we need to do is comprehensively

       9      change the substance of New York State's

      10      discrimination law.

      11             And I know you're all familiar with S3817,

      12      A7083, which is our omnibus bill that we believe

      13      will do just that.

      14             So, just to start something that I haven't

      15      said before, but I also read the quote in Politico

      16      from the business council, and, you know, I do think

      17      there's a legitimate concern about what the effect

      18      of these laws might be on businesses, especially

      19      small businesses.

      20             Large institutions like Columbia must be held

      21      accountable, but, I think we do have a concern about

      22      small businesses that make New York vibrant.

      23             But I think what we need to think about is

      24      that harassment and discrimination are bad for

      25      business.







                                                                   390
       1             Employees who are harassed and discriminated

       2      against suffer physical and psychological illness,

       3      which lowers their productivity and increases their

       4      absenteeism.

       5             Studies show that women of color report the

       6      highest level of discrimination in the workplace,

       7      and are most likely to suffer symptoms of

       8      posttraumatic stress disorder as a result of such

       9      experiences.

      10             And these -- there are articles that talk

      11      about, really, sexual harassment as an occupational

      12      health issue, in my printed testimony.

      13             Employees who suffer from unlawful

      14      discrimination, harassment, quit if they can afford

      15      to.

      16             A workplace rife with unlawful harassment

      17      will suffer turnover, which experts estimate costs

      18      employers anywhere from 20 to 213 percent of

      19      salaries.

      20             So, you have turnover of one highly-paid

      21      professional person, you're gonna spend 213 percent

      22      of their salary replacing them.

      23             Overall, it is estimated that each person on

      24      a team affected by sexual harassment is less

      25      productive --







                                                                   391
       1             That makes sense because you're distracted or

       2      afraid by what's happening to your co-workers.

       3             Right?

       4             -- with an average cost through loss

       5      productivity of $22,000 per person.

       6             Common sense, and my experience, tells us

       7      that this must be the case.

       8             My clients who suffer from sexual, racial,

       9      and other forms of harassment dread going to work

      10      every day.  They suffer from physical and

      11      psychological symptoms.  They're exhausted by the

      12      emotional and physical energy involved in trying to

      13      get away from their harassers, and, of course, by

      14      terror of retaliation if they complain.

      15             Those with the ability to leave their jobs

      16      almost always do.

      17             So who stays?  The harasser, free to make the

      18      life of the next employee totally miserable.

      19             So I'll walk through S3817 in a minute, but

      20      first I want to discuss the specific weaknesses of

      21      current New York law.

      22             So, overall, New York's anti-discrimination

      23      law is more than 75 years old.

      24             Yay for us for being one of the first, but

      25      not yay for us because it needs to be amended.







                                                                   392
       1             The worst thing right now is that New York

       2      courts have deliberately and explicitly chosen to

       3      align it with federal law.

       4             Every single case you bring under the State

       5      Human Rights Law, the first thing the judge says is,

       6      "We follow Title 7."  That's the federal law.

       7             So federal law has gotten significantly less

       8      employee-friendly over the years.  I can tell you

       9      about that.  It's become harder to prove age

      10      discrimination, harder to prove disability

      11      discrimination, harder to prove retaliation.

      12             The "severe or pervasive" standard has gotten

      13      crazier and crazier, and this is all just likely to

      14      become worse, since we know what's happening to the

      15      federal bench and the Supreme Court.

      16             Okay, so, moreover, there's this procedural

      17      mechanism called "summary judgment," which, for

      18      people who didn't go to law school, means that,

      19      after discovery, but before trial, a judge looks at

      20      all the evidence and decides whether there's enough

      21      of a factual issue to go to trial.

      22             So less than one-third of employment

      23      discrimination cases ever get to trial.  The rest

      24      get knocked out on summary judgment.

      25             And the cases that are most likely to survive







                                                                   393
       1      are pure sexual-harassment cases, but even they get

       2      to juries less than half the time.

       3             So what you have are these judges deciding,

       4      without ever looking at the witnesses, without ever

       5      looking at the employee, which cases are deserving

       6      enough to go to a jury.

       7             So why is it that so few of these cases get

       8      to trial?

       9             And the answer is, of course, the substance

      10      of New York law.

      11             So as we all know, discriminatory harassment

      12      is only illegal if a Court believes that it was

      13      severe or pervasive.

      14             By the way, it's "or" -- severe or

      15      pervasive -- but many judges think it's "and."

      16             I gave some graphic examples of outrageous

      17      conduct about "severe/pervasive" when I testified in

      18      February.

      19             Here's some more.

      20             Neil (ph.) in New York did an Amicus brief

      21      three years ago, in a case called Kaplan versus

      22      The City of New York.

      23             There was a claim under the state law and the

      24      city law.

      25             The claim was, that a supervisor masturbated







                                                                   394
       1      through his clothes while sitting next to an

       2      employee.

       3             And the lower-court judge held that not only

       4      was that not severe or pervasive, it was actually a

       5      petty slight or trivial inconvenience under the

       6      New York City law.

       7             But see, interestingly, on appeal, the

       8      Appellate Court said, no, you do absolutely have a

       9      different standard under City law.

      10             The employer did not prove that this was a

      11      petty slight or trivial inconvenience, and the

      12      employee's case was allowed to go to trial.

      13             So this is an absolutely clear example of how

      14      the City law, which our bill tracks, allowed a case

      15      to get to trial that New York State law would not

      16      have.

      17             Here's another one.

      18             In a 2018 case involving a Black woman --

      19      this is a case -- one of Laurie's cases, a Court

      20      held that being called "a bitch" and "a Black bitch"

      21      numerous times, along with comments such as, "This

      22      bitch thinks she's the shit," and, "You Black people

      23      think you are the shit," did not constitute severe

      24      or pervasive harassment.  2018.

      25             Also last year, the Second Circuit Court of







                                                                   395
       1      Appeals affirmed a lower court who held that the

       2      following conduct suffered by an African-American

       3      public school teacher in Westchester -- this was

       4      Rye -- was not severe or pervasive.

       5             Plaintiff's colleague forwarded a derogatory

       6      e-mail, comparing a minority teenager to a

       7      downwardly evolved human, "homo slackass-erectus."

       8             "This species receives benefits," the cartoon

       9      said, "and full government care.  Unfortunately,

      10      most are highly fertile."

      11             Another teacher referred to African-Americans

      12      as "Alabama porch monkeys."

      13             Another teacher complained she didn't want

      14      another "Hernandez" in her class.

      15             The same teacher told plaintiff in front of

      16      his class that it was her right as an American to

      17      use the n-word.

      18             And a baseball coach told an African-American

      19      student that he ran as fast as a runaway slave.

      20             Not severe or pervasive.

      21             We've talked about -- a little bit about the

      22      accountability of institutions.

      23             New York employers escape liability because

      24      they're often held to be not responsible for the

      25      hostile work environments created by their low-level







                                                                   396
       1      and mid-level supervisors.  The only exception is

       2      the rare situation where the employee can prove that

       3      the employer encouraged, condoned, or expressly or

       4      impliedly approved the supervisor's conduct.

       5             That's really hard to do.

       6             It is very hard for an employee to ever prove

       7      that, somehow, the employer acquiesced or approved

       8      what the supervisor was doing.

       9             And most New York State courts follow the

      10      federal example, which gets the employer completely

      11      off the hook if the employee failed to promptly use

      12      a reasonable avenue of complaint provided by the

      13      employer.

      14             So we talked about this in February.

      15             If the employee calls the wrong 800 number,

      16      calls too late, calls too early, complains about the

      17      wrong thing, then, under the Faragher-Ellerth

      18      defense, the employer is off the hook.

      19             And, of course, all available research shows

      20      that most employees who suffer from unlawful,

      21      hostile work environments don't complain, usually

      22      because they have a quite justifiable fear of

      23      retaliation.

      24             So, in some ways, New York law tracks federal

      25      law, as I just described.  In some ways it's worse.







                                                                   397
       1             So New York does not provide for punitive

       2      damages, which means that awards, especially to

       3      low-wage workers, tend to be low and absorbable by

       4      the employer as a cost of doing business.

       5             Damages in New York State cases are only

       6      measured by the worker's economic loss, which could

       7      be low if it's a low-wage worker, and emotional

       8      distress, which is highly variable.

       9             If an employee can't afford psychotherapy,

      10      for example, her damages are considered to be

      11      "garden variety," and limited to five figures or

      12      lower.

      13             The employer, therefore, paying very little

      14      money, is incentivized to continue to employ the

      15      harasser and allow the harassment to continue as a

      16      cost of doing business.

      17             Under New York law, an employee who wins a

      18      case can have the employer pay legal fees only if

      19      the case was based on sex discrimination.

      20             And small employers are allowed to commit all

      21      forms of discrimination, except for discrimination.

      22             Employers are only responsible for the acts

      23      of independent contractors if the unlawful conduct

      24      was based on sex discrimination.

      25             As we will describe later, these anomalies







                                                                   398
       1      allow many forms of discrimination, especially

       2      discrimination against women of color, to go

       3      completely unchecked.

       4             Again, all of this outrage without

       5      legislation is meaningless.  Fundamental changes

       6      need to be made in the substantive law.

       7             So 3817 and 7083A, introduced by

       8      Senator Biaggi and Assemblymember Simotas, has now

       9      been supported by many co-sponsors, including many

      10      of you in this room -- thank you -- and more than

      11      30 organizations, including the New York City Bar

      12      Association, the National Employment Lawyers'

      13      Project, Legal Aid Society, Make the Road, New York

      14      Legal Momentum, the Chinese Staff and Workers

      15      Association, Latino Justice, and others.

      16             It would eliminate the "severe or pervasive"

      17      standard explicitly, and replace it with an

      18      employer's ability to prove that what happened was a

      19      petty slight or trivial inconvenience.

      20             This comes right out of New York City law.

      21             And as we heard from Dana Sussman, New York

      22      City law works.

      23             Our bill holds employers absolutely liable

      24      for discriminatory and harassing acts of their

      25      supervisors, and allows employees, who prove that







                                                                   399
       1      they have been unlawfully discriminated against or

       2      harassed, to obtain punitive damages and have their

       3      attorney fees paid by the employer.

       4             It also protects all employees of small

       5      employers, and it protects independent contractors.

       6             So the #MeToo movement, and even some of the

       7      press coverage that I see of these hearings, might

       8      have reasonably led people to believe that, really,

       9      what we need to do right now is just strengthen the

      10      law against sexual harassment.

      11             Given the press coverage, this assumption

      12      might be understandable, but it's dead-wrong, as my

      13      colleague Laurie Morrison will explain.

      14             LAURIE MORRISON:  Thank you, Miriam.

      15             Hi, I am Laurie Morrison, employee advocate.

      16             I have been representing victims of

      17      employment harassment, discrimination, and

      18      retaliation for almost 20 years.

      19             And I'm also a member of the National

      20      Employment Lawyers' Association, both the national

      21      and the New York affiliate.

      22             As Miriam described, the proposed bill,

      23      S3817, seeks to include important, critical

      24      provisions that are desperately needed in New York

      25      State law.







                                                                   400
       1             But I want to specifically talk about how it

       2      wants to eliminate the "severe or pervasive"

       3      analysis.

       4             Why do we need to eliminate it?

       5             Well, because it's a barrier; it's a barrier

       6      that says, if you're harassed in the workplace, you

       7      have to prove the harassment, but you also have to

       8      prove that the harassment you suffered is

       9      sufficiently egregious to warrant recognition and to

      10      warrant protection.

      11             Okay, so we're telling people who are brave

      12      enough to come forward, these are survivors, these

      13      are thrivers, these are people who need to be

      14      applauded for coming forward --

      15             It is terrifying to be alone in a workplace,

      16      to be harassed, to not be able to -- these people

      17      don't necessarily have trust funds.  Okay?  They

      18      need to work.

      19             -- and we're telling them, if you are brave

      20      enough to come forward and complain so it stops

      21      happening to you, and, hopefully, it will help it

      22      stop happening to others, well, you need to prove

      23      your harassment, and you need to make sure that

      24      you're worthy of legal protection.

      25             That's not okay, and it has never been okay.







                                                                   401
       1             And what "severe or pervasive" also does, is

       2      it further reduces protection of people who have

       3      suffered intersectional harassment.

       4             We've talked about it today.  Right?

       5             So "intersectional harassment" are people who

       6      have been -- who have suffered and been targeted

       7      because of more than one characteristic.

       8             They're a Black woman.

       9             They're a White male who is disabled, who

      10      might be called, "You're not man enough," just

      11      'cause he's disabled.

      12             Well, that's his disability and his gender

      13      being attacked.  Okay?

      14             We have so many different examples of this.

      15             We have transgender people who are struggling

      16      from this, because people are saying, Oh, well,

      17      which is this?

      18             Okay, we don't have a way yet, or at least it

      19      hasn't been exercised yet, to deal with

      20      intersectional harassment.

      21             So then you add on to it "severe or

      22      pervasive," according to studies, half of all people

      23      who bring intersectional harassment claims have no

      24      protection under the law, just because they happen

      25      to be a Black woman who was called a "Black bitch"







                                                                   402
       1      at work.

       2             We have too many people who are not getting

       3      covered under the current New York State law, and

       4      "severe or pervasive" is paving the way for them to

       5      continue to not have that kind of protection.

       6             Let me give you the example of the case that

       7      I've been working on.

       8             This is a Black woman, repeatedly called

       9      "bitch," "Black bitch," "These Black people think

      10      they're the shit," and other egregious slurs in the

      11      workplace.

      12             Now, it was very clear that this woman was

      13      being targeted specifically because of her race and

      14      her gender simultaneously.

      15             Now, how do we know that?

      16             Well, because White women were not ever

      17      called "bitch."

      18             White and -- White women and White men were

      19      referred to by their proper names, not by their

      20      race.

      21             So we have a clear signal that race and

      22      gender were at -- were at the center focal point

      23      here.

      24             But, the intersectional nature of this

      25      woman's abuse, the "Black bitch," and otherwise, was







                                                                   403
       1      completely overlooked.

       2             So the "Black" was segregated from "the

       3      bitch."

       4             And then doing so minimized the severity and

       5      effect of the abuse this woman suffered.

       6             So "severe or pervasive" analysis was applied

       7      to the "Black" portion in isolation, and then to the

       8      "bitch" portion in isolation.

       9             And then it was found that just "bitch," in

      10      and of itself, or just "Black," in and of itself, is

      11      not sufficiently severe or pervasive to warrant

      12      protection under the current New York State law.

      13             It gets worse.

      14             The person who made these slurs was a woman,

      15      but she wasn't an African-American woman.  So the

      16      "bitch" portion of the slurs were completely

      17      disregarded.  They were considered just "intragender

      18      sparring"; one woman calling another woman

      19      "a bitch," no big deal.

      20             Then they took the "Black" portion,

      21      segregated that as well, and they said, well, just

      22      "Black" alone, I'm sure this person was just trying

      23      to describe skin color.

      24             They completely -- this is what occurred in

      25      reality.







                                                                   404
       1             I know, Senator Biaggi, I see your face.

       2             I know, it's the same disgust, and I deal

       3      with it every single day with my clients,

       4      unfortunately.

       5             That's why we have to change these laws.

       6             So, when we do not understand, or do not

       7      respect or appreciate, the intersectionality, we are

       8      all more than just gender, race; we are so many

       9      things.  We are gender and race and disability and

      10      sexual orientation.

      11             There are so many ways that we can be

      12      targeted for harassment.

      13             And if we don't look at those ways and

      14      respect those ways, we're not going to protect

      15      people who are victims.

      16             But if we keep "severe or pervasive," it's

      17      going to get even worse.

      18             And it still is worse, just like I've just

      19      described.

      20             So, intersectionality research,

      21      intersectionality experts, such as Leah Warner and

      22      others, have provided research to show, that not

      23      only are intersectional claims only half as likely

      24      to win, they are the least likely of all to get any

      25      protection under our current laws.







                                                                   405
       1             They've also found, intersectional

       2      researchers, that women of color are most at risk

       3      for mistreatment.

       4             Well, our laws inform our behaviors, so we're

       5      not surprised at that, are we?

       6             They're least protected, so they're the ones

       7      that you want to target.

       8             If we overlook the fundamental aspects of

       9      harassment, such as the intersectional nature of

      10      abuse, then we help the harassers achieve their

      11      goal, because we reduce protection for a large

      12      portion of our population.

      13             And this negatively affects all of us.

      14             Like I said, there could be a gay woman in

      15      the workplace who's targeted because she's a gay

      16      woman, but a heterosexual man might be treated

      17      differently, a gay man might be treated differently.

      18             A disabled man might be called "less than a

      19      man" in the workplace.  It's because he's a disabled

      20      man, not one or the other.

      21             So we cannot have a law that takes who we are

      22      and segregates them, and then puts an artificial,

      23      "severe or pervasive" analysis on top of that.

      24             And by the way, the "severe or pervasive"

      25      analysis is being determined and judged by someone







                                                                   406
       1      who wasn't there.  They didn't see what happened.

       2             So let's go ahead and distort what happened,

       3      and then let's have a third party be blind to the

       4      intersectionality and impose an artificial standard

       5      that has not worked, and won't work.

       6             Now, Assemblyman Crespo, earlier, when you

       7      were speaking with the HID, thank you, you asked,

       8      have they heard, "Well, this harasser just got away

       9      with it?"

      10             Let me answer the question for you.

      11             I have heard that daily.

      12             I have heard it from my clients.

      13             And, unfortunately, I have seen it in person,

      14      with these people being brave enough to come

      15      forward.

      16             And because someone imposed a "severe or

      17      pervasive" barrier on them, the "Black bitch," all

      18      these other horrible words, not severe or pervasive.

      19             Do you think the harasser got away with it?

      20             Absolutely, and it happens time and time

      21      again.

      22             Now, I want to add as well, that some people

      23      are concerned that if we remove "severe or

      24      pervasive," well, people will just be able to claim

      25      harassment, and that's it, and employers will go







                                                                   407
       1      down, and small employers especially, we have to be

       2      careful.

       3             Well, to be clear, again, without "severe or

       4      pervasive," you still have to prove harassment, and

       5      it's not an easy thing to do.

       6             So you still have to prove your case.

       7             And, employers, they have no interest, at

       8      least I hope, to having a workplace that's divided

       9      on these severe or pervasive, non-intersectional,

      10      artificial grounds.

      11             No one wants a workplace where the workers

      12      are divided amongst each other, and before

      13      themselves.

      14             And as we've said and as we've seen, people

      15      of color, intersectional people, they are suffering,

      16      we are all suffering, severe PTSD, because when we

      17      finally do stand forward and are brave enough to

      18      complain, our law takes a blind eye and says, You're

      19      not protected, you're not good enough.  Who you are

      20      is who we don't want to see.

      21             We cannot allow this to happen in our law.

      22             We cannot allow our workers to not be

      23      protected.

      24             Let them focus on doing a good job; not on

      25      having to avoid harassment because the law is not







                                                                   408
       1      helping them.

       2             Thank you.

       3             ASSEMBLYMAN CRESPO:  First of all, thank you

       4      for your patience and for your testimony.

       5             A couple of questions.

       6             The -- have you handled cases regarding

       7      violations or not following last year's

       8      implementation of the new policies?

       9             MIRIAM CLARK:  Not yet.

      10             ASSEMBLYMAN CRESPO:  Have you seen specific

      11      cases?

      12             MIRIAM CLARK:  Last year's policies,

      13      I haven't yet.

      14             LAURIE MORRISON:  Not yet.

      15             MIRIAM CLARK:  Although, I have had cases

      16      where the additional affirmation, that the plaintiff

      17      wanted the NDA, came into play.

      18             That's the only interface I've had so far

      19      with the new policies.

      20             ASSEMBLYMAN CRESPO:  Okay.

      21             And in Aravella's bill, 7083, you mentioned,

      22      if we get rid of the "severe or pervasive" standard,

      23      and we apply, instead, the petty slight or

      24      inconvenience, that would -- explain one more time,

      25      just, layman's terms, what difference does that







                                                                   409
       1      make?

       2             So -- so the victim wouldn't have to prove

       3      that the incident was severe or pervasive; instead

       4      the employer would have to prove that what occurred

       5      amounts to a petty slight or inconvenience.

       6             MIRIAM CLARK:  Right.  So back --

       7             ASSEMBLYMAN CRESPO:  So it puts the pressure

       8      off the --

       9             MIRIAM CLARK:  -- backing for one minute,

      10      though --

      11             ASSEMBLYMAN CRESPO:  -- yep.

      12             MIRIAM CLARK:  -- as Laurie said, and this is

      13      important, sexual harassment is illegal because it

      14      changes the terms and conditions of the person's

      15      work environment because of gender.

      16             Let's talk about gender.

      17             So the employee still has to prove that there

      18      was harassment, that it was because of gender or

      19      gender and race, or whatever protected class, and

      20      that the terms and conditions of her environment

      21      were changed as a result; that something happened,

      22      and that it happened to her because she was a woman.

      23             Under the "severe or pervasive" standard, she

      24      would then have to prove that what happened was

      25      severe or pervasive, using this line of increasingly







                                                                   410
       1      restrictive cases, sort of like what I described.

       2             Under the New York City law, and under our

       3      law, the employer -- the burden of proof would shift

       4      to the employer to say, Wait a minute, that was

       5      trivial, that was petty.

       6             And so that's why, in the Kaplan case,

       7      involving the supervisor, the employer was not able

       8      to prove on -- that, on papers, this kind of conduct

       9      was petty slight or trivial inconvenience.  And

      10      that's why the case did not get dismissed.

      11             LAURIE MORRISON:  Yeah, the "petty slight and

      12      inconvenience" is the defense.

      13             MIRIAM CLARK:  Right.

      14             LAURIE MORRISON:  So first the -- right, so,

      15      first, the employee has to -- squarely has to prove

      16      the burden, the employee was harassed.

      17             MIRIAM CLARK:  Because of her membership in a

      18      protected class.

      19             LAURIE MORRISON:  Exactly.  Or in the

      20      membership in several protected classes.

      21             MIRIAM CLARK:  Right.

      22             So we're not talking about, you know,

      23      generalized workplace bullying, even though we would

      24      like to be.

      25             We're really talking about conduct because of







                                                                   411
       1      membership in one or more protected classes that

       2      changes the terms and conditions of employment.

       3             That's Employment Law 101.

       4             But instead of the burden on the employee,

       5      the burden shifts to the employer to prove that it's

       6      petty slight or a trivial inconvenience.

       7             LAURIE MORRISON:  Exactly.

       8             Once the employee proves harassment occurred,

       9      then the employer -- the burden shifts to the

      10      employer to say, Okay, maybe it occurred, but it was

      11      a just a petty slight or inconvenience.

      12             And if the employer cannot prove that it was

      13      just a petty slight and inconvenience, you win --

      14             MIRIAM CLARK:  So, yeah --

      15             LAURIE MORRISON:  -- basically.  You get

      16      protected.

      17             MIRIAM CLARK:  -- or in Kaplan, you get past

      18      a motion to dismissed.

      19             LAURIE MORRISON:  Correct.

      20             MIRIAM CLARK:  Most of these -- this issues

      21      come up way before a person ever gets to a jury.

      22             They come up in either motions to dismiss,

      23      which is a motion that the employer makes right

      24      after you file the complaint; no discovery, no

      25      nothing.







                                                                   412
       1             That's what happened in Kaplan.

       2             On the complaint, the employee described the

       3      masturbation in all of its glory.  And the employer

       4      made a motion to dismiss the case (snaps fingers) up

       5      front, saying that what was written in that

       6      complaint was not severe or pervasive.

       7             ASSEMBLYMAN CRESPO:  We also have this

       8      underlying concern that expanding protections to all

       9      employees, and to more classes of employees, is

      10      going to hurt business.

      11             And the first question, I guess the moral

      12      question, we have to ask ourselves is, what is more

      13      valuable: the rights and protections of every

      14      individual to be free of harassment, or the

      15      potential financial interest of an entity,

      16      corporation, or business owner or individual?

      17             I would think that would be an easy answer.

      18             I asked a question to the City earlier, if

      19      they're expanded -- or, their approach to these

      20      protections had hurt business?

      21             And while there wasn't a specific issue,

      22      I just want you to reiterate the message, and you

      23      pointed it out in your testimony:  There is

      24      tremendous cost to businesses because of the issues

      25      arising from harassment in the workplace; whether







                                                                   413
       1      it's the productivity impacts, whether it's the

       2      physical and/or emotional distress on an employee,

       3      whether it's that employee now requiring additional

       4      services that are expensive to the employer to

       5      provide, because of the ramifications of all of

       6      these things.

       7             So, in your experience, again, looking at

       8      other jurisdictions, like the city of New York,

       9      would you say it is a highly exaggerated notion,

      10      that expanding these protections will end up costing

      11      businesses more than, say, the improvement to

      12      productivity and morale, and workforce in general,

      13      of having a high standard of protection?

      14             MIRIAM CLARK:  I would say it goes even

      15      further than that.

      16             It's wrong thinking to think that this is

      17      going to have a negative impact economically on

      18      employers in the long run.

      19             In the long run, a workforce where there's

      20      sexual harassment, racial harassment, is a divided,

      21      unproductive, physically- and psychologically-ill

      22      workforce with a high turnover.

      23             And I can tell you, my clients, who are still

      24      employed, come to me, they're having such a hard

      25      time concentrating.







                                                                   414
       1             You know, I have a woman right now who works

       2      in a big bakery upstate.  And, you know, there's

       3      derogatory terms written at her workstation.  And

       4      every time she sees it, she goes into the bathroom

       5      and she cries, and she debates about whether she'd

       6      reported it, even though it doesn't really help.

       7             And, you know, she's not herself for the rest

       8      of the day.

       9             That's -- she could be a great worker, but

      10      she's being horribly, painfully distracted, and you

      11      know she's not the only one.

      12             LAURIE MORRISON:  If I may add dollars and

      13      cents to this as well, how this is going to affect

      14      or potentially harm business depends on how we're

      15      going to define "business."  Right?

      16             So if we're going to go ahead and have a law

      17      that says, anything other than severe or pervasive,

      18      you can go ahead and harass people, are we actually

      19      doing business, or are we just fostering harassment

      20      in the workplace?

      21             Are we're just giving a space where we say,

      22      Harassers, go ahead, have at it?

      23             Okay?

      24             But also in terms of, money, just dollars and

      25      cents, it is so much more expensive to try to say,







                                                                   415
       1      Oh, well, no, this is not severe or pervasive.

       2             And fighting this, because employers are

       3      trying to now get away with, because there's this

       4      whole fear of, I don't want to be caught, versus,

       5      make the law make sense and make the law be clear,

       6      so that it becomes less expensive, far less

       7      expensive, for an employer to say, Supervisor, you

       8      did that, you're out.

       9             Okay?

      10             That doesn't cost much.

      11             What costs a lot of money is when they're

      12      trying to hide how severe or pervasive it is.

      13             When you're trying to get -- work within that

      14      law and that huge gray area called the "severe or

      15      pervasive analysis," it is so confusing, no one

      16      knows what's protected and what's not protected.

      17             That, is what costs businesses money.

      18             MIRIAM CLARK:  Just an obvious point is that

      19      New York law, for sexual harassment only, already

      20      covers all employers.  It's an anomaly in the law

      21      that, sexual harassment, by itself, is somehow

      22      privileged over other forms of harassment, which is

      23      something that has to be changed for all the reasons

      24      that Laurie said.

      25             And, frankly, it's hard to understand how







                                                                   416
       1      it's moral, ethical, or constitutional to, you know,

       2      privilege one form of harassment over another.

       3             LAURIE MORRISON:  Yeah, what kind of message

       4      is that sending, privileging one kind of harasser

       5      over the other.

       6             MIRIAM CLARK:  Right.

       7             ASSEMBLYMAN CRESPO:  Well, listen, just, last

       8      comment.

       9             I appreciate your leadership, your voices,

      10      your ability to help us come up with a draft of good

      11      legislation.

      12             I think there are really good bills out there

      13      that need to be seriously considered, that,

      14      hopefully, we can move forward with in the very near

      15      future.

      16             And to what has been stated over and over

      17      again throughout all presentations:  We need

      18      results.  We need to take action.  We need to expand

      19      those protections.  We need to create real

      20      accountability, and real liability, for violations

      21      of these protections.

      22             And for you to highlight that

      23      intersectionality of all of these issues.

      24             Somebody, you know, in our community, the

      25      Latino community, we've it seen in our immigrant







                                                                   417
       1      community, and, you're right, there's always this --

       2      it's difficult to outline exactly where or what is

       3      the thing that is causing people to treat me

       4      differently.

       5             Some of us have been accustomed to just

       6      accepting that that's the way it is and/or that,

       7      because of who we are, maybe there's just more to

       8      talk about.

       9             And it's something we have to kind of, even

      10      ourselves, get out of.

      11             I'm a legislator, I get a chance to sit here

      12      and ask these questions, and talk about this, and

      13      maybe shape some of this policy.

      14             But, I've got to tell you, even me, I feel it

      15      every day.

      16             I don't -- I often go into a room feeling

      17      like I shouldn't even be in that room to begin with.

      18      I have to work that extra hard to feel like I fit

      19      in; let alone, how I'm talked to or treated, I often

      20      overlook, or ignore, because I don't measure myself

      21      in the same.

      22             And that's something that, as a community,

      23      many of us have to grow out of.

      24             And, yet, as a male, I have advantages that

      25      others don't, and my daughters may not have.







                                                                   418
       1             And so, again, I just want to thank you for

       2      your leadership, and for fighting.

       3             And I hope that all these years of advocacy

       4      will finally see some real light of day as this

       5      committee leads into its legislative work.

       6             MIRIAM CLARK:  Thank you.

       7             LAURIE MORRISON:  May I say, you're saying

       8      that you've become accustomed to it.

       9             I think you've had to adapt to it.

      10             And that's, unfortunately, what a lot of us

      11      have had to do.

      12             When the law doesn't protect you, and you

      13      still have to work, you have to adapt to it, but you

      14      still feel it every day.  Right?

      15             MIRIAM CLARK:  And until the point where you

      16      can't adapt.

      17             LAURIE MORRISON:  Exactly.

      18             Exactly.

      19             SENATOR BIAGGI:  No, I just -- I mean, I just

      20      wanted to thank you for your testimony, and for

      21      being on the record with those examples, because

      22      I think it's incredibly important for those

      23      individuals who don't really understand the behavior

      24      that doesn't reach the "severe or pervasive"

      25      standard.







                                                                   419
       1             This is probably where so much of the

       2      confusion lies.

       3             You know, we have about 13 days left of

       4      session, I believe, which means that we're going to

       5      work incredibly hard to prioritize these bills.

       6             And so I think my only question that I have

       7      for all three of you, because you know that we will

       8      be met with resistance:

       9             For those individuals, whether they're

      10      colleagues, although I can't imagine that that would

      11      be the case, especially after today, who wouldn't

      12      want this; but, more importantly, for any type of

      13      advocacy organization or special interest that would

      14      lobby against us doing this now, or have, probably,

      15      the strongest argument against doing this now, what

      16      would be your best argument, other than what we've

      17      already heard, right, of how it is bad for business?

      18             The fact that the business council came out

      19      with that disappointing statement today, was,

      20      I mean, not -- it wasn't surprising.

      21             But I'm sure that we'll hear more of that as

      22      the weeks go on.

      23             So -- I mean, in just the last moments

      24      I guess that we have together, if you have any

      25      advice for myself and Assemblywoman Simotas for some







                                                                   420
       1      of the arguments that you think will be made that we

       2      haven't foreseen yet?

       3             Because I find that, even if you think you're

       4      on the right side of things, there's always some --

       5      like today, there's always some instance where

       6      something surprises you, and then you're not

       7      necessarily prepared.

       8             And if you are not prepared also to answer

       9      this question, you know, that's all right.  You know

      10      where to find us.

      11             MIRIAM CLARK:  I mean, we've give an lot of

      12      thought to this, obviously.

      13             So, we've talked about the cost of harassment

      14      in the workplace.  Right?

      15             We've talked about New York City economy

      16      thriving.

      17             And I think it's also true, although

      18      I haven't researched it, although I could, that

      19      every time that the law has moved toward greater

      20      protection of workers, the same exact argument is

      21      being made:  That this is going to be bad for

      22      business.

      23             My bet is, that you could go back and look at

      24      reactions of these people all the way back to

      25      Title 7 of the Civil Rights Act of 1964, or maybe







                                                                   421
       1      even 1945, and find these same arguments.

       2             There's a real fear.

       3             But I think that Assemblymember Crespo hit it

       4      on the head:  At a certain point, you have to think

       5      about all of the employers, all of the employees,

       6      and their need to earn a livelihood, with dignity

       7      and with respect, and their ability to be

       8      productive, and they're wanting to be productive,

       9      and measure that against an inchoate, unmeasurable,

      10      and probably not real threat to somebody's profit.

      11             Right?

      12             And it's one thing to think about it in the

      13      context of a very small employer, like, your

      14      mother-in-law's barbershop.

      15             But, I mean, when you think about the

      16      employer as, say, Columbia University, it's really

      17      hard to imagine that getting rid of the "severe or

      18      pervasive" standard, getting rid of

      19      Farragher-Ellerith, is going to bankrupt Columbia.

      20             ANDREA JOHNSON:  That's right.

      21             (Indiscernible cross-talking) --

      22             LAURIE MORRISON:  (Indiscernible

      23      cross-talking) -- please.

      24             ANDREA JOHNSON:  -- so I'll just add,

      25      I always find this question challenging because it's







                                                                   422
       1      kind of, like, what's the business argument for

       2      human rights?

       3             Like, it's human rights, and we shouldn't be

       4      kind of making this into dollars and cents.

       5             But, I also am a pragmatic person and

       6      understand how it works.

       7             SENATOR BIAGGI:  Of course.

       8             ANDREA JOHNSON:  And so -- I mean, yeah, I'll

       9      just reiterate, the productivity and health impacts

      10      for employees are significant.  That leads to

      11      turnover, which is costly for employers, and that's

      12      definitely, yeah, a piece of it.

      13             And I think -- I think we're in a moment

      14      where -- and it's not just moment -- it's a movement

      15      that is continuing strong, the #MeToo movement.

      16      It's impacting a generation, where folks are

      17      realizing that we -- it's not -- we can't just do

      18      business as usual before.  You can't just have a

      19      policy on the books about, you know, don't harass,

      20      here's the law, comply with it, check the box, and

      21      be done.

      22             Like, that is not acceptable.

      23             And we want to make sure that's not

      24      acceptable per the law, but I think also,

      25      culturally, it's becoming less and less acceptable.







                                                                   423
       1             And so employers need to change regardless,

       2      but we need the law to make sure that that is true

       3      across the board.

       4             And -- I mean, it's -- liability is a cost.

       5             And, already, I think employers are --

       6      employees much more aware of their rights and feel

       7      much more empowered in this moment to speak up.

       8             And that is an amazing aspect of the #MeToo

       9      movement.

