Before he was accused of sexual harassment, New York governor Andrew Cuomo (D.) signed a bill that dramatically lowered the bar for proving harassment claims—a bar his accusers would almost certainly clear.
The bill, signed into law in 2019, says harassment need not be "severe or pervasive" to be considered unlawful; any action that rises above "petty slights and trivial inconveniences" can qualify. If a male supervisor makes a female employee uncomfortable by asking her out to lunch, one New York employment lawyer told the Washington Free Beacon, "that could be the basis for a claim."
Cuomo is the latest liberal to fall prey to liberalism’s evolving standards of sexual misconduct. As more women have come forward in the face of the MeToo movement, more men have found themselves on the hook for behavior once deemed unobjectionable. Left-leaning figures, from Chris Matthews to Aziz Ansari to Neil deGrasse Tyson to Garrison Keillor, saw their careers falter or implode over ambiguous accusations, causing some to wonder whether MeToo had gone too far. If the bill he signed is any indication, Cuomo did not share those concerns.
The governor’s alleged transgressions far exceed the standard set by the 2019 law. His first accuser, Lindsey Boylan, said Cuomo invited the former aide to play strip poker on a government plane, made suggestive allusions to Bill Clinton’s affair with Monica Lewinsky, and kissed Boylan on the lips without her consent. His second accuser, Charlotte Bennett, said the governor indicated interest in a sexual relationship with her while she was working in his office as a health policy adviser. Bennett, who is 25, told the New York Times Cuomo asked her if she’d "ever been with an older man," adding that "age doesn’t matter" in relationships.
The bill also eliminates a key defense Cuomo might have used in court. Under federal law, an employer can avoid liability if their employee never filed a formal complaint about the harassment. Neither Boylan nor Bennett filed such a complaint, though Bennett did relay her concerns to the governor’s chief of staff. But under the law Cuomo signed, the absence of formal complaints "shall not be determinative" of liability. An employee can win even if she did not avail herself of an internal grievance procedure.
Cuomo’s office did not respond to a request for comment.
This is not the first time a prominent Democrat has endorsed self-incriminating standards for sexual misdeeds. Al Franken, who told the New Yorker he "fervently supports" the MeToo movement, resigned in disgrace after eight women accused the senator of inappropriately touching them. And Joe Biden, who as vice president pushed colleges to limit the due process rights of men accused of sexual assault, said Tara Reade’s allegations against him "should be subject to appropriate inquiry and scrutiny" after they threatened to derail his presidential campaign.
Unlike Franken or Biden, however, Cuomo explicitly enshrined those standards in state law. "The ongoing culture of sexual harassment in the workplace is unacceptable and has held employees back for far too long," he said of the bill. "This critical measure finally ends the absurd legal standard for victims to prove sexual harassment in the workplace and makes it easier for those who have been subjected to this disgusting behavior to bring claims forward."
Because the law only took effect a year and a half ago, there hasn’t been enough time for state courts to interpret it. Without any cases on the new statutes, it’s hard to know just how much wiggle room will remain for employers, the New York lawyer said.
But, he added, the goal of the law was to make plaintiff attorneys "more inclined to take on cases that are less egregious." By reducing the burden of proof for harassment claims, Cuomo’s bill effectively incentivizes them.
In fact, it comes close to shifting the burden of proof from the accuser to the accused. Employees still have to produce "some evidence" of harassment, the lawyer told the Free Beacon, "but I don't know what that is." The bill not only removes the requirement for a formal complaint, but also the requirement that plaintiffs "identify a similarly situated person/employee that was treated more favorably" than the plaintiff. Such comparisons are often necessary to prove harassment in court. The New York law says they aren’t.
Prior to the sexual harassment claims, Cuomo was in the midst of a separate scandal relating to his handling of the coronavirus. After a top aide admitted in February that the Cuomo administration had withheld data on nursing home deaths across the state, New York lawmakers called for Cuomo to be stripped of his emergency powers. Cuomo had forced nursing homes to take COVID-positive patients at the start of the pandemic, exacerbating its death toll, even as he received plaudits from Anthony Fauci on his state’s coronavirus response.
Boylan and Bennett came forward in the last week of February, with an additional accuser, Anna Ruch, coming forward March 1. Cuomo admitted in a statement Sunday that some of these "interactions may have been insensitive or too personal" but denied having "inappropriately touched" or "propositioned anybody." He also hired Elkan Abramowitz, the criminal defense attorney who defended Harvey Weinstein and Woody Allen, to represent him.
The embattled governor is now hemorrhaging support within his own party. Several state lawmakers have called on Cuomo to resign as an independent investigation gets underway, and New York City mayor Bill de Blasio (D.) called Cuomo’s conduct "disgusting." National Democrats have joined the pile-on. White House press secretary Jen Psaki called the allegations "hard to read," while Alexandria Ocasio-Cortez (D., N.Y.) said they were "extremely serious and painful."
Cuomo’s own characterization is more sanguine. "I do, on occasion, tease people in what I think is a good natured way," his statement reads. "I have teased people about their personal lives, their relationships, about getting married or not getting married. I mean no offense and only attempt to add some levity and banter to what is a very serious business."
The governor could have gotten away with that line five years ago. Thanks in part to his own legislation, he may pay a price today.
Published under: Andrew Cuomo , New York