Proskauer Rose LLP Eleven Times Square New York, NY 10036-8299

t 212.969.3000
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Re: Report of Conclusions and Recommendations from
Investigation of Discriminatory Harassment and
Related Issues at New York Public Radio
To: Audit Committee of the New York Public Radio
Board of Directors
From: Keisha-Ann Gray
Howard Z. Robbins
Date: April 22, 2018
Memorandum

Scope of Investigation

The Audit Committee of the NYPR Board of Directors retained Proskauer to conduct an
investigation to identify any systemic issues of inappropriate workplace conduct, including
sexual harassment, racial bias and bullying and to make recommendations regarding those issues.

This investigation focused on issues that arose on several shows in recent years, as a means to
understand (1) how complaints have been brought forward and handled; (2) whether policies
have been accessible and mutually understood across the organization; and (3) whether there has
been reluctance to report inappropriate workplace conduct and, if so, what factors may have
contributed to that reluctance.

The investigation included:

 Interviews of 36 current and former NYPR employees and outside witnesses;

 Review of NYPR written employment policies and procedures;

 Review of written communications/complaints among current and former staff and guests
and NYPR human resources and senior management and notes of meetings related to
those issues;

 Review of news reports and NYPR’s responses to internal and external inquiries
concerning its working environment;

 Review of relevant employment records;

 Review of and interviews regarding memorandums describing other employment-related

reviews, surveys, procedures and recommendations being considered or implemented by
NYPR, both internally and with the assistance of numerous consultants.

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This report includes conclusions arising from our investigation and recommendations aimed both
at preventing discriminatory and bullying behavior and at creating an environment in which
inappropriate conduct is brought to the attention of human resources or senior management so it
can be remedied expeditiously.

This investigation did not include interviews of employees in every area of NYPR and is distinct
from the numerous separate projects being conducted by NYPR concerning employee policies,
employee relations and organizational and work culture changes. We suggest that the Audit
Committee also consider the recommendations being generated by these other workplace-
improvement projects. There is some overlap as to recommendations from those groups
(subsequent to our formulation of recommendations, we have been provided with descriptions of
recommendations made thus far through these other projects).

The Audit Committee directed the scope of this investigation. NYPR management had no
involvement in determining the scope of the investigation, who could be interviewed, or what
conclusions were reached or what recommendations were made. Most interviews were
conducted (and factual assessments made) by Deborah Shapiro, Esq., an independent
investigator with no relationship with NYPR or Proskauer prior to the investigation of issues
addressed in this report.

Conclusions and Assessments

In recent years, there has been offensive and at times discriminatorily harassing conduct in
violation of NYPR policies by a small number of individuals, including hosts of shows and
administrative staff. We have not found evidence, however, of systemic discrimination, which
we define as pervasive discrimination or discriminatory harassment that is known and tolerated
by senior management. The number of such violations, and the response to that conduct once
senior management or human resources learned of them, do not indicate that discrimination or
discriminatory harassment has been pervasive or condoned by senior management or human
resources. Significant and prompt disciplinary action was taken in most cases where violations
were found. Of course, no amount of harassing conduct is acceptable, which is why this report
includes recommendations of numerous measures in addition to those otherwise being
considered and implemented by NYPR.

We note, however, that we cannot rule out the existence and impact of unconscious bias across
the organization even where there may not be evidence of overt discriminatory motives. We
understand that this issue is being explored through other work environment projects being
undertaken by NYPR.

Unlike issues of discrimination, non-discriminatory bullying behavior was, however, known and
tolerated in certain circumstances for months or even years before serious corrective actions
were taken.

There does appear to have been a systemic problem in that knowledge of sexually harassing
conduct often was not conveyed to human resources or senior management until months or years
after the events. In some cases, those who had experienced sexual harassment did not inform

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any supervisors of their concerns. In others, front-line managers were on notice of concerns
about sexual harassment but did not inform human resources or senior management about those
issues. This failure sometimes was because the manager had (improperly) committed to
maintain the confidentiality of those concerns, which should have been conveyed to human
resources.

As this occurred with respect to numerous managers, it seems fair to conclude that this was at
least partly due to a lack of clarity by managers about their responsibilities and the procedures to
be followed. It may not have been made sufficiently clear to managers that they had an absolute
responsibility to bring complaints or information forward even where the complainant asks for
absolute confidentiality.

There was—based on our investigation and on published news reports—evidently a culture in

which information about inappropriate bullying and harassing behavior was not always brought
forward, whether because of fear of reprisals, lack of confidence in human resources to take
action, an assumption that star hosts were untouchable, or other factors. Although this problem
is not unique to NYPR, there clearly was unacceptable conduct that made employees and
members of the NYPR community uncomfortable and undermined NYPR’s stated goal to have a
respectful working environment.