      10             And so that is a business-case argument to

      11      have -- you know, you need to be doing the right

      12      thing.

      13             And the law is trying to push employers to

      14      have practices, and change structures, so that the

      15      right thing is done from the beginning so that you

      16      prevent harassment and you don't end up with

      17      lawsuits in the end.

      18             So -- and I think, you know, recruiting

      19      talent kind of thing, I mean, New York has an

      20      interest in recruiting talent.

      21             And I think to your point about mentioning

      22      California, you know, you want to be seen as a

      23      leader in this space, and businesses need to be

      24      there as well.

      25             And so you need to be creating business







                                                                   424
       1      environments that are safe and dignified, and that

       2      that's where people want to work.

       3             I mean, everybody wants to work, obviously,

       4      but I think that's especially, acutely, people are

       5      aware now.

       6             LAURIE MORRISON:  And if I may add, the

       7      New York City law already doesn't have "severe or

       8      pervasive" or Faragher-Ellerth.

       9             So if they say suddenly making the New York

      10      State law comport with New York City law is going to

      11      cause such costs, well, really?

      12             That's like saying the water is going to be

      13      wetter.

      14             It just doesn't really -- it doesn't work.

      15                [Laughter.]

      16             LAURIE MORRISON:  Okay?

      17             But on top of it, you know, people fear

      18      change.

      19             OFF-CAMERA SPEAKER:  Yep.

      20             LAURIE MORRISON:  So I think a lot of times

      21      what they're talking about is, you need something,

      22      something's going to change?

      23             Then, okay, but that same change has created

      24      a stronger workforce.

      25             Employers were terrified back in the '50s and







                                                                   425
       1      '60s about, you know, giving women and minority --

       2      and racial minorities the ability to vote.

       3             Well, we're a lot wealthier now because of

       4      it, as a nation.

       5             So your business, I don't care who you are,

       6      small or large, is only as good as the strength of

       7      your workforce.

       8             So let's keep our workforce strong and make

       9      our laws protect them.

      10             SENATOR BIAGGI:  That's right.

      11             Thank you so much.

      12             I could not agree with you more.

      13             I think the question was more so about the

      14      individuals surrounding us who are fear -- who are

      15      afraid of the disruption that we are potentially

      16      causing their status quo.

      17             But this was incredibly helpful.

      18             ASSEMBLYMAN CRESPO:  I -- we have -- I have a

      19      couple of more colleagues to present, but I just

      20      want to take a second, first of all, thank everybody

      21      who's still in the room with us and going strong.

      22             As you know, we've reiterated a number of

      23      times, we went on for 11 1/2 hours the last time.

      24             I think we're going to beat that record

      25      today.







                                                                   426
       1             But, I'm only saying that because I just want

       2      to remind everybody, we purposely did not apply the

       3      clock to this conversation -- we didn't do it in

       4      February, we didn't do it today -- because we

       5      understand, and didn't want to rush a discussion,

       6      and we wanted to give everybody ample time to really

       7      discuss in-depth.

       8             But I think we -- it's incumbent upon all of

       9      us to also then try to be as succinct and

      10      respectable of that time as possible.

      11             So, we have three more -- four more members,

      12      questions for this panel, but we will ask the

      13      student group --

      14             OFF-CAMERA SPEAKER:  I thought we were done.

      15             ASSEMBLYMAN CRESPO:  No, no.

      16             -- the student group that's here, we will ask

      17      them to come up next, so that -- I appreciate that

      18      you have been this patient, and with everybody in

      19      the room patient enough, with us.

      20             So Assemblywoman Simotas.

      21             ASSEMBLYWOMAN SIMOTAS:  Thank you.

      22             I think what your testimony has highlighted

      23      is that the reforms that were passed last year were

      24      not enough.

      25             Just training people on an insufficient,







                                                                   427
       1      ineffective standard is not going to change our

       2      system.

       3             So that is why your testimony today is so

       4      very important, to establish why we need to get rid

       5      of the "severe or pervasive" standard.

       6             Now, I'm going to get into my geeky lawyer

       7      self and ask a question that may be asked of myself

       8      and Senator Biaggi when we debate this bill.

       9             With respect to any precedent with respect to

      10      New York City law, now, clearly, the standard that

      11      the City applies has been around since 2009.

      12             Since then, has there been any case law that

      13      you would find did not track the correct standard?

      14             We hear that there's -- as you testified,

      15      there's a host of federal and state decisions that

      16      are applying the state law that can, you know, make

      17      your skin crawl.

      18             But are there any examples with respect to

      19      courts applying the City law?

      20             MIRIAM CLARK:  Well, Kaplan, I hate to keep

      21      talking about this quite disgusting case, but,

      22      that's what happened with a lower court in Kaplan.

      23             The lower court in Kaplan tried to apply the

      24      same State law standard to the City law claim, and

      25      got reversed.







                                                                   428
       1             ASSEMBLYWOMAN SIMOTAS:  On appeal.

       2             MIRIAM CLARK:  On appeal.

       3             ASSEMBLYWOMAN SIMOTAS:  So there's no other

       4      district court other than that one case?

       5             MIRIAM CLARK:  There's probably others.

       6             I mean, we know of the ones where the two

       7      were clearly delineated in that way, but there might

       8      be some bad City law cases out there, I'm sure there

       9      are.

      10             ASSEMBLYWOMAN SIMOTAS:  May I ask, Miriam, as

      11      we're going through the process, if you can provide

      12      the Senator and myself (indiscernible

      13      cross-talking) --

      14             MIRIAM CLARK:  Do you want some City cases

      15      under the City law where the court applied the wrong

      16      standard?

      17             ASSEMBLYWOMAN SIMOTAS:  No.

      18             MIRIAM CLARK:  No.

      19             Go ahead.

      20             ASSEMBLYWOMAN SIMOTAS:  What I want, if they

      21      misinterpreted the standard, or if -- you know, if

      22      it needs to be clarified.

      23             I just want to make sure what we're doing now

      24      is going to be right.

      25             LAURIE MORRISON:  It's going to stick.







                                                                   429
       1             ASSEMBLYWOMAN SIMOTAS:  Exactly.

       2             MIRIAM CLARK:  Sure.

       3             I mean, there -- especially in the early

       4      days, there were definitely decisions where the

       5      courts kept veering off towards "severe or

       6      pervasive," and had to be veered back in.

       7             So, sure, we can get you those.

       8             LAURIE MORRISON:  I mean -- and I'd like to

       9      say, that's why we call it the "practice" of law,

      10      right, because we're really never going to make it

      11      perfect.

      12             But I think, to your point, the City law is

      13      really -- we have a good law here.  We have it --

      14      you know, we can always make improvements, but we

      15      have some clear guidelines here that can help.

      16             ASSEMBLYWOMAN SIMOTAS:  And we can always

      17      amend our sponsors' memo, we can always do things to

      18      put things in the administrative record, that if

      19      there's ever a question, and there's actually a good

      20      law or a law clerk doing the research, they can look

      21      into the legislative history of the bill to

      22      understand what our intention is.

      23             MIRIAM CLARK:  Perfect.

      24             LAURIE MORRISON:  And the City law, by the

      25      way, I cite, and I'm sure all of our colleagues,







                                                                   430
       1      Miriam cites as well, the intention behind the City

       2      law we cite it all the time, to make it -- and thank

       3      you for that -- because it makes it clear "severe or

       4      pervasive" is not appropriate.

       5             MIRIAM CLARK:  Remedial --

       6             LAURIE MORRISON:  Any type of

       7      discrimination --

       8             MIRIAM CLARK:  -- right.

       9             Remedial purpose of the law.  Don't construe

      10      the same as.  Should be a floor and not a ceiling.

      11             All of that language.

      12             Some of we put it -- we put some of that into

      13      3817, but all of that language helps courts

      14      understand that they're not looking at, you know,

      15      another version of Title 7.

      16             LAURIE MORRISON:  Right.

      17             ASSEMBLYWOMAN SIMOTAS:  Thank you.

      18             LAURIE MORRISON:  Thank you.

      19             ASSEMBLYMAN CRESPO:  Assemblywoman Simon.

      20             ASSEMBLYWOMAN SIMON:  Technology, you know,

      21      you can't live with it, can't live without it.

      22             So, I'm going to ask you a question that

      23      I know you know the answer to.

      24             And, last night, when some of us were having

      25      a brief -- was it last night, or the night before,







                                                                   431
       1      I don't remember -- where there was a briefing on

       2      this bill.

       3             And I remember this case as being somewhere

       4      in the Midwest, and it was a school case, and I was

       5      wrong.

       6             It was actually Upstate New York, and it was

       7      a school bus driver, who pleaded guilty to raping a

       8      14-year-old.  He had applied her with gifts and

       9      alcohol, and raped her, and -- a 26-year-old man.

      10             And the Court did not give him any jail time.

      11             MIRIAM CLARK:  Yep.

      12             ASSEMBLYWOMAN SIMON:  And said, in explaining

      13      the sentence, the judge said that "he had no prior

      14      arrests, and that only one victim had to be

      15      involved."

      16             So, in other words, one rape is okay.

      17             And this notion of "severe and pervasive" is

      18      really about, it's okay to discriminate or to harass

      19      or to rape or to assault a couple of times, right.

      20             And, you know, sociologists, and people who

      21      do research, and also law professors do research.

      22             And I had asked about, you know, "how many

      23      pass is enough" kind of thing.

      24             And you were talking about the "noose"

      25      article, and I don't know if there are other







                                                                   432
       1      articles out there.

       2             But I'm curious, if you could address that

       3      issue on the record?

       4             MIRIAM CLARK:  Sure.

       5             So the "severe or pervasive" standard leads

       6      to discussion about what exactly is "pervasive."

       7             Right?

       8             So it says "or."

       9             So then if something only happened once, is

      10      it "severe"?

      11             So, again, it's a federal standard.

      12             And what I said on Tuesday night was, there's

      13      actually a split in the circuit.

      14             So the federal courts have the lower courts,

      15      which are the district courts, and then the circuit

      16      courts, and then the Supreme Court.

      17             There are nine circuit courts.

      18             There's is a split in the federal circuits

      19      about whether one "noose" is sufficiently severe to

      20      meet the standard.

      21             The 9th Circuit recently held that one noose

      22      is not severe.

      23             So there's actually -- as I said, I found a

      24      "Law Review" article that essentially says, you

      25      know, is one noose enough?







                                                                   433
       1             There's still some debate, although I think

       2      it's recently been resolved, about whether one use

       3      of the n-word is severe.

       4             Certainly, under the cases that I described

       5      at the last hearing, it was perfectly clear that

       6      having your -- one time your bra strap gets pulled,

       7      one time you get squeezed; one touching is

       8      absolutely not severe.

       9             For a while there was a split in the circuits

      10      about whether one rape was severe, although I think

      11      that may have come down in the employee's favor

      12      since then.

      13             So, hard to believe.

      14             ASSEMBLYWOMAN SIMON:  Clearly this guy.

      15             MIRIAM CLARK:  Right, right.

      16             Well, that was a criminal case.  Right?

      17             We're talking about the workplace.

      18             So -- right, the -- and so then you get

      19      equally idiotic results about, what's "pervasive"?

      20             Right?

      21             What does "pervasive" mean?

      22             It pervades the workplace.

      23             So that's, like, you know, Laurie's case.

      24             Well, if it happened 5 times in 10 years,

      25      that's once every 2 years, that's not really







                                                                   434
       1      pervasive, the courts have found.

       2             I think I have one of those in my testimony

       3      about -- on the "pervasive" piece of this idiocy.

       4      Right?

       5             So -- yeah, here you go.

       6             I was describing to you the case about the

       7      school teacher in Westchester.  Right?

       8             It cited a case from New York, "Seven

       9      racially-insensitive comments over three years,

      10      including one instance of using the n-word, were not

      11      pervasive."

      12             So, yeah, this is what happens with the

      13      "severe or pervasive" standard.

      14             And I want to say that there's a lot of

      15      federal case law, that when the courts feel like

      16      citing it, talks about, you're not supposed to take

      17      things in isolation.  You're supposed to, you know,

      18      look at the totality of the circumstances.

      19             And when a particular judge feels like doing

      20      an overall analysis, he or she will do one.

      21             But especially New York State court judges,

      22      when they have really high caseloads, they're not

      23      accustomed to writing long opinions.  What they tend

      24      to do is just, boom (snaps fingers), say, "We follow

      25      Title 7," and then apply their gut as to whether,







                                                                   435
       1      you know, one noose is enough, or whatever.

       2             So it was a very thoughtful and calculated

       3      decision on our part to specifically eliminate the

       4      "severe or pervasive" language in this legislation,

       5      and then to incorporate the New York City

       6      affirmative defense of petty slights and trivial

       7      inconvenience.

       8             LAURIE MORRISON:  I think it's important to

       9      add, as well, on top of that, the "severe or

      10      pervasive" analysis keeps changing.

      11             When it first started, it's like -- it's like

      12      trying to nail jello to a wall.

      13             When it first started, it was clear, fairly,

      14      that one use of the n-word was enough.  That's

      15      severe or pervasive.

      16             MIRIAM CLARK:  And it was.

      17             LAURIE MORRISON:  Now, you can use the n-word

      18      and the b-word a lot, "b" being either Black or

      19      bitch, whichever one it's applying to, and, you

      20      know, you have to actually count --

      21             MIRIAM CLARK:  How many times.

      22             LAURIE MORRISON:  -- yeah.

      23             So you're caught -- and I can't tell you how

      24      many times I've had to do this, and not -- when we

      25      talk about it right now, it feels frustrating to







                                                                   436
       1      have to explain it to a client.  It's demeaning.

       2             Okay?

       3             Well, you were called the n-word five times,

       4      and you were called the "bitch" word six times, and

       5      the "Black bitch" word seven times.

       6             So -- but there was a case where it was --

       7      you -- you're -- you're -- you're two less than

       8      another case.

       9             It is -- what are we sending to our workers?

      10             But also what the "severe or pervasive"

      11      problem is doing now, is we're having these numbers.

      12             Now, who in the world in the workplace, if

      13      they're hearing in n-word a lot, is going, okay,

      14      that's seven, that's eight, that's nine, I better

      15      write those down.

      16             I actually had some people ask me:

      17             Okay, well, you're able to describe --

      18      through the client in a deposition:

      19             You're able to describe exactly what

      20      happened; that it happened repeatedly during this

      21      period of time by this person.  And you were there

      22      and they were there, and you're able to describe all

      23      of that.

      24             But can you tell us the exact date and time

      25      that this occurred?







                                                                   437
       1             MIRIAM CLARK:  And we need to know that.

       2             LAURIE MORRISON:  Well, that must not be

       3      severe or pervasive, then, because you must be

       4      lying, because you have to prove the exact number of

       5      times that you heard the n-word or the b-word.

       6             MIRIAM CLARK:  Because if it was only once,

       7      it's not pervasive.

       8             LAURIE MORRISON:  Well, yeah.

       9             And if it was seven, but not ten.  Right?

      10             So that's -- so -- I mean, it -- it -- we're

      11      falling down a rabbit hole of -- of -- of

      12      ridiculousness, that "severe or pervasive" begs.

      13             So we need to get rid of this.  This is

      14      not -- yeah.

      15             This is reality of what's happening every day

      16      because of these analyses.

      17             That's why we have to get rid of them.

      18             SENATOR BIAGGI:  Thank you.

      19             I just also want to comment on that.

      20             Do you think that's also because the state

      21      courts are applying the federal standard which is

      22      the "and" versus the "or"?

      23             LAURIE MORRISON:  No, they're both -- they're

      24      both "or."

      25             MIRIAM CLARK:  They're both "or."







                                                                   438
       1             SENATOR BIAGGI:  I thought that the federal

       2      was the "and."

       3             LAURIE MORRISON:  No.

       4             MIRIAM CLARK:  No.

       5             LAURIE MORRISON:  They're both "severe or."

       6             SENATOR BIAGGI:  So where does the "and" come

       7      from?

       8             LAURIE MORRISON:  Well, it's because --

       9             MIRIAM CLARK:  Courts screw it up.

      10             LAURIE MORRISON:  -- exactly.

      11             MIRIAM CLARK:  People screw it up.

      12             It's "or."

      13             LAURIE MORRISON:   but I want to be clear,

      14      the cases that I'm talking about, where my client

      15      has to figure out how many times it's happened --

      16             Which is, who does that?

      17             SENATOR BIAGGI:  Crazy, crazy.

      18             LAURIE MORRISON:  -- these are federal court

      19      cases.

      20             MIRIAM CLARK:  But they're applying the state

      21      law.  Right.

      22             LAURIE MORRISON:  Yes, they're applying the

      23      state law, and they're applying it just like the

      24      Title 7.

      25             MIRIAM CLARK:  Right, right.







                                                                   439
       1             And state courts do the same thing, only less

       2      verbosely, usually.

       3             SENATOR BIAGGI:  That's -- that's crazy.

       4             LAURIE MORRISON:  And we're seeing this

       5      happen in depositions, and everything, where, you

       6      know, well, they have to prove severe or pervasive,

       7      so let me go ahead and make sure this victim can

       8      give you a number.

       9             And, it doesn't work.

      10             SENATOR BIAGGI:  So I just want to be, like,

      11      clear on the record:  So the state courts in New

      12      York are applying the wrong standard on occasion?

      13             MIRIAM CLARK:  No -- well, I have to correct

      14      that.

      15             I mean, I think -- I have seen cases where a

      16      judge mistakenly writes "severe and" instead of

      17      "severe or," not only in New York, but in federal

      18      cases as well.

      19             But everyone understands that the standard

      20      really is "or."

      21             And as we described, the "or" standard is

      22      problematic enough.

      23             LAURIE MORRISON:  And not for nothing,

      24      I think when there -- like, a lot of times when

      25      they're using "severe and pervasive," it's a







                                                                   440
       1      Freudian slip --

       2             MIRIAM CLARK:  Right.

       3             I mean, everybody --

       4             LAURIE MORRISON:  -- because they're

       5      basically applying a much higher standard that needs

       6      to happen --

       7             MIRIAM CLARK:  Everybody --

       8             LAURIE MORRISON:  -- which is "severe or

       9      pervasive."

      10             MIRIAM CLARK:  -- everybody understands that

      11      it's "or."

      12             Right, everyone does understand that.

      13             SENATOR BIAGGI:  Okay, thank you for

      14      clarifying that.

      15             ASSEMBLYMAN CRESPO:  (Indiscernible.)

      16             SENATOR BIAGGI:  Yes.

      17             Assemblymember Gottfried.

      18             ASSEMBLYMAN GOTTFRIED:  A couple of things.

      19             One, if it hasn't happened yet, I'm sure, at

      20      some point, some judge is going to say, you've got

      21      such a detailed explanation with dates and times,

      22      you must have made it up.

      23             LAURIE MORRISON:  Or you must have been

      24      preparing for litigation.

      25             ASSEMBLYMAN GOTTFRIED:  Yeah.







                                                                   441
       1             LAURIE MORRISON:  It's a catch-22.

       2             ASSEMBLYMAN GOTTFRIED:  Yeah.

       3             MIRIAM CLARK:  Right.

       4             LAURIE MORRISON:  You better name the dates;

       5      otherwise, we don't believe you.

       6             And if you do name the dates --

       7             MIRIAM CLARK:  You must be preparing for

       8      litigation.

       9             LAURIE MORRISON:  -- we don't believe you

      10      because you must have been trying to prepare for

      11      litigation.

      12             Right?

      13             MIRIAM CLARK:  Right.

      14             ASSEMBLYMAN GOTTFRIED:  Right.

      15             And the other thought is that, nobody would

      16      apply this standard to petty larceny.

      17             I mean, if you were accused of only two or

      18      three times grabbing a $20 bill from her purse while

      19      she was away from her desk, nobody would say, Oh,

      20      it's only two or three times.

      21             And if the thief said, Well, if she had

      22      complained, I would have given it back.

      23                [Laughter.]

      24             ASSEMBLYMAN GOTTFRIED:  Nobody would say, Oh,

      25      okay, case dismissed.







                                                                   442
       1             The main thing I wanted to say is, I just

       2      want to thank all of you, and I'm sure there are

       3      others who have contributed to this process, and,

       4      certainly, the working group is a key part of this.

       5             You've helped put together, really, an

       6      extraordinary package.

       7             And at least as important as putting it

       8      together, is what you've done to explain it to us in

       9      really great detail, legally, and in terms of the

      10      practicalities.

      11             And I think the work that all of you have

      12      been doing on this, I hope we are going to be able

      13      to take advantage of the new political alignment in

      14      the Legislature to make some really extraordinary

      15      changes in the law.

      16             And, if and when we are able to achieve that,

      17      you and your colleagues are really going to be the

      18      ones who made it happen.

      19             So, thank you.

      20             MIRIAM CLARK:  Thank you very much.

      21             LAURIE MORRISON:  Thank you.

      22             ANDREA JOHNSON:  Thank you.

      23             MIRIAM CLARK:  You can do a lot in the next,

      24      however, 13 days.

      25             LAURIE MORRISON:  And I just have to say







                                                                   443
       1      thank you, to Miriam, who -- and people who work

       2      with her, so much, to be able to help create this

       3      law, and the intersectionality scholars who have

       4      really contributed so much.

       5             You know --

       6             MIRIAM CLARK:  It was a group effort.

       7             LAURIE MORRISON:  -- well, yeah.

       8             MIRIAM CLARK:  But we do think that 3817 is

       9      one's best, most efficient shot at getting -- of

      10      getting this right.

      11             And we're really grateful to have the City

      12      law as a model.

      13             ASSEMBLYMAN CRESPO:  Are you done?

      14             SENATOR BIAGGI:  Yes.

      15             ASSEMBLYMAN CRESPO:  Oh, okay.

      16             SENATOR BIAGGI:  Assemblymember Quart.

      17             ASSEMBLYMAN QUART:  Thank you.

      18             And thank you for your presentation.

      19             I just wanted to pick up on something

      20      Ms. Morrison and Ms. Clark talked about, about the

      21      practice of law.

      22             And, especially, something stuck with me,

      23      Ms. Clark, about summary judgment, in your

      24      testimony, because, in so many areas of the law, in

      25      civil practice, the results are just the opposite.







                                                                   444
       1             The tribal issue of fact goes to the moving

       2      party more often than not, except in this area.

       3             And I suspect that has a lot to do with the

       4      exceedingly high and faulty standard, as well as the

       5      affirmative defense that lets employers walk away

       6      from their employee's conduct.

       7             But I wanted to explore with you, and -- if

       8      there are other areas that act as obstacles to

       9      parties bringing forth their complaints in a

      10      successful way through the court system?

      11             And I don't know the answer to this, but

      12      I would -- Article 16 is very broad, rules of

      13      discovery and disclosure.

      14             I don't practice in this area, but I wanted

      15      to know, from your perspective, are there any

      16      changes in civil practice, or best practices, that

      17      other states follow, that we could duplicate or

      18      replicate in civil practice, that may require

      19      statutory reform?

      20             We did so in criminal law this year.

      21             Are there any changes in this particular area

      22      that you see that would take away some of the

      23      obstacles to an aggrieved party getting justice in

      24      this area?

      25             MIRIAM CLARK:  What a great question.







                                                                   445
       1             LAURIE MORRISON:  Yeah, it is.

       2             MIRIAM CLARK:  You know, I think I'd like to

       3      get back to you on that.

       4             There are things that come to mind, but,

       5      because it's sort of a CPLR question, I think I want

       6      to think about it.

       7             ASSEMBLYMAN QUART:  Yeah.

       8             MIRIAM CLARK:  I can tell you that the

       9      mandatory mediation for employment-discrimination

      10      cases in the Southern District is a successful

      11      program, that I think I would encourage the State to

      12      implement.

      13             Also, in the Southern District, at least,

      14      there is a pro se office that helps pro se

      15      plaintiffs.

      16             There's not that kind of help for a pro se

      17      plaintiff in State Supreme Court, at least not in

      18      New York County.

      19             And I do think that that would be something

      20      else that would be beneficial.

      21             Finally, in my personal experience, many

      22      New York State court judges don't understand the

      23      law.

      24             They don't understand the election of

      25      remedies that we talked about;







                                                                   446
       1             They don't understand that the statute of

       2      limitations is tolled while you're at the state

       3      division;

       4             They don't -- it's a very complicated

       5      mechanism.

       6             And, you know, sometimes we've had to go up

       7      to the Appellate Division, just to have them clarify

       8      something basis that a lower court -- basic that a

       9      lower-court judge got wrong.

      10             So I think better training for trial-level

      11      judges about the substance of the New York State law

      12      and its procedural mechanism would be enormous.

      13             And then I'd like to get back to you, when

      14      I talk to --

      15             ASSEMBLYMAN QUART:  And that your answer --

      16      oh, I'm sorry.  Go ahead.

      17             LAURIE MORRISON:  And I'd actually also like

      18      to add, some type of enforcement with respect to

      19      acknowledging and -- and -- and -- and staying pure

      20      to the summary-judgment standard.

      21             MIRIAM CLARK:  Oh, yes.

      22             LAURIE MORRISON:  Because there are way, way

      23      too many cases, I think it was 65 percent, or

      24      something, of employment cases, nationally, don't

      25      quote me on that, but, a high, high majority of







                                                                   447
       1      summary judgment -- of employment cases,

       2      discrimination, harassment, and retaliation, are out

       3      on summary judgment.

       4             Now -- but there are very interesting issues

       5      with that.

       6             It also depends on the race, the

       7      intersectionality, what we're arguing, and,

       8      actually, even the decision-maker who's making the

       9      decision to dismiss the case.

      10             The race of that decision-maker affects the

      11      number, where, it could be 65 to 75 percent, but if

      12      the race of the decision-maker is a person of color,

      13      I think it goes down to about 35, 45 percent.

      14             MIRIAM CLARK:  So having a diverse judiciary

      15      is incredibly important.

      16             LAURIE MORRISON:  Very, very important.

      17             MIRIAM CLARK:  So we have to --

      18             ASSEMBLYMAN QUART:  Yeah, that actually, that

      19      comment, leads into my second question about other

      20      obstacles that may exist, and that's the court

      21      system.

      22             In other areas where we want to incentivize

      23      some sort of policy goal, either through legislation

      24      or OCA, we do certain things.

      25             We have specialized parts for medical







                                                                   448
       1      malpractice, or asbestos.  If you're 70 years old,

       2      you receive a trial preference.

       3             We do all sorts of things, whether through,

       4      I won't call -- we set forth our policy preferences

       5      in our court system because we want a more fair

       6      system towards some aggrieved party.

       7             It's my understanding we do not do that in

       8      this area.

       9             So my question is:  Are there obstacles we

      10      can remove, or things we can do, within the court

      11      system, within the -- that we can request of the

      12      chief judge or OCA, that will take away another

      13      obstacle towards someone who's likely been harassed,

      14      being able to set forth their proofs in a court of

      15      law?

      16             MIRIAM CLARK:  Can I take that back to Neil

      17      in New York and get back to you?

      18             ASSEMBLYMAN QUART:  Sure.

      19             MIRIAM CLARK:  I mean, I said the ones that

      20      sort of came to the top of my head, but I'm betting

      21      that there are more.

      22             ASSEMBLYMAN QUART:  Sure.

      23             LAURIE MORRISON:  Yeah, and there are a lot

      24      of -- this is a conversation that can be ongoing,

      25      and I think should be ongoing.







                                                                   449
       1             And thank you so much for the question.

       2             I have to also say, when judges are making

       3      these decisions, they could be well meaning, right,

       4      but employment discrimination, harassment, is --

       5      it's a very personal, visual thing.

       6             So when you're looking at a piece of paper

       7      and you're seeing a bunch of, you know, "Black" or,

       8      this, or - or -- or "gay," or whatever it is, it's

       9      very difficult to really see -- you're not seeing

      10      the person.

      11             So when I stand in front of someone and I'm

      12      talking -- I just did this the other day, where

      13      I was talking in front of the judges, and I said, My

      14      client, she's mocha-colored like me, and she's a

      15      Black woman.

      16             And I tell you -- and I told them

      17      specifically, I'm telling you that so you can look

      18      at the face of what this happened when I tell you

      19      what she was told.

      20             And you could see that that made such a

      21      difference.

      22             But when you're just looking at a piece of

      23      paper with some names, and you've got a thousand

      24      other cases to deal with, employment discrimination

      25      is, just, it's uncomfortable, it's a lot of work,







                                                                   450
       1      and -- and it's -- and it really lends itself to,

       2      sometimes, them wanting to get rid of it, even if

       3      they're good and well meaning.

       4             I think some way to maybe also get the

       5      victims in front of their faces while they're

       6      describing it, or while they're having to make these

       7      decisions, might also help.

       8             ASSEMBLYMAN QUART:  I think, to your point,

       9      in -- both in this area and criminal law, diversity

      10      on the bench --

      11             LAURIE MORRISON:  Oh, huge.

      12             ASSEMBLYMAN QUART:  -- is so critical.

      13             You've tried cases, you talked to jurors, you

      14      tell them, "use your own common sense, use your own

      15      experience."  That recommendation is not separate

      16      and distinct from a judge.

      17             And if there's not diversity, you hope they

      18      can sort of get out of themselves and see it through

      19      another person's lens.

      20             But if you have both diversity and excellence

      21      amongst your judges, then I think you're farther

      22      along in achieving that.

      23             LAURIE MORRISON:  And it's also diversity of

      24      thought and ideology as well.  Yeah.

      25             MIRIAM CLARK:  Another barrier, I just want







                                                                   451
       1      to say this is obvious, but a barrier, altogether,

       2      are mandatory arbitration clauses.

       3             And legislation that would ban -- that would

       4      bar the State from contracting with any employer who

       5      had a mandatory arbitration clause, we talked about

       6      this, that would elim -- you know, in practice,

       7      eliminate an enormous barrier.

       8             Many, many of my clients now are walking in

       9      with, you know, mandatory arbitration clauses they

      10      had no idea was buried in the handbook somewhere.

      11             ANDREA JOHNSON:  And I'd like to just add

      12      that, you know, so much of the harassment happening

      13      in the workplace, I mean, the rates are really

      14      severe in the low-wage workforce, and a lot of folks

      15      there will not be even going to court at any point.

      16             So thinking about what resources are

      17      available for them.

      18             And I mentioned the Be Heard Act before,

      19      which I think is a model that states can look at.

      20      It is a very lengthy bill, but it has all the things

      21      in it, comprehensive solutions, related to

      22      harassment.

      23             And there are -- part of the Be Heard is to

      24      provide funding to states to -- for independent,

      25      private, non-profit entities that can really work --







                                                                   452
       1      advocate for workers' rights.

       2             And, both, maybe that is through the court,

       3      but maybe not, other mechanisms like that.

       4             So looking at what funding is available, and

       5      what support can be given to non-profits in the

       6      communities, to represent workers, especially those

       7      that -- for -- of a wide variety of reasons might

       8      never access court system.

       9             ASSEMBLYMAN QUART:  And I only asked the

      10      questions because we need to pass Senator Biaggi and

      11      Assemblymember Simotas's bill.

      12             And -- but when we do that, and we cut a

      13      ribbon, we should not -- there is much more work to

      14      be done.

      15             MIRIAM CLARK:  There certainly is.

      16             We were looking at sort of the bedrock,

      17      because it felt like, without changing the heart of

      18      the substance of law, that things around the edges

      19      could never change.

      20             But, absolutely, I mean, the "attorney's

      21      fees" provision, by the way, will go a long way

      22      toward making cases practical for low-wage people,

      23      which now we only have, for some reason, in sex

      24      cases.

      25             ASSEMBLYMAN QUART:  Thank you.







                                                                   453
       1             ASSEMBLYMAN CRESPO:  Assemblywoman Niou.

       2             ASSEMBLYWOMAN NIOU:  Everybody asked so many

       3      questions, I am so sorry.

       4             But --

       5             MIRIAM CLARK:  It's fine.  We like to talk

       6      about our bill.

       7             LAURIE MORRISON:  We actually love this

       8      stuff.

       9             ASSEMBLYWOMAN NIOU:  I really -- no, I really

      10      appreciate you guys, and I really appreciate the --

      11      the issues on intersectionality that you bring up.

      12             I guess, you know, with somebody who, you

      13      know, has a lot that's happening here, all of this,

      14      but I just -- I wanted to ask, especially about the

      15      transgender community, and the things that we can do

      16      to protect them.

      17             So just this year, the legislative -- this

      18      legislative session, we are -- we passed GENDA,

      19      which is the first time, after 16 years of

      20      Assemblymember Gottfried reintroducing the bill, and

      21      reintroducing the bill, and reintroducing the bill,

      22      that it has passed in our Legislature.

      23             And -- and I just -- I feel like, you know,

      24      in our transgender community, not only are we -- did

      25      we not even have them as a protected class, but,







                                                                   454
       1      instead, we hyper-policed them.  There's like a ton

       2      of stuff that is wrong with how we treat folks,

       3      including, you know, just people walking around,

       4      transgendered, get stopped by the police, and get

       5      picked up, and get arrested for prostitution, just

       6      for walking.  Just for walking.

       7             And so -- I mean, I just -- I feel like these

       8      are different things that -- that -- you know, that

       9      are so pervasive and systemic within our laws,

      10      within our system.

      11             Do you guys have any suggestions on how we

      12      can fix our system, systemically, within how -- you

      13      know, with what we've gotten now, knowing that there

      14      is a system that is so incredibly discriminatory

      15      towards our community, that -- is there something

      16      that we can do?

      17             MIRIAM CLARK:  That's a hard one.

      18             I don't know that I've thought about it

      19      specifically with regard to the transgender

      20      community, but I have thought about this over the

      21      years with regard to other forms of people in

      22      protected classes, that our society is really

      23      atomized, so that I know that in the, you know,

      24      White working-class neighborhood where I grew up,

      25      nobody knew a person of color.







                                                                   455
       1             And I think that there are still

       2      neighborhoods in New York that are like that.

       3             And, so, housing in New York is terribly

       4      segregated, just like it was in my childhood.

       5             So, people go to work, and that might be the

       6      only place where they have to interact with somebody

       7      who looks different from them.

       8             And so, the workplace, more than the

       9      neighborhood school, and more than the neighborhood

      10      itself, the workplace becomes the sort of laboratory

      11      where people learn how to deal with each other.

      12             And so to the extent that we can have

      13      workplace laws that encourage not only

      14      non-discrimination, but also respect, then I think

      15      we are educating people to go back into their lives

      16      and deal with their children, and deal with people

      17      that they see on the street, in a somewhat different

      18      way.

      19             So, again, I don't know how much that applies

      20      to the transgender world, but I kind of think it

      21      does.

      22             For somebody who doesn't know any transgender

      23      people personally, their first encounter must be at

      24      work, so let it be a respectful, regulated,

      25      predictable encounter.







                                                                   456
       1             LAURIE MORRISON:  I actually have a trans --

       2      a client -- a trans client currently, and she's --

       3      God, she's so brave and so fantastic.

       4             And what she's going through, just having to

       5      deal with this case, all of the abuse.

