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.
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.