Although NYPR is not unique in experiencing a broader cultural moment in which people are
coming forward with complaints about conduct that occurred months or even years earlier, this
systemic problem is ultimately the responsibility of senior leadership. A lack of confidence that
human resources would take complaints seriously appears to have been part of this problem. As
noted above, it also may not have been made sufficiently clear to lower-level managers that they
were strictly required to bring information about harassment forward, even where they had been
asked by complainants to keep information in confidence.

It is the responsibility of NYPR senior management to implement changes to prevent recurrence

of such inappropriate conduct and to create an environment in which complaints are brought
forward. It is hard to know whether some of the measures recommended in this report and by
the other groups and consultants recently engaged by NYPR would have resulted in the
deterrence of inappropriate conduct and/or the earlier surfacing of complaints, but it is certainly
possible.

As to why complaints were not conveyed earlier as to conduct that had occurred months or years
before, some issues appear to be particular to NYPR and some are broader:

 The revelations and outpouring of long-suppressed complaints in October 2017

concerning Harvey Weinstein spurred a world-wide eye-opening about sexual harassment
and the ability and need for victims to come forward, particularly in the media and
entertainment industry. Katie Couric aptly described the #MeToo movement as being
like “a long-dormant volcano that’s erupting”. The timing of the complaints and public
reports about NYPR hosts—just a month after the Harvey Weinstein stories began to
appear—seems tied to this broader moment.

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  When asked (in this investigation and in news reports) why they did not report conduct
earlier, staff gave varying reasons, including:

o That they now somehow felt the need to come forward to tell their stories and to
try to promote change;

o Their previous belief that a culture of inappropriate conduct is just how the radio
business works or (for those who had worked in television) that radio must be like
television in terms of what is deemed acceptable conduct.

o That they assumed their jobs and career opportunities would be in jeopardy if they
complained about the conduct of program hosts.

o They assumed nothing would change even if they did complain.

o In a number of instances, staff had confided in managers (below the level of

senior management) about sexually harassing conduct but asked that these
concerns not be forwarded to human resources, and the managers did not
understand their strict responsibility to bring those issues forward to human
resources nevertheless. If these managers had informed human resources and/or
senior management of sexually harassing conduct that came to their attention in a
timely manner, it might have been possible to “connect the dots” and earlier
remedial action might have been taken.

o In one instance, a manager stated that it was unclear (prior to training being
conducted) that it was a strict requirement to report concerns to human resources.
We note that the policy in effect at the time stated that managers are “expected to
engage with HR immediately.” This language may have left some doubt as to
whether reporting by managers was an absolute requirement even where the
employee reporting a concern asks for confidentiality and that human resources
not be informed.

A number of staff expressed the view (as reported in interviews and post-departure
correspondence) that the departures of numerous women of color were attributable to race and/or
gender discrimination or were in retaliation for their having made complaints. We did not find
evidence sufficient to support these allegations. Whatever its merits, this perception reflects a
lack of confidence in the fairness of decision-making and the addressing of complaints.

A number of factors may have fed this perception. Clear expectations were not set—for
complainants, witnesses or managers—as to what would happen during and following the
making of a complaint and an investigation. Some staff involved in the reporting of
inappropriate conduct did not hear back as to how their complaints had been handled, and were
left with the impression that nothing was done, even when significant investigative and remedial
steps had, in fact, been taken. The human resources department has sometimes been perceived—
particularly in response to allegations about non-discriminatory bullying—as trying to smooth
over issues (e.g., telling an employee she is too sensitive) rather than exploring and addressing
them, whatever the merits of the complaint. Whatever the merits of the concerns about the

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human resources department, it is important that employees have confidence that it will protect
their right to a respectful and discrimination-free work environment. Many of the
recommendations below are aimed at achieving that end.

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Recommendations

In light of the above conclusions, we suggest a number of measures to promote a workplace at

NYPR that is respectful and free from harassment and discrimination. NYPR management
should formulate a plan to coordinate the recommendations made in this report and through other
workplace-improvement projects being conducted by NYPR.

1. Providing greater clarity, through training and through plain-English written

explanations, as to how NYPR policies and procedures work with respect to anti-
harassment and discrimination.

o It should be clear to complainants, witnesses and those accused as to (1) how the
investigative process works; (2) what the human resources department does; (3)
what information will or will not be shared during an investigation and after its
conclusion; and (4) that managers on notice of complaints or violative conduct
must report it to human resources, and that requests to treat reports of violative
conduct as confidential cannot be honored.

o An important step was taken earlier in 2018 with the creation of a plain-English
description for managers as to how the process works when someone makes a
complaint of sexual harassment or other discrimination, and what is expected of
managers when they become aware of inappropriate conduct, including both the
further reporting of that conduct as well as intervening in the moment if they
experience or see inappropriate conduct themselves.