       6             I mean, people don't realize, they think, oh,

       7      they're just going to -- you know, you're just going

       8      to bring a case because they're trying to make

       9      money.

      10             No, no, no, no, no, no one brings these cases

      11      just to make money.  This is so heartbreaking and so

      12      terrible to have to tell what's happened to you over

      13      and over and over again.  It's just awful.

      14             So I would say that the first -- just like

      15      Miriam was saying, the world is full of

      16      discrimination and harassment.  It has always been.

      17             I -- I -- unfortunately, I think it -- I hope

      18      it won't always will be, but, it seems that way.

      19             So we need to enact laws that say, when

      20      you're in the workplace, behave.

      21             Not, you know, oh, this isn't sufficiently

      22      severe or pervasive, or, you didn't complain to the

      23      right person, even though it was the right person,

      24      you complained to HR.  But somehow, now, when you

      25      bring a lawsuit, well, that's not good enough.







                                                                   457
       1             Stop giving all these wonderful hiding

       2      places, and let's protect these people.

       3             I'd say the second thing to do for trans

       4      people is, when they complain, believe them.  You

       5      know, just like if -- just like if a woman

       6      complains, and she's being sexually harassed, and

       7      raped, believe her.  And when a man complains,

       8      believe him.

       9             It's just, you know -- and when a Black man

      10      or -- I mean, all of this, let's have respect for

      11      each other in the workplace.

      12             And I think one of the best ways to do that

      13      is allowing our laws to inform our workplace and

      14      say, no, no, severe or pervasive, uh-uh, because

      15      that's saying, you don't have to respect them, you

      16      can get away with it.

      17             Make the law respect these people.

      18             Make the law say, I might not understand what

      19      you're going through, but it's not my right to make

      20      you feel like less than human because of what and

      21      who you are.

      22             I think that's the first way to do it.

      23             ANDREA JOHNSON:  And, also, we need to make

      24      sure that they're at the table in these policy

      25      solutions.







                                                                   458
       1             And to that point, actually, I'm eager to

       2      hear from Girls for Gender Equity, which I know is

       3      doing a lot of work with transgender and non-binary

       4      students.

       5             And so much of that work needs to happen in

       6      schools.  You know, that's where a lot of this

       7      systemic work can take place, and making sure that

       8      our schools are inclusive and a safe place for

       9      transgender students, and that students are learning

      10      behaviors that are -- you know, good behaviors, that

      11      can go into the workplace, about dignity and

      12      respect.

      13             And I think that's incredibly important.

      14             ASSEMBLYWOMAN NIOU:  Yeah, I just wanted to

      15      again, you know, addressing the intersectionality of

      16      it, you know, we see that a transgender person, even

      17      if they're White, or if they are a person of color,

      18      there's differences in how people are treated.

      19             LAURIE MORRISON:  Oh, absolutely.

      20             MIRIAM CLARK:  Absolutely.

      21             ASSEMBLYWOMAN NIOU:  If there's something

      22      that happens to somebody who is a transgender

      23      person, who -- it's -- they -- they -- there's

      24      mistreatment in getting health care.  There's

      25      mistreatment in being able to go to school safely.







                                                                   459
       1      There's mistreatment in just walking on the street.

       2      There's mistreatment in our government system.

       3             And, so, with the systemic -- with the

       4      systemic discrimination that we just now, this year,

       5      finally passed GENDA, and finally classified

       6      trans folks as a protected-class, but our laws have

       7      not caught up.

       8             And so when we're talking about the

       9      workplace, when we're talking about, you know,

      10      schools, when we're talking about our hospitals,

      11      because the law has not caught up, you know, there's

      12      going to be loopholes, and -- and -- and cracks that

      13      people can fall through.

      14             So how do we make up for that within the laws

      15      that we are writing now?

      16             LAURIE MORRISON:  Other than what we've

      17      already described?

      18             ASSEMBLYWOMAN NIOU:  Yeah.

      19             LAURIE MORRISON:  I think we should -- if we

      20      can get back to you on that as well?

      21             ASSEMBLYWOMAN NIOU:  That would be great,

      22      that would great.

      23             MIRIAM CLARK:  Yeah, I mean, we've drafted

      24      this to, obviously, treat transgender people as a

      25      protected class, like any other, but, special







                                                                   460
       1      protection that might be needed because they're so

       2      newly protected, and because what they go through --

       3             ASSEMBLYWOMAN NIOU:  Right, that -- that's

       4      what --

       5             MIRIAM CLARK:  -- is so extreme --

       6             ASSEMBLYWOMAN NIOU:  -- exactly the wording.

       7             Sorry.

       8             MIRIAM CLARK:  -- right.

       9             No, that's fine.

      10             So -- yeah, so, that, and the question about

      11      state court procedure, we'll get back to you on.

      12             ASSEMBLYWOMAN NIOU:  Thank you.

      13             MIRIAM CLARK:  We need to circle with our

      14      members, I think.

      15             LAURIE MORRISON:  And I think it's really

      16      important also to listen to the trans community.

      17             I mean, a lot of times we spend so much time

      18      talking, and we have well meaning, we want to make

      19      things right.  But maybe we need to spend more time

      20      listening, and maybe we can get the answers that we

      21      need as well.

      22             ANDREA JOHNSON:  Yeah, and understand the

      23      unique challenges faced in the workplace, and the

      24      fact that there is, you know, likely, a much higher

      25      fear of reporting, and what that means in terms of







                                                                   461
       1      accessing some of these solutions that we are

       2      crafting.

       3             Like, as I was kind of saying before, will

       4      they even get to the point of going to court and

       5      being able to use some of these standards?

       6             Obviously, the standards impact the workplace

       7      outside of the court, and everything.

       8             But, just kind of recognizing the challenges,

       9      in terms of fear of reporting and retaliation, and

      10      how severe those are, and what that means in terms

      11      of (indiscernible cross-talking) --

      12             ASSEMBLYWOMAN NIOU:  I mean, if you can be

      13      deemed a criminal, just to walk down the street,

      14      then, you know, people are going to, of course,

      15      wonder.

      16             But, anyways.

      17             LAURIE MORRISON:  Can I just add one thing,

      18      that I don't know if we've actually mentioned, and

      19      I'll be quick?

      20             When we're talking about costs to business,

      21      and what we're going to do with trans and any other

      22      group, it seems to me that, when there have been

      23      people who have been harassed in the workplace, and

      24      they complained, and the employer rectified it,

      25      there were no lawsuits.







                                                                   462
       1             MIRIAM CLARK:  Right.

       2             LAURIE MORRISON:  Okay?

       3             MIRIAM CLARK:  The employer can always

       4      rectify the problem.  They very seldom do.

       5             Because of Faragher-Ellerth, the complaint

       6      mechanism in the workplace is set up to just defend

       7      the employer.

       8             So it's really rare for the internal

       9      complaint to lead to getting any kind of redress,

      10      especially getting the person fired.

      11             But if their complaint mechanisms worked,

      12      there would be no lawsuits.

      13             LAURIE MORRISON:  Right.

      14             So I think that's back to the question, also,

      15      when you speak to the business community and they

      16      say, Well, this is going -- you know, this is really

      17      going to make us pay a lot of money on this, well,

      18      let them know, if you behave properly in the

      19      workplace, and you don't allow this to occur, then

      20      you're not going to have a cost at all.

      21             So don't change the law to make it easier to

      22      harass; stop the harassment, if you really want to

      23      save money.

      24             ASSEMBLYMAN CRESPO:  Thank you.

      25             LAURIE MORRISON:  Seems simple.







                                                                   463
       1             ASSEMBLYMAN CRESPO:  Thank you very much.

       2             LAURIE MORRISON:  Thank you.

       3             MIRIAM CLARK:  Thank you.

       4             ANDREA JOHNSON:  Thank you.

       5             ASSEMBLYMAN CRESPO:  And now we have Ashley,

       6      Kylynn, Neillah, Rose, Zoraida, Stacey, Marie, from

       7      Girls for Gender Equity.

       8             I hope I have the names right.

       9             NEILLAH PETIT FRERE:  Ready?

      10             ASSEMBLYMAN CRESPO:  Yep, you can begin.

      11             NEILLAH PETIT FRERE:  Good afternoon,

      12      everyone.

      13             My name is Neilla Petit Frere, and I am

      14      16 years old.  I am a junior at the Brooklyn School

      15      for Music and Theater in Brooklyn, where I also

      16      live.

      17             I am a cisgender Black girl, and I am

      18      passionate about speaking out and having my voice

      19      heard, and taking steps to empower our future.

      20             I am a member of the Young Woman's Advisory

      21      Council at Girls for Gender Equity, who I am also

      22      here representing today.

      23             In Girls for Gender Equity, young people are

      24      engaged in the work of enacting institutional

      25      change, and we work in the foreign policy, develop







                                                                   464
       1      as racial and gender experts, and also receive

       2      social and mental-health support.

       3             I would also like to thank everyone who came

       4      here today to support and hear our testimony against

       5      sexual harassment in young people's workplace.

       6             I will be speaking on sexual harassment

       7      occurring in school.

       8             In my school, school safety agents sometimes

       9      make comments on the bodies of female students, and

      10      make attempts to flirt with students as well.

      11             If a girl is walking by, school safety agents

      12      will look at her in a very inappropriate and sexual

      13      way.

      14             I have witnessed moments where students in my

      15      school were harassed, and that led them to feeling

      16      uncomfortable and unsafe.

      17             When I feel unsafe in my school, I tend to

      18      focus less on my work, and it creates an environment

      19      where I'm taught that what I'm wearing is more

      20      important than what I'm learning.

      21             Schools are microcosms of society.

      22             The same way that adults experience sexual

      23      harassment at work are the same ways that young

      24      people are experiencing sexual harassment in schools

      25      by people who are in power.







                                                                   465
       1             These experiences leave me to question what

       2      I wear, fear of being a target, and forces me to

       3      believe that what happens to me -- what can happen

       4      to me is my fault, because I should be able to

       5      control that man's reaction to what I'm wearing.

       6             Stories like these are -- so many more -- are

       7      so many reasons why I'm here today, calling for the

       8      New York State Legislature to support the state

       9      expansions of Title 9, and to pass the Safer

      10      New York Act.

      11             Title 9 and Title 9 coordinators are

      12      important to me because, in the workplace of young

      13      people, we are vulnerable without them, and they are

      14      supposed to keep us safe.

      15             There are police officers in my school who

      16      are abusing their power and are subjecting students

      17      to sexual harassment and violence.

      18             In particular, your support of full repeal of

      19      Civil Rights Law 50-a is important, because

      20      (indiscernible) students (indiscernible) should be

      21      made available to survivors.

      22             New Yorkers deserve to know who New York

      23      City, and police departments across the state, are

      24      employing when they come into our schools and harm

      25      us.







                                                                   466
       1             This should be a priority for New York, and

       2      I hope you take this testimony into consideration to

       3      make your decisions.

       4             Thank you.

       5             ROSE ANTOINE:  My name is Rose Antoine.

       6      I'm 16, and I'm from Brooklyn.

       7             I'm currently a junior in (indiscernible)

       8      Brooklyn High School for Music and Theater.

       9             I identify as a first-generation

      10      Haitian-American Black girl.

      11             I'm also a participate -- a participant in

      12      Sisters in Strength at Girls for Gender Equity, who

      13      I'm also representing today.

      14             Sisters in Strength is a restorative justice

      15      group for girls of color, to shed light on issues

      16      that are important to them, and support each other.

      17             Thank you for taking the time to listen to my

      18      testimony today, and I hope this start a

      19      conversation which lead to change being made.

      20             Today I'm here to talk about police

      21      brutality, and the excessive force police use in our

      22      communities to harm those around me and people

      23      I care about.

      24             I feel our police brutality relates to

      25      everyone.







                                                                   467
       1             Over this past year, there has been several

       2      incidents where police used excessive force on

       3      innocent people for various reasons that we're yet

       4      determined why.

       5             Once -- once, when me and my brother was

       6      driving, ran a red light by accident, and we were

       7      stopped and pulled over.

       8             The cop axed -- ask us if we knew what

       9      happened?

      10             My brother said, and he acknowledged, that he

      11      ran a red light.

      12             The cop looked at us in a very intimidating

      13      way, and we felt very threatened.

      14             The police officer eventually let us go

      15      because my brother have never been stopped or

      16      receive a ticket.

      17             Afterwards, a White woman walked up to us --

      18      a White woman walked up to us and let us know that

      19      she was -- she has been watching, and would have

      20      been a witness for us if anything would -- went

      21      down, happened, or escalate.

      22             I -- I should not feel unsafe and helpless

      23      when encounter a police officer.

      24             This situation showed me how unjust the

      25      system is, and how skewed police officers' views can







                                                                   468
       1      be on people of color.

       2             Many officers, when they have -- they use

       3      brutal force, sexual harass, or sexual assault

       4      community members, are -- who are involved of --

       5      in the death of someone, are never held

       6      incountable (sic), or walk away from -- with no

       7      consequences.

       8             Did you know that 43 percent of police

       9      officers agree with this sentiment?

      10             Always following the rules is not compatible

      11      with the need to get their job done.

      12             Those 43 percent of police officers are in

      13      the streets every day, and not afraid to use

      14      excessive force on innocent people, that just to say

      15      that their job is done.

      16             Did you also know that people who are

      17      African-American Blacks are twice as likely to be

      18      killed by officer while being unarmed, in comparison

      19      to their White counterparts?

      20             These statistics tell me, when interacting

      21      with a police officer as a Black girl, I should be

      22      afraid.

      23             We need to advocate and create a safe space

      24      for everyone, and this starts with the way the NYPD

      25      treats our community; being in concert for this







                                                                   469
       1      action, and create a transparency between the NYPD

       2      and the community it serve.

       3             My story is not unique.  There are so many

       4      young people who looks like me, from communities

       5      like me, who are in need of greater police

       6      accountabilities.

       7             This is why I am here today testifying.

       8             Your support of the Safer New York City Act

       9      and, in particular, a full repeal of Civil Rights

      10      Law 50-a, is important, because survivors knowing

      11      the background of police officers will help us to

      12      know their track records and keep us safe.

      13             When the community is aware of what police

      14      officers have done, we can build a stronger case for

      15      accountabilities, and we can become a community that

      16      prevents police violence instead of being a

      17      community that strives on harm.

      18             Please take my testimony into consideration

      19      when making a decision.

      20             Thank you for the opportunity to speak today.

      21             MARIE ST. FORT:  Good afternoon, everyone.

      22             My name is Marie St. Fort.  My pronoun is

      23      she/her/hers, and I'm a high school student.

      24             I'm in a program called Sisters in Strength

      25      at Girls for Gender Equity.







                                                                   470
       1             In our program, we learn about power,

       2      privilege, oppression, and it's impact on

       3      intimate-partners' sexual gender-based violence.

       4             We also engage in healing practices, healing

       5      justice work, build community organizing, and engage

       6      in organizing work.

       7             Before I start, I just want to say thank you

       8      to the -- thank you to the Assemblymembers and

       9      Senators for being present, supporting the cause,

      10      and amplifying the message.

      11             I would also like to state that I will not

      12      only be speaking on the topic of sexual harassment,

      13      but also police brutality.

      14             Sexual harassment, it can be found anywhere,

      15      any place, at any time; places like schools, homes,

      16      industry, and at work, in the morning, afternoon,

      17      and night.

      18             It's something most of us have experienced.

      19      It could be anything, from someone cat-calling you

      20      on the street, or touching you in ways you don't

      21      feel comfortable with.

      22             Most people who are survivors of sexual

      23      harassment never tell anyone, and it's usually at

      24      the hand of those -- of someone they know.

      25             Survivors sometimes ask themselves questions,







                                                                   471
       1      like:  Will they believe me?  They probably think

       2      I'm lying.  Or will they think I'm a snitch?  Or

       3      just be embarrassed.

       4             Sexual harassment has a huge impact on

       5      people.

       6             I'm pretty sure most of all in here has been

       7      in situations -- in a situation where we were not

       8      comfortable; not being comfortable in your own skin,

       9      especially somewhere you go to every day, or

      10      somewhere you have no choice but to go there.

      11             No one likes the feeling of being

      12      uncomfortable.

      13             I know we can't put an end to sexual

      14      harassment, and that anyone is capable of sexual

      15      harassment.  They might not know what they're doing

      16      is sexual harassment, but everyone is capable of it.

      17             Like, how these two police officers harassed

      18      this girl, and they thought she was lying because --

      19      people thought she was lying because they didn't

      20      believe two officers would do such a thing.

      21             It's crazy because, when we do that, we just

      22      hurt the victim more, and forces them to shut down.

      23             It takes a lot for someone to open up on

      24      something like sexual harassment.  It's not

      25      something we want.  It's a disgusting thing that







                                                                   472
       1      happens, and we can't control it most time.

       2             Why not help prevent it?

       3             Just like how we can't put an end to police

       4      brutality, it's crazy (indiscernible) on how we got

       5      to run, and hide from those who's supposed to be

       6      keeping us safe and protected.

       7             Some people get blindsided by the fact that

       8      they are police officers, and that they are just

       9      looking out for us and making sure that we're safe;

      10      but yet they're the ones who are quick to kills us,

      11      beat us to death, choke us to death, and shoot on

      12      us.

      13             And when you ask them, why? it's because they

      14      felt threatened -- threatened by, what? -- or

      15      self-defense.

      16             But here's the crazy part:  They do not get

      17      consequences.  The most they will get is probably a

      18      paid suspension from work.  You know, you get to

      19      stay home after killing an innocent soul, and

      20      getting paid for it.

      21             Now please explain to me, how will they learn

      22      from their so-called "mistakes" when there's no type

      23      of consequences?

      24             They just keep doing it over and over again.

      25             Nothing is going to change unless we treat







                                                                   473
       1      them how they treat criminals: prison time.

       2             Stop justifying the things these police

       3      officers be doing, and start punishing them for what

       4      they be doing, or else they are going to keep doing

       5      it.

       6             Let's start thinking about ways to prevent

       7      sexual harassment and ways to end police brutality.

       8             To help prevent sexual harassment:

       9             We could start by teaching young men ways to

      10      properly approach a lady;

      11             Help our young people to respect each other;

      12             Don't do things to others you wouldn't want

      13      to be done to you;

      14             And, finally, adults, to please listen.  When

      15      someone comes to you and tell you that they have

      16      been sexually harassed from workplaces, school,

      17      home... anywhere, take it seriously.

      18             And to help put an end to police brutality,

      19      we need to start taking actions.  Let them see what

      20      they're doing will not go by like that, and that

      21      there's no consequences -- and that there's

      22      consequences to everyone's actions, and that there's

      23      no free pass, and we're not favoring nothing.

      24             Thank you again to everyone for attending

      25      this hearing.







                                                                   474
       1             STACEY KING:  Good afternoon.

       2             My name is Stacey Ann (ph.).  My pronouns are

       3      she, hers, and hers.

       4             I'm a senior in high school, and I'm part

       5      of -- I'm a part of Girls for Gender Equity and

       6      Sisters in Strength program, or "SIS."

       7             SIS helps young women of color become more

       8      aware of the social injustice that goes on in our

       9      schools, and -- high schools, and community.

      10             We primarily focus on healing, and how to aid

      11      people who have experienced sexual violence,

      12      gender-based violence.

      13             I would like to thank everyone for hearing me

      14      out today, and I hope everyone is well.

      15             I attend a school that has a formal

      16      dress-code policy.  Understand that we're required

      17      to where a uniform; however, the policy does not

      18      always seem logical.

      19             The ways that they choose to enforce them do

      20      not make for a positive school environment.

      21             In my junior year, I had experience with --

      22      I had experience, where I was wearing a skirt that

      23      was above my knee, and my principal and my teacher

      24      called me out about it in public.

      25             This made me feel self-conscious about my







                                                                   475
       1      body, and enraged.

       2             I don't think the way I dress has any impact

       3      on how I learn.

       4             I recognize that this was not as severe as an

       5      experience as many of my friends and fellow

       6      classmates.  They have been sent home because of

       7      their dresses and clothing.

       8             Many of my friends live an hour or so away

       9      from school.  This travel time takes away from their

      10      learning and time in class.

      11             Additionally, we receive robo calls at 6 a.m.

      12      and 7 p.m. every day about the uniform.  They are

      13      pre-recorded messages that tells us what to wear, in

      14      advance of coming to school.

      15             Our uniform policy is gender-biased and

      16      culturally insensitive, so this message that we

      17      receive daily is offensive, and is how we are

      18      beginning and ending our day.

      19             The voice recording targets

      20      females-identified (sic) students in some cultural

      21      or -- and/or religious dress, because it says for us

      22      not to wear low-cut shirts, see-through clothing,

      23      short skirts, spaghetti straps, leggings,

      24      flip-flops, no headband, hair covering, do-rags, or

      25      headwear.







                                                                   476
       1             This makes me feel like I am a distraction,

       2      and that I am responsible for my classmate learning

       3      or how they learn.

       4             Schools frequently have gender-biased dress

       5      codes, and these dress codes infer that young women

       6      are responsible for their own experience of sexual

       7      assault because of what they are wearing.

       8             This promotes rape culture.

       9             This should not be the case in any situation,

      10      because we are responsible for our own action when

      11      rules are enforced, and mostly targets women of

      12      color.

      13             New York State should increase the number of

      14      Title (indiscernible) coordinators in schools, and

      15      expand Title 9 protection.

      16             Title 9 coordinators, coupled with

      17      comprehensive sex education, would allow everyone to

      18      feel safer and supported in schools.

      19             Everyone deserve basic human rights, and

      20      I would like for everyone to be aware of Title 9,

      21      and, most importantly, be comfortable and safe

      22      whatever environment they are in.

      23             I believe I should feel and truly be safe in

      24      school.

      25             Safety looks to me -- safety to me looks like







                                                                   477
       1      coming to school and not feeling targeted or being

       2      called out on how I dress, feel guilty or ashamed of

       3      my body, and, more importantly, to be supported

       4      mentally and emotionally to be the best version of

       5      myself.

       6             Thank you for the opportunity for testifying

       7      today.

       8             ASHLEY TURNER:  Thank you.

       9             I don't know if this one is on.

      10             It is on?  Okay.

      11             Thank you.

      12             Good evening, at this point,

      13      Chairperson (indiscernible), Biaggi, thank you

      14      for -- Chairperson Crespo, Chairperson Walker, and

      15      other members who have stayed this late in the

      16      evening.

      17             My name is Ashley Sawyer.  I'm an attorney,

      18      and I'm the director of policy and government

      19      relations at Girls for Gender Equity.

      20             Girls for Gender Equity obviously has a very

      21      unique position in this conversation.

      22             We have been around for close to 20 years,

      23      but we're most known because we are the

      24      institutional home of the #MeToo movement.

      25             The very movement that set the stage for this







                                                                   478
       1      hearing today and the conversation that we're having

       2      was founded by a Black woman, Tarana Burke, who was

       3      senior director at GGE when #MeToo went viral.

       4             And the young people you just heard from are

       5      all members of Sisters in Strength, which is the

       6      only organization in the entire United States that

       7      is the #MeToo movement youth organization.

       8             And I am grateful for you all taking the time

       9      to hear from young people who identify as survivors,

      10      and allies of sexual-assault survivors, and the

      11      issues that are coming up for them.

      12             The broader framing is, young people want to

      13      see changes happening in their schools and in their

      14      communities.

      15             And we're grateful for the sexual-harassment

      16      working group for opening up this conversation about

      17      sexual harassment, but we can't have a conversation

      18      about sexual harassment or sexual assault in the

      19      workplace and ignore the fact that, for many people,

      20      millions of people, who have to attend school, that

      21      is their workplace.

      22             Every single day, by law, they're mandated to

      23      go to a place where they may experience sexual

      24      assault or sexual harassment.

      25             We know that it's not unique to New York







                                                                   479
       1      City.

       2             We know that, in Binghamton, New York, we

       3      just learned of four girls of color, Black and

       4      Latinx girls, who were forced to strip down into

       5      their underwear in front of a principal and a nurse

       6      because they were giggling too much.

       7             That is sexual harassment.

       8             We understand that, for young people, they're

       9      not afforded the protections that adults would have

      10      in the workplace.  And even as you heard today,

      11      adults are not getting the support and protections

      12      that they need.

      13             So you can only imagine what it means to be a

      14      student.

      15             We also are very grateful for you,

      16      particularly, Assemblymember Walker, for naming

      17      earlier that the #MeToo movement was founded

      18      specifically to name the ways that Black girls and

      19      girls of color were impacted by sexual violence.

      20             And we are centering cis and trans girls and

      21      gender not-conforming (sic) youth and non-binary

      22      youth because they're so often left out of the

      23      conversation around sexual violence.

      24             We also want to name the fact that sexual

      25      violence happens at the hands of police at alarming







                                                                   480
       1      rates, which my colleague Kylynn will testify to,

       2      about the alarming rates of police sexual assault

       3      and misconduct, which you learned about.

       4             And I want to name, that, earlier this year,

       5      four -- there was a complaint filed on behalf of

       6      four girls in New York; two who raped in their

       7      schools, and, two who were sexually harassed, one

       8      who was subjected to trans-phobic harassment in

       9      particular.

      10             And this is not unique.

      11             Young people are experiencing sexual

      12      harassment at alarming rates across this

      13      state (sic), including in New York.

      14             Two years ago, three years ago, we did a

      15      report called "The Schools Girls Deserve," and it

      16      found that one in three students experience some

      17      form of sexual harassment in school.

      18             So, if we're going to take the work -- take

      19      the action to address sexual assault and sexual

      20      harassment, we have to begin with schools.

      21             We have to understand that, if we don't teach

      22      comprehensive, quality sex ed with a focus on

      23      consent education, the same people who are doing

      24      harmful acts, committing acts of sexual harassment,

      25      in their high schools and in their middle schools







                                                                   481
       1      will go on to do it in the workplace.

       2             And so while the package of bills in front of

       3      you is mostly focused on changing standards that

       4      affect adults, we could not let this opportunity go

       5      by without acknowledging that the people who -- some

       6      of the people who are most marginalized and most

       7      vulnerable to sexual violence are not getting the

       8      support that they need.

       9             And, the prevention that needs to happen must

      10      happen in the environments that young people are in.

      11             Schools are the places where we can do some

      12      of the most radical, powerful shift --

      13      culture-shifting work.

      14             And so we recognize that, in addition to what

      15      we have asked for on the local level in New York

      16      City, our Title 9 coordinators, New York City has

      17      1.1 million students, 1 adult, 1 adult who's

      18      responsible for investigating claims of sexual

      19      assault or harassment in the entire school district.

      20             And so we've been pushing a budget ask that

      21      we will soon -- I'm hope -- we'll hopefully win, to

      22      see if we can get at least seven Title 9

      23      coordinators to respond to and prevent school-based

      24      sexual assault.

      25             But on the state level, we know that there's







                                                                   482
       1      a lot of work to do, and we hope to partner with you

       2      all, and particularly next session, to think

       3      specifically about:  How are we addressing the issue

       4      of sexual assault and harassment in schools; and how

       5      can we address this issue as it particularly affects

       6      youth of color.

       7             And, again, I appreciate you,

       8      Assemblymember Walker, for naming the ways it

       9      impacts people who are incarcerated.

      10             The national data shows that 90 percent of

      11      the young people who are put into girls' prisons

      12      have experienced some form of sexual harassment or

      13      assault. 90 percent.

      14             There's no other institution where you're

      15      going to see such a high concentration.

      16             And so as you all look to this package of

      17      bills, we are grateful for the time and energy that

      18      you've spent with this existing package, and just

      19      being here tonight, recognizing the hour.

      20             But also looking to you to please not ignore

      21      the ways in which young people, cis and trans girls

      22      and non-binary youth, particularly youth of color,

      23      are impacted by sexual violence.

      24             And we are deeply grateful for your time and

      25      your energy, your commitment, to this issue.







                                                                   483
       1             Thank you.

       2             KYLYNN GRIER:  Good evening.

       3             Thank you all for still being here.

       4             My name is Kylynn Grier, and I'm the policy

       5      manager at Girls for Gender Equity.

       6             Girls for Gender Equity works to -- is an

       7      organization challenging the structural forces that

       8      work to obstruct the freedom, full expression, and

       9      rights of girls, transgender, and gender non-forming

      10      young people.

      11             We work daily -- sorry.

      12             We work daily with young women and TGNC youth

      13      of color who are policed at every juncture of their

      14      lives; on the way to school by NYPD officers, in

      15      school by NYPD school safety agents, and while

      16      accessing city services.

      17             Young women and TGNC young people are

      18      criminalized for normal adolescent behavior,

      19      oftentimes, hyper-sexualized due to

      20      historically-located racialized and gender-based

      21      stereotypes.  And their bodies are regularly policed

      22      because of their race, ethnicity, sexual

      23      orientation, gender identity, and/or gender

      24      expression.

      25             Three shocking revelations of police







                                                                   484
       1      misconduct have served as a tipping point for policy

       2      change that organizations have been advancing for

       3      years.

       4             Earlier this year, BuzzFeed News exposed that

       5      hundreds of officers were allowed to keep their jobs

       6      after committing egregious, fireable offenses.

       7      These offenses included lying under oath to grand

       8      juries and district attorneys, lying on official

       9      reports, physically attacking innocent people,

      10      engaging in excessive force, and committing sexual

      11      misconduct against members of the public.

      12             Then, two scathing reports emerged of an

      13      18 -- a then-18-year-old teenage girl, under the

      14      alias Anna Chambers, who was handcuffed, raped, and

      15      sexually assaulted in the back of a police van in

      16      Brooklyn, New York, and who was one of many

      17      survivors of police sexual violence against

      18      community members in and out of schools across

      19      New York State.

      20             Shortly thereafter, there was shock and

      21      outrage as the nation heard about the treatment of

      22      Jazmine Headley, a 23-year-old mother, whose baby

      23      was ripped from her arms by the New York Police --

      24      New York Depart -- New York City Department of

      25      Social Services and the New York Police Department.







                                                                   485
       1             These experiences and narratives are often

       2      unheard in mainstream media, in conversations about

       3      policing, or in conversations seeking to address

       4      gender-based violence.

       5             This silence exists alongside a multitude of

       6      systemic barriers, purporting survivors -- supports,

       7      and often victim-blaming, and criminalization of

       8      survivors.

       9             This is absolutely and unequivocally rooted

      10      in racialized and gender-based discrimination.

      11             For these reasons, Girls for Gender Equity

      12      and partners call on New York State -- the New York

      13      State Legislature to pass the Safer New York Act.

      14             Included in this package is a full repel --

      15      repeal of Civil Rights Law 50-a.  It is an essential

      16      tool for transparency about police abuses

      17      experienced by women, gender (indiscernible) people,

      18      and all New Yorkers.

      19             We look to partner with you, and support your

      20      leadership, to pass a full repeal of this law.

      21             A repeal of Civil Rights Law 50-a would

      22      follow progress made in New York City to increase

      23      transparency, an important step on the road to safer

      24      communities.

      25             As organizations that serve and advocate on







                                                                   486
       1      behalf of women and girls, many of whom are

       2      survivors of gender-based violence, we know that

       3      acts of gender-based violence are often patterned,

       4      manifested by extreme power differentials, and are

       5      very rarely isolated incidents.

       6             These power differentials expressly -- are

       7      especially exacerbated in police and community

       8      interactions, with a gun-carrying officer, and added

       9      layers of an agency that has historic culture of

      10      being unaccountable and non-transparent.

      11             Even though sexual assault and gender-based

      12      violence is drastically underreported, a

      13      Cato Institute study of incidents reported shows

      14      that sexual misconduct is the second-most reported

      15      form of police misconduct.

      16             As of February 14, 2018, the New York City

      17      Civilian Complaint Review Board, a New York City

      18      police-oversight agency, adopted a policy to expand

      19      the agency's purview to include incidents of sexual

      20      harassment by NYPD officers against members of the

      21      public.

      22             According to the CCRB, 117 complaints were

      23      received in a short 15-month period that included

      24      allegations, from cat-calls and sexual propositions,

      25      to unwanted touching and rape.







                                                                   487
       1             It is imperative that police personnel

       2      records be made available to survivors of police

       3      sexual violence to better understand any history of

       4      harm that has been perpetrated by an officer.

       5             Repeal of New York State Civil Rights

       6      Law 50-a would be a significant step in ensuring

       7      that officers who have repeatedly harmed community

       8      members across New York State are held accountable,

       9      and the full repeal of the law is necessary for true

      10      community safety.

      11             Thank you.

      12             SENATOR BIAGGI:  Thank you, all, so much, for

      13      staying this long to share your testimony with us.

      14             Each one of you, and the words that you

      15      spoke, are incredibly powerful, and incredibly

      16      important; and let me tell you why.

      17             Because you just put a massive crack in our

      18      consciousness, that I don't think that many people

      19      in this room even thought was there.

      20             You connected a law that I don't think

      21      I personally would have connected to sexual

      22      harassment.

      23             I support the repeal of 50-a, I have during

      24      my journey here.  And I don't think I would have

      25      connected the two.







                                                                   488
       1             And that is a blind spot that you just put a

       2      light on for me, and that's a remarkable, remarkable

       3      thing that you did.

       4             It's incredibly important that you continue

       5      to raise your voices.  Do not let anybody silence

       6      you.  Do not let anybody tell you that your voices

       7      don't matter, because your voices do matter, because

       8      you just created change in this room, today.

       9             So, thank you.

      10             First, we're going to hear from

      11      Assemblywoman Walker -- oh, Assemblymember Crespo.

      12             Pardon me.

      13             ASSEMBLYMAN CRESPO:  Quick question:

      14             So, thank you, all, also, for your testimony.

      15             If you -- for all of you who are students, if

      16      you are harassed by a teacher, who do you go to?

      17             OFF-CAMERA SPEAKER:  Guidance counselor.

      18             ASSEMBLYMAN CRESPO:  Guidance counselor.

      19             If you feel that you've been harassed by a

      20      school safety agent outside of the school building,

      21      who do you go to?

      22             MARIE ST. FORT:  I would probably go to the

      23      person I'm most comfortable with in the school, or

      24      outside of school.

      25             KYLYNN GRIER:  As it stands now, there's







                                                                   489
       1      actually not a process.  And -- well, that's not

       2      completely true.

       3             There is a process, but it is nontransparent.

       4             Right now, if a young person reports to an

       5      adult in the school, at the end of the day, where

       6      that report ends up is the internal affairs bureau

       7      of the NYPD.

       8             And so what that means, is that young people

       9      are expected to report to the very officers,

      10      uniformed, that did the harm in the first place.

      11             We also know that the internal affairs bureau

      12      of the NYPD has been notoriously nontransparent,

      13      and, still, it's just a really tough place for

      14      anyone to report anything.

      15             ASSEMBLYMAN CRESPO:  So there's no -- there's

      16      no current cooperation between DOE and school safety

      17      officers, where the student could go to the

      18      administration of their school, principals,

      19      somebody, within the school building, to make that

      20      formal complaint, and have the school then submit it

      21      in a more formal sense to the NYPD?

