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Cuomo’s Definition of Sexual Harassment with New York Law

New York Governor Andrew Cuomo has been under fire since March 2021, having been accused by over a half-dozen women of sexual harassment, including staffers who say the harassment took place at work. Some are surprised by the allegations given that Governor Cuomo has publicly been seen as one of the nation’s leaders in protecting the rights of women and fighting workplace sexual harassment.

IMG_2433-300x171On August 12, 2019, Governor Cuomo signed legislation under the New York State Human Rights Law that made that state’s sexual harassment law one of the strongest in the country. The legislation included extending the statute of limitations for sexual harassment claims from one year to three years, and rejecting the requirement found in other states, including New Jersey, that the harassing conduct must be severe or pervasive to be unlawful. These protections were in addition to the laws that Governor Cuomo signed in April 2019 as part of his 2019 Women’s Agenda. That agenda required all state contractors to affirm that they have a sexual harassment policy and that all employees have received training; prohibited employers from imposing mandatory arbitration to deal with sexual harassment claims and limited non-disclosure agreements to only those situations in which they were expressly requested by the harassment victim; required public employees found to have intentionally sexually harassed someone to reimburse the state for any judgment against it; and extended the law’s protections to contractors, subcontractors, vendors, consultants and other non-employees providing services in the workplace.

The New York State Equal Employment Opportunity Handbook defines sexual harassment as “unwelcome conduct which is either of a sexual nature, or which is directed at an individual because of that individual’s sex when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment, even if the reporting individual is not the intended target of the sexual harassment . . . Sexual harassment also consists of any unwanted verbal or physical advances, sexually explicit derogatory statements or sexually discriminatory remarks made by someone which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, or which interfere with the recipient’s job performance. . . . Quid pro quo sexual harassment occurs when a supervisor or other person with authority makes an employee’s submission to a sexual demand a condition of his or her employment. Sexual harassment need not be severe or pervasive to be unlawful, and can be any sexually harassing conduct that consists of more than petty slights or trivial inconveniences. It is not a requirement that an individual tell the person who is sexually harassing them that the conduct is unwelcome. In fact, the Human Rights Law now provides that even if a recipient of sexual harassment did not make a complaint about the harassment to the employer, the failure of the employee to complain shall not be determinative of whether the employer is liable.” 

Despite his role in this groundbreaking legislation for his state, Governor Cuomo has incited the anger and dismay of many constituents and fellow politicians with his recent comments that may belie his true attitude toward sexual harassment in the workplace. On May 13, 2021, at a press conference, Governor Cuomo continued to insist that he is innocent of any sexual harassment. Despite the laws he signed that speak to the contrary, the Governor stated, “Harassment is not making someone feel uncomfortable — that is not harassment. If I just made you feel uncomfortable, that is not harassment. That’s you feeling uncomfortable.” Governor Cuomo has denied inappropriate physical contact but has acknowledged that he may have unintentionally made women feel uncomfortable. An investigation is ongoing. The Governor’s comments, however, add a layer of confusion for many who are wondering how the public figurehead of such progressive legislation can seem so far from understanding that which it is meant to protect. 

In New Jersey’s seminal sexual harassment case, Lehmann v. Toys R Us, Inc., 132 N.J. 587 (1993), the state Supreme Court rejected the notion that New Jersey’s Law Against Discrimination should be interpreted as a fault- or intent-based statute. The Court found that a plaintiff need not show that the employer intentionally discriminated or harassed her or intended to create a hostile work environment. Rather, the purpose of the Law Against Discrimination is to eradicate all discrimination, both intentional and unintentional. Recognizing that unintentional discrimination is not necessarily less harmful to the victims, the harasser’s state of mind is simply not relevant. However, in New Jersey, sexual harassment is still subject to the “severe or pervasive” standard in conformity with the federal Title VII of the Civil Rights Act of 1964. If the behavior at issue does not meet that standard, then in New Jersey the presumption is that it could not have caused the requisite harm to support a legal claim. As our Supreme Court also pointed out in Lehmann, neither the Law Against Discrimination nor its legislative history contain any provision specific to sexual harassment. However, because New Jersey’s anti-discrimination law closely tracks its Title VII federal counterpart, New Jersey courts have routinely held that sexual harassment is a form of sex discrimination that violates the law. 

If you feel you have been the victim of sexual harassment in the workplace, it is important to understand that whether in New York or New Jersey, your harasser’s intentions are irrelevant. The laws protecting victims of sexual harassment and discrimination differ from state to state, so it is imperative that you consult with an experienced attorney regarding your claim.

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