2. Creating an anti-bullying policy so employees understand that NYPR expects a respectful

environment and so as to distinguish between inappropriate behavior and legitimate
supervisory criticism. This can be a free-standing policy or a modification of the current
anti-harassment/anti-discrimination policy, to expand the policy to prohibit not only
unlawful conduct but also conduct that does not meet NYPR’s standards for a respectful
workplace.

a. Neither NYPR’s handbook nor its code of conduct clearly prohibits non-
discriminatory bullying conduct, although Walker’s memos to staff have stated
that NYPR expects there to be a respectful workplace.

b. A reality of employee relations and employment law is that when someone

engages in a combination of non-discriminatory abusive behavior as well as
discriminatory harassment, all the inappropriate conduct may merge in the eyes of
those experiencing it. Conduct that previously may have been perceived as
simply rude will often be seen as part of a pattern of conduct with discriminatory
motives once there is an incident of discriminatory conduct. That is, being an
“equal opportunity abuser” is not an excuse.

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3. Revising the NYPR anti-harassment policy to prohibit conduct against third parties (not
just by third parties), in recognition that NYPR’s workplace and work product involves
the regular participation of guests on shows and other third parties. At present, NYPR’s
policies prohibit discriminatorily harassing conduct only toward employees, although
Walker’s November 21, 2017 memo included guests, contractors and visitors as those
entitled to feel valued and respected. NYPR policies and training should make clear that
the use of economic power by program hosts to take advantage of guests or others is
unacceptable and will not be tolerated.

NYPR should find a way for third parties involved in NYPR product to understand that
they can and should report inappropriate conduct. In January 2017, the hotline
(electronic, not voice, reporting) that previously had been only for reporting
whistleblower issues was expanded to encompass reporting of harassment and
discrimination complaints. This resource should be made available (through NYPR’s
web site or otherwise) to guests and other third parties.

4. Improving the complaint-investigation process:

a. There should be training of human resources staff in conducting effective

investigations, which would include training on communication to those involved
about progress and outcomes to the extent appropriate, and explaining to others
why more information is not being shared. There is no written protocol for the
human resources department today to conduct investigations of employee
complaints.

b. Historically, the general counsel’s office has not routinely been involved in
assessments of complaints and investigations; in-house counsel should be
involved in such matters both for risk assessment purposes (under both law and
contracts) and to consider what remedial steps may be warranted. The general
counsel’s office should collaborate in assessing how an investigation should be
handled and what actions, if any, are warranted following its completion.

c. The human resources department appears under-staffed, resulting in the head of

human resources conducting investigations rather than being able to assess
complaints and investigations along with legal counsel. NYPR has indicated that
it already plans to add two staff members to the human resources department,
focusing on the content area.

5. Addressing the demand by numerous staff (and the broader movement in American
workplaces) for “zero tolerance” of sexual harassment, while clarifying that not all
harassing conduct necessarily will result in termination of employment.

a. There should not be any tolerance of discriminatorily harassing conduct. That

does not mean, however, that every instance of harassing conduct, regardless of
severity, must result in the termination of employment. NYPR may reasonably
determine that conduct that is not severe or recurring may be addressed

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 effectively through disciplinary and other measures designed to prevent problems
in the future.

b. Part of the framework of the law concerning workplace discrimination is that the
accused employee may not retaliate against the accuser, and is expected to
continue to work with him/her as usual. That is a two-way street; in the event the
accused is not terminated, the accuser may need to continue to work with the co-
worker who engaged in the harassing conduct.

c. There are times when legal risks—whether concerning statutory issues or a

collective bargaining agreement or individual employment agreement—are
factors in deciding whether and when an employee who engages in inappropriate
conduct will be terminated. It is not always possible to share with the
complainant-employee the reasons why certain actions will or will not be taken.