      22             KYLYNN GRIER:  I can't speak to exactly what

      23      is the MOU between the NYPD and the department of

      24      education.

      25             What I can say, is that, regardless, those







                                                                   490
       1      reports end up on the desks of the internal affairs

       2      bureau of the NYPD.

       3                (Inaudible comment by Ashley Turner to

       4        Kylynn Grier.)

       5             KYLYNN GRIER:  Right.

       6             And there's -- and to build on that, there's

       7      not someone who's in the schools or accessible.

       8             Title 9 coordinators, in particular, would be

       9      one key place that young people could go, if there

      10      were enough.

      11             ASSEMBLYMAN CRESPO:  So all of you are part

      12      of an organization that has made you -- given you a

      13      platform, and encouraged you to speak out, and is

      14      preparing you to be advocates; not just victims, but

      15      advocates for change.

      16             How many of you have experienced personally,

      17      or know someone directly, who was sexually harassed

      18      by or assaulted by a school safety agent or an

      19      officer that was assigned to your school?

      20             NEILLAH PETIT FRERE:  I've seen it, but,

      21      like, it hasn't personally happened to me.

      22             I've seen, like, police officers, like, talk

      23      to students, like, in a very inappropriate way that

      24      they shouldn't be speaking to a student.

      25             ASSEMBLYMAN CRESPO:  (Indiscernible)







                                                                   491
       1      teachers?

       2             NEILLAH PETIT FRERE:  Teachers?  Uhm, no.

       3             MARIE ST. FORT:  Can I say something?

       4             It had happened to me before.

       5             It was outside of school.  There's a store by

       6      my school.  And a police officer that goes to my

       7      school, he was talking to me so inappropriately.

       8             Where you going, Big Head, (indiscernible)?

       9             Talked to me like that.

      10             But, yeah, it's made me feel uncomfortable.

      11             ASSEMBLYMAN CRESPO:  I didn't consider, until

      12      you guys made this testimony, just how susceptible

      13      those interactions are on a daily basis.

      14             And, especially when those officers are

      15      imperative to providing safety when leaving the

      16      school building, and all the other things that we --

      17      the relationship we want them to be able to build

      18      with students, but how susceptible that is to

      19      someone committing some sort of harassment.

      20             And if there is no transparent process for

      21      reporting that, it's extremely problematic.

      22             So, I appreciate the feedback on that.

      23             And as I call on Assemblywoman Walker, I just

      24      want to also thank you for -- the organization, for

      25      what you represent.  And to acknowledge that







                                                                   492
       1      Ms. Burke is a proud Bronxite, as we acknowledge all

       2      of the Brooklyn reps that are here.

       3             Ms. Walker.

       4             ASSEMBLYWOMAN WALKER:  Well, I think I've

       5      heard that Brooklyn is in the house.

       6             Uhm, although, we're very grateful to

       7      The Bronx for the pizza, that I didn't get a slice

       8      of.

       9             So, I am inspired by your testimony here

      10      today, and I guess the thing that inspires me the

      11      most is that, we put a lot of emphasis on supporting

      12      programs that are very male-centric.

      13             You know, I remember, we were having a

      14      conversation about supporting a basketball program

      15      in our -- in my community, and I represent the

      16      neighborhoods of Brownsville, East New York, parts

      17      of Bed-Stuy, Crown Heights, and East Flatbush.

      18             And they said, well -- I said, Well, what

      19      about the girls?

      20             Oh, we got girl's basketball.

      21             And it's, like, no, it's a boy's sport, but,

      22      you know, generally, and -- but you have girls

      23      playing.

      24             I do recognize that a lot of girls play it.

      25             But they -- you know, they -- they give us







                                                                   493
       1      credence with lots of programming, but through the

       2      lens of boys.

       3             And so this is special to me because, you

       4      know, it's -- it's -- it's girly.

       5             And -- and a lot of times our stories are not

       6      heard.

       7             And I appreciate this, because it -- it --

       8      you even had me tap into experiences.

       9             When I was, you know, in high school, and

      10      I remember a teacher told me to get on the desk and

      11      do a couple of jumping jacks.

      12             And, you know, even as a young girl growing

      13      up, I, you know, was always a big girl.

      14             And when that happened to me, I guess it

      15      wasn't until you sitting here today, with your

      16      testimony, it sort of struck a cord, that that was

      17      sexual harassment.

      18             And -- so -- so I thank you for -- for

      19      helping me to see myself.

      20             One of the -- I guess, the question that

      21      I have is with respect to the police department, and

      22      sexual harassment and the way it's addressed.

      23             There was a young girl in my district who

      24      was, allegedly, raped, or a sexual assault, in a

      25      park.







                                                                   494
       1             When the report came out, it was -- it was --

       2      allegedly, it was done by a group of boys.

       3             And then when the report came out, they

       4      victimized her.  Said that, you know, she was having

       5      sex with her father.

       6             I mean, it was just crazy, crazy thing.

       7             I don't if you remember that.

       8             But we were having conversations with the

       9      police department about it.  You know, the comment

      10      that we heard was, Well, most of the people who are

      11      sexually assaulted -- who are raped are raped by

      12      somebody that knows them.

      13             As if, you know, it makes a difference, if

      14      you're raped by someone who knows you or someone

      15      that's a complete stranger.

      16             So hearing your testimony today with respect

      17      50-a, and other issues, do you -- are -- do you know

      18      if the police department reports instances of sexual

      19      harassment, sexual assault, or rape, as that?

      20             Or, when it happens, and someone knows that

      21      person, is it reported like a domestic-violence

      22      scenario?

      23             KYLYNN GRIER:  I can speak to the

      24      sexual-harassment and sexual-violence reporting.

      25             Currently, they do not report on incidents or







                                                                   495
       1      allegations of sexual violence.

       2                (Inaudible comment by Ashley Turner to

       3        Kylynn Grier.)

       4             KYLYNN GRIER:  Oh, if the assailant is a cop.

       5             ASSEMBLYWOMAN WALKER:  If the assailant is a

       6      cop, they don't report any of that information?

       7             KYLYNN GRIER:  (Microphone off.)

       8             No.

       9             ASSEMBLYWOMAN WALKER:  But I'm also

      10      wondering, what about, even in instances where --

      11      you know, where they're not?

      12             Because, I looked at, sort of, some Compstat

      13      reports prior to coming here, not necessarily

      14      thinking about sexual violence per se, and it was

      15      sort of alarming to me that there weren't very high

      16      instances of sexual violence or sexual assault that

      17      was reported in the 73rd Precinct, particularly as

      18      the precinct that I was looking at it at.

      19             But it doesn't take away from the fact that

      20      I know this is happening, but what's happening with

      21      respect to it being reported?

      22             Is it not being reported because people

      23      aren't necessarily coming forward, or is it not

      24      being reported because it's being misconstrued as

      25      domestic violence, where we see is very high, as







                                                                   496
       1      opposed to calling it for what it is?

       2             So, you don't have to answer that, but it's

       3      just, I guess, another thing that your testimony

       4      today really just sort of put into my head.

       5             So, again, where's your program located?

       6             OFF-CAMERA SPEAKER:  (Inaudible/microphone

       7      off.)

       8             ASSEMBLYWOMAN WALKER:  Where?

       9             OFF-CAMERA SPEAKER:  (Inaudible/microphone

      10      off) we're actually in Councilmember -- oh, excuse

      11      me, in Assemblymember Simon's district, in -- on

      12      Chapel Street.

      13             ASSEMBLYWOMAN WALKER:  Nice.

      14             Are you in any --

      15             OFF-CAMERA SPEAKER:  (Inaudible/microphone

      16      off).

      17             ASSEMBLYWOMAN WALKER:  Are you in any

      18      schools?

      19             ASHLEY TURNER:  Yeah, so, historically, GGE,

      20      we've been around for almost 18 years now.

      21             We run two after-school programs that were

      22      Brooklyn-based.  And our youth-development programs,

      23      including Sisters in Strength, and our Young Woman's

      24      Advisory Council, both serve young people from all

      25      five boroughs.







                                                                   497
       1             And so young people could apply regardless of

       2      where they live.

       3             So we had young people from Staten Island,

       4      and The Bronx, all coming to Brooklyn to be a part

       5      of both of our youth-development programs.

       6             And our after-school programs have,

       7      historically, been just in Brooklyn.

       8             ASSEMBLYWOMAN WALKER:  So I guess -- well, I

       9      guess one of the other questions then, is:  Do you

      10      provide transportation?

      11             STACEY KING:  For young people, when young

      12      people come to our program, and we always make sure

      13      they have MetroCards.

      14             And I forgot to mention that, as we phase out

      15      of our after-school programming, we're providing

      16      technical assistance to schools across the five

      17      boroughs, specifically highlighting the research

      18      that came out of our "School Girls Deserve" report.

      19      That report is where we talk specifically about --

      20      it was done alongside 100 students; talked

      21      specifically about the issue of sexual harassment,

      22      sexual violence, that girls of color and youth of

      23      color experience, as well as criminalization that

      24      they experience in school.

      25             And so the outgrowth of that report, in our







                                                                   498
       1      years of running after-school programming, has been

       2      providing -- we will begin to provide technical

       3      assistance to DOE schools that take an interest in

       4      wanting to find ways to make their schools more

       5      safe, healing, and affirming for youth of color.

       6             ASSEMBLYWOMAN WALKER:  So -- so you're

       7      phasing out of the after-school --

       8             ASHLEY TURNER:  Yes.

       9             ASSEMBLYWOMAN WALKER:  -- business, period?

      10             ASHLEY TURNER:  And shifting to providing TA

      11      for DOE schools that want to do better, in terms of

      12      sexual harassment, racial-justice issues, cultural

      13      competency, and to how to support students across

      14      the gender spectrum.

      15             ASSEMBLYWOMAN WALKER:  Do you -- are you

      16      perform -- are you participating in a

      17      curriculum-based scenario?

      18             So, it's going to be, like, during the day,

      19      and will the students be able to avail themselves of

      20      the -- in -- in school-time programming?

      21             ASHLEY TURNER:  So the two youth programs

      22      that we run, existing, separate from our

      23      after-school programs, we have a curriculum for -- a

      24      curriculum that is rooted in what young people

      25      mentioned earlier today, about learning about







                                                                   499
       1      systems of oppression, learning about race and

       2      gender and class.

       3             Young people get to engage in both of the

       4      curriculum -- both of the curricula, excuse me, and

       5      both of our youth programming.

       6             And then there's another set of curricula,

       7      specifically targeting at adults and schools, and

       8      how they can be better advocates for young people,

       9      and make their schools more safe and more affirming

      10      for young people.

      11             ASSEMBLYWOMAN WALKER:  Okay.  Well, I guess,

      12      we heard an invitation earlier today from the

      13      Senator to the division of human rights.

      14             So I'm going to give you, also, an

      15      invitation, to say that:

      16             I think what you're doing is spectacular.

      17             ASHLEY TURNER:  Thank you.

      18             ASSEMBLYWOMAN WALKER:  And I'm not poaching

      19      here, but, you know, Brownsville is a beautiful

      20      community, and with some beautiful Black girls in

      21      there, and who, you know, would gain a lot from

      22      having access to a program such as yours.

      23             So I extend to you an invitation to

      24      participate in some of the programming that's

      25      contained within our community.







                                                                   500
       1             And I look forward to working with you.

       2             ASSEMBLYMAN CRESPO:  I'll answer that for you

       3      with some funding.  They would more than happy to --

       4                [Laughter.]

       5             ASSEMBLYWOMAN WALKER:  Oh, I'm willing.

       6             ASSEMBLYMAN CRESPO:  Assemblywoman Niou.

       7             ASSEMBLYWOMAN WALKER:  I'll give them

       8      $2 million if I could.

       9             Twenty.

      10             ASSEMBLYWOMAN NIOU:  First, I just wanted to

      11      say thank you, guys, for being here, and for

      12      speaking up on behalf of your peers, and for

      13      yourself.

      14             It is incredibly, incredibly brave.

      15             For my own experience, I wasn't able to speak

      16      up for over 20 years.

      17             So, I just wanted to say that I commend you

      18      on your bravery, and, that -- that it matters; that

      19      it matters -- everything that you're saying matters.

      20             I know you guys work with a lot of TGNC

      21      youth.

      22             You heard my last questions, probably, and

      23      I'm just going to reiterate them to you guys, and

      24      see if you guys have some other thoughts on policy,

      25      on how we can change things in New York State,







                                                                   501
       1      because the discrimination is so pervasive and

       2      systemic, it makes it so that young people, just

       3      walking out of a, you know, club, walking out of

       4      school, they could get arrested just for being

       5      transgender or gender non-conforming.

       6             So, I wanted to see if there was anything

       7      that we can do.

       8             As -- you know, we -- our -- we just passed

       9      GENDA this year, way long overdue.

      10             And if there was anything that you guys

      11      wanted to suggest that we can do as a state.

      12             ASHLEY TURNER:  Well, a couple of things,

      13      really quickly, (indiscernible) time.

      14             Actually, there's a rally happening right now

      15      that we're missing, in support of trans folks who

      16      have been murdered.

      17             I think you may know --

      18             ASSEMBLYWOMAN NIOU:  I think your mic may not

      19      be on.

      20             ASHLEY TURNER:  Oh, sorry.

      21             How do I turn this on?

      22             Hello?  Is this better?

      23             Okay.

      24             As you know -- you may know that there's

      25      actually a rally happening in the city right now.







                                                                   502
       1             The life ex -- and it's the "Keep Your Hands

       2      Off Our Trans Bodies" Rally, and it's in

       3      Washington Square Park.

       4             But most people know, life expectancy for

       5      Black trans women is, like, 36.  And so that's --

       6      it's a huge issue.

       7             GGE centers all -- centers most marginalized

       8      folks in all of our narratives and in our work.

       9             So some of the things that we've been looking

      10      for, particularly in the context of young people in

      11      schools, have been thinking about, how do schools

      12      provide the type of -- get the type of technical

      13      assistance that they need, to understand what's

      14      happening for trans youth, and how can they do a

      15      better job of supporting them.

      16             And we would love to partner with you, and

      17      have additional conversations with you about, what

      18      are the things that came up in the reporting that we

      19      did, or that participatory action research that we

      20      did, and what are the things that trans youth are

      21      asking for in their schools.

      22             We try our best to make sure that trans youth

      23      and non-binary youth are included in all of our

      24      programming.

      25             And those young people have the ideas about







                                                                   503
       1      what they want to see happening in their schools to

       2      make them feel safer in their schools, and in their

       3      the community.

       4             And we would love to have a conversation with

       5      you about some of the feedback that we've received

       6      from young people.

       7             ASSEMBLYWOMAN NIOU:  I would love that.

       8             You know, just for the record, I mean, our

       9      body knows that, you know, trans youth have the

      10      highest suicide rates.

      11             We all know that -- I've lost many friends.

      12             But I -- I would have to say that, we all

      13      know that there's a huge systemic issue.

      14             And so we really thank you for your work on

      15      those issues.

      16             And, please, you know, any -- any ideas that

      17      you all come up with, when it comes to protecting

      18      folks, and making life just a little bit more

      19      bearable, is helpful.

      20             ASSEMBLYMAN CRESPO:  Assemblywoman Simon?

      21             You should join us up here.

      22             ASSEMBLYWOMAN SIMON:  Try it again?

      23             There we go.

      24             Thank you.

      25             And I want to thank all of you, first of all,







                                                                   504
       1      for your testimony, which is really incredibly

       2      powerful, and, for being here all day long, and

       3      listening to us yammer on at times.

       4             And -- so thank you for -- for -- for being

       5      here.

       6             So, Stacey Ann?  Right?

       7             I went to an all-girls' Catholic school and

       8      had to wear a uniform every day, so your testimony

       9      really reached out to me.

      10             Are you going to a parochial school, or a

      11      charter school, or --

      12             STACEY KING:  I go to a public school.

      13             ASSEMBLYWOMAN SIMON:  A public school?

      14             STACEY KING:  Yeah, uhm -- yeah.

      15             'Cause, when I first -- where I attended to

      16      school, like, in ninth grade, before, it was -- it

      17      didn't have a uniform policy.

      18             So me coming into freshman year, we had a

      19      uniform policy.

      20             So, it's very inconsistent.  So it's like --

      21      yeah.

      22             ASSEMBLYWOMAN SIMON:  So they have an

      23      inconsistent uniform policy?

      24             STACEY KING:  Yeah.

      25             ASSEMBLYWOMAN SIMON:  That's bizarre.







                                                                   505
       1             And -- and -- I -- I also am freaking out

       2      about the robo call at 6:00 in the morning.

       3             What about the boys, what's their uniform

       4      policy?

       5             STACEY KING:  It's the same as ours, but,

       6      like, since -- it's more targeted towards us as

       7      girls.

       8             ASSEMBLYWOMAN SIMON:  Uh-huh?

       9             STACEY KING:  So, like, if I wear -- if a guy

      10      comes into school with like a tank top, he won't be

      11      called out or called home.

      12             But if I come -- if I come to school with,

      13      like, you know, like, maybe a spaghetti-strap,

      14      I don't know, tank top, with a cardigan, or

      15      something like that, they'd be, like, Oh, what are

      16      you wearing?  You know, you shouldn't be wearing

      17      that.  Like, put on a shirt.

      18             I understand that there's certain policy that

      19      I abide with the rules, and I'm, like, respect the

      20      school uniform policy.

      21             But I feel like -- like, just the other day,

      22      they sent another robo call, saying, you know, like,

      23      oh, we're a distraction.  And now what you wear will

      24      create an unsafe environment.

      25             So it's just, like -- yeah.







                                                                   506
       1             ASSEMBLYWOMAN SIMON:  Yeah, cringe.  We're

       2      all cringing here about that.

       3             ASHLEY TURNER:  Can I just add?

       4             ASSEMBLYWOMAN SIMON:  Yes, sure, of course.

       5             ASHLEY TURNER:  I apologize.

       6             So there's national data that backs up, that

       7      Black girls are more likely to be targeted for the

       8      clothing that they wear.

       9             So even if there's a policy about what young

      10      people wear, Black girls and Latinx girls are more

      11      likely to be told that they're dressing

      12      inappropriately because of their body size.

      13             And what happens is, we've heard reports from

      14      young people say, that they were told that the

      15      reason boys are distracted, the reason sexual

      16      harassment is happening, is because of the clothing

      17      that they are wearing.

      18             And so we -- yeah, so that's the problem.

      19             ASSEMBLYWOMAN SIMON:  I mean, I think that --

      20      that is, obviously, a bigger problem in communities

      21      of color.  It's certainly a problem for women and

      22      girls, generally, I think, about clothing.

      23             I certainly remember that being something

      24      that I was plagued by as well as a young girl.

      25             And we were rolling up our skirts in those







                                                                   507
       1      days.  The skirts were below your knee, and

       2      everybody was rolling up their skirts.

       3             And -- and -- so there's a lot of messaging

       4      about -- about -- about clothing.

       5             So I'm also curious, for the rest of you who

       6      are not in schools with a uniform policy, about that

       7      kind of -- the kinds of comments that you may get

       8      with regard to what you're wearing, and how, if at

       9      all, it has changed the way you dress for school,

      10      and has made you comfortable or uncomfortable?

      11             NEILLAH PETIT FRERE:  Yeah, I think your body

      12      is -- takes a huge part in dressing policies,

      13      because it can be like a really skinny girl wearing

      14      the same thing as you.  But if you have a more,

      15      I don't know, curvey body --

      16             ASSEMBLYWOMAN SIMON:  Voluptuous?

      17             NEILLAH PETIT FRERE:  -- yeah, like, you

      18      could get your house called, you could get sent

      19      home, or they give you a big shirt to wear.

      20             And that -- it's really unfair, because it

      21      makes -- it starts making you just, like, feeling

      22      insecure about your own body, because, if I'm being

      23      pulled out of class, why can't she get pulled out of

      24      class, because we're, basically, wearing the same

      25      thing.







                                                                   508
       1             ASSEMBLYWOMAN SIMON:  So, I wanted to just --

       2      well, I'll leave it at that.

       3             But I wanted to just tell you again how

       4      impressive your testimony has been here today, and

       5      the work that you're doing.

       6             And thank you very much for leading this

       7      charge, and for being there for -- for these girls,

       8      and for you being there for each other, and for the

       9      other girls in -- in your schools.

      10             And I'm really looking forward to continuing

      11      to work with you guys.

      12             Thank you.

      13             OFF-CAMERA SPEAKER:  Thank you.

      14             SENATOR BIAGGI:  Thank you very, very much

      15      for your testimony.

      16             I want to just end on one note, because

      17      I think that this is an important one, not that the

      18      others were not.  Every point that was made was

      19      incredibly important.

      20             But, if there are instances that you

      21      experience after this day, that you feel you can't

      22      raise to someone in your school or your community,

      23      you have allies here in government.

      24             And I -- you know, I think I'm going -- I'm

      25      not going on a ledge by saying, all of my colleagues







                                                                   509
       1      here, we are here for you.

       2             You can pick up the phone and you can call

       3      our offices, you can e-mail us, you can tweet at us,

       4      you can even send us messages through Instagram or

       5      Twitter or Facebook; whatever is easiest for you.

       6             You're not alone, we hear you.

       7             And please use your government as a resource

       8      to have your voices heard.

       9             Thank you.

      10             ASSEMBLYMAN CRESPO:  Thank you.

      11                (All witnesses say "Thank you.")

      12             SENATOR BIAGGI:  Next we're going to hear

      13      from the National Domestic Workers Alliance.

      14             ASSEMBLYMAN CRESPO:  Thank you, and thank you

      15      for your patience.

      16             MARISSA SENTENO:  I want to, first of all,

      17      thank the Joint Committee on Sexual Harassment in

      18      the Workplace, Part 2.  Right?

      19             We really appreciate being able to come down

      20      here today and really tell our story.

      21             My name is Marissa Senteno.  I am with the

      22      National Domestic Workers Alliance.  I am the

      23      enforcement program manager for our New York

      24      chapter.

      25             So that means I organize domestic workers in







                                                                   510
       1      New York City and New York State, specifically

       2      around enforcing their labor rights, especially as

       3      addressed under the Domestic Worker Bill of Rights.

       4             And if you don't know our organization, the

       5      National Domestic Workers Alliance is the nation's

       6      leading voice for dignity and fairness for millions

       7      of domestic workers in the United States.

       8             We were founded in 2007, and NDWA works for

       9      the respect and recognition and inclusion of -- in

      10      labor protections for domestic workers, most of whom

      11      are women, women of color.

      12             The alliance itself is powered by

      13      60 affiliate organizations.  And then we also have

      14      individual membership and local chapters, of which,

      15      here in New York, we have a New York local chapter

      16      of approximately 3,000-plus contacts -- not

      17      contacts -- participants, yeah, 3,000-plus

      18      participant members.

      19             And then the organization, as a whole, has

      20      about 35,000 members nationwide.

      21             So NDWA itself leads on several campaigns and

      22      coalitions to advance the rights of domestic

      23      workers.

      24             We advocate for increased labor protections,

      25      racial justice, gender equity, and humane







                                                                   511
       1      immigration policies.

       2             So New York State was the first state in the

       3      country to pass a Domestic Worker Bill of Rights in

       4      2010.  It sort of marked the culmination of a 6-year

       5      grassroots organizing campaign.

       6             It was the first legislation of its kind, and

       7      the bill of rights closed gaps in labor laws that

       8      left domestic workers with fewer rights than other

       9      workers in the state, and it added new protections.

      10             It since has inspired a national movement,

      11      and we've been able to pass protections in nine

      12      other states and one municipality.

      13             So it's a big deal that New York State set

      14      the bar high, to be able push other domestic workers

      15      to seek labor protections for themselves in

      16      nine-plus other states.

      17             Here in New York, the Domestic Worker Bill of

      18      Rights includes domestic workers in protections

      19      against sexual harassment and discrimination by

      20      changing the previous law, protecting workers in

      21      places of employment of four or more for domestic

      22      workers, to, if you're a domestic worker, a place of

      23      employment of one or more.

      24             This is key, because most domestic workers

      25      themselves are the only -- are the only employees in







                                                                   512
       1      their household, and were previously excluded from

       2      harassment and discrimination protections.

       3             So what we're doing now is that, in the past

       4      five years, NDWA has worked with our members and

       5      local affiliates to explore the following strategies

       6      in pursuit of a more worker-led, community-supported

       7      enforcement process:

       8             We prioritize leadership development amongst

       9      domestic workers, that prepares and utilizes them as

      10      key actors in supporting peers throughout the

      11      enforcement process.

      12             So what that means is, I train up worker

      13      leaders, people who are part of our membership, to

      14      understand their labor rights.

      15             And they go specifically out into the

      16      communities; they go to the parks, the libraries,

      17      churches, they're talking to each other.  And they

      18      are expertly doing so because, we have trained them

      19      about what their rights are, how to screen other

      20      workers, and how to establish the relationship and

      21      build the trust that will baring them into our

      22      domestic worker-led legal clinic.

      23             To my knowledge, it's the only domestic

      24      worker-specific legal clinic in the state, and of

      25      its kind.







                                                                   513
       1             We -- we have a legal advocacy group that

       2      handles the adjudication of the cases.

       3             And then we also work closely with the

       4      department of labor.

       5             So these worker leaders are dubbed

       6      "groundbreakers."

       7             That means they are breaking ground in areas

       8      that enforcement agencies have told us, time and

       9      time again, We don't know how to enforce

      10      domestic-worker rights because we actually don't

      11      know how -- where they, where to talk to them, how

      12      to get them to come forward with cases.

      13             This is key, when thinking about very severe

      14      cases, such as harassment and trafficking, how do we

      15      build trust?  And what is required in order to

      16      actually enforce the laws that we have?

      17             Secondly, we work collaboratively with the

      18      government agencies, to share our values and vision

      19      and alignment; to explore how to leverage our

      20      collective resources and mechanisms in order to

      21      increase our capacity to bolster enforcements as a

      22      system, and not just as an instance.

      23             So this happens through our pilot program

      24      with the department of labor, to work really closely

      25      with them on domestic-worker cases.







                                                                   514
       1             We also have been working really closely over

       2      the past three years with the department of consumer

       3      affairs, and now dubbed "worker protection," and the

       4      division of paid care, to help in -- increase our

       5      ability to do collective outreach and

       6      co-enforcement, and thinking about different

       7      co-enforcement models, like a mediation clinic, as a

       8      matter of fact, that they will launching shortly.

       9             We've had success in collaborating with --

      10      with the city agencies and with the department of

      11      labor.  And it also helps us to get a better

      12      understanding of the processes itself when it

      13      takes -- when workers themselves need to enforce

      14      their rights.

      15             And then what happens is that, the agencies

      16      themselves get a better understanding of domestic

      17      workers.

      18             When we effectively investigate

      19      domestic-worker cases, most of our cases come

      20      through our wage-theft violations.  And, often, wage

      21      theft is the first indicator that there are other

      22      workplace violations, such as sexual harassment and

      23      discrimination.

      24             Yet, because of the severe power differential

      25      between employer and employee, and the isolated







                                                                   515
       1      nature of domestic work, the way that the cases are

       2      investigated and adjudicated affect whether a worker

       3      will be able to divulge more serious violations,

       4      such as sexual harassment.

       5             It's almost as if those first experiences are

       6      really valuable, and for being able -- for a worker

       7      to be able to determine if they're gonna come

       8      forward with anything that is more severe.

       9             And it creates a huge barrier when workers,

      10      first of all, don't understand the system, but then

      11      are also met with an agency, entity, or an

      12      investigator that doesn't understand them as a

      13      worker, their work sector, the nuances of domestic

      14      work itself, and what makes them so vulnerable.

      15             We want to make sure that we're strengthening

      16      sector-specific knowledge and protocol for domestic

      17      workers in enforcement agencies.

      18             So it's key to -- what -- what's key for us,

      19      is to helping investigators understand and practice

      20      how they work with (indiscernible) situations, and

      21      we -- and the way that they gather evidence is fair.

      22      Right?

      23             For a domestic worker, there is no such thing

      24      as a human-resources department.  So their avenue to

      25      seek and redress is to actually come forward in a







                                                                   516
       1      very -- for them, a very public exposed way.

       2             They need to actually engage with some sort

       3      of outside entity, like the department of labor.

       4             First of all, they would have to figure out

       5      how to get to the commission on human rights, or the

       6      division of human rights.

       7             And, oftentimes, if they're lucky, very

       8      lucky, they can find a community-based organization

       9      that would help them maneuver that process, or refer

      10      them appropriately.

      11             And oftentimes, unfortunately, that does not

      12      happen.

      13             We work specifically towards developing

      14      metrics, and measuring the progress in

      15      domestic-worker rights enforcement efforts.

      16             So, we want to be able to see the patterns

      17      of, like, what are the systemic violations, and what

      18      are the barriers to making (indiscernible) -- like,

      19      enforcement itself successful?

      20             So each of the cases that come through, we're

      21      just trying to collect as much data as we can, as

      22      to:

      23             What it took to bring them to our clinic?

      24             What is it taking to keep them from dropping

      25      off their cases, or, stopping their cases?







                                                                   517
       1             What does it take for them to find a new job

       2      afterwards?

       3             Right?

       4             And so this is all data that we're

       5      collecting.

       6             Then, how does the process work, so that we

       7      can go back to the department of labor, we can go

       8      back to, you know, the commission on human rights,

       9      and say, Hey, this is what we're seeing, and we need

      10      to be able to work together to address these issues.

      11             So what we're seeing on the ground for

      12      domestic workers is that, even with these strategies

      13      in place, continued collaboration with city, state,

      14      and community-based organizations and advocates, we

      15      know that it still takes a very long time for

      16      workers to know whom to turn to, and whom to trust.

      17             Domestic workers have a very hard time

      18      admitting that their workplace rights have been

      19      violated.

      20             They have an even harder time sharing

      21      accounts of harassment, and continue living with

      22      that trauma and fear every day in their current

      23      workspaces of past experiences.

      24             And we're committed to, like, the complete

      25      screening of potential workplace violations, which







                                                                   518
       1      includes sexual harassment, but it's not enough to

       2      wait for workers to come forward.

       3             I think this is one of the biggest lessons

       4      learned around the Domestic Worker Bill of Rights.

       5      It's 10 years since it's passed, and the kind of

       6      prevailing thought was that, you passed the law, it

       7      will get enforced, workers' lives will be better.

       8             We actually have to go out into the

       9      communities, find the workers, and actively support

      10      them through the process and life of their case

      11      itself.

      12             And then once we do so, we're actively

      13      engaging them back into organizing, into

      14      community-based group organizations, into our

      15      chapters, so that they themselves are able to

      16      build -- build their opportunities so that they

      17      don't have to go back into the same or similar

      18      situations.

      19             Right?

      20             We find that when some workers are -- have

      21      decided to come forward, they do so in relation to a

      22      different complaint of workplace violations.  It

      23      might be a lesser offense.  They kind of test the

      24      waters.

      25             And they do that so they can see how well







                                                                   519
       1      they can trust us, and how well they can trust the

       2      support and the process itself.

       3             So for domestic workers, it's not -- it's

       4      almost never just sexual harassment.  That's sort of

       5      like added insult to the injury.

       6             Unfortunately, while a worker itself has

       7      several years, six years, in New York to file a

       8      wage-theft complaint, the statute of limitation runs

       9      out much sooner for sexual-harassment claims.

      10             So, oftentimes, I only counsel workers who

      11      will come forward with a claim of harassment, but

      12      that claim they cannot pursue, and we would have to

      13      figure out if they had some other type of workplace

      14      violation that they can actually pursue.

      15             Workers themselves need to have time.

      16             So, one year is barely enough time for

      17      workers to build the stamina and support and

      18      understanding of their rights to come forward.  But

      19      we also know that they require additional time to

      20      distance themselves from a job.

      21             So, if they are relying on a reference

      22      letter, they need to be able to secure their next

      23      job, or even the, next, next job, in order to make

      24      some kind of a complaint against their previous

      25      jobs.







                                                                   520
       1             So one year is not enough for them to do

       2      that.

       3             We've had to even -- had to advocate the

       4      department of labor, that they were -- they were

       5      giving us a three-year cutoff date for when

       6      wage-theft violations were made.

       7             And we had to push them to please give us the

       8      six years, because we knew that workers themselves

       9      weren't even able to file -- just, these are just

      10      stolen wages -- within the three-year time limit

      11      that they had -- had put forward recently.

      12             So we know that, for domestic workers,

      13      one year itself is not nearly enough.

      14             We know that, for domestic workers, because

      15      they work in the homes, they're highly -- they are

      16      highly surveilled.  They're afraid to make a phone

      17      call to an agency, they're afraid to seek out

      18      support.  Their hours are very long.

      19             And so would need some extra access to be

      20      able to call late at night or on weekends, to figure

      21      out where could they file a claim.

      22             Right?

      23             It takes a long time for a worker to take a

      24      day off to come in to any of our offices.

      25             We hold clinics very late into the night in







                                                                   521
       1      order to be able to accommodate their ability to

       2      work their full day, and then come in and make a

       3      file -- a claim in the evenings.

       4             And that's almost impossible with the

       5      department of labor, unless we make a very special

       6      kind of request, which we have been able to be do,

       7      but, how could that be scalable, how could we make

       8      it more accessible, statewide, for domestic workers

       9      to be able to access the division of human rights

      10      and the department of labor?

      11             I cite the department of labor a lot because

      12      that's probably the entity that workers would reach

      13      first.  Right?

      14             And so there also needs to be an ability for

      15      investigators to appropriately refer workers and

      16      screen workers for the different types of violations

      17      that they might have.

      18             I think what I want to say, really, is that,

      19      because domestic workers are so isolated, they work

      20      in such intimate settings, and they have to uphold a

      21      very high standard of work.  Right?  These are

      22      people who take care of our children, of our

      23      elderly, and of our homes themselves, that we need

      24      to be able to understand that education itself isn't

      25      enough.







                                                                   522
       1             We have laid out some policy requests, and --

       2      in my testimony, and, really, those are addressed

       3      towards, like, what is going to -- what is it going

       4      to require to support very vulnerable workers to

       5      come forward and file claims of harassment?

       6             Many workers would lose their home because

       7      they are live-in.  Many workers would lose their

       8      job.

       9             And so how could we mitigate a retaliated --

      10      retaliatory actions from an employer?

      11             We know that worker centers themselves are

      12      the first point of contact for many workers.

      13             So how could we bolster that, by funding

      14      worker centers as a point of contact for being able

      15      to be sort of like a hub for enforcement?

      16             And, you know, create funding streams, so

      17      that the community centers themselves can

      18      effectively do the pre-work that is required to

      19      bring cases forward?

      20             We would like for the agencies to really

      21      consider what it means to do co-enforcement models.

      22             I have a lot of visions of what it would look

      23      like.

      24             I have worker leaders who are currently

      25      really good at investigating domestic-worker cases.







