Suppose you work in your company’s Human Resources Department. An employee complains to you about her boss. Specifically, she tells you that her boss asked her about her sex life. Even more specifically, he asks her if she’s ever been with an older man. She strongly suspects he is hitting on her, and that her job, or at least the work conditions are either in jeopardy or significantly altered after that interaction. By the way, this boss is the CEO. You promise to investigate. The employee also shows you some text messages from her boss that seem to corroborate her allegations. You speak with the CEO. He denies everything. Another woman comes forward with similar allegations. The boss now says he was joking, that sometimes he makes comments to be playful and doesn’t mean anything by them. Is this sexual harassment? How will you respond? How should you respond? Unfortunately, this type of scenario happens all the time. It’s happening now, in the news. Read on… Yes, this is based on a real scenario. You may have guessed which one. New York State Governor Andrew Cuomo is accused of sexual harassment. Here is some what’s known, so far, about what allegedly went down: Charlotte Bennett, a 25-year old former aide to Governor Andrew Cuomo, alleges he sexually harassed her last year. He asked her about her sex life, specifically, whether she had ever had sex with older men. Allegedly in one incident, she was alone with him in his State Capitol office. He asked her if she thought that age made a difference in romantic relationships, which she interpreted as an overture to a sexual relationship. She said she felt “uncomfortable and scared, And was wondering how I was going to get out of it and assumed it was the end of my job.”
Ms. Bennett reported the above interaction to the Governor’s Chief of Staff and then transferred to another job. She provided a statement to the special counsel to the governor. Apparently, statements made to friends and family members she told about the incidents and contemporaneous texts and emails corroborate the allegations. The governor denied the allegations, saying, “I never made advances toward Ms. Bennett nor did I ever intend to act in any way that was inappropriate,”
Prior to Ms. Bennett’s allegations, another administrative aide, Lindsey Boylan, in an essay detailed years of uncomfortable interactions between her and the governor. Her boss had told her that the governor had a crush on her. She says the governor, “ [went] out of his way to touch me on my lower back, arms and legs.”, and on a flight back from an event in October 2017 said they “should play strip poker”. She also alleges that after a one-on-one meeting in his office, that as she was leaving, he ” stepped in front of me and kissed me on the lips,”. The governor denied the allegations and did not call for an independent review.
A third woman has now come forward. Anna Ruch in September 2019 was at a wedding, where she encountered the governor, and they were talking about a toast he had given. He put his hand on her bare lower back. She removed his hand, and he allegedly said that she seemed “aggressive” and proceeded to place his hands on her cheeks and ask if he could kiss her. She pulled away from him. Accounts from friends and contemporaneous photos and text messages reportedly corroborate these allegations. While Ms. Ruch never worked for the governor, it does seem to bolster his former aides’ allegations, and it does seem to indicate a pattern.
The governor’s response: When he’s “at work sometimes, I think I am being playful and I make jokes I think are funny…in an attempt to add some levity”, that he has “now come to understand” that his interactions “may have been insensitive or too personal”. He claimed never to have touched or propositioned anyone. Admittedly, the conduct alleged is not as openly egregious as that of Harvey Weinstein or Charlie Rose or Roger Ailes and so many others. Does that make it “not as bad”? Not necessarily. You see, this type of behavior is certainly inappropriate, is certainly in Title VII speak (Civil Rights Act of 1964) “because of sex” and it’s more subtle and insidious than the behavior engaged in by the Harvey Weinsteins and Charlie Roses. That, I suspect, is the point. Someone who engages in the type of behavior alleged here can deny an intent to harass and can seek to blame the target for how s/he “interpreted” the comments or the touching. If they have deniability, they can continue doing it.
Here’s the problem: Mr. Cuomo is the Chief Executive of a State which has very clear laws against sexual harassment, and one of those laws requires employers to provide their employees training in an effort to stop sexual harassment. Sexual harassment is also prohibited under Title VII of the Civil Rights Act of 1964 (i.e. federal law). When such an employer adopts anti-harassment policies and training they tend not to work when the top executives are not modeling the proper behavior. It shows that the employer in question isn’t really serious about not tolerating harassment. That is why Governor Cuomo’s “I was only joking”, “I didn’t realize I was offending anyone” or similar ‘defenses’ at best fall flat. (Besides, in this day and age, when there has been so much discussion of what is and isn’t sexual harassment, how can he claim he didn’t realize he was acting inappropriately?)
There’s more, though. Believe it or not, the governor’s conduct (and similar conduct by executives and managers for private employers) demonstrates that even the sexual harassment may be a symptom of a bigger problem: The conduct described by these women demonstrates an abuse of power by the alleged perpetrator.
So, employers: Next time you receive a complaint about harassment by a manager, and, in particular an executive, keep that in mind. If you don’t address that problem promptly, the likelihood is that such a person will not only continue to harass, but s/he will escalate that abuse of power and can inflict much harm on your other employees, your company, and in the right circumstances, the public–despite any seemingly stellar performance in the past.
OK, enough said — I hope.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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