6. Providing an explanation for maintaining confidentiality of certain information, and that

certain situations may call for more disclosure than others. This concerns confidentiality
as to both complainants and those accused of misconduct.

a. Numerous NYPR staff reported concerns to managers and requested that those
concerns remain confidential; as noted above, NYPR should make clear that
managers are required to bring complaints of legal and/or policy violations to
human resources, but that human resources will endeavor to maintain as much
confidentiality as possible while still addressing the issue so that any improper
conduct is not repeated, and that appropriate disciplinary measures can be taken.
It is evident from this investigation (and is perhaps obvious) that publicizing to all
staff the fact that a complaint has been made will sometimes unavoidably identify
the complainant, which could deter the making of complaints in the first place.

b. Routinely publicizing the fact that someone has been accused of discriminatory
harassment is also problematic, as it may poison the work environment against
someone whose behavior can be corrected and where termination is unwarranted.
There may, however, be situations where inappropriate conduct is so widespread
that reporting of the complaint and results of an investigation should be made to
all those affected. There is no rigid rule to be applied.

c. A factor to be considered is that some discrimination and harassment complaints

may not be meritorious. Publicizing a finding of the lack of merit of a complaint
may be unnecessarily damaging to the person who complained, or even viewed as
retaliatory. It should be noted that the EEOC finds fewer than 10% of charges it
receives are supported by “reasonable cause” (and in some years fewer than 5%).
Publicizing a complaint is likely to get attention, while the notice of a finding of
lack of merit (like a correction to a news story) seldom gets the same attention.

7. Improving the flow of information about harassing and other inappropriate conduct. A
challenge in the media industry that is larger than NYPR is that employees working on a

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 particular show who seek to advance at NYPR or in the broader radio or media world
may feel that their career depends on staying in the good graces of the host or others in
leadership positions. A number of those interviewed who had left NYPR conveyed the
concern that they would have damaged their careers had they complained while at NYPR,
and this fear was also articulated by a number of people cited in news articles concerning
NYPR. Although none of these individuals pointed to evidence that others had actually
experienced such retaliation, this perception must be addressed. NYPR needs to build a
level of confidence that it is intent on fostering and preserving a respectful work
environment and that all employees—even “stars”—are held to that standard, and that no
one will suffer adverse consequences for alerting NYPR to inappropriate conduct.

a. Staff should be invited, on a regular basis, to provide feedback concerning their

working environment. Whether this takes the form of a “360 review” and/or the
solicitation of feedback through an annual anonymous questionnaire, or some
other method (such as an annual survey of employees), employees should be
helped to understand that NYPR wants to know whether its workplace is
respectful and businesslike. We note that a culture survey was conducted in 2017
and that management has already indicated its intent to conduct an annual survey
of employees.

b. Exit interviews should be conducted in a thorough, systemic manner, both at the

time of separation and in a follow-up discussion six months later, when
individuals may feel freer to discuss their experiences and views. If at all possible
these interviews should be conducted in person and a written record should be
created. Such interviews can be the source of information and insights that
current employees may be hesitant to provide.

c. Town hall meetings should be conducted on a regular basis.

d. We understand that other workplace projects underway involve efforts to identify

and remedy cultural issues that may have perpetuated some of the problems
regarding information-sharing.

8. There should be robust background checks to avoid hiring bad actors (this is a cautionary
recommendation; it is not our conclusion that NYPR unknowingly hired people with a
history of misconduct).

9. Personal services contracts should, if possible, include provisions to allow NYPR to take
action upon a finding of improper conduct.

10. The NYPR Board (either its Audit Committee or a special committee formed for this
purpose) should be provided with regular reports as to the number and type of complaints
of discriminatory or bullying conduct and how those complaints have been investigated
and addressed. This reporting should be systematic and regular (such as quarterly) so as
to be clear when issues are to be reported to the Board, and to give the Board committee
insight into whether there are systemic issues or trends regarding such complaints.

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11. The NYPR Board committee should also be provided with regular updates as to progress
in formulating and implementing recommended changes to employment policies and
procedures and other efforts to promote a respectful and productive workplace.

12. It is our understanding that NYPR has recently committed to or taken a number of steps
to promote and maintain a respectful, discrimination-free work environment, including
but not limited to:

a. Conducting online anti-discrimination training in early 2017 and live anti-

discrimination/anti-harassment training in early 2018;

b. Conducting a compensation benchmarking study;

c. Establishing a Diversity, Equity and Inclusion Committee with employees from

across NYPR;

d. Conducting management training

i. This training is important to ensure that managers provide effective

supervision and performance feedback, to avoid employees having no idea
how they are doing, and then feeling surprised by criticism, which can
lead employees to suspect that discrimination is to blame.

ii. Management training should address the reality that having great ideas for
NYPR’s programmatic content does not necessarily make someone an
effective manager.

e. Adding two staff members to the human resources department to support the
above-referenced initiatives and to help ensure effective handling of employee
complaints.

f. With the assistance of a consulting organization, NYPR is defining a broad range

of “out of bounds” behavior, whether discriminatory harassment or bullying, with
a defined process for reporting, investigating and resolving those complaints.

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