                                                                   523
       1             They could be -- they could be actual

       2      investigators within the DOL.  They could be the

       3      navigators.

       4             And so, when I'm thinking big, what would it

       5      be to really collaborate very closely, creating

       6      vulnerable-workforce sectors, especially domestic

       7      work, to be able to navigate other workers through

       8      the system.

       9             And then, lastly, I would ask that we think

      10      about creating a task force to explore the

      11      feasibility of establishing like a statewide

      12      sectoral standards board for domestic workers, that

      13      monitors and proactively sets standards for the

      14      domestic-worker industry, so that when we set the

      15      standards for the industry, we don't have workers

      16      that are so vulnerable to issues such as harassment.

      17             Really, I want to leave the rest of the time

      18      for my colleague Daniela, who is a fierce organizer,

      19      mother, domestic worker, and, herself, has a

      20      powerful story.

      21             But she inspires both myself and other

      22      workers to come forward with their stories.

      23             Thank you.

      24             DANIELA CONTRERAS:  Buenos stades.

      25             My name is Daniela Contreras.  I am the







                                                                   524
       1      organizer at the National Domestic Workers Alliance.

       2             I have worked for many years as a domestic

       3      worker, and also my family, my mother and my sister.

       4             I am the mother of a curious, intelligent,

       5      beautiful 6-year-old girl, and I have been

       6      undocumented.  I am currently a DREAMer.

       7             Today I am here to share my story of sexual

       8      harassment in the workplace, and how this issue

       9      affects the sector in which I organize.

      10             Domestic workers have faced a long history of

      11      exclusion for basic labor protections.

      12             Domestic workers were a specifically excluded

      13      from federal labor protections, like minimum wage

      14      and the right to organize a union.

      15             Many laws, such as anti-discrimination and

      16      harassment laws, have also excluded domestic

      17      workers, and domestic workers feel the consequences

      18      of that.  They feel it as disrespect, a lack of

      19      dignity in their work.  They experience it as wage

      20      theft, and not having enough time to take off for --

      21      to take care for their families and their loved

      22      ones.

      23             We feel unsafe in our jobs, unprotected by

      24      our laws.

      25             When I was 16 years old, I got a part-time







                                                                   525
       1      job as a nanny, cared for a 3-year-old boy while his

       2      parents were at work.  I took care of him every day

       3      after school, from three to four hours.

       4             I was so excited because it meant helping my

       5      family financially.

       6             My mother at that time was working as a

       7      live-in domestic worker, staying with her employer

       8      seven days a week, and earning $125 a week.

       9             My sister and I were living with my uncle at

      10      that time, and she had very little time to spend

      11      with us.  Her situation was bad.

      12             So bring in an additional income went a long

      13      way.  I felt proud I was making a contribution.  At

      14      that time, I was undocumented.

      15             In my community, there is a lot of fear of

      16      seeking help from law enforcement when you're in

      17      trouble.

      18             I did not know where I could go, and, at the

      19      time, had something bad had happened.

      20             And while I understood English, I did not

      21      feel I could express myself fully in this language

      22      at that time.

      23             The mother of the child spoke Spanish, and

      24      I -- she interviewed me, and provided me with a work

      25      agreement.  But the husband was a monolingual







                                                                   526
       1      English-speaker.

       2             My job required me to be alone with him at

       3      home often, and this made me feel very

       4      uncomfortable.

       5             At 16, the idea of being home with this

       6      father alone was uncomfortable, but I felt I was --

       7      it was a job that my family needed me to have.

       8             Sorry.

       9             The father will come home from work in the

      10      late afternoon.  He will go straight to shower.

      11             At first, he will come out of the shower and

      12      walk from the bathroom to his bedroom, wrapped in a

      13      towel.

      14             But, over time, he started to call me from

      15      the bathroom to get a towel for him.  I will bring

      16      him a towel and leave it at the door.

      17             On some days, I would try to be proactive,

      18      and leave a towel in the bathroom before he got

      19      home, but it continued to escalate.

      20             One day he came home from the show -- he came

      21      home -- he came out of the shower, into the bedroom,

      22      where I was playing with his child.  He began to

      23      touch me and pull me into the bed, sexually

      24      assaulting me, right in front of his child.

      25             I felt so vulnerable and defenseless;







                                                                   527
       1      I froze.

       2             I was lucky enough, someone knocked on the

       3      window.  He got distracted, and I was able to run

       4      away.

       5             It was one of the most terrifying experiences

       6      of my life.

       7             My employers never called me back; I never

       8      got paid.

       9             And out of fear, and embarrassment, I kept

      10      silent for almost two decades.  At that time, I kept

      11      wondering, why me?

      12             And later I began to wonder about other women

      13      who did the work I did, but in houses that were

      14      significantly more isolated.

      15             What happens to them?

      16             This was my first experience with sexual

      17      harassment in the workplace, but it wasn't my last.

      18             I have had also experienced sexual harassment

      19      repeatedly, working at a restaurant, and a deli.

      20             In the restaurant, the owner required the

      21      women employees to wear super-tight clothes in the

      22      winter; and short skirts, and low shirt cut --

      23      low-cut shirts that revealed cleavage, in the

      24      summer.

      25             He will specifically target me when he was







                                                                   528
       1      around, requesting me to be the server, telling me,

       2      he'll like to take me to dinner, and then a hotel.

       3      And there verbally abusing me when I ignore his

       4      behavior and turn him down.

       5             My work -- my co-workers would say nothing,

       6      not even the servers who experienced some of the

       7      same behavior from him.

       8             I was the only worker who stood up to him,

       9      and, of course, I got fired.

      10             I remember dreading working those long hours

      11      where I felt such undignity (sic).

      12             I did file a complaint against him in 2005.

      13             He hired a lawyer, and working with the

      14      manager, put a (indiscernible) counter-story,

      15      accusing me of pursuing him.

      16             My case was thrown out.

      17             Later, I saw the same lawyer recently who

      18      worked with him in this response to my complaint,

      19      and this lawyer was running for office.

      20             It angers me to see how unfair power dynamics

      21      work against us to so many women in our society.

      22             I experienced similar behavior by the deli

      23      owner's son where I also work.

      24             One day he called me into his office and told

      25      me he wanted me -- to have sex with me.







                                                                   529
       1             I was already older by then, and the

       2      experiences from before draw me to want to stop

       3      repeating the cycle.

       4             I told him, no, that his behavior made me

       5      uncomfortable.  And if done again, I will report it

       6      to the department of labor.

       7             It scared him enough to stop his behavior,

       8      but that not -- but that's not always the case in

       9      our situations.

      10             At that time, I knew that the department of

      11      labor enforced workers' protections, but I did not

      12      know how to find their number or how to access their

      13      help.

      14             Everyone says, go and take action, but it's

      15      difficult to know where to go, and how to go about

      16      reporting, and actually changing this situation.

      17             Now, as an organizer, every day I hear

      18      stories of working women just like me.

      19             I moderate several online domestic-worker

      20      groups on social media.

      21             Recently, I got a call from a house cleaner

      22      in Texas.  She had gone for an interview, and after

      23      the employer drove her home, he attempted to rape

      24      her.

      25             As she was leaving his car, he threatened







                                                                   530
       1      her, that if she ever mentioned anything, he will

       2      come after her, knowing where she lived, and having

       3      information about her personal life, from the fake

       4      work interview.

       5             She call me, crying.  We had a deep

       6      conversation about what was happening, and,

       7      immediately, I contact her with our -- one of our

       8      affiliates in Texas, which they give her support and

       9      legal advice.

      10             Domestic workers have no way of knowing

      11      beforehand how safe the workplace is before they are

      12      there.  They have no one around, often, to witness

      13      their experiences or offer them support and

      14      protection.

      15             Many domestic workers are immigrant women,

      16      American women of color.  Their families and

      17      communities are constantly targeted, separated,

      18      (indiscernible) with violence.

      19             Our stories can be fully of pain, fear, and

      20      violence.

      21             When I have posted videos and articles about

      22      my firsthand experience of sexual harassment in the

      23      workplace to the online domestic workgroups, there's

      24      often little to no response, compared to other

      25      postings.







                                                                   531
       1             Our communities still struggle to talk about

       2      this issue openly.

       3             And the only thing I am requesting, it's --

       4      (indiscernible), but what I'm asking is, as Marissa

       5      said, we want more protections for domestic workers.

       6             I don't know if my daughter's ever gonna do

       7      the domestic work.  She has seen me doing it.  She's

       8      very proud about me doing -- being a house cleaner

       9      sometimes.

      10             But I want my daughter to also know that,

      11      wherever she goes, she's going to be safe.

      12             We need those protections.

      13             SENATOR BIAGGI:  Thank you, both, so much.

      14             I don't think that -- I don't think that I've

      15      heard testimony as compelling as both of you have

      16      given to us tonight about domestic workers at any

      17      point throughout the entire inquiry of what we have

      18      been doing.

      19             And, it's incredibly powerful, but that

      20      doesn't even really underscore the feeling that

      21      I have.

      22             Daniela, when you were speaking, my heart was

      23      racing in my chest, because I understand what that's

      24      like; how normal it is to just let people, and,

      25      mainly, in these dynamics, where it's male and







                                                                   532
       1      female, to just allow men to say things to you, or

       2      just to touch you, or to touch -- rub your back, or

       3      to touch your face.

       4             It has happened to me more times than I can

       5      even count in my entire life, and, it's not okay,

       6      it's unacceptable.

       7             And, that behavior is unacceptable in every

       8      environment, no matter where we go.

       9             And so I think that one of the things that

      10      you touched on, that is -- really underscores the

      11      beginning of this hearing today, was, you said,

      12      "It's difficult to know where to go, or how to go

      13      about reporting, and actually changing the

      14      situation."

      15             That is not by accident.  That is on purpose.

      16             The way that our systems have been designed

      17      have been designed in such a way where only a few

      18      people can understand where to go.

      19             And even if you understand where to go, it

      20      doesn't necessarily mean you'll be heard.

      21             And I've seen it up close, and I just find it

      22      to be incredibly egregious.

      23             And that is why both of you here today, to

      24      share your testimony, is important, because I'm

      25      actually incredibly impressed that you even knew to







                                                                   533
       1      say, not only "no," which may not be -- may not feel

       2      like a big thing, but it's a huge -- a huge

       3      statement to make.

       4             I didn't say -- start saying no until I was

       5      in my late 20s.

       6             So, I really -- I'm just -- what I'm really

       7      getting at here is, I want to know, how did you know

       8      where to go, or that the department of labor was

       9      even a place for you to go, at all?

      10             How did you find that information out?

      11             This is important because -- it's important

      12      because, one of the things I feel like that we can

      13      do, and one of the things that is a problem, is

      14      that, when we pass laws, sometimes people don't even

      15      know, or they don't know what their right -- they

      16      don't know what their rights are, or where to find

      17      their rights.  And the information is tucked into a

      18      place that, only if you have access to a system can

      19      you get the access.

      20             So I'm just wondering if you remember how you

      21      learned about this information?

      22             And what you think we can do to make this

      23      information more readily available for everyone.

      24             DANIELA CONTRERAS:  I -- I have been very

      25      involved with my community.  I -- I -- if I'm not







                                                                   534
       1      mistaken, I -- when I was younger, right after

       2      school, I will go and volunteer at community

       3      centers.  There's one specific one in Sunset Park,

       4      it's called Mikstaka (ph.), and that's where I learn

       5      about it.

       6             But it was -- I -- I knew there was a place

       7      to go, but like I said, where do I find it; what's

       8      the address, what's the phone number?

       9             That's what happened back then.

      10             And -- and now what we're trying to do here,

      11      now, differently, and that's the reasons I came on

      12      board, and -- to NDWA, is because I want domestic

      13      workers to know how to find help.

      14             Maybe it's not the department of labor, but

      15      they can come to us.

      16             We -- pretty much, what we do, we walk

      17      around, with these cards, all over the city, where

      18      we have our information; social media, phone number.

      19             I call them our "domestic workers' 911 phone

      20      number."

      21             They can call any time.  Each one of us take

      22      turns on that cell phone.  We answer that cell

      23      phone, weekend, night.  Anytime a domestic worker

      24      calls, we answer them.

      25             They can leave a voice message in any







                                                                   535
       1      language they feel they're more comfortable.

       2             We have these cards, where they -- we tell

       3      them about their rights.  We try to get their

       4      information.  And we do follow-up.

       5             And whenever we have our monthly meetings, we

       6      send home, our workers, our members, with 10 cards

       7      each, and they got to bring it back, to make sure.

       8             And we also walk around the city with

       9      T-shirts, with our phone numbers.

      10             Like, we're doing all the way.

      11             And, Marissa, she has more.

      12             MARISSA SENTENO:  I -- no, it's just -- I was

      13      remembering back the earlier conversation with the

      14      division of human rights, around, like, how do

      15      people know how to get to you?

      16             So, first of all, a "know your rights" is not

      17      an enforcement strategy.  Right?  Like, that is a

      18      piece of an entire broad set of strategies that need

      19      to happen in order for workers to -- all workers,

      20      and the most vulnerable workers, to be able to come

      21      forward, and then, also, you know, go through the

      22      process, up.

      23             So the strategy is, outreach, education,

      24      engagement.

      25             And then, when we were thinking about







                                                                   536
       1      "know your rights," what we were finding was that,

       2      when I gave just "know your rights" trainings, which

       3      were great as one-offs, our trainers were amazing,

       4      because they are worker leaders themselves who can

       5      engage really actively with the other workers, it

       6      can be disempowering because, suddenly, you know how

       7      much you have been exploited.

       8             But, when we gave this same training embedded

       9      in a nanny training, something that they could gain

      10      a certificate in, along with other -- other skills,

      11      like, how to communicate with your employer,

      12      nutrition for children, social-emotional

      13      development, and, then, your home is a work --

      14      someone -- your home is -- your home is someone's

      15      workplace, and knowing your rights, that was

      16      something that they could utilize later; they then

      17      knew that they could go and ask for a contract, to

      18      make sure that they weren't agreeing to signing away

      19      their overtime rights.

      20             And then understanding, what does sexual

      21      harassment look like?

      22             It could look like, and these are, you know,

      23      stories from our workers:

      24             The man of the house walking around in a

      25      towel, wanting to hold, like, a meeting with them,







                                                                   537
       1      and making them feel, like, extremely uncomfortable,

       2      day after day.

       3             It could look like someone trying to

       4      physically advance on somebody.

       5             It could look like, saying no, and then also

       6      being threatened with your life, because you said

       7      "no," and because you told the wife.

       8             It runs an entire -- you know, it's a

       9      spectrum, and this is what we needed for domestic

      10      workers to understand, and they're beginning to

      11      understand, that no one should ever be doing

      12      anything that makes you feel uncomfortable,

      13      regardless of how pervasive or egregious that is.

      14             So I think what -- so, yeah, what we actually

      15      did was, we held sexual-harassment trainings in

      16      conjunction with the commission on human rights, so

      17      that they got to meet the people who could possibly

      18      help them, right, in a safe space.

      19             We've held other sexual-harassment trainings

      20      with self-defense classes, so that they could go

      21      home with something that makes them feel a little

      22      bit more empowered.

      23             We showed them the websites.

      24             We have been in communication with, actually,

      25      the division of human rights, around the -- the new







                                                                   538
       1      requirements.

       2             And, most importantly, we're in constant

       3      conversation with, and building up, worker leaders,

       4      to understand:  How are these rights affecting their

       5      lives?  What are the barriers?

       6             They are the experts, so we need to build

       7      space for them to voice their expertise, and

       8      actually creating the space for them to talk to the

       9      other decision-makers directly.  Right?  They're --

      10      I'm not always the conduit.

      11             SENATOR BIAGGI:  That's incredibly helpful,

      12      and very illuminating.

      13             And I have two -- one question, and one

      14      comment, just to share information.

      15             Do you think that it would be helpful for us

      16      to do -- and I mean, "us," in our individual

      17      capacities, 'cause, you know, one of the ways that

      18      we communicate with our constituents, is we are able

      19      to send mailings, home.

      20             Now, you know, there's lots of information to

      21      send, but perhaps this is one of those areas where

      22      I feel like there's not much communication shared.

      23      Right?

      24             So, it's -- it's a two-way street, so that,

      25      we know that -- and that doesn't -- that's not to







                                                                   539
       1      say that our constituents are not domestic workers.

       2             But what I'm saying is that, we can have an

       3      information that's sent home, that says, Are you --

       4      do you employ a domestic worker, or are you a

       5      domestic worker?

       6             And have a flip-card, right, that we have --

       7      that we ask either our Senate communications or the

       8      Assembly communications to create for us, to send

       9      home, to say:

      10             Here's what you need to know about this

      11      industry, and the rights that these people have.

      12             Or, if you're a worker, this is where you

      13      need to go.

      14             Because, one of the things I know for sure,

      15      is that, you know, one of the reasons we know, as --

      16      as citizens, is:  You have the right to remain

      17      silent.  Anything you say can be -- right?

      18             We know that because it's become -- it's like

      19      pop culture, almost.

      20             But so much of what we need to know has to be

      21      almost turned into that.

      22             And so the fact that you're walking around

      23      with these (indiscernible) cards is so important.

      24             And to create -- to create more communication

      25      around it from all the different areas that can







                                                                   540
       1      possibly be pulled on to share this information is

       2      an important way to get this information out.

       3             But I want to know if you think that that's a

       4      helpful mechanism that we can do, separate and

       5      distinct from legislation?

       6             MARISSA SENTENO:  Yeah, so it is a helpful

       7      mechanism.

       8             I think, for domestic workers, we are

       9      understanding that it's everyone's responsibility to

      10      ensure enforcement of our rights: it's workers, it's

      11      government, and it's employers.

      12             And we are responsible for workers

      13      understanding how to enforce their rights.

      14             We would like help to -- for employers to

      15      understand that they are also, in part --

      16             SENATOR BIAGGI:  That's wonderful to hear.

      17             So -- but -- so what I'm asking then from

      18      both you is, would you help us to create what that

      19      communication would look like, so we don't get it

      20      wrong --

      21             MARISSA SENTENO:  Certainly.

      22             SENATOR BIAGGI:  -- and we can send that into

      23      our districts?

      24             MARISSA SENTENO:  We have a -- you want to

      25      tell them?







                                                                   541
       1             DANIELA CONTRERAS:  No, go ahead.

       2             MARISSA SENTENO:  Okay, all right.

       3             Hand in Hand is our sister organization that

       4      employ -- that organizes employers, specifically.

       5      They have a nice kind of hub in Brooklyn,

       6      themselves, and they've been doing some really great

       7      outreach.  They have some great, like, pamphlets

       8      and -- and booklets.

       9             So I would love to be able to, like, connect

      10      to you all with them.

      11             And then they are also, like, all of us in

      12      communication together, because, when workers

      13      themselves, like, when they put their stamp of

      14      approval on it, you're, like, okay, that's going to

      15      fly.

      16             SENATOR BIAGGI:  Right, that's right.

      17             That's wonderful.

      18             And I'm going to take you the up on that.

      19             Are you familiar with the Workplace Project?

      20             MARISSA SENTENO:  Yes.  They are an affiliate

      21      of ours.

      22             SENATOR BIAGGI:  They are?

      23             MARISSA SENTENO:  Uh-huh.

      24             SENATOR BIAGGI:  Oh, okay.

      25             Jennifer Gordon, who their -- is the







                                                                   542
       1      professor from Fordham Law School, was my

       2      immigration law professor.  So, her work in this

       3      area has been --

       4             MARISSA SENTENO:  Yes.

       5             SENATOR BIAGGI:  -- transformational.

       6             MARISSA SENTENO:  Yes, absolutely.

       7             SENATOR BIAGGI:  And I'm glad that you're

       8      working all together, but not surprising at all.

       9             MARISSA SENTENO:  Yes.

      10             SENATOR BIAGGI:  Thank you.

      11             MARISSA SENTENO:  Thank you.

      12             ASSEMBLYMAN CRESPO:  Thank you both for your

      13      testimony.

      14             Daniela, (speaking Spanish).

      15             For those of you who are

      16      bilingually-challenged, I just said, she's amazing.

      17             I'm really taken aback on this, on a couple

      18      of fronts.

      19             Number one:  I grew up in a household, a

      20      family, where most of my aunts worked as domestic

      21      workers; some of them still do.  And, we've heard

      22      their stories, nothing to the extent of which you

      23      shared.

      24             But I could imagine, you know, how common

      25      those stories must be.







                                                                   543
       1             And, what's really interesting, we've talked

       2      a lot all day about the intersectionality of all of

       3      these different categories that can impact a

       4      particular victim; so whether it's race, gender,

       5      sexual orientation... you name it.

       6             In your cases, also, that added dilemma of

       7      status, and the fact that that can be used.

       8             We currently have legislation on the floor,

       9      on third reading, to protect undocumented workers

      10      from being threatened with referrals to ICE by

      11      employers.

      12             We have another bill that arises out of your

      13      efforts, I believe years ago, with the bill of

      14      rights, and working with Keith Wright, at the time

      15      was the chair of the Labor Committee.

      16             And there's a bill on third reading now, that

      17      would also lower the threshold for eligibility for

      18      domestic workers to get disability benefits.

      19             And we're going to continue to go down this

      20      field.

      21             You -- on the labor front of your industry

      22      there's is a lot of work to be done.

      23             And we -- you have my commitment to dive into

      24      these issues, and to be a partner every step of the

      25      way as we strengthen that.







                                                                   544
       1             But just sort of keeping a focus on sexual

       2      harassment and complaints:

       3             So, how many domestic workers are there in

       4      the state of New York, that you're aware of?

       5             MARISSA SENTENO:  So the last best guess,

       6      which is from research in 2010, which isn't good

       7      enough, it's 200,000, 250,000, domestic workers.

       8             Now, we believe that to be much higher

       9      because Hand in Hand actually did a more recent

      10      survey of how many employers of domestic workers

      11      there are.  And that number was much higher.  It was

      12      around 2 million.

      13             So, we're looking at --

      14             ASSEMBLYMAN CRESPO:  So somewhere between

      15      200,000 and 2 million.

      16             MARISSA SENTENO:  Yeah, 2 million, exactly.

      17             ASSEMBLYMAN CRESPO:  And, the vast majority

      18      of them don't have an agency intermediary?

      19             In other words --

      20             MARISSA SENTENO:  No.

      21             ASSEMBLYMAN CRESPO:  -- these are individuals

      22      who make direct arrangements with the owners of the

      23      household --

      24             MARISSA SENTENO:  Right.

      25             ASSEMBLYMAN CRESPO:  -- for, whatever that







                                                                   545
       1      service.

       2             MARISSA SENTENO:  These are direct employees

       3      of -- right, who would be like the household itself.

       4             ASSEMBLYMAN CRESPO:  So for -- for legal

       5      purposes, they are considered independent

       6      contractors?

       7             MARISSA SENTENO:  No, they are -- they are

       8      employees.

       9             ASSEMBLYMAN CRESPO:  Employees?

      10             MARISSA SENTENO:  Yes.

      11             That's a very common misconception, and so

      12      many workers themselves get misclassified because of

      13      it, but they are employees.

      14             So, child-care workers, almost all,

      15      exclusively, employees.

      16             Caregivers, also employees.

      17             House cleaners, mostly all of them are

      18      employees, except for the situations where they

      19      themselves are running their own, like, cleaning

      20      business.  And they are also particularly vulnerable

      21      because of that sort of, like, misunderstanding and

      22      gray area, even amongst themselves.

      23             ASSEMBLYMAN CRESPO:  So if you are a

      24      cleaner -- house cleaner, but you work -- you get

      25      assigned a job, and you could be assigned to







                                                                   546
       1      different households, on a given schedule, because

       2      another individual is running an actual cleaning

       3      business, you're an employee of the business, in

       4      that case, not the household you're cleaning?

       5             MARISSA SENTENO:  Right.  If there is like

       6      a -- sometimes they call them, like, "scheduler" --

       7             ASSEMBLYMAN CRESPO:  Yes.

       8             MARISSA SENTENO:  -- and of that business.

       9             By and large, though, they're -- they're --

      10      most house cleaners are direct employees of, like --

      11      they make that arrangement with the -- with the

      12      employer, with the homeowner.

      13             ASSEMBLYMAN CRESPO:  So --

      14             MARISSA SENTENO:  (Indiscernible

      15      cross-talking) --

      16             ASSEMBLYMAN CRESPO:  -- right now, the remedy

      17      for filing a case would be the division of human

      18      rights?

      19             MARISSA SENTENO:  Division of human rights.

      20             And then, currently, if you live in New York

      21      City, the commission on human rights.

      22             ASSEMBLYMAN CRESPO:  And then, in cases

      23      you've seen, we've talked a lot about this current

      24      standard of "severe or pervasive," how does a

      25      domestic worker, how do you, Daniela, if you would







                                                                   547
       1      have brought that case forward, prove any of what

       2      happened?

       3             DANIELA CONTRERAS:  I wouldn't have any

       4      proof.  Just my word.

       5             ASSEMBLYMAN CRESPO:  There's no co-worker to

       6      go to the witness?  There's no --

       7             DANIELA CONTRERAS:  I had the baby, but, he

       8      was a 3-year-old.  So, no one else.

       9             ASSEMBLYMAN CRESPO:  I'm just curious, did

      10      you ever confront --

      11             DANIELA CONTRERAS:  No.

      12             ASSEMBLYMAN CRESPO:  -- his wife?

      13             DANIELA CONTRERAS:  Never.

      14             Never went back, did not care -- well, it's

      15      not that I didn't care.  I was afraid.  My status

      16      was one thing.  Language was another.

      17             And, what was I supposed to do?

      18             ASSEMBLYMAN CRESPO:  Right, right.

      19             MARISSA SENTENO:  I know of two instances

      20      where workers have confronted the other partner.

      21             One was met with very severe aggression.

      22             The other was met with severe retaliation,

      23      like, blacklisting the worker.

      24             And, yes, you're right, it is very difficult

      25      to prove, because they're the only people in the







                                                                   548
       1      house.

       2             ASSEMBLYMAN CRESPO:  Again, I'm really

       3      interested in following up, and having more

       4      conversations, and figuring out how we can work

       5      together, through the committee, to do more work

       6      around protections for -- you know, just, in

       7      general.

       8             MARISSA SENTENO:  Absolutely.

       9             ASSEMBLYMAN CRESPO:  But I really want to

      10      commend you, the work you are describing, and what

      11      you are doing, to empower colleagues in this field,

      12      is remarkable.

      13                (Speaking Spanish.)

      14             Thank you for doing that.

      15             Assemblywoman Simotas.

      16             ASSEMBLYWOMAN SIMOTAS:  Marissa, Daniela,

      17      thank you for opening our eyes.

      18             I understand that harassment, any kind of

      19      harassment, especially sexual harassment, it's about

      20      a power dynamic.  It's about, an employer, or

      21      somebody who's a supervisor, who is in a position of

      22      power, who is taking advantage of an employee,

      23      because, sometimes, because they can.

      24             And, I think your testimony today, very

      25      pointed testimony, really highlights that.







                                                                   549
       1             Daniela, you really established that with

       2      your example of what happened to you; that, you were

       3      taken advantage of, just because, you were

       4      somebody -- there was somebody who felt that they

       5      were in power over you.

       6             With that, you know, I agree with you,

       7      Marissa, that we have to take steps and provide

       8      resources, to allow people, especially when they're

       9      economically disadvantaged, to come forward.

      10             So, in addition to changing our statute of

      11      limitations to extending the time, what other

      12      resources can we as a state provide to workers who

      13      may not have the economic ability to just quit their

      14      job and move on, and, you know, find a lawyer or

      15      file a complaint?

      16             What can we do?

      17             MARISSA SENTENO:  So funding for legal-aid

      18      services, especially those that deal with the most

      19      vulnerable workplace populations.

      20             I have been working with day laborers and

      21      domestic workers for over 15-plus years.  It is the

      22      hardest thing to find legal advocates, lawyers, that

      23      specialize in worker-rights protections, and then

      24      also have experience in harassment itself.

      25             So funding more money into those really key







                                                                   550
       1      legal services, service providers, and then also the

       2      community-based groups that specialize in working

       3      with the most vulnerable workplace populations, like

       4      domestic workers, is really key.

       5             Mental-health services as well.

       6             I know that New York City is trying to kind

       7      of expand, but we know that, you know, domestic

       8      workers are statewide.  Right?

       9             I worked in Westchester for many years.

      10             And so we see that, New York City workers, we

      11      can at least get to the park and talk to them.

      12             Workers in Westchester, Long Island, and then

      13      further up north, so much more isolated.

      14             So the onus is on us to really be able to get

      15      out into a lot of different types of communities,

      16      and to be able to provide, you know, mental-health

      17      services, health services itself, to just women of

      18      color, low-wage workers.

      19             And then emergency-housing funding for

      20      especially domestic workers who are live-in.

      21             I don't know how many times I've had workers

      22      just result homeless because of what happened on the

      23      job.

      24             That's a really big factor for women coming

      25      forward in the domestic workplace.







                                                                   551
       1             And then thinking about, really, like, how to

       2      create a framework of support, because the one

       3      avenue, enforcement, needs to do its thing.  But

       4      then there also needs to be the support for workers

       5      to be able to heal and move on, as well as kind of

       6      rebuild their career opportunities, and move on from

       7      that.

       8             And then -- so we do part of that through the

       9      organizing, but we know that we are severely

      10      lacking.  Right?

      11             For the few cases that come forward with

      12      sexual harassment, like, it breaks my -- it doesn't

      13      just break my heart, but it makes you weary, trying

      14      to provide things that, you know, I got to like pull

      15      out of thin air, or something.

      16             And that shouldn't really be the case, at

      17      all.

      18             And if there were like a statewide, also,

      19      like guide of resources, like, verified resources,

      20      around, like, where do people go for different types

      21      of situations.

      22             You know, oftentimes we work in this, like,

      23      loose network of, like, who do I know, like, I can

      24      call when I have a certain type of issue?

      25             But that really shouldn't be the case either.







                                                                   552
       1      Right?

       2             It should be more formalized, so that we can

       3      have like a better connected network system for the

       4      most vulnerable workers.

       5             ASSEMBLYWOMAN SIMOTAS:  And I have one more

       6      question.

       7             Clearly, many domestic workers may not --

       8      English might not be their primary language.

       9             How do we make it easier for domestic workers

      10      to report problems when they face them?

      11             Obviously, we have to educate them about the

      12      law.  But maybe putting them -- maybe the State

      13      actually advertising, or putting notices in

      14      foreign-language newspapers.

      15             I'm just thinking outside of the box.

      16             I mean, we really have to make them feel

      17      comfortable with reporting these incidences.

      18             Do you have any thoughts on that?

      19             MARISSA SENTENO:  Yeah, that's why we've

      20      invested worker leaders.

      21             I mean, Daniela was my first cohort of worker

      22      leader.  Like, she came part-time, learning about

      23      her rights.  Is bilingual.

      24             I've had teams of, like, four or five who

      25      will, spoke between them, like, eight different







                                                                   553
       1      languages.

       2             So when we invest in community members who

       3      are really motivated to be liaisons, navigators,

       4      within the community, they themselves have -- you

       5      know, increase the language capacity for, like, our

       6      small entity.  And then you'd be surprised how many

       7      people they can talk to.

       8             This past year I've had a team of three,

       9      between, like, four different languages.  And they

      10      spoke into over 1,000 workers in this, you know,

      11      past summer.

      12             And that's -- for us, was quite -- quite an

      13      influx of contacts.  But then we're able to bring

      14      forward 100-plus -- no, 150-plus cases, when,

      15      before, it was, like, you know, five cases.

      16             So I know that when we invest in people in

      17      the community, that can go out into the community

      18      and have like the language access themselves.

      19             And then of the materials that we use, it's

      20      always, we have them -- we actually utilize the City

      21      a lot.

      22             I would commend the City in being able to

      23      provide us a lot of access to different languages,

      24      in -- and they have like a really excellent, like,

      25      bill-of-rights booklet.







                                                                   554
       1             If you haven't seen it, track it down.

       2             It's really good, because it starts the

       3      conversation, and then it's in -- and it's in many

       4      languages.

       5             ASSEMBLYWOMAN SIMOTAS:  And just so that

       6      I can clarify the record, our first step has to be,

       7      to make sure that our state human rights law covers

       8      domestic workers.

       9             MARISSA SENTENO:  Absolutely.

      10             ASSEMBLYWOMAN SIMOTAS:  And places of

      11      employment that, you know, could just be one person,

      12      or two people, like, not -- it doesn't have to be

      13      more than four.  Correct?

      14             MARISSA SENTENO:  Uh-huh.  Absolutely.

      15             ASSEMBLYWOMAN SIMOTAS:  Thank you very much.

      16             MARISSA SENTENO:  Thank you.

      17             ASSEMBLYMAN CRESPO:  Assemblywoman Niou.

      18             ASSEMBLYWOMAN NIOU:  Hi.  Thank you so much

      19      for your testimony.

      20             I think that it was really, really powerful

      21      to hear.

      22             And I -- I -- I agree with Chair Biaggi,

      23      because there are so many incidences, that it's,

      24      like, you can't even count them.

      25             You can't even count them; it happens to







                                                                   555
       1      women daily.

       2             And your testimony really, I think, shined a

       3      light on that.

       4             And I just want to clarify, I don't think

       5      that anyone meant to say anything like -- that might

       6      sound like that, but, you don't have to confront

       7      anyone.  You don't -- you don't have to do anything.

       8             You don't have to do anything that you're

       9      uncomfortable with.

      10             I just wanted to clarify that for folks,

      11      because, I think that so many of us go through so

      12      many situations, where it's enough to just get out

      13      of a situation safely, and to walk away unscathed.

      14             I don't -- I just want to clarify that,

      15      there's nothing wrong with how anybody reacts to any

      16      situation that is sexually violent, or, violent, in

      17      any circumstance.

      18             I -- I -- I know that there's a lot of laws

      19      on the books.

      20             We just also talked about taxi drivers, we

      21      talked about bus drivers, we've talked about

      22      hospital personnel, and, folks who assault or harass

      23      these folks, they have a particular protection, you

      24      know, because we all know that -- and I remember

      25      working on this with Assemblymember Ron Kim, that,







                                                                   556
       1      you know, taxi drivers, they're put in the specific

       2      situation, just like domestic workers are.

       3             Taxi drivers, though, are put in specific

       4      situation where they have the drive people anywhere,

       5      and they have a roll of cash on them.  So people

       6      will assault them, to get the money, or, you know,

       7      they think that they can just drive them somewhere,

       8      and then they'll put them in a dark place, or

       9      something, and do something to them.

      10             But most of these are -- protections are --

      11      I've just kind of realized in my head, that many of

      12      them are regarding men, positions that -- you know,

      13      that they deserve these special protections

      14      because -- and -- and the higher protection, because

      15      of the position that they're in, they're public

      16      employees, like, if they're working for the MTA,

      17      et cetera.

