All the chatter about whether Governor Andrew Cuomo should be kicked out of office for this–this being multiple women’s credible allegations of sexual harassment and retaliation–is maddening to me. As an employment lawyer who regularly brings, defends, and investigates sexual harassment claims in New York, I know that the punishment for violating this law is usually termination of employment and financial liability of the employer and occasionally the harasser.
Cuomo’s multiple overlapping current (and former) crises, also including a cover-up of nursing home deaths, share a theme: abuse of power for personal gain. The sexual harassment claims, from eight women so far, including several staffers who worked for him, clearly demonstrate violations of the NYS Human Rights Law prohibiting sexual harassment—which the governor took credit for expanding. This law creates clear liability for the governor based on the actions currently alleged, including ones he’s admitted to.
The allegations include Cuomo relentlessly commenting on employee’s appearances, putting his arms around their waists, kissing one on the lips without her consent in a workplace setting, putting his hand down another’s shirt, and propositioning one for sex while vigorously repeating to her that she had previously been a victim of sexual assault.
The array of complaints against the governor create a useful tool for New Yorkers to understand the New York State Human Rights Law, and how to apply key portions to their own lives. Below are some of the key aspects of the law, as updated by Cuomo in 2018, that it appears he personally violated:
It protected every employee in New York from sexual harassment, regardless of who harassed them
This was a deliberate change made, thanks to the tireless advocacy of the Sexual Harassment Working Group, to ensure that Albany lawmakers could no longer get away with predatory, violent harassment, while manipulating loopholes in the law to evade responsibility. By defining employee and employer broadly, and eliminating any threshold for the number of employees necessary for the law to apply, Albany legislators are now subject to the law regardless of how many staffers they have, and whether they alone or the state is considered their employer. Employers also have liability for what their employees experience, regardless of who harassed them. As such, even if the governor was accused by women who did not directly report to him, such as the reporter Jessica Bakeman, he may still be liable for his actions against her while she was at work. And there is no loophole for the governor to claim that he is not liable based on his office.
It created a shared language for what is considered sexual harassment, and required that all employer’s policies contain this information and transmit it to employees
“Sexual harassment includes harassment on the basis of sex... Sexual harassment is unlawful when it subjects an individual to inferior terms, conditions, or privileges of employment. Harassment need not be severe or pervasive to be unlawful, and can be any harassing conduct that consists of more than petty slights or trivial inconveniences.” Each woman who has come forward to date alleges that the governor intentionally made them uncomfortable by either touching or discussing touching her, commenting on her appearance, and in some cases including other employees in the harassment, which inherently impacts the terms of the woman’s employment.
Petty slights and trivial inconveniences are meant to differentiate between the one-off comment and more serious grievances. This is not a high bar to cross, and individual touches or comments have been found to exceed this standard. The sheer number of similar allegations against the governor makes it hard for him to claim that each interaction was a petty slight or trivial inconvenience. Further, touching an employee around the waist, kissing her, or propositioning her would not be considered a petty slight or trivial inconvenience.
Or, as Cuomo himself put it: “By ending the absurd legal standard that sexual harassment in the workplace needs to be ‘severe or pervasive’ and making it easier for workplace sexual harassment claims to be brought forward, we are sending a strong message that time is up on sexual harassment in the workplace and setting the standard of equality for women.”
It required that every single employee take training on sexual harassment annually, and provided a model training
Reportedly, the governor refused to take this training, directing an aide to take it for him. That’s unfortunate, since the 2018 outline for the required training included some examples which may have been instructive for Cuomo, who seems not to understand his own legal standards. One example of sexual harassment includes a boss telling his staffer that she is “easy on the eyes.” As the official training explains: “[staffer] should not have to continue to work for someone she knows harbors such contempt for women, nor should the other employees have to work for such a supervisor.”
It clarified that individual supervisors may face sanctions or personal liability for harassing an employee, or knowingly allowing harassment to continue
In the employment context, if someone is credibly accused of sexual harassment, the harasser is often fired. They can also be personally sued under New York State and New York City law.
It required a clear reporting structure to be given to every employee, and an investigation of any harassment complaint
Supervisors and employees who witness harassment are also required to make a report. This means that not only the governor, but his aides who witnessed or partook in the harassment alleged, may have personal financial liability. Employers can no longer use the fact that an employee did not report the harassment at the time as an absolute defense against liability, especially if employees have a genuine reason why they were afraid to report–such as witnessing a different employee report harassment and be retaliated against.
Former staffer and accuser Charlotte Bennett made clear that she did report the governor’s harassment, and there was some questioning of her by his counsel. The AG’s investigation will likely review if that questioning met the standards for investigations, and whether other employees understood that she had reported harassment when she was transferred.
It clearly prohibited retaliation of any kind.
I often tell clients that employment lawyers love a retaliation claim, because you do not have to prove the underlying discrimination, you just have to prove that a negative action was taken against the employee shortly after they made a complaint about what they thought was harassment. The allegations that former staffer and accuser Lindsey Boylan’s private personnel file was leaked to the press after she alleged Cuomo kissed her create liability for those who released or were involved in their release, regardless of the fact that Boyle’s harassment allegations themselves are time-barred since they occurred more than three years ago.
Bottom line: Whether or not you personally feel that Cuomo’s actions can be excused, they appear to have violated multiple provisions of the NYS Human Rights Law, which is designed to create a safe workplace for all people. If the governor’s actions go unpunished, it is a clear demonstration that the law does not apply to him.