      18             But, what if there is something that is also

      19      protecting domestic workers like that, is that

      20      something that would be helpful, to say that

      21      they're -- it's a felony to attack your -- your

      22      employee?

      23             I don't know.

      24             MARISSA SENTENO:  That would be great.  I'm

      25      like...







                                                                   557
       1             I would say, first of all, because we're a

       2      member organization, that's something that we would

       3      ask specifically, like, our members:  What would it

       4      take for them to feel protected?  What would it

       5      take?

       6             We do know that, what it takes for them to

       7      feel a little bit more -- the power differential is

       8      so high, so, for them to feel a little bit more of a

       9      level playing field, is that, when there are

      10      contracts.

      11             And so, you know, we would love to put

      12      forward that notice of rights, and, contracts be

      13      mandated for domestic workers and employers, because

      14      at least, that way, there is, first of all, a level

      15      of understanding between the two, and it needs to be

      16      in the language that the workers themselves speak.

      17             This all goes to, also, agency employee --

      18      employee -- ack, sorry -- employment agencies --

      19      it's been a long day -- as well, so that people --

      20      what happens is, especially for employment agencies,

      21      for newly-arrived immigrant communities, it's sort

      22      of, like, where they go to first, and then are

      23      shipped off into these far-away suburbs, where they

      24      may not have contact with other people outside of

      25      their specific community for, like, several years,







                                                                   558
       1      until they've built up enough capital for

       2      themselves, to kind of, like, move on to different

       3      jobs.

       4             And then for -- between domestic

       5      worker-employer unit, the household, contracts help

       6      them have a better understanding.

       7             ASSEMBLYWOMAN NIOU:  That's great.

       8             I mean, I think that what you just said is so

       9      key.

      10             Like, if you want to ask your members, like,

      11      if there's anything that you think that would be --

      12      you know, "How would you feel safe?" I think that's

      13      a great question.

      14             And I would love to be able to hear --

      15             MARISSA SENTENO:  Sure.

      16             ASSEMBLYWOMAN NIOU:  -- the answers for that

      17      question, because I think that, you know -- I don't

      18      want to hear these testimonies again.  I don't what

      19      to hear -- I don't want to hear this.

      20             MARISSA SENTENO:  We're designing a survey

      21      for New York City domestic worker, employers.  We're

      22      hoping to launch it this fall, training workers this

      23      summer, to be surveyors themselves.

      24             And, yeah, and these are the things that we

      25      asked them.  Like, what will it take for you to







                                                                   559
       1      feel, heard, respected, and honored at your work?

       2             And so, actually, I'll go back to the survey

       3      and see if there's something of that component.

       4             ASSEMBLYWOMAN NIOU:  That would be great.

       5      I love it.

       6             Thank you so much.

       7             ASSEMBLYMAN CRESPO:  Two more questions.

       8             Do you have an app?

       9             DANIELA CONTRERAS:  An app?

      10             MARISSA SENTENO:  Okay, so we don't have --

      11      we have a Facebook.  All of the "grams," right,

      12      Twitters.

      13             We also an app for portable benefits.  It's

      14      called "Alia."  And that's specific to trying to

      15      address how house care -- house cleaners themselves

      16      are not able to gain access to certain types of

      17      benefits.

      18             But, an app for, like, worker rights, the

      19      last one I saw was like the -- has you all heard

      20      about the (indiscernible) app?

      21             So I'm not sure if -- like, what -- what

      22      you're getting at.

      23             ASSEMBLYMAN CRESPO:  And do you provide, or

      24      do you also assist, domestic workers with template

      25      contracts?







                                                                   560
       1             MARISSA SENTENO:  Yeah, we do have template

       2      contracts.

       3             We would love for that to be something the

       4      State could help provide template contracts for the

       5      different, like, work sectors, so that employers had

       6      like a trusted place to go, some guidance.

       7             And, you all would be like a trusted entity,

       8      and be, like, okay, if I have a house cleaner, this

       9      is what a general contract should look like.

      10             Currently, our contracts are mostly geared

      11      towards nannies.

      12             ASSEMBLYMAN CRESPO:  Okay.  There's a lot

      13      more questions, but we'll do a follow-up.

      14             I appreciate your time and your testimony.

      15             Thank you.

      16             MARISSA SENTENO:  Thank you.

      17             DANIELA CONTRERAS:  Thank you.

      18             SENATOR BIAGGI:  Thank you so much.

      19             Next we are going to hear from

      20      Cynthia Lowney, Marie Tooker, and Christine Reardon.

      21             ASSEMBLYMAN CRESPO:  Thank you.  You can

      22      begin.

      23             CYNTHIA LOWNEY, ESQ.:  Okay.

      24             My name is Cynthia Lowney.

      25             I'd like to say thank you, good evening, and







                                                                   561
       1      I'm glad that you waited to hear what we had to say.

       2             Good evening, as I said, Senators,

       3      Assemblymembers, staffers, and all.

       4             Thank you for holding and attending this

       5      joint New York State Senate and Assembly public

       6      hearing to examine sexual harassment in the

       7      workplace.

       8             I believe that both the definition and the

       9      venue should be extended and broadened.

      10             "Sexual" should also include gender and

      11      racial harassment, and "workplace" should include

      12      interviews, social and/or work-related events,

      13      volunteer work, et cetera.

      14             Hostile work environments need to be

      15      eradicated by the compliance and the enforcement of

      16      rules, regulations, and laws that are already in

      17      existence, in a timely manner, and refined by

      18      updates when necessary.

      19             "Sexual harassment" can be defined in a

      20      myriad of ways.

      21             The usual definitions includes unwanted or

      22      unwelcomed sexual remarks or physical advances in a

      23      workplace or other professional and social

      24      situations.

      25             It includes:







                                                                   562
       1             Making offensive remarks about women in

       2      general, as well as offensive suggestions and/or

       3      photos;

       4             Giving gifts of a sexual nature;

       5             Repeatedly asking another to socialize when

       6      given a negative response, especially if it's a

       7      supervisor;

       8             Verbal abuse of a sexual nature, touching,

       9      grabbing, repeatedly too close, or brushing up

      10      against a person by a superior, even from another

      11      area or unit, a co-worker, a client, a customer;

      12             Sexual pranks, teasing, singing love songs in

      13      the workplace, telling events of jokes of a sexual

      14      nature, innuendos, in person, by e-mail, phone, or

      15      other social media.

      16             People need to know the definition, and that

      17      is precisely why education and training are

      18      imperative, and not just in the workplace.

      19             Unwelcomed conduct unreasonably interferes

      20      with and/or intimidates one to do work performance,

      21      and, it can create an unhealthy, hostile, or abusive

      22      work environment.

      23             Giving promotions, awards, training, or other

      24      job benefits to another who reluctantly accepts, or,

      25      may even want unwelcomed activity if that means you







                                                                   563
       1      get a promotion, anything like this of a sexual

       2      nature is wrong.

       3             And, notably, the harasser can be of the

       4      gender, race, or religion.

       5             Education.

       6             One needs to know the definition of "sexual

       7      harassment," which I believe needs to be expanded to

       8      the gender, racial, and harassment of people because

       9      of their religion, so that others can better

      10      understand the entire component involved.

      11             We must the expand the definition, and

      12      acknowledge a behavior, give it a name, so that

      13      people know, understand, and accept it as

      14      egregiously wrong; not just something like, "Oh,

      15      what a nice outfit you're wearing," or, "You look

      16      great today," which a lot of people have

      17      sarcastically, or perhaps they believe, has to do

      18      with sexual harassment, when there are no added

      19      actions or motions.

      20             False accusations are yet another problem

      21      that must be addressed.

      22             Because of a lack of education on topics or a

      23      misunderstanding, one might file a complaint that is

      24      inappropriate or false.

      25             The target can also have longstanding







                                                                   564
       1      negative effects as to his or her career.

       2             When so few know what it is, how can

       3      businesses, organizations, and government entities

       4      instill effective policies?

       5             Similarly, without education, how would

       6      parents, relatives, teachers, coaches, mentors,

       7      neighbors, and all, know what could and should be

       8      done, or what should be reported?

       9             Why don't people speak out?

      10             "Those who are aggrieved keep silent for fear

      11      of retaliation: firing, being blackballed," as

      12      Anita Hill said in 1991, when asked why she had not

      13      come forward about the sexual harassment towards her

      14      by Clarence Thomas, when she was subpoenaed for

      15      testimony during his U.S. Supreme Court hearing.

      16      "Was some of a kind of subliminal repercussions,

      17      being labeled as a 'rat,' 'a snitch,' failing to

      18      adhere to the 'boys' club' mantra, or being denied

      19      promotions."

      20             For sure, Professor Anita Hill was

      21      criticized.

      22             In her career, while successful in some

      23      limited ways, was negatively affected, while

      24      Clarence Thomas is still a U.S. Supreme Court judge.

      25             Former New York State Governor Mario Cuomo







                                                                   565
       1      had an executive order issued in the early 1990s,

       2      that forbid New York State employees from acting,

       3      ignoring, encouraging, condoning, excusing, sexual

       4      harassment.

       5             That executive order did not curtail the

       6      rampant gender and racial discrimination that

       7      persisted in the New York State Department of Labor.

       8             My specific reason for submitting

       9      this testimony is because, after I heard

      10      Professor Anita Hill's testimony in 1991, I was a

      11      New York State Department of Labor administrative

      12      law judge in Brooklyn, New York.

      13             I was one of 21 administrative law judges

      14      hired in '91 to '92, because the New York State

      15      Department of Labor was required to hire women and

      16      minorities, since over 90 percent of the judges were

      17      White males.

      18             From the onset, the instances of gender,

      19      racial, and sexual harassment and discrimination

      20      were rampant.

      21             When we attended a training session in

      22      Albany, New York, in December 1991, it was the first

      23      time, after working since March of that year, that

      24      the ALJs had a social interaction after the daytime

      25      courses.







                                                                   566
       1             It was then that we realized the illegal

       2      behavior was beyond outrageous, as there was a

       3      hospitality room; a bedroom converted to an

       4      opportunity to have liquor and speak with the other

       5      ALJs, including supervisors and the executive

       6      director, all of whom were White males.

       7             Within moments, we witnessed one of only

       8      three ALJs hired prior to our hiring, kissing a few

       9      supervisory judges and posing for photos with them.

      10             Most of us were newer ALJs, and we left

      11      quietly without saying anything to those who

      12      remained.

      13             We then began to relay what other gender,

      14      racial, and religious harassment and discrimination

      15      had occurred to us in our isolated cubicles.

      16             Because most of us had a 30-minute lunch

      17      period, and had to travel from under the

      18      Brooklyn Bridge, on a van, to downtown Brooklyn to

      19      obtain our lunch, our conversations were extremely

      20      limited, since we wrote appellate divisions.

      21             I had public contact because I was one of two

      22      ALJs chosen to do special hearings, since I had been

      23      an ALJ at another New York State entity prior to

      24      going to the department of labor.

      25             When we arrived back at work the following







                                                                   567
       1      workday, which was a Monday, we were somewhat

       2      shocked, but totally dismayed, to see photos of the

       3      female ALJ, and the supervisors kissing her, posted

       4      by our main mailboxes.

       5             Subsequently, armed with knowledge that there

       6      was a serious problem, we contacted our union, the

       7      Public Employees Federation, and spoke with our

       8      representative.

       9             All of we new hires were provisional, and the

      10      New York State Department of Labor would not give us

      11      a test; therefore, most were afraid to file a

      12      grievance or complaint.

      13             Fear of losing a job was prominent; however,

      14      without civil-service protection, and being on

      15      probation, even if hired by a test, allowed these

      16      few White males in a powerful position to persist

      17      with their antics of harassment and/or

      18      discrimination, and what we later learned was their

      19      way to encourage us to leave our jobs.

      20             When a few of us contacted the employee

      21      assistance program and/or the office of equal

      22      opportunity at the department of labor, an explosion

      23      of interrogations, and more retaliation, occurred.

      24             The EAP counselor I consulted violated my

      25      privacy by reporting what I said to the OEO office







                                                                   568
       1      without asking for my permission, or telling me that

       2      she did so.

       3             Another ALJ went to OEO about racial and

       4      gender discrimination against her.

       5             When the chief ALJ got a message from OEO

       6      that a female ALJ had complained, and he wanted to

       7      talk to him, I was called into his office because he

       8      assumed that I was the one that went to OEO, and he

       9      interrogated me for over an hour, without a witness

      10      for me, while he had a witness.

      11             When I asked for union representation, he

      12      told, that if I wanted to leave his office, he would

      13      write me up for insubordination.

      14             I stayed.

      15             While I filed a PEF grievance about unfair

      16      and unequal treatment, and won a $1,000 award, the

      17      rampant treatment and retaliation I suffered was

      18      outrageous.

      19             On one occasion, the chief ALJ and executive

      20      director insisted that I stay after work for them to

      21      review 25 of my cases at once.

      22             The norm was, for a senior ALJ, to review one

      23      at a time, and simply send back any recommendation

      24      or changes.

      25             Before my one-year anniversary at the job,







                                                                   569
       1      and, without even one formal review of my work,

       2      I was terminated, along with the minority female who

       3      had gone to OEO.

       4             It was blatant retaliation, and was a message

       5      to all others that, if they dared to report

       6      anything, they too would lose their positions.

       7             Even though I won the grievance, the DOL

       8      never investigated my complaint that violated the

       9      PEF contract.

      10             Both the other ALJ and I filed outside

      11      complaints of harassment, discrimination, and/or

      12      retaliation.

      13             I filed my complaint with the U.S. EEOC

      14      because I did not want a New York State entity

      15      reviewing a sister-brother unit.

      16             Unfortunately, the EEOC transferred my case

      17      to the State Division of Human Rights in New York,

      18      without consulting me or obtaining my permission,

      19      because EEOC's backlog at that time was 10 years.

      20             That's not a typo.

      21             And that was in 1992.

      22             I contacted our family friend,

      23      Senator John Markey, who was able to have our

      24      immediate termination letter revised to include

      25      two weeks' notice.







                                                                   570
       1             The governor's office was notified, and his

       2      governor's office of employee relations was notified

       3      as well.

       4             However, while Senator Markey's office had

       5      intended to assist us more vigorously, he was

       6      hospitalized to undergo emergency surgery, and, we

       7      were just without work.

       8             A New York State DOL attorney from Buffalo

       9      interviewed me in the summer of 1992, and

      10      recommended that I be reinstated; she told me so.

      11             However, the chief judge did not make that

      12      recommendation; I was not reinstated.

      13             After months of no job prospects as an

      14      attorney, I was hired by the PEF regional director,

      15      Bob Jackson, now a New York State Senator, to fill

      16      in as a union rep for a woman on maternity leave.

      17             A PEF union grievance was filed on behalf of

      18      other ALJs, since none would dare sign their name on

      19      it for fear of termination.

      20             And when the test was given, both the other

      21      ALG who was terminated the same day as me, and I,

      22      both scored 100, and we were ranked Number 1.

      23             But Number 27, a White male, was hired.

      24             Because I was a single mother of two, unable

      25      to obtain a position with sufficient income, I had







                                                                   571
       1      to cash in any pension moneys that I had in the

       2      New York State Retirement System.

       3             I had an income execution order for child

       4      support because of non-compliance after a divorce,

       5      but it was unenforceable, since I was able to

       6      hire -- unable to hire a person to determine the

       7      whereabouts of my children's father after he left

       8      New York State.

       9             My financial woes continued because of the

      10      State Division of Human Rights' backlog.  Their move

      11      to another location, and letters not to contact

      12      them, because they were busy with other cases.

      13             My probable-cause hearing that was supposed

      14      to occur in 90 days, according to the executive law

      15      in New York State, took 4 years.

      16             I had the probable-cause hearing in 1996,

      17      along with the other ALJ who was terminated the same

      18      day as me in April of '92.

      19             I won my hearing, and the DOL appealed it.

      20             I won the appeal, which meant that it

      21      would -- I would be entitled to a public hearing,

      22      or, I could proceed in federal court.

      23             Both the other ALJ, and many others that were

      24      subsequently fired before the test results had come

      25      out, we could not get an attorney to represent us on







                                                                   572
       1      any kind of a contingency.  They wanted $10,000 from

       2      each of us.  And I was making way under 40,000 at

       3      the time.  And like I said, I had two kids.

       4             I could not afford that substantial retainer

       5      for a private attorney, and, therefore, I could go

       6      to federal court.

       7             No not-for-profit would take my case because

       8      they knew backlogs meant lots of paperwork, lots of

       9      time; no money.

      10             I had a rely on the State Division of Human

      11      Rights.  They would only represent my complaint, but

      12      not me personally, whatever that meant.

      13             I never had a public hearing for several more

      14      years.  All that while I took what I called

      15      "survival jobs," and, often, that meant two or

      16      three jobs at a time, including many without

      17      medical, dental, prescription, optical benefits, or

      18      vacation, sick, personal days, and some with

      19      minimum-wage salaries.

      20             At the same time, I had to hope for a

      21      hearing; but, instead, attended various conferences

      22      with the State Division of Human Rights, on little

      23      notice to my employers for a day off from work,

      24      often without pay, because the positions were

      25      temporary, provisional, 1099, or seasonal, and







                                                                   573
       1      travel to State Division of Human Rights' offices in

       2      Harlem, Hauppauge, Brooklyn, and The Bronx.

       3             Neither the attorney for the DOL, nor the

       4      attorney for the State Division of Human Rights

       5      considered my loss of work every time they

       6      postponed, failed, agreed to adjournments, or they

       7      failed to produce documents or were unprepared.

       8             Even presiding ALJ -- even ALJ -- I'm sorry.

       9             Even presiding ALJ demands that the DOL be

      10      prepared and show up with files was ignored.

      11             Most corporations, not-for-profits, and

      12      others enter into negotiations when it's a case of

      13      the State Division of Human Rights, because they

      14      want to expedite all and reduce legal fees, costs,

      15      et cetera.

      16             Government entities do not consider costs,

      17      since attorneys who handle the cases do not suffer

      18      any consequence if they lose a case, and they don't

      19      get a raise if they win.

      20             The incentive to work earnestly sometime

      21      lands in the laps of those who would agree to serial

      22      adjournments by their adversaries.

      23             Accountability as to timeliness,

      24      sufficiencies, was not a priority.  In fact, I never

      25      met -- in all those years, 15 years in the end, I







                                                                   574
       1      never met the general counsel or the commissioners

       2      that were appointed over that entire experience.

       3             My public hearing took 38 days of testimony

       4      over 18 months.

       5             Both the DOL and State Division of Human

       6      Rights' attorneys were required to file briefs, but

       7      neither of them ever did that.

       8             The State Division of Human Rights' attorney

       9      failed to file a brief after several months of

      10      extensions, and work was done by me most of the

      11      time.

      12             She notified both the ALJ, who presided over

      13      the hearing, and me, the Friday before the brief was

      14      due on that following Monday, after months of

      15      extensions, ergo, I put together a brief, without a

      16      library, on 48 hours' notice, hoping the ALJ would

      17      accept it.

      18             The DOL attorney who was at the hearing for

      19      those 18 months left the DOL, and another attorney

      20      not familiar with the case, allegedly, filed a

      21      brief, but I never got a copy of it.

      22             15 years later, after I filed my 1992

      23      complaint, I received --

      24             And by the way, there was a typo there.  It

      25      should say '92, not '96.







                                                                   575
       1             -- I received a winning recommendation for

       2      back pay, minus what I did make, plus 9 percent

       3      interest, 50,000 in compensatory damages, and

       4      immediate reinstatement.

       5             That would have been almost 500,000 for those

       6      15 years.

       7             Both the DOA and, shockingly, the State

       8      Division of Human Rights, objected to my win.

       9             I anticipated that the DOL would object;

      10      however, it was beyond astonishing that the

      11      State Division of Human Rights objected.

      12             Since the attorney had not been prepared,

      13      I did almost all the questions to the various

      14      witnesses whose names I gave to her.

      15             I had to Xerox all for her when she received

      16      papers from the DOL at a hearing, while she got her

      17      lunch.

      18             Apparently, her boss, the general counsel,

      19      Gina Lopez Summer, was undergoing New York State

      20      confirmation to become a New York State Court of

      21      Claims judge when that decision came out, and the

      22      award, as given, would have publicly exposed the

      23      inefficiency at the State Division of Human Rights

      24      under her supervision, and that would have caused,

      25      you know, major harm, stress, et cetera, to her, but







                                                                   576
       1      it also cost me lots of that as well.

       2             Taxpayers would have been outraged if they

       3      saw the amounts of money that I won, based on a

       4      9 percent interest rate for the difference in the

       5      salaries that I made and the salaries that I would

       6      have had, to say nothing about pension again.

       7             A new commissioner was appointed, and that

       8      meant more delays.

       9             Gina Lopez Summer was approved by the

      10      New York State Senate, and the new commissioner

      11      handed me a decision and order, that included

      12      $100,000 in compensatory damages, but only one year

      13      of back pay, plus interest, because I was a

      14      provisional appointee.

      15             She did not consider that I took, passed, and

      16      scored Number 1 on the civil service exam, and was

      17      never interviewed or hired, and that an associate

      18      commissioner at the New York State Department of

      19      Labor testified at my hearing, that they skipped

      20      over the several of us, the terminated judges,

      21      because they thought they could do so.

      22             Bottom line:

      23             After an appeal, I got zero, because the

      24      New York State Department of Labor hired outside

      25      counsel and filed two affidavits:







                                                                   577
       1             One, that the person who accepted service

       2      from my process server, with me by his side, was not

       3      authorized to accept the papers, which was not true;

       4             And, two, that the only place to serve legal

       5      papers was in Albany, as indicated by an internal

       6      memo, albeit not available to the public.

       7             Suggestions and recommendations that I would

       8      give:

       9             1.  Expand the definition of "sexual

      10      harassment" to include gender, racial, and religious

      11      harassment and discrimination.

      12             2.  Mandate education, beginning in

      13      elementary and high schools, with resources and

      14      teachers who are well trained in those areas,

      15      because workplace harassment, discrimination, is the

      16      result of one's environment: their home, their

      17      family, their school, their neighborhood; religious,

      18      social, and ethnic background; plus, TV social

      19      media, et cetera.

      20             For sure, the double check mark of hiring

      21      only those who fit two categories of

      22      underrepresented groups eliminates hiring those of

      23      certain genders, ethnic, religious, and/or racial

      24      backgrounds, who need to find others with whom they

      25      can have trust, confide in, et cetera.







                                                                   578
       1             3.  Provide training, education, for parents,

       2      families, workers who may not be organized of

       3      their -- I'm sorry -- may not be cognizant of their

       4      own prejudices, behavior, and its effect on others.

       5             We must go to the sources that is the root of

       6      the problem.

       7             4.  The current rules, regulations, and law

       8      must be complied with, and enforced timely, by not

       9      just corporations who often settle with

      10      non-disclosure agreements, thereby allowing the

      11      predators to remain in their jobs, while the person

      12      reporting is giving money, and may not realize that

      13      explaining why they left a position is, in essence,

      14      not true, when an employer agrees that the reason

      15      for leaving is something other than the egregious

      16      behavior, or that their career is ruined because

      17      they did report; but, also, by way of government

      18      entities, not-for-profits, per diems, household

      19      workers, store clerks, waiters, waitresses, actors,

      20      actresses, tutors, coaches, and more.

      21             Justice delayed is justice denied.

      22             5.  Discussing the issue goes back centuries.

      23             Professor Anita Hill; U.S. Supreme Court

      24      Judge Ruth Bader Ginsburg, who graduated, top of her

      25      class; couldn't get a job as a lawyer.  Go teach.







                                                                   579
       1             The Women's Rights movement of the '60s, and

       2      the #MeToo movement, and instilled hope in women

       3      that we would be treated equally and with dignity;

       4      not harassment and discrimination.

       5             Women had their hopes up when they fought for

       6      the right to vote, the right to own property, to

       7      make their own medical decisions, without their

       8      husbands' decisions; to attend military, medical,

       9      law, and business schools, without prejudice against

      10      them; to enter predominantly male fields as

      11      firefighters, police, pilots, FBI agents, judges,

      12      electricians, plumbers, rabbi, minister, priest, and

      13      more, to be promoted to levels consistent with those

      14      who have been met with equal pay, for promotions

      15      given to men with equal education, experience.

      16             The norm has been, and still is, in many

      17      areas, that women and minorities must have superior

      18      credentials to attain positions and salaries that

      19      are equal that of White males.

      20             Neither New York State, nor New York City,

      21      has had a female governor or mayor.

      22             No female has been elected as a

      23      U.S. President.

      24             However, African-American men have all

      25      attained those positions.







                                                                   580
       1             Weekend news is headed by a plethora of women

       2      and minority hosts.  Only recently have women and

       3      minorities appeared more frequently during the week.

       4             Women have, and still do, put up with lots.

       5             Hillary Rodham Clinton was considered too old

       6      to be president of the United States, but

       7      Bernie Sanders and Donald Trump were older.  Nobody

       8      cared about their age.

       9             Many, even women, do not see through the eyes

      10      of harassment and discrimination.

      11             Hearings and legislation are two initial

      12      steps.

      13             The momentum must continue through education,

      14      training, compliance, and enforcement in a timely

      15      manner, if all serious about eradicating harassment

      16      and discrimination.

      17             Justice delayed is justice denied.

      18             And I'd just like to end with:

      19             I graduated from NYU in the top 10 percent of

      20      my class.  Went on to get a master's degree, with a

      21      fellowship.

      22             Worked for a year, then went to law school,

      23      and a scholarship to Buffalo, but transferred

      24      because I was married at the time.

      25             Went to Rutgers, where Ruth Bader Ginsberg







                                                                   581
       1      had set up clinics for lawyers.  And I graduated

       2      with a current U.S. Senator, she was in my class.

       3             I have to say that, all of these years, of

       4      the 15 years of waiting and hoping for justice, and

       5      then losing and saying, as a former varsity player,

       6      from elementary school through college, "suck it up

       7      and move forward," you can't suck it up and move

       8      forward.

       9             Retaliation is there forever, especially with

      10      government contracts.

      11             Thank god for Tisch James, changing the thing

      12      of "name your salary," because when I was a

      13      chancellor of the rep, a federal law clerk, all the

      14      different jobs I had, even if they were temporary,

      15      or any of the jobs, an ALJ for the City part-time,

      16      representing people with different things, or being

      17      a volunteer, I didn't have to list salary anymore,

      18      because she passed that for New York City.

      19             That needs to be passed, forever, everywhere.

      20             The other thing is, the retaliation continues

      21      on government applications, especially, "Have you

      22      ever been terminated?"

      23             You have to tell the truth.

      24             And then you tell the truth, and then you're

      25      out there:  You're the rat, you're the







                                                                   582
       1      (indiscernible).  Oh, we can't touch that one.

       2             I'm now 70 years old, and I've been asked on

       3      interviews --

       4             When I score 100 and I get Number 1, and

       5      I know who to call in Albany, to say, Am I going to

       6      be interviewed if I'm Number 1?

       7             Unless they're veterans, you don't have to

       8      interview me.

       9             -- and so I'm getting more interviews, and

      10      what's the question?

      11             You've got a lot of shaky background here.

      12             Why do you have so many jobs?

      13             It's called "survival."

      14             My most recent job was two years.  I worked

      15      two years for a president of the bus drivers' union.

      16             They were doing 100th anniversary for their

      17      union.  I knew the president from community

      18      activity.

      19             I did that for two years.

      20             The day he had open-heart surgery, which was

      21      an emergency, one of his officers came in and said,

      22      We don't need you because he's not here.

      23             And then it's another gap.

      24             Okay?

      25             So, just so you get the picture.







                                                                   583
       1             I hope it helps somebody else, because

       2      I could tell my family, they've lived this story.

       3             My daughters had to make college choices

       4      based on my low income.

       5             Yeah, there's financial aid.

       6             My daughter got into Boston College, her

       7      first choice.  Financial aid was 3,000 of a loan.

       8             She couldn't go there.

       9             She ended up going to Binghamton, ended

      10      loving it.

      11             My other daughter had national merit, she

      12      could pick and choose where she went.  But she

      13      wanted to go to law school.

      14             And she had to go to work first, but that

      15      kills any financial aid, because now you worked.

      16             So, it's really -- it has repercussions for

      17      everybody.

      18             And, right now, my house is in foreclosure.

      19      I was hit with "Sandy" storm.

      20             It's not "Queen for a Day," an old show they

      21      used to have, but, I just can't win.

      22             And I said, I'm gonna just come and tell it,

      23      and it is what it is.

      24             Prior to this, I wouldn't want it to go

      25      public.







                                                                   584
       1             And when we had this problem back in '92, as

       2      a coalition, I know the union said, Come on, all of

       3      you go together.

       4             But all we could see is, "The Daily News,"

       5      "15 judges, knocked out."

       6             And we just thought it would ruin our

       7      reputation.

       8             Well, mine is ruined.

       9             And, at 17, I worked as a telephone operator.

      10             Joined VISTA for a year.  And from VISTA,

      11      I met other people that were in college.  I took a

      12      year off.  And they told me about financial aid.

      13             I put myself through school.

      14             I have a mother that was a high school

      15      dropout, and pregnant at 15, married at 16, and

      16      4 kids by 23.

      17             And I'm telling you, I am the first female in

      18      my family that even graduated college.

      19             And now look at me.

      20             But, thank you.

      21             I'm sorry, I took up more than my 10 minutes,

      22      but, sorry.

      23             MARIE GUERRERA TOOKER:  That's okay.

      24             Hi.  I would say good morning, but that was

      25      at 10:00 this morning.







                                                                   585
       1             But since I've been here now, very long time,

       2      I --

       3                [Laughter.]

       4             MARIE GUERRERA TOOKER:  -- have witnessed

       5      remarkable, wonderful people.

       6             You, this Assembly, for the first time

       7      ever --

       8             I have spoken at the Moreland Commission,

       9      county legislation, town board meetings.  Thrown out

      10      of meetings.

      11             -- I have never seen the most compassionate,

      12      caring, loving, giving group of government Senators

      13      and Assembly.

      14             I -- you're a beacon of hope, and I am so

      15      grateful, so grateful.

      16             It was a pleasure to be here all that time,

      17      to see yous act, and, with all this wonder,

      18      I just -- I'm in awe.

      19             And I'm -- I know now, that New York has a

      20      chance.  We have a chance.

      21             Even though I'm not happy with the Governor,

      22      because the Governor has covered up many crimes in

      23      my case, and I have caught him taking campaign

      24      contributions, not doing good things, covering

      25      things up, I know that we have a chance now, by







                                                                   586
       1      being in this room today with all of you.

       2             So I am very grateful.

       3             So thank you, with all of my heart, and God

       4      bless all of you.

       5             I didn't fully write my speech about my life

       6      because it said not to talk about your life.

       7             But I -- I wrote that I am a victim of the

       8      "Suffolk Crime Family."

       9             And just last Friday, our presiding officer,

      10      legislative, Duane Gregory, actually described the

      11      "Suffolk Crime Family" as "the Sopranos," publicly.

      12             And as you know, Suffolk County has an

      13      indicted DA, the chief of police was convicted, the

      14      Nassau County supervisor -- executive was convicted.

      15             We're having all of these corrupt players,

      16      bad actors, being caught.

      17             So there is hope.

      18             But with women like me, who are

      19      whistle-blowers, retaliation is out of control.

      20             I'm already marked as this crazy woman, who

      21      speaks out.  And anything I do, I'm targeted,

      22      especially law enforcement.

      23             Whenever I go for help, I mean, I've gone

      24      from, them killing my animals, to putting me in --

      25      falsely, in jail, to beating me up in front of my







                                                                   587
       1      children, to being undressed from a federal judge.

       2             So I experienced a lot, and all because

       3      I chose to build my dream that I had since I was a

       4      little girl, to take care of orphans and

       5      underprivileged children.  And I had this beautiful

       6      134-acre farm, that became worth $100 million, and

       7      I chose not to sell.  I chose to follow my dream.

       8             And the powers to be wanted this beautiful

       9      piece of land, and they came to get me.

      10             And my father, unfortunately, was the ring

      11      man.  He was the ring man that brought all the

      12      wolves to me, who paid bribes, kickbacks, favors to

      13      all these powerful people, and they took me down,

      14      and they tried to destroy my life.

      15             But the most important that they didn't do,

      16      that they tried to steal my children.

      17             And most women today, that are like me, they

      18      lose their children.

      19             So God had mercy on me, I did not lose my

      20      children.

      21             But that's why I have the strength to carry

      22      on, to help women like me, who do lose their

      23      children, which is the most horrific thing that

      24      people are not aware of.

      25             When you talk like I do, and speak like I do,







                                                                   588
       1      and tell on them, your children are targeted, and

       2      they come for your children.

       3             And, you're not -- you -- you're

       4      dysfunctional.  It's a hidden disability, that

       5      you're just -- can't function.

       6             So harassment just doesn't come on a sexual

       7      level.  It comes in all forms, and it's -- could be

       8      in your own backyard.

       9             I call it "war of the land."

      10             134-acre farm, I had war in my own backyard.

      11             So, I just wanted to start with that.

      12             So I want to -- harassment comes in many

      13      forms, but the most horrific nightmare of torment is

      14      the hidden ones; the hidden sexual comments, the

      15      hidden groping, the hidden kiss, the hidden terror

      16      to shut you up when you whistle-blow on them.

      17             Like Senator Graham said, "When they want to

      18      silence you, they kill your cat or puncture your

      19      tires."

      20             Well, with harassment, they do more than

      21      that.  They degrade you to a level where you become

      22      dysfunctional.

      23             Men instill fear in you, belittle you, so you

      24      are so beaten down, you just want to crawl under a

      25      rock and hope it stops.







                                                                   589
       1             Reality is, it never stops, when you're a

       2      strong mother like me who was a threat to the

       3      establishment.

       4             Harassment continues until you are so broken,

       5      you just cannot back -- get back up.

       6             We are in such a state of fear to lose our

       7      children and home, we bow down to the abuser, and he

       8      gets away to abuse the next victim.

       9             It is not always just one man harassing you

      10      or asking you for a date or making sexual moves on

      11      you.  Many times it is more than one.

      12             For instance, when the police are called to

      13      your home, and, instead of them helping you, they're

      14      making fun of you, making sexual remarks, to a

      15      level, you just give up, while the police are

      16      protecting the person you are calling for help from.

      17             You are so beaten down, the crimes against

      18      you are diminished, and the women (sic) is usually

      19      in more danger, because it becomes known to the

      20      world that she has no protection.

      21             Today, I am forever grateful that the tide is

      22      changing, and this new administration is finally

      23      putting their foot down and protecting women.

      24             Let's face it, God made women beautiful, and

      25      men sometimes just cannot help themselves.







                                                                   590
       1             I would have to say, by experience, most

       2      women in their lifetime have been harassed more than

       3      once, and they usually just deal with it at that

       4      moment in time.

       5             The word "harassment" is not strong enough to

       6      describe the hidden terror that everyday women,

       7      single mommies, drug-addicted women, and women who

       8      are at their lowest, who are abused by the system,

       9      especially by law enforcement and judges.

      10             It's men out there that have a political

      11      agenda, to degrade you, to gain power, and to get

      12      benefits from harassing women, like stealing your

      13      children, or stealing your home, or allowing to

      14      continue to sell drugs and traffic women.

      15             These men who are protected by the corruption

      16      that has plagued our country are out of control,

      17      need be prosecuted to the fullest, to send a message

      18      that women must be protected from the bully.

      19             Local police would solicit prostitution, and

      20      make a drug-addict woman in the streets give him a,

      21      and I -- I'll say it, but it's a little crude,

      22      blowjob to get off an arrest.

      23             The police would then take the drugs from the

      24      prostitute and sell them.

      25             The cops got sexually aroused, and then made







                                                                   591
       1      money.

       2             This is one example of hidden evil that women

       3      suffer in the hands of silent harassment.

       4             In today's world, sexuality is exploited,

       5      unbridled, seductive, and considered glamorous in

       6      the media, more and more predominant than ever in

       7      history.

       8             In the olden days, women did not have fake

       9      nails or cosmetic surgery.  Women were just natural,

      10      working hard to survive, milking a cow or planting

      11      corn.

      12             Women are so discriminated against throughout

      13      history, and are still not fully protected today.

      14             Although women have come a long way, there

      15      are categories of women under the new laws who are

      16      still not protected.

      17             "Workplace" needs to be changed to "anywhere

      18      women are harassed."

      19             "Sexual harassment" needs to be changed to

      20      "any form of degrading a woman," especially when it

      21      happens from law enforcement or judges.

      22             Without hesitation, judges, if they harass a

      23      woman, need to be impeached.

      24             So you ask, what we should do?

      25             The first step is to take a good look at the







                                                                   592
       1      judiciary.  Enough is enough with the corrupt judge.

       2             I want to speak on behalf of what I witnessed

       3      with women, especially the ones who cannot speak for

       4      themselves, because they died.

       5             Her name was Danielle (ph.), who I met in the

       6      dark, in my driveway, on property I own, that was

       7      under siege by drug deals and prostitution, fully

       8      protected by law enforcement.

       9             I asked her what she was doing in my

      10      driveway, and she started crying.  She told me she

      11      had two sons, and had to leave them and her home

      12      because her husband was abusing her and had

      13      protection by someone powerful.

      14             She became a drug addict and lived in the

      15      streets, and serviced the police to survive.

      16             How does a mommy lose her two sons, walk the

      17      streets, homeless, in today's world?

      18             Why?

      19             Because law enforcement and the court system

      20      protected the abusive man.

      21             I believe Danielle was killed in the streets

      22      with a hotshot because -- because the police -- by

      23      the police, because she was giving me evidence and

      24      telling on powerful people.

      25             I spent my life as a philanthropist, helping







                                                                   593
       1      the poor.  I probably saved over 1,000 people.

       2             Many people have come to me to tell me their

       3      stories.  That's why I'm such a threat to the

       4      establishment.

       5             Other women who came to me, like Bianca, who

       6      overdosed and died.

       7             She was giving me evidence of law enforcement

       8      selling drugs and running the prostitution ring on

       9      the east end of Long Island.

      10             Five days before she died, she reached out to

      11      me and was afraid for her life.

      12             I could not save her, because the men were

      13      too powerful, and I had nowhere to go to help her,

      14      because it was the local authorities that were

      15      involved.

      16             The workplace is not always in a building.

      17      It could be in a hay field, on a farm, or in the

      18      police station, or right in a courtroom filled with

      19      men before a sadistic judge, a theatrical play,

      20      where the script has been written way before you got

      21      to the podium.

      22             These judges and attorneys already colluded

      23      and marked you to be a target of their sick,

      24      sadistic actions of terrorizing women, so they can

      25      steal your children and home.







                                                                   594
       1             Our God-given rights have been plagued with

       2      corruption on every level of government, and

       3      completely ignored by society.

       4             Congratulations to all who were elected

       5      during the 100-year anniversary of women's rights.

       6             I pray to God that you protect all women, and

       7      bring hope to the women who are still suffering,

       8      oppressed, and change the laws to add the hidden

       9      harassment to the target of women that are abused in

      10      their own backyard, in the police department, or in

      11      the courtroom.

      12             In my experience, when a sick, sadistic judge

      13      wants to punish you, and steal a 134-acre farm that

      14      was slated for a philanthropic endeavor to protect

      15      children and veterans, they abuse you and degrade

      16      you, instill fear in you, to shut you up, so you

      17      cannot defend yourself in a court of law.

      18             When the act is so horrific, the average

      19      person cannot believe that a federal judge, like

      20      Judge Grossman, can be so sadistic, and say in a

      21      room filled with men --

      22             And I was going to do this, but, you guys are

      23      just so wonderful.

      24             -- "Take your sweater off for a second, and

      25      hang out."







                                                                   595
       1             "Take your sweater off for a second and hang

       2      out (demonstrating)."

       3             We all know what a "second" is, and "hanging

       4      out" means to protrude, to stick out.

       5             No woman should ever experience this kind of

       6      harassment by a judge, leaving her no protection as

       7      he degrades you as a woman, using his powerful

       8      position to instill fear in you, and to shut you up

       9      so you cannot defend yourself.

      10             I would never go back in his courtroom after

      11      what he did to me.

      12             Women need to be protected from men in power,

      13      and Judge Grossman needs to be impeached,

      14      immediately.

      15             I was lucky, this abuse is on audio.

      16             Many women like me will never get protected,

      17      because it is covered up by other judges and law

      18      enforcement.

      19             So my question to this Committee is:  Who

      20      will sponsor a petition of remonstrance to have

      21      judges impeached if they sexually harass a woman in

      22      a court of law, and to change the laws to protect

      23      women from men with powerful positions who have

      24      immunity?

      25             Immunity needs to be taken out of the







                                                                   596
       1      equation.

       2             Thank you so much for allowing me to speak

       3      today on behalf of all women who suffer in the hands

       4      of powerful men who are protected by our corrupt

       5      system.

       6             And I hope and pray the laws are changed to

       7      protect us, and the future of women's rights, so

       8      men, like Judge Grossman, lose their powerful

       9      position, and never hurt mommies like me again.

      10             Thank you.

      11             CHRISTINE REARDON:  Good evening, and thank

      12      you, everybody, Assemblymembers, for allowing me to

      13      speak.

      14             My name is Christine Reardon.

      15             My issue has to do with my former employer,

      16      the MTA.

      17             I began my career at the MTA, Long Island

      18      Railroad, in 1983, and worked there for 27-plus

      19      years in various positions, including the manager of

      20      benefits administration.

      21             In 2005 I opted to exercise my seniority,

      22      passed qualified -- qualification exams over a

      23      one-year period, and became a crew dispatcher.

      24             I opted to make this career move due to the

      25      pressure I was under as a manager; the inflexibility







                                                                   597
       1      of my managerial schedule, and to better facilitate

       2      the IVF process my husband, Dennis, (motioning) and

       3      I were involved in.

       4             After four years, struggling to achieve

       5      pregnancy, I gave birth to our beautiful daughter,

       6      Chavon (ph.) Faith (indicating), on April 8, 2010.

       7             I remained on maternity leave until August,

       8      when I returned as crew dispatcher.  I was assigned

       9      a male trainee, who made a verbal threat against me

      10      on October 8, 2010.

      11             I immediately reported this threat.

      12             But due to the manager's inappropriate

      13      handling of the harassment, I went over their heads,

      14      to their supervisor, in an attempt to have the

      15      threat appropriately addressed.

      16             My manager's retaliation for doing so

      17      included harassment, bullying, and filing false

      18      charges against me.

      19             My research, with the assistance of my shift

      20      supervisor, to challenge those charges prompted my

      21      managers to collude in misrepresenting my job

      22      performance.

      23             And when I chose to go to trial to refute

      24      those charges, those same managers sandbagged me

      25      with unspecified accusations.







                                                                   598
       1             They refused to reveal to me the details of

       2      those charges, and they threatened me with loss of

       3      pension, loss of my husband's pension, and physical

       4      arrest, if I did not sign a scrolled one-sentence

       5      resignation that very day.

       6             I was terrified.

       7             And under such unexpected and unwarranted

       8      threats, I resigned under the most mental duress

       9      I have ever experienced.

      10             The writing was on the wall.

      11             I had seen how the managers operated in the

      12      past, and I feared further retaliation.

      13             Despite a verbal assurance that my

      14      resignation that very day would not impact my

      15      receiving my pension and other benefits, I was later

      16      threatened with pension loss, and illegally denied

      17      payment of accrued vacation time.

      18             My husband and I were devastated, and fearful

      19      to challenge the juggernaut of collusion and

      20      retaliation.

      21             This is the typical bureaucratic bullying

      22      endemic at the MTA.

      23             Three months later I was contacted by the MTA

      24      Office of the Inspector General, asked if I would

      25      serve as a witness to colleagues' complaints about







                                                                   599
       1      the misogynistic work culture, replete with sexism,

       2      racism, threats, pornography, and retaliation.

       3             The MTA OIG was given my name as someone who

       4      experienced the same treatment that they were

       5      bringing to the OIG's attention.

       6             I didn't call the MTA OIG; they called me.

       7             We were elated to have an opportunity to

       8      reveal what happened to me to a State entity, and

       9      that could provide me with a fair and full

      10      investigation, and offer protection from further

      11      retaliation from the railroad.

      12             The MTA Office of Inspector General did

      13      nothing of the kind.

      14             This 8-year runaround by that agency

      15      includes:

      16             An initial promise-of-protection agreement,

      17      which they reneged on only two days later;

      18             An initial investigation, with as many as

      19      12 other witnesses, that the MTA OIG decided to

      20      forgo.

      21             A re-engagement with the MTA OIG, only after

      22      we reached out to numerous elected officials and an

      23      MTA board member, to request a review by the MTA

      24      OIG.

      25             That initial re-engagement and interview was







                                                                   600
       1      also discounted, until we garnered the support of

       2      Congressman Pete King.

       3             Suddenly, the MTA OIG expressed an interest,

       4      prompted by the Congressman's advocacy.

       5             Finally, the MTA OIG agreed to interview

       6      witnesses we had proposed, and we were again once

       7      hopeful.  But another year went by, with little or

       8      no movement, and with us doing all the heavy

       9      lifting, and continuing to seek out elected

      10      officials to highlight the injustice of what was

      11      done to me.

      12             More than four years after targeting me for

      13      exposing the harassment that I and my colleagues

      14      were subjected to, the MTA OIG was still stalling,

      15      and ineffectively investigating my case.

      16             We decided to reach to our witnesses, to

      17      compile statements of what they had told the

      18      MTA OIG, which included their assertion that I did

      19      nothing wrong, and did not deserve the treatment

      20      I received, which, in essence, was constructive

      21      termination, as well as their testifying to the type

      22      of harassment and abuse of women that this forum is

      23      addressing.

      24             We deemed this outreach to our witnesses

      25      necessary, since none of our witnesses were asked to







                                                                   601
       1      sign statements at the time of the interviews.

       2             Can you see the plot thickening?

       3             Does it sound familiar?

       4             This was years before the #MeToo movement

       5      served as a catalyst for where we now find

       6      ourselves.

       7             Time is up.

       8             Only one week after the last testimony was

       9      received by Congressman King and sent to the OIG,

      10      suddenly, there was movement.

      11             Coincidence?

      12             After four years of being discounted, lied

      13      to, and misled, the lead investigator at the

      14      inspector general's office, in a series of phone

      15      conversations, all of which are documented,

      16      discussed the investigation, his findings,

      17      reiterated the demands we were seeking, and told us

      18      that the railroad was willing to negotiate a

      19      settlement in close accordance with all items of

      20      compensation that I had been seeking since I was

      21      bullied out of my job.

      22             Well, here I am, still waiting all these

      23      years later.

      24             All I have received has been denial of any

      25      compensation, reversal of what I was told, and a







                                                                   602
       1      fallacious formal report, which I was told would not

       2      be necessary, which we (indicating) had to push for

       3      when the railroad reneged on what the MTA assured us

       4      would occur.

       5             That formal report was compiled after the

       6      MTA OIG met with the railroad, and colluded to

       7      produce a false, biased, and misleading tome, which

       8      did not, by any interpretation, represent what I had

       9      been told.

      10             Despite the MTA OIG assuring us that we would

      11      be part of the process of investigation, and that we

      12      would be permitted to review and comment on the

      13      report before it was finalized, that never occurred.

      14             Once again, I was silenced and misled.

      15             All parties involved know that what they did,

      16      in collusion to continue this attack on me, this

      17      could have been resolved eight years ago when the

      18      MTA OIG contacted me to be a witness to what was

      19      done to me and my colleagues.

      20             When the MTA OIG and the railroad colluded to

      21      circle the trains, they derailed justice, and many

      22      representatives of the state government, who

      23      promised us an unbiased venue, were at the controls.

      24             On February 19, 2015, a 14-minute

      25      conversation with the special counsel for the OIG,







                                                                   603
       1      assuring us that the railroad was willing to end

       2      this debacle with a fair settlement, well, that

       3      should be evidence enough.

       4             In that conversation, he assured us that the

       5      settlement would be swift; that we would not have to

       6      re-present our case; that entities don't settle

       7      unless there was good cause to do so; that the

       8      settlement would be close, if not exactly, in line

       9      with all my demands for appropriate compensation to

      10      be made whole, all of which were discussed in

      11      detail.

      12             When my husband, Dennis, asked the special

      13      counsel what his report stated that would induce the

      14      railroad to offer a settlement, he kindly told us

      15      that a formal settlement was not necessary, because

      16      I didn't need to be mentioned in such a document,

      17      and didn't need my name dragged through the mud.

      18             What a guy, what compassion, to spare me any

      19      more emotional pain.

      20             What a crock.

      21             His only desire was to stall us until we went

      22      away, and to spare the MTA OIG and the railroad from

      23      any further scandal.

      24             What are they waiting for?

      25             For my story to be on the evening news?







                                                                   604
       1             Can they hear me now?

       2             Additionally, we started to engage with the

       3      Governor's representatives in October 2014 when we

       4      began to see the writing on the wall.

       5             Our novice experience and our na�vet� in this

       6      theater of the absurd led us to believe that, with

       7      the spotlight of Governor Cuomo's purview, we would

       8      be treated fairly.

       9             As the outspoken defender of women rights in

      10      New York, and as he was approaching his second run

      11      for governor, we thought someone would be

      12      interested, and they were, but only in leading us

      13      along, and then dropping any involvement, as we

      14      pursued each representative.

      15             There initial cordial engagement morphed into

      16      no return phone calls, e-mails, or any other type of

      17      response, despite their assurances of their concern.

      18             Now, four years later, and after working our

      19      way up from the basement of Governor Cuomo's

      20      hierarchy, to the penthouse offices of Lieutenant

      21      Governor Hochul, and a number of well-known and

      22      outspoken administrative officials, all supposed

      23      women's advocates and cheerleaders, they have

      24      continued to delay and deny me a venue to be fairly

      25      heard.







                                                                   605
       1             Fortunately, we have copious files of all our

       2      e-mail conversations, and irrefutable documentation

       3      of all our phone conversations, conferences, and

       4      refusals to follow up on their assurances of the

       5      Governor's concern.

       6             Conversely, our recent contact, one of the

       7      Governor's counsels and spokesperson, has referred

       8      my case to a third entity.

       9             In fairness, we are respecting the integrity

      10      and confidentiality of that process until it is

      11      completed.

      12             We will comply with our recent engagement

      13      with this investigative agency, as we have done with

      14      agencies and individuals; all those agencies, often

      15      to our detriment, who are mandated to adhere to a

      16      code of ethics, that have fallen woefully short

      17      throughout this nine-year attack on me.

      18             Our faith has often been misplaced, but we

      19      will go through this process with the hope that they

      20      have spiritual awakening, and finally provide fair

      21      treatment and long-delayed justice.

      22             As the former U.S. attorney general for the

      23      Southern District of New York, Preet Bharara, is

      24      fond of saying, "Stay tuned."

      25             We may have been naive, but we were







                                                                   606
       1      persistent, consistent, and, although jaded, have

       2      steadfastly advocated to be heard treated -- and to

       3      be heard and treated fairly.

       4             And this summary is my short version.

       5             Thank you for this opportunity for review.

       6             And the bottom line is:

       7             This is not an employment issue as the MTA

       8      would like to spin it.

       9             This is an issue of a state agency colluding

      10      with another state entity to silence a woman who was

      11      harassed and threatened, and robbed of her 27-year

      12      career.

      13             The shell game is over.

      14             They keep shifting responsibility back and

      15      forth between the MTA OIG, the Long Island Railroad,

      16      the MTA board, and the Governor's representatives,

      17      and they should all be held accountable for this

      18      miscarriage of justice by our governor, the champion

      19      of women's rights.

      20             The support of my family, and our belief that

      21      God is always watching, are the only things that

      22      have sustained me these last eight years.

      23             I very much appreciate your time and concern,

      24      and look forward to a continuing dialogue with

      25      concerned individuals.







                                                                   607
       1             Thank you.

       2             DENNIS REARDON:  She has some suggestions.

       3             CHRISTINE REARDON:  I also do have some

       4      suggestions, if I may.

       5             Transparency, and allowing individuals who

       6      are the victims of harassment, to be privy to the

       7      investigation, and the statements made by those who

       8      are covering up their egregious behaviors to protect

       9      themselves, in real-time.

      10             Victims should not be forced to wait several

      11      years, and never hear the rebuttal and fallacious

      12      rhetoric during the process of investigation, and

      13      not after the case is closed.

      14             Victims should be informed about anyone and

      15      everyone participating in the investigation, and

      16      should be given the opportunity to have their

      17      witnesses accompany them to those meetings.

      18             Also, remove the protection that the MTA

      19      Inspector General's Office has in running their own

      20      investigation, when they are so, so incredibly

      21      devoid of integrity.

      22             The New York State Inspector General does not

      23      have legal authority over the MTA Office of

      24      Inspector General.

      25             And, obviously, to increase the number of







                                                                   608
       1      women in lead positions on these boards.

       2             We are buoyed by the fact that, presently,

       3      our attorney general, as well as the New York State

       4      Inspector General, are women with extensive

       5      experience in investigations.

       6             Any individual given the authority to protect

       7      the victims of the kind of abuses we are here to

       8      discuss, should be independent from influence by any

       9      elected official or lobbiest with deep pockets, or

      10      connected to the deeply entrenched "old boys' club"

      11      culture, and needs to be thoroughly vetted prior to

      12      their appointments.

      13             The standard excuse of confidentiality, and

      14      ongoing investigation, is an often-used ploy to

      15      avoid accountability and transparency.

      16             "Confidential" is a euphonism for

      17      clandestine, covert, cunning, calculated collusion

      18      to cover up rather than expose.

      19             Harassment and abuse of women grows like

      20      bacteria when kept in the dark.

      21             And as you cast a spotlight on the deeply

      22      entrenched agency and bureaucratic shell game,

      23      prepare yourself for finger-pointing and denial.

      24             Don't give up out of frustration and

      25      exhaustion.







                                                                   609
       1             That is what the railroad and the MTA OIG

       2      hoped we would do, but we have not.

       3             Thank you so much for this opportunity to

       4      bring to light my story of the abuse that I was

       5      subjected to for confronting the harassment of women

       6      in my office.

       7             Thank you.

       8             SENATOR BIAGGI:  Thank you all for sharing

       9      your stories with us this evening, and thank you for

      10      staying here until such a late hour, and being so

      11      patient to do so.

      12             DENNIS REARDON:  May I interject something?

      13             SENATOR BIAGGI:  Oh, you may.

      14             DENNIS REARDON:  You know, when I walked in

      15      here, I was told by friends of mine, "You're walking

      16      in with a pork-chop suit into the lion's den."

      17             But I didn't experience that.

      18             SENATOR BIAGGI:  Thank you.

      19             DENNIS REARDON:  I experienced warmth,

      20      courtesy.

      21             I've had some phone calls with some of the

      22      people here, and they couldn't have been any more

      23      engaging or gracious.

      24             And to get M&Ms and popcorn, on top of it,

      25      for my daughter, you're a winner, and I appreciate







                                                                   610
       1      it.

       2             But I came in, and I can't really identify,

       3      obviously, with the perilousness that these ladies

       4      have felt in their lives, but I've witnessed it,

       5      I've stood on the outside.

       6             And as a man, unable to protect my family,

       7      I feel a different sense of powerlessness.

       8             I respect this gentleman on the panel.

       9             I wish that there were more men in the room.

      10             I guess it was kind of perceived that this

      11      was woman's issue, and it certainly is.  But the men

      12      in their lives who watch them suffer, for 8 years,

      13      and how it prevented us from moving on with our

      14      childhood-planning plans.

      15             Without going into details, Christine

      16      mentioned the IVF process, we had more plans to

      17      continue.

      18             But with harassment, and a constant threat of

      19      losing your livelihood, and being attacked in the

      20      media, which is what they did, where are we to go?

      21             I worked in the field as a substance-abuse

      22      counselor, among other jobs, and I saw the

      23      powerlessness of women who were abused by men who

      24      were out of control.  Borderline personalities,

      25      sociopaths; "anti-social personalities" as they call







                                                                   611
       1      them now, because we can't call them "sociopaths,"

       2      because that's what they are.

       3             And I saw women suffer for years and years

       4      and years.

       5             And then come to the rooms to get help, and

       6      be victimized by men in the rooms, who still weren't

       7      really turning their lives around, but were using

       8      that center of safety to victimize women.

       9             It is atrocious, it is obnoxious.

      10             What's going to change?

      11             Severe punishment, censure.

      12             40 years ago, in an early social-work course

      13      I took, the professor who was a disabled gentleman,

      14      who could barely talk, gave the most amazing

      15      lectures, and people stood in awe.

      16             We still need to stand in awe of everybody

      17      who's been disabled or disempowered or beaten up,

      18      and clear up the lens.  The lens of this

      19      misogynistic culture is unbelievable.

      20             Men have to clear it up as much as the women

      21      who confront it.

      22             It's not their responsibility; it's our

      23      responsibility, as fathers and brothers.

      24             I'm the father of four girls, I'm the brother

      25      of three young women, and I would never accept this







                                                                   612
       1      in my life.

       2             I'm six-foot-four.  You're not going to abuse

       3      me, you're not going to harass me, you're not going

       4      to threaten me, but you can do that to the women in

       5      this room, until men in the workplace, who are

       6      courageous enough to stand up and say, Stop it.

       7             Those sex-counter groups, the harassment

       8      groups, who runs it?

       9             Guys who are really not very aggressive and

      10      don't confront people.

      11             Don't confront anybody.

      12             I'm sorry, if you feel guilty, there's a

      13      room -- they say in the rooms of AA, "If it doesn't

      14      apply, let it fly.  And if it does, you better

      15      duck."

      16             Duck, but come back and get healthy.

      17             If you're not going to get healthy, and the

      18      men aren't doing it, it's our responsibility as men.

      19             I'm so glad to be here.

      20             I'm so honored to be the husband of a wife

      21      who is proud and courageous, but was intimidated and

      22      threatened in a place, there were all men in that

      23      office.

      24             And when I suggested I would go in and

      25      perhaps address it in a slightly inappropriate way,







                                                                   613
       1      I was suggested that they would fire me, and I would

       2      be taken out in handcuffs.

       3             I deferred to what everyone said.

       4             I've been in recovery, by the grace of God,

       5      for 38 years, and I've learned how to control my

       6      behaviors, and know I can only change what I do.

       7             That's why we're here.

       8             We fought this for 8 years, all the way up to

       9      the Governor's people.

      10             And now we're here with you.

      11             Thank God you gave us this opportunity.

      12             CHRISTINE REARDON:  Thank you.

      13             DENNIS REARDON:  And I pray for you and the

      14      men in your lives that could maybe start to step to

      15      the plate for a change.

      16             Thank you.

      17             CHRISTINE REARDON:  Thank you.

      18             CYNTHIA LOWNEY, ESQ.:  And I would also like

      19      to add that I have been to many, many meetings,

      20      public meetings.  And I know that they usually go on

      21      long and long, and usually there's nobody left at

      22      the end.

      23             So I want to thank all of you for staying,

      24      because it's been long, and it's been very hard for

      25      all of us to listen to things that we can't change.







                                                                   614
       1             We're sitting there, it's like reliving our

       2      problem through other people.

       3             It's really been torture in a way, but thank

       4      you for being so compassionate without being

       5      patronistic, maternalistic, or some -- you know,

       6      giving some kind of phoney responses, because that's

       7      what they do a lot.

       8             And by the way, that's the thing they really

       9      do at transportation: they're gonna you this and

      10      give you that, but they're just yessing people, and

      11      nothing gets done.

      12             I really get the sense you're going to take

      13      it all in and do something.

      14             So thank you very much.

      15             ASSEMBLYWOMAN SIMOTAS:  Thank you so much.

      16             And it's important that society clears the

      17      lens; not men, not women, but our entire society.

      18             Thank you so very much.

      19             ASSEMBLYMAN CRESPO:  A couple of quick

      20      comments.

      21             Appreciate the mention on the "salary history

      22      ban" practice, the legislation that then-public

      23      advocate Tisch James forwarded to city counsel.

      24             It's a piece of legislation that I carry in

      25      the state, and we are looking forward to passing







                                                                   615
       1      that bill this year again, and seeing it law.

       2             And I appreciate all of your comments in

       3      regards to the work of all of my colleagues here.

       4             And I must say, I appreciate your candor, as

       5      a husband, as a man, willing to say that we all need

       6      to do better.

       7             I will say that many of our colleagues in the

       8      State Legislature, many of the men that were here

       9      earlier, chairs of committees, that have been a part

      10      of these conversations for years, advocating for

      11      change and for these issues to be addressed.

      12             It's been stated over and over, these

      13      hearings have taken too long, but, we're here to do

      14      the best we can.

      15             And we poured, not only our political and/or

      16      our legislative time towards addressing these issues

      17      the right way, but I think, in a moral sense, how

      18      could we not want to hear these stories, and care

      19      deeply about the impacts.

      20             Again, we're all family members; we all have

      21      daughters, we all have sisters, moms, and other

      22      women in our lives, that matter.

      23             And, we need to make sure that we create an

      24      environment, and as many of you have stated, not

      25      just in the workplace, but around the workplace,







                                                                   616
       1      where sexual harassment is just not accepted, and

       2      not occurring.  And where it does, that we have

       3      policies to address it.

       4             So we really appreciate your testimony, and

       5      also the fact that you've made recommendations that

       6      we can review, and take a look at.

       7             And it's not lost on us, that we have to also

       8      go back to other agencies that are not maybe

       9      governed by some of our legislation.

      10             But the judiciary is one that we also need to

      11      take a deeper dive into, what the practice is

      12      within.

      13             So, really appreciate all your testimony.

      14             DENNIS REARDON:  Can I just share one more

      15      piece that was glossed over, because we were both so

      16      nervous?

      17             Journalists are one of the most powerful

      18      advocates in our country, the media.

      19             Unfortunately, when people who are doing this

      20      do not have the super-ego with a conscience to look

      21      what they've done, they only understand,

      22      unfortunately, severe censure and punishment that's

      23      effective and carried through.

      24             There are a number of journalists, in all the

      25      newspapers, male and female, all ethnicities, who







                                                                   617
       1      are starting to really address and put people's feet

       2      the fire.

       3             That's, unfortunately, what many of them

       4      need, but thank God we have it, because, with that

       5      spotlight on things, they squirm.  It's like putting

       6      a magnifying glass, when you were a kid, on the poor

       7      ant, which we shouldn't do anymore, but I did as a

       8      kid.

       9             When that spotlight is put on these people,

      10      they squirm, they point fingers, and they throw each

      11      other under the bus.

      12             We need more buses, and we need more

      13      magnifying glasses, and I'm glad you're here to do

      14      that for us.

      15             Thank you.

      16             SENATOR BIAGGI:  Thank you.

      17             So as I began to say before, I hear you, and

      18      I understand, when you discuss and say, and really

      19      underscore, the abusive system that our government

      20      has created, and has a resistance to dismantling.

      21             One of the reasons we're here is to do that.

      22             And one of the reasons why I ran for this

      23      seat was exactly the reason that you're describing,

      24      because, for too many years, the people in my

      25      district were not put first.







                                                                   618
       1             And the entire point of public service is to

       2      serve people, not to serve ourselves.

       3             And similarly situated, when I ran for the

       4      seat that I ran for, I was threatened, and I was

       5      told that my life would be over, and my career would

       6      be over, and I was crazy, and I would never win.

       7      And, oh, my goodness, what are you doing?

       8             And, along the journey, to this very moment,

       9      was attempted to be silenced.

      10             And I think that one of the most interesting,

      11      and really spectacular characteristics of human

      12      beings, is resilience.

      13             And each and every one of you demonstrates

      14      that.

      15             And, it's important to not stay silent, and

      16      that when you see something that doesn't seem right

      17      or doesn't look right, you speak up and you speak

      18      out, no matter who tells you not to.

      19             And I'm grateful that we have your testimony

      20      today.

      21             I think that it's not lost on me that we

      22      started this day with one of my questions being:

      23             Well, who does the MTA and the judiciary

      24      report to?  Who's overseeing those two bodies?

      25             It seems curious that they're not under the







                                                                   619
       1      purview of GOER.

       2             But I think that these are the exact types of

       3      opportunities that couldn't have happened before.

       4             And, because we are in a transformational

       5      moment of government and leadership, and because we

       6      are moving away from silencing people, even if

       7      there's still a strong attempt to silence people who

       8      speak up, this space that we've created, this space

       9      that our leadership has allowed us to create, is

      10      very special, it's very important.

      11             And we are, and my -- (indiscernible) will

      12      just speak for myself, I am committed to making sure

      13      that the change does happen, even if it's just inch

      14      by inch.

      15             So thank you so much.

      16             We hear you, and we appreciate all of your

      17      recommendations, and the things that you've said to

      18      us today.

      19             MARIE GUERRERA TOOKER:  Thank you.

      20             God bless all of you.

      21             Thank you so much.

      22             CYNTHIA LOWNEY, ESQ.:  Wait, are they done?

      23             MARIE GUERRERA TOOKER:  Yep.

      24             CYNTHIA LOWNEY, ESQ.:  Is that it?

      25             I thought the others would ask a question.







                                                                   620
       1             MARIE GUERRERA TOOKER:  Nobody's going to ask

       2      us anything.

       3             SENATOR BIAGGI:  Councilwoman

       4      Helen Rosenthal.

       5             ASSEMBLYMAN CRESPO:  Just stretching.

       6             HELEN ROSENTHAL:  Keep stretching.  You're

       7      knocking it out of the ballpark here.

       8             I'm sure you're -- I'm feeling emotional, and

       9      I'm sure you're feeling emotional as well.

      10             This has been a hell of a day, just

      11      phenomenal testimony.

      12             Good afternoon.

      13             My name is Helen Rosenthal.  I represent the

      14      Upper West Side in the New York City Council.

      15             I'm Chair of the Committee on Women and

      16      Gender Equity.  And, I often say that the real title

      17      of the committee should be, that it is the Committee

      18      of Men's Bad Behavior.

      19             And, I'm hoping to work myself out of a

      20      committee.

      21             I thank you so much, to Chairs Biaggi and

      22      Crespo and Walker, for convening the hearing on

      23      sexual harassment in the workplace, and for staying.

      24             And, Senator Niou and Assemblymembers Simotas

      25      and Simon, thank you for staying.







                                                                   621
       1             There are a lot of people who are watching

       2      this, they might not be in the room, and they're

       3      noticing that you're still here.  And, it means a

       4      lot to the public.

       5             Today's hearing, in fact, gives the public

       6      another opportunity to hear directly from harassment

       7      survivors about the real-life impact of current

       8      laws, or the lack of current laws, so that the

       9      failures of the current system can be brought to

      10      light, and addressed through legislation.

      11             It also gives the public an opportunity to

      12      hear from government officials responsible for

      13      addressing sexual harassment in the workplace,

      14      whether it's in government or the private sector.

      15             Your joint hearing in Albany in February, the

      16      first state-level public hearing on workplace sexual

      17      harassment since 1992, revealed the necessary -- the

      18      necessity of comprehensive systemic improvements to

      19      workplace culture.

      20             Sorry.

      21             I commend you for this second hearing.

      22             I heard elected officials ask the

      23      administration, good, commonsense questions about

      24      accountability, the need for trauma-informed

      25      investigations, and as well as process, numbers, and







                                                                   622
       1      transparency.

       2             And I heard you asking about, how complaints

       3      are accommodated during an investigation.

       4             You dug into the details; your questions were

       5      thorough, smart, probing, rigorous, and spot-on.

       6             And I have to say I was disappointed, when

       7      the administration looked at you, in particular,

       8      Senator Biaggi, like you had three heads.

       9             And I just want to remind you, that you have

      10      one head, and the person sitting here had three

      11      heads.

      12             SENATOR BIAGGI:  Thank you.

      13             HELEN ROSENTHAL:  I didn't say that out loud,

      14      I thought it.  But I didn't say it out loud.

      15             The public is very grateful to each of you

      16      for persisting, and I support you.

      17             The personal, professional, and societal

      18      effects of sexual harassment and discrimination in

      19      the workplace are staggering.

      20             Harassers interrupt the lives of survivors.

      21      They stand in the way of their ability to earn a

      22      living, and rise professionally.  They intimidate,

      23      coerce, manipulate; they attempt to strip away

      24      survivors' dignity.

      25             And due to the longstanding pervasiveness and







                                                                   623
       1      culture of silence around discriminatory workplace

       2      behavior, we can never fully know the number of

       3      women who have been driven from jobs because of

       4      sexual harassment, or the pain and suffering that

       5      harassers have inflicted, or the talent, the sheer

       6      talent, that has been drained from workplaces and

       7      industries.

       8             Thanks to the brave voices of so many

       9      survivors and advocates who are challenging the

      10      status quo, we are on the way to eradicating this

      11      toxic culture.

      12             Sunlight is the best disinfectant.

      13             We owe these survivors not only gratitude,

      14      but action.

      15             As the State considers reforms on sexual

      16      harassment, they should look at New York City as a

      17      model.  We have led the way in establishing

      18      sexual-harassment practices and policies.

      19             Last spring I was proud to play a leading

      20      role in the passage of the Stop Sexual Harassment

      21      Act in New York City.

      22             The act requires enhanced training for all

      23      public- and private-sector employees;

      24             Provides recourse for people who have been

      25      harassed and discriminated against, through







                                                                   624
       1      establishing a trauma-informed statute of

       2      limitations;

       3             And increases transparency and accountability

       4      with city government, the largest employer in the

       5      five boroughs.

       6             And we are moving forward with a second

       7      hearing in June, to review additional legislation.

       8             Since 2009, New York City has applied a

       9      standard that sexual harassment exists, under City

      10      Human Rights Law, when an individual is "treated

      11      less well than other employees because of gender,"

      12      and the conduct complained -- sorry, and the conduct

      13      complained of, consists of more than "petty slights

      14      or trivial inconveniences."

      15             We rightly codified this more protective

      16      standard into law, and, as a result, workers in

      17      New York City enjoy far greater protections against

      18      sexual harassment than workers elsewhere in New York

      19      State.

      20             Your slate of legislation, which will provide

      21      these protections across the state, is now under

      22      consideration.

      23             And I will proudly introduce a resolution in

      24      the city council next week, supporting all of your

      25      bills, and chief among these is Assembly Bill 7083







                                                                   625
       1      and Senate Bills 3817, which will finally remove the

       2      current "severe or pervasive" legal standard for

       3      demonstrating discrimination under State Human

       4      Rights Law.

       5             Thank you for that.

       6             This burdensome standard clearly impedes

       7      employees experiencing harassment from bringing

       8      claims forward, and must be changed.

       9             And you heard from the City Commission on

      10      Human Rights today, talking about that commonsense

      11      change, and the fact that it had only a positive

      12      effect on the workforce.

      13             My resolution also supports your legislation,

      14      which will strengthen protections for workers;

      15             Extend the statute of limitations for filing

      16      a discrimination complaint;

      17             Amend the State Constitution to expand

      18      protected classes, and increase language access.

      19             While it's essential that the State pass

      20      these bills, doing so does not mean our work will be

      21      over.

      22             New York must continue to lead on this issue.

      23             We must ensure that survivors know their

      24      rights, that bystanders know how to intervene when

      25      they see sexual harassment, and that harassers know







                                                                   626
       1      that the days in which they could operate with

       2      impunity are over.

       3             As elected and public officials, we must

       4      clearly draw the line against what has been

       5      tolerated for so long.

       6             Ending sexual harassment and discrimination

       7      is fundamentally a social-justice issue, in which an

       8      injury to one is an injury to all.

       9             This issue demands the same persistent energy

      10      and attention given to the Reproductive Health Act,

      11      to rent reform, and speed cameras in school zones.

      12             Thank you again for the opportunity to

      13      testify, and thank you for bringing the experts who

      14      testified today.

      15             I learned so much from them, and it has

      16      informed my work, going forward.

      17             I thank you for that, and I'm happy to answer

      18      any questions you might have.

      19             ASSEMBLYMAN CRESPO:  Councilwoman, thank you

      20      for being patient, and your testimony, and also for

      21      your leadership.

      22             I think it's become abundantly clear that the

      23      City standards that you all have set forward really

      24      should be our standard.

      25             And, we look forward to working to pass our







                                                                   627
       1      colleague's legislation to do the same statewide.

       2             I'm really curious, though, do you have an

       3      early indication of what some of those additional

       4      pieces you may consider in June, are?

       5             HELEN ROSENTHAL:  Uh-huh.

       6             ASSEMBLYMAN CRESPO:  Are those being

       7      formulated, or do you have already have a sense of

       8      proposals that have been put out?

       9             HELEN ROSENTHAL:  We've learned from the

      10      reporting requirements that we put on the City, that

      11      they weren't clear enough.

      12             So it's remarkable how you think, in the

      13      wording, you're getting something right.  But, then,

      14      when it comes to rule-making, perhaps what we get

      15      out of the analysis isn't what we should get.

      16             For example, we passed a bill, requiring that

      17      all government workers be given an opportunity to

      18      fill out a climate survey about sexual harassment.

      19             That was done, and we have the results of

      20      that survey.

      21             And it is, even for somebody like me who

      22      loves to dig down into the weeds, I looked at the

      23      result and my head was spinning.

      24             There's no way to really understand what the

      25      findings tell us.







                                                                   628
       1             So we have another piece of legislation that

       2      calls for better analysis, more agency-specific

       3      analysis, and more meaningful findings, rather than

       4      just a regurgitation of answers to questions.

       5             That's one.

       6             There were some others.

       7             We're looking at requiring agencies to be

       8      very clear about accommodations, and there being

       9      some sort of recording -- reporting requirement,

      10      perhaps even in the climate survey, for making sure

      11      that people are given accommodations; that they are

      12      interviewed by someone who is -- has trauma-informed

      13      investigative skills.

      14             You know, we always talk about these EEO

      15      officers, and how they're trained, and they're so

      16      expert.

      17             Are they?

      18             What -- I mean, are they trained?

      19             This is a new era, where we're changing the

      20      culture and calling out sexual harassment.

      21             The same old training manual does not apply.

      22             Our understanding of trauma is so much more

      23      advanced now.

      24             We know now that, you know, someone's story

      25      might change three times over the course of three







                                                                   629
       1      days, and that is normal, right, not to be

       2      dismissed.

       3             So -- and I would add to that, that some of

       4      the things we learned won't necessarily result in

       5      more legislation.

       6             But, I will be calling for activists to

       7      engage in making sure that the sexual -- the

       8      anti-sexual harassment laws that are supposed to be

       9      posted in restaurants, for example, we should be

      10      going out and checking the restaurants; are they

      11      posted?

      12             You know, there's so much more work to be

      13      done.  We're just scratching the surface.

      14             I appreciate the question, Assemblyman.

      15             SENATOR BIAGGI:  I just briefly want to

      16      comment on my incredible amount of gratitude for you

      17      waiting here, Councilwoman, and for sharing your

      18      testimony, and for also reminding all of us about,

      19      just, when it feels wrong, it's wrong.

      20             And that is an important thing, sometimes,

      21      because the work that we do, and the individuals we

      22      interact with, obviously, are not always

      23      forthcoming.

      24             And so that was really very important and

      25      helpful.







                                                                   630
       1             I also just want to say thank you for your

       2      expedient response to so much of what's going on in

       3      the city council.

       4             And it's all different types of behavior.

       5             And I think one of the most important things

       6      is that, you set a tone that is, from where we are

       7      in the state, it's hard to meet, but we're reaching

       8      to catch up.

       9             And I think that it also allows for some

      10      people maybe who wouldn't be as brave to come

      11      forward or to speak up, or wouldn't want to speak

      12      up, to do that.

      13             And I think, the last thing I'll say, is

      14      that, what has, you know, transpired in the city

      15      council is not such a foreign thing.  It's in every

      16      workplace.

      17             HELEN ROSENTHAL:  Yes.

      18             SENATOR BIAGGI:  But what is really

      19      interesting, and what has been really important for

      20      us, at least for myself, in the state, is that

      21      there's isn't just one definition, or one

      22      consequence, or one outcome, of harassment or sexual

      23      harassment in the -- or discrimination, in

      24      workplace.

      25             It's a scale.







                                                                   631
       1             So, it really just solidifies, at least for

       2      me, that the "severe or pervasive" standard is so

       3      out of touch with where we are culturally, and that,

       4      you know, not every act is a 10, but not every act

       5      is a 1.

       6             And so there's this scale that the law has to

       7      adjust with.

       8             And I am very much in appreciation of your

       9      willingness to put a resolution to the city council,

      10      for myself, and Assemblywoman Simotas's bill,

      11      because it is the better-off bill.

      12             It will change so many people's lives, and,

      13      we'll just make all of these workplaces that are not

      14      as safe, safer.

      15             So thank you so much.

      16             HELEN ROSENTHAL:  Thank you.

      17             It doesn't happen unless people like you lead

      18      the charge.  Right?

      19             Hasn't happened prior to your being in

      20      office, tells you something.

      21             And -- yeah.

      22             ASSEMBLYWOMAN SIMOTAS:  Councilwoman, thank

      23      you for your leadership on this issue.

      24             2009, it was 10 years ago.  It's about time

      25      that the State caught up to what the City did, what







                                                                   632
       1      the City did all that time ago.

       2             I have a question about sexual-harassment

       3      policies and -- for you.

       4             Does the City require updates to those

       5      policies on a regular basis?

       6             HELEN ROSENTHAL:  Update to the policy, or

       7      update to the complainant, which was another issue

       8      that was raised today?

       9             ASSEMBLYWOMAN SIMOTAS:  I know, with respect

      10      to the Assembly, we just went through a renewed

      11      version of renewing our policy.

      12             I know, because I worked on it extensively.

      13             And the one thing that we were able to do is,

      14      provide additional examples of what "offensive," you

      15      know, "harassing behavior" is.

      16             One example, that actually we heard today

      17      during testimony, is when you're asked repeatedly

      18      for social interaction, and whether you're

      19      approached in person or with social media.

      20             And I thought it was important to update the

      21      Assembly's policy, just as we're going through

      22      training, for our own members, but also for staff,

      23      for people to understand that that's inappropriate,

      24      and can constitute harassment.

      25             And it's my belief that, not only state







                                                                   633
       1      agencies, but all agencies, should be looking at

       2      these policies regularly, at least, you know, every

       3      two years, potentially, every year, because you hear

       4      about certain situations that -- examples, that,

       5      sometimes, you know, you put a policy in place,

       6      some -- a lot of us are lawyers here -- you read the

       7      explanation, and you think you understand, but it's

       8      different when somebody explains or gives you an

       9      example, because, then, you can really understand

      10      that, and understand whether you've observed that

      11      behavior, or you might have done it yourself.

      12             So, again, that's why I would love for you to

      13      go back and look at whether the City requires

      14      updates -- regular updates to the policy; where,

      15      I know for the fact the State doesn't.

      16             But I would welcome if you would do that for

      17      the City as well.

      18             HELEN ROSENTHAL:  Yeah, I'm going back to my

      19      office now, so I'll be submitting that idea.

      20             And, you know, it's so interesting, and you

      21      brought this out, you know, as lawyers, I guess, or

      22      as legislators, we can make these directives, but we

      23      can't write the rules.

      24             I mean, that really is the administration's

      25      job to do the actual writing of the rules.







                                                                   634
       1             And we -- you know, I like the idea of

       2      updates, because, if they're public, then it forces

       3      them to say, very publicly:  Here's what the rules

       4      are, here's the date.

       5             So that, then, as legislators, in our

       6      oversight capacity, we can say, That's not good

       7      enough.

       8             Thank you.

       9             ASSEMBLYWOMAN SIMOTAS:  Thank you.

      10             SENATOR BIAGGI:  Thank you so much.

      11             Up next is Black Women's Blueprint, Decrim

      12      New York, and Kingsborough Community College.

      13             If any of these groups are still here, you

      14      are second-to-last, and we are so grateful for you.

      15             Oh, and New York City Anti-Violence Project

      16      as well.

      17             LEEJA CARTER, Ph.D.:  Good evening.

      18             My name is Dr. Leeja Carter.  I'm here on

      19      behalf of Black Women's Blueprint.

      20             Founded in 2008, Black Women's Blueprint

      21      works to place Black women and girls' lives and

      22      struggles squarely within the context of larger

      23      racial-justice concerns, and is committed to

      24      building movements where gender matters in

      25      social-justice organizing, so that all members of







                                                                   635
       1      Black communities achieve social, political, and

       2      economic equity.

       3             We are the conveners of the Black Women's

       4      Truth and Reconciliation Commission held three years

       5      ago at the United Nations, as well as the March for

       6      Black Women, which was held right outside this very

       7      room in 2018.

       8             With recent federal administration's threats

       9      to make vital cuts to anti-rape, anti-battery, and

      10      anti-stalking service programs, guaranteed by the

      11      Violence Against Women Act, we are running out of

      12      places to turn to for safety and justice.

      13             New York must be on the front lines of

      14      protecting the rights of its most marginalized

      15      residents.

      16             Women and girls in our communities are under

      17      siege.  We need policymakers to listen to them, and

      18      we need to institute mechanisms for public

      19      involvement and oversight over any and all gender-

      20      and racial-equity efforts.

      21             The #MeToo movement has created a necessary

      22      conversation on sexual harassment in the workplace;

      23      however, women of color, especially immigrant women

      24      of color, and those working in lower-paying jobs,

      25      are often left out of the conversation.







                                                                   636
       1             Women working in the food-service industry,

       2      blue-collar jobs, and factories are often

       3      overlooked, further marginalizing their experiences.

       4             It's time that we centered the experiences of

       5      those -- of our most marginal women, making their

       6      lives, needs, and experiences visible.

       7             As women continue to report, seek support,

       8      and ways to address workplace cultures that violate

       9      their most basic rights, we have to dismantle the

      10      misogyny and patriarchy that lives between our

      11      sheets, sits at the counter and bars of our

      12      neighborhood businesses, lurks in our parks, and

      13      violates women that walk through them day and night.

      14             To where do we run when offices and

      15      restaurants foster a culture of harassment and

      16      violation?

      17             There is risk in bystander intervention, and

      18      innocent bystanders also fear for their lives in

      19      those moments of advocacy.

      20             We must center community and systematic

      21      accountability for the protection of our women.

      22             Regarding prevention, recognizing that few

      23      resources exist that are culturally relevant and

      24      focus on preventing harassment and sexual assault

      25      before it occurs, we developed innovative programs







                                                                   637
       1      focused on identifying and preventing sexual

       2      violence before it occurs.

       3             Our Institute for Gender and Culture delivers

       4      prevention education and curricula based on an

       5      understanding of the complex interplay between the

       6      individual, relational, social, cultural,

       7      environmental, historical, and persistent structural

       8      factors that influence the spectrum of

       9      discrimination, oppression, and violence that impact

      10      people's lives.

      11             We specialize in liberatory bystander

      12      intervention models, transformative and healing

      13      models, as well as asset-based

      14      community-accountability models.

      15             Using proven effective pedagogy and

      16      methodologies, our institute works to equip people,

      17      groups, and organizations with the framework for

      18      developing strategies anchored in civil and human

      19      rights as key points for intervention.

      20             We are grateful to you all for calling this

      21      hearing, to give further light and conversation and

      22      hope to creating the necessary change that benefits

      23      women in our state.

      24             Thank you.

      25             DR. RED WASHBURN:  Good evening, everyone.







                                                                   638
       1             I want to thank you for listening to my

       2      testimony.

       3             In particular, I am grateful for

       4      Assemblymember Simon's points about higher

       5      education, Assemblymember Quart's points on

       6      retaliation, Assemblymember Gottfried's and

       7      Assemblymember Niou's points on GENDA and trans

       8      issues.

       9             I want to clarify that I am not representing

      10      Kingsborough; but, rather, testifying about my

      11      experience of gender-based violence there as an

      12      employee.

      13             My name is Dr. Red Washburn.  I am a

      14      transgender, non-conforming, and non-binary

      15      associate professor of English, and the director of

      16      Women and Gender Studies at Kingsborough Community

      17      College.

      18             The concentration, the first of its kind in

      19      CUNY, is celebrating its 25th anniversary this year,

      20      together with the 50th anniversary of Stonewall.

      21             I want to underscore that, while we're

      22      talking about sexual harassment, it also has

      23      important implications for transgender,

      24      non-conforming, and non-binary people in terms of

      25      both sexual harassment, harassment in general, and







                                                                   639
       1      gender identity-based issues.

       2             Six months after I came out as trans at work,

       3      by requesting a name, gender, and pronoun change,

       4      and sharing that I was getting top surgery,

       5      Kingsborough's administration announced it was

       6      defunding women and gender studies.

       7             I suspected that I would face transphobia, so

       8      I waited until after tenure to come out on campus as

       9      trans.

      10             It turned out that my suspicions were

      11      correct.

      12             I filed a complaint regarding my concerns as

      13      an employee.  I filed with the New York City

      14      Commission on Human Rights, and I did that in

      15      November.  I'm still going through that slow process

      16      while the harassment and retaliation is ongoing.

      17             However, I also feel that I must speak out as

      18      a citizen of the city, regarding the harm being done

      19      to our students, your children, and to our precious

      20      higher-education system.

      21             As I have fought for students to have access

      22      to women and gender studies, the administration has

      23      increased its harassment and retaliation, not only

      24      against me, but against our students, and against

      25      women and gender studies programs.







                                                                   640
       1             Kingsborough's administration has

       2      discriminated against me during my transition,

       3      public safety.  Ordered me to come in for an

       4      investigation when I was on annual leave, and on

       5      post-surgical bedrest.

       6             The administration would not update my name

       7      in its system, its directory, and its course

       8      offerings.

       9             It switched my teaching schedule one day

      10      before the fall semester.

      11             It repurposed the women and gender studies

      12      office the first week of fall classes; changed the

      13      locks the week after my revision surgery, just

      14      before the spring semester started; and put all the

      15      women and gender studies archives and my belongings

      16      in storage.

      17             It recently blocked me from making curricular

      18      decisions as a director.

      19             I still don't have a suitable office.

      20             They temporarily put me in a storage office

      21      next to a high-voltage, "Danger, Keep Out," closet

      22      that made me break out in hives.

      23             Harassment based on gender identity or

      24      disability, and retaliation for complaints of

      25      discrimination, runs contrary to New York law and







                                                                   641
       1      CUNY regulations.

       2             And these actions ignored my surgeon's and

       3      therapist directives.

       4             Kingsborough still has me listed under my

       5      deadname, and calls me by my deadname, my former

       6      name, publicly as well.

       7             Earlier this year, New York State passed the

       8      Gender Expression Non-Discrimination Act after a

       9      nearly two-decade battle led by trans advocates.

      10             Last year, New York City Council passed bills

      11      to create non-binary birth certificates, and educate

      12      business owners on requirements for all-gender

      13      restrooms.

      14             Two years ago, CUNY issued a statement to

      15      project -- to protect transgender and

      16      gender non-conforming students.

      17             Despite the anti-trans sentiments and

      18      regressive policies of our federal administration,

      19      New York City has taken bold steps to protect trans

      20      New Yorkers, and yet Kingsborough has fallen out of

      21      step with these protection, both in CUNY and in

      22      New York, administratively.

      23             The non-discrimination law is excellent, and

      24      key; however, an order to get justice and support

      25      with reporting, we need these bills under discussion







                                                                   642
       1      to pass today.

       2             The sustained harassment has caused me, my

       3      students, and the women and gender studies program

       4      much harm.  It created the need for me to take sick

       5      leave in the fall, and get a second revision surgery

       6      this winter.

       7             Not even a month post op, there's a

       8      likelihood that I will require yet another, a third

       9      procedure, in the late spring.

      10             At this political juncture of #MeToo,

      11      Times Up, Black Lives Matter, Trans Lives Matter,

      12      and sanctuary campus movements, women and gender

      13      studies, and I would argue, other area-based

      14      studies, is more relevant than ever.

      15             Community-college students deserve women and

      16      gender studies for the pleasure of learning, for

      17      opportunities to transfer, and for access to work.

      18             And the shrinking academic opportunities

      19      connected to social justice for LGBTQ and women

      20      students, the majority of whom are working-class

      21      students of color, at this moment, is

      22      unconscionable.

      23             I am not alone here.

      24             The Association of American University

      25      Professors issued a report on gender and gender







                                                                   643
       1      studies.

       2             We have received the overwhelming support

       3      from across the CUNYs, from women and gender studies

       4      faculty and students; the National Women Studies

       5      Association; and other prominent faculty across the

       6      nation, in the form of letters, petitions, lectures,

       7      and roundtables, among forthcoming events tied to

       8      NWSA's Gender Studies Under Fire.

       9             The institutional transphobia, coupled with

      10      Kingsborough's sexist devaluing of women and gender

      11      studies, elucidates that the college administration

      12      has created a hostile environment for LGBTQ students

      13      who are both interested in these issues, along with

      14      multiculturalism and diversity, and trying to live

      15      their truths.

      16             It is neither a safe place for gender

      17      non-conforming and trans faculty to work, nor LGBTQ

      18      and WGS students to learn.

      19             Thank you for hearing my testimony.

      20             Today's hearings have given me much hope for

      21      women, trans, and queer survivors of violence to

      22      receive the justice that we all deserve, and to heal

      23      in this process.

      24             I'm honored to be a part of it.

      25             Thank you.







                                                                   644
       1             AUDACIA RAY:  Good evening.

       2             My name is Audacia Ray, and I'm the director

       3      of community organizing and public advocacy of the

       4      New York City Anti-Violence Project.

       5             AVP is an almost 40-year-old organization

       6      that provides services, legal services, counseling

       7      services, all which are free, to LGBTQ survivors of

       8      hate, intimate-partner, and sexual violence.

       9             And, I also serve as a founding steering

      10      committee member of Decrim New York, which is a

      11      coalition to decriminalize, decarcerate, and

      12      destigmatize sex work in New York.

      13             I am a queer woman, and, I'm a former sex

      14      worker.  I am a survivor of sexual and

      15      intimate-partner violence, so I have skin in the

      16      game of all these things.

      17             And, today, I am going to testify a little

      18      bit about the impacts of workplace sexual harassment

      19      on people in the sex trades, especially people who

      20      identify as LGBTQ.

      21             AVP and, of course, Decrim New York, are very

      22      clear that sex work is work, and that people who

      23      participate in the sex trades are doing so to meet

      24      their economic and survival needs.

      25             I also acknowledge that all labor under







                                                                   645
       1      capitalism is exploitation, and sex trades are part

       2      of that.

       3             Sexual harassment and violence in the sex

       4      trades show up in ways that are both unique to the

       5      industry and familiar to other workers.

       6             A lot of the stuff I've heard today about

       7      domestic workers, about people in the modeling

       8      industry, and lots of other industries, sound

       9      really, really familiar to me as a former sex

      10      worker.

      11             And, so, because of this widespread

      12      employment discrimination for LGBTQ people, LGBTQ

      13      communities disproportionately engage in sex work

      14      for survival.  And this is particularly true for

      15      trans and GNC people.

      16             AVP's report, "Individual Struggles,

      17      Widespread Injustice," which my colleague Briana

      18      will talk about more extensively, found that

      19      22 percent of trans and gender non-conforming people

      20      who were survey respondents were unemployed, and

      21      this is in New York City, over the past two years.

      22      The survey was done in 2016-2017, so it's very

      23      recent.

      24             And that rate, 22 percent, is more than

      25      5 times higher than the unemployment rate in







                                                                   646
       1      New York City.

       2             And so, as a result, lots of TGNC people

       3      engage in sex work to survive.

       4             Another report to cite, "Meaningful Work,"

       5      which is co-published by the National Center for

       6      Trans Equality, and also the Red Umbrella Project,

       7      an organization I used to run, found that 40 percent

       8      of Black trans people self-report having engaged in

       9      the sex trades.

      10             And, finally, the Urban Justice -- or, the

      11      Urban Institute report, "Surviving the Streets of

      12      New York," found that LGBTQ youth in New York

      13      participate in the sex trade at 7 to 8 times the

      14      rate of their peers.

      15             We know that LGBTQ people participate in the

      16      sex trades by choice, circumstance, and coercion,

      17      but because the sex trades are criminalized and

      18      stigmatized, people who experience discrimination,

      19      labor exploitation, and sexual violence on their

      20      jobs, and because of their jobs, have little

      21      recourse.

      22             People in the sex trades are really skilled

      23      at negotiating boundaries, and communicating was

      24      acceptable to them in the context of the exchange of

      25      sexual labor for money.







                                                                   647
       1             However, because criminalization, in

       2      combination with other factors, that make workers

       3      vulnerable, like immigration status, race, and

       4      gender identity, people in the sex trades can't

       5      safely report the harassment that happens in their

       6      workplaces.

       7             Criminalization really flattens the

       8      understanding of what qualifies as harassment and

       9      discrimination in a workplace where people are

      10      trading sex or selling a fantasy of sex.

      11             When management in a massage parlor pressures

      12      workers to (indiscernible) sex acts that they don't

      13      want to perform in order to maintain their

      14      employment, that is harassment.

      15             When a dancer is told she cannot get a shift

      16      in the strip club she works in because she's Black,

      17      and there's already a Black dancer scheduled for

      18      that shift, that is discrimination.

      19             And when an independent escort consents to

      20      meet a client in his hotel room for an hour, and he

      21      removes the condom they agreed on, that is violence.

      22             I'm going to briefly share an experience of

      23      harassment that I experienced.  There were a lot to

      24      choose from.

      25             So, I chose this one, because it is about me







                                                                   648
       1      being a sex worker, but it's also -- takes place in

       2      a space that was, essentially, kind of a workspace

       3      to me, and so that felt significant.

       4             And I also want to say that, there is a lot

       5      of harassment that happens on the job, but there's

       6      also harassment that happens as a result of being

       7      any kind of visible sex worker.

       8             So, for me, while I was a graduate student at

       9      Columbia, I was doing sex work to support myself.

      10             And, although I was already an actress at the

      11      time, I wanted to keep my identity as a sex worker

      12      private at school, because I felt like it could do

      13      bad things for me.

      14             One of my fellow students had connected the

      15      dots.  I was very public online.  I had, you know,

      16      like, ads as a sex worker, and had done porn.

      17             And so he connected that identity to my

      18      identity on campus, and started printing out copies

      19      of my ads and photographs of me, and information

      20      about me from the Internet, and spreading them

      21      around campus.  And, also, tracked my schedule.

      22             So he would, like, walk by and drop a bunch

      23      of papers, printouts, of my sex work, around campus

      24      and near me where I was studying.

      25             And it created a really terrifying







                                                                   649
       1      environment for me.

       2             And in order for me to be able to get any

       3      recourse for it, I would have had to tell people

       4      that I was a sex worker.

       5             So I didn't.

       6             And, I went to campus much less.  I ended up

       7      going part-time.  It took me much longer to finish

       8      my degree.

       9             And I just felt like I had -- I had no

      10      recourse.

      11             And, you know, and I'm fairly privileged.

      12      I'm White, I'm sis gender.  I was going to school at

      13      Columbia.

      14             And I just felt like I had no way to push

      15      back against this.

      16             And that harassment really impacted my health

      17      and well-being while it was going on.

      18             And I also in that, want to make a call back

      19      to some of the earlier conversation around the

      20      statute of limitations, because this -- you know,

      21      this has come up a couple of times today, and, I was

      22      thinking about this in the context of being an

      23      activist, and having a feminist consciousness.

      24             And I know that, at the time, I felt, like,

      25      this is bad, but it's not that bad.  And, also, that







                                                                   650
       1      it felt, like, well, it is -- it just -- it is what

       2      it is.  And, this is just -- this is just this thing

       3      that I've accepted, that might be part of this

       4      career, or this work, that I'm doing.

       5             And so, if that's true for me, while I was

       6      also very much engaged, an activist, it's definitely

       7      true for lots of folks who can't quite name, even to

       8      themselves, what is happening to them.

       9             And so it's really important to expand that

      10      statute of limitations, because it often takes a

      11      long time for people to even understand what's going

      12      on, and name it to themselves, much less to figure

      13      out, okay, I'm going to report this and start

      14      talking to other people about it.

      15             So that's something, that I just really

      16      wanted to underscore that.

      17             So, of course, there are lots of experiences

      18      like mine, and much worse, in the sex industry.

      19             And I want to end by saying:

      20             That criminalizing the whole sex industry

      21      does not help workers in my situation, or in other

      22      situations.

      23             And, you know, ensuring that these bills that

      24      are under discussion can create pathways to

      25      reporting harassment, and receiving support for







                                                                   651
       1      people in the sex trades, is important.

       2             AVP and Decrim NY advocate that the

       3      sexual-harassment workgroup's entire legislative

       4      agenda pass.

       5             But the State also must pass legislation that

       6      decriminalizes sex work, because that will help

       7      ensure that sex work is recognized as work.

       8             A lot of other workers that talked today,

       9      there's no question that their work is work.

      10             And there is still that question for people

      11      in the sex trades, and, decriminalizing it would

      12      help to resolve some of that.

      13             So, in general, in order for

      14      sexual-harassment legislation to work, it has to

      15      work for every member of the workforce, and that

      16      that has to include people in the sex trades, and

      17      people who work in informal labor, and people who

      18      are marginalized by being LGBTQ, by being immigrant,

      19      and being survivors.

      20             Thank you.

      21             BRIANA SILBERBERG:  Hi.

      22             Thank you for having us all here today.

      23             My name is Briana Silberberg.  I'm a

      24      community organizer at AVP.  I'm a transgender

      25      woman.







                                                                   652
       1             Very appreciative, and glad to have the

       2      opportunity to speak to everyone today.

       3             As Audacia mentioned, we have this report

       4      out, "Individual Struggles, Widespread Injustice:

       5      Trans and Gender Non-Conforming People's Experience

       6      of Systemic Employment Discrimination in New York

       7      City."

       8             I've included a copy of it for everyone with

       9      my testimony, so you can go through it and read it

      10      at your leisure and pleasure, afterwards or during.

      11             What we wanted to go over in this is that, in

      12      our work, and through the report, AVP has noticed a

      13      few trends about how sexual harassment uniquely

      14      affects transgender, gender non-conforming, and

      15      non-binary (TGNCNB) communities, in ways that we

      16      find very disturbing, that warrant the attention of

      17      the Legislature.

      18             And we want to make it clear also that,

      19      TGNCNB people experience both, you know, sexual

      20      harassment and harassment based on our gender

      21      identities.  And that these forms of harassment are

      22      not the same thing, and that we have to be cognizant

      23      of that when we're considering these issues.

      24             So, often we hear solely about these issues,

      25      and discrimination, solely from the perspective of







                                                                   653
       1      the hiring process.

       2             I wanted to share with you today some of the

       3      things that we have in the report, about on-the-job

       4      harassment for TGNCNB people in the workplace, and

       5      touching on just not harassment, but also the

       6      reporting piece, and what factors contribute to, if

       7      people are reporting, and also why they might not,

       8      in cases that they don't.

       9             So when it comes to harassment in the

      10      workplace, what we're seeing is that --

      11             And we had 118 TGNCNB respondents in this,

      12      and as Audacia said, this was collected between 2016

      13      and 2017.

      14             -- so of our respondents:

      15             33 percent of them reported that they

      16      received unwanted sexual comments in the workplace.

      17             65 percent of the respondents said that they

      18      were outed as TGNCNB to at least one person in the

      19      workplace, 81 percent through an in-person

      20      disclosure.

      21             But 63 percent of our respondents, who said

      22      they were not out to anyone at work as TGNCNB, said

      23      that they did so because of barriers that they felt

      24      were in their way.

      25             56 percent of those who were not out at work







                                                                   654
       1      said that they cited fear of discrimination as their

       2      main barrier as to why they were not coming out.

       3             About half of respondents listed uncertainty

       4      of co-workers, supervisor, responses.  No desire to

       5      disclose.  Anxiety and isolation as contributing

       6      factors there.

       7             When it came to folks's (sic) experiences

       8      with human resources, what we were seeing were, of

       9      the respondents who were employed in workplaces that

      10      HR departments, 76 percent did not actually report a

      11      discriminatory incident to HR.

      12             And although the number of respondents who

      13      reported was very small, it was only 13 of those

      14      respondents, 77 percent of the discrimination

      15      reported to HR departments did not end, and

      16      77 percent of respondents felt that HR responses

      17      were inadequate.

      18             And we were seeing a lot of listed reasons

      19      from people, why they weren't reporting.

      20             Some of the things that people told us were,

      21      and these are quotes:

      22             HR is actively transphobic.

      23             HR is useless, and is way less sensitive or

      24      competent than my co-workers or supervisors.  The

      25      last place I would go with a sensitive issue.  So







                                                                   655
       1      far removed from my actual workplace.

       2             HR will tell others, without my knowledge or

       3      consent, and I don't want to deal with that or be

       4      outed (indiscernible).

       5             I don't want people to think I am difficult

       6      to have around, or a problem, or someone who they

       7      want to have stressed out about as a result of my

       8      gender.

       9             I was too traumatized.

      10             My supervisor instructed me not to tell HR.

      11             When it came also to issues where people were

      12      factoring in supervisor respondent -- responses, of

      13      our respondents who actually had a supervisor, and

      14      were in a workplace where that was a part of it,

      15      42 percent reported incidence of discrimination to

      16      the supervisor.

      17             However, of the 58 percent of people who did

      18      not report it to their supervisor, 46 percent of

      19      those respondents cited they are not -- they did not

      20      do so because of complaints they had about their

      21      supervisor.

      22             When respondents were reporting to their

      23      super -- reported to their supervisor, the

      24      most-often reported follow up was a meeting or

      25      mediation with the involved parties.







                                                                   656
       1             24 percent of respondents said they were

       2      retaliated against for reporting an incident.

       3      Reporting incidents did not lead to resolution.

       4             71 percent of respondents continued to be

       5      subjected to discrimination after reporting.

       6             And 76 percent did not feel that their

       7      supervisor's response was adequate.

       8             When it came to other ways that people dealt

       9      with these issues, only 32 percent of respondents

      10      chose to directly confront the person or persons in

      11      the workplace who discriminated against them.

      12             After this conversation, 52 percent of

      13      respondents said the discriminatory incidents

      14      continued at the rate, and, 28 percent, that

      15      discrimination got worse.

      16             Only 4 percent of respondents filed a claim

      17      with an outside agency, such as New York City's

      18      Human Resources Administration or the New York City

      19      Commission on Human Rights; although, in recent

      20      years, the City has made efforts to increase

      21      reporting through public-education efforts.

      22             13 percent of respondents consulted a lawyer

      23      about the discrimination they experienced.  Of

      24      those, about two-thirds had their cases taken on,

      25      while the remaining third were informed that there







                                                                   657
       1      wasn't enough evidence.

       2             And what we saw was that, 10 percent of

       3      respondents worked in a job, such as sex work, in

       4      which they did not have legal protections or

       5      recourse in any case.

       6             This situation is obviously untenable, it's

       7      intolerable.

       8             The TGNCNB communities deserve to have

       9      comprehensive and helpful resources to prevent and

      10      combat the harassment that we're experiencing.

      11             I would ask that the Legislature pay

      12      particular attention, not just to the levels of

      13      discrimination reported, but also, again, how hard

      14      it is for, especially marginalized communities, to

      15      even report incidents of harassment and

      16      discrimination.

      17             It needs to be made easier and less onerous

      18      for people who have suffered harm, and have

      19      documented the ways that they've dealt with and

      20      experienced harassment; otherwise, it's hard to see

      21      how things get better.

      22             And, you know, we at AVP do support the bills

      23      that are in discussion.  We think that they go a

      24      long way to helping with these issues.

      25             I would say that, there are questions that we







                                                                   658
       1      see, and some of these, you know, talk about

       2      reporting to the police and to law enforcement.

       3             From my work, and from we've seen, that the

       4      police, especially TGNCNB communities, and other

       5      marginalized communities, are part of the problem

       6      for a lot of folks.  And that is something that is

       7      difficult for us.

       8             That being said, we do support these bills,

       9      and we would be happy to see their passage.

      10             Thank you again for your time.

      11             I hope that these hearings help you in

      12      creating structures and systems that better protect

      13      the folks that experience the most harm.

      14             And, it's been over 11 1/2 hours --

      15                [Laughter.]

      16             BRIANA SILBERBERG:  -- and I (indiscernible)

      17      you for going through all of this, and, it's quite

      18      impressive.

      19             SENATOR BIAGGI:  Thank you.

      20             ASSEMBLYMAN CRESPO: