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Now is a Good Time for Employers to Revisit Workplace Sexual Harassment

August 5, 2021 | by B. Kevin Burke, Jr.
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Detailed Report out of Albany Serves as Wake-Up Call for Both Public and Private Sector Employers

The New York State Attorney General’s recent and widely publicized sexual harassment report serves as a warning to public and private sector employers alike: protect your employees from conduct constituting sexual harassment under Federal and State Law. 

Our labor and employment team works with businesses of all sizes across all industries. We regularly update our employer clients as this dynamic area of the law evolves. The following examples excerpted from the Attorney General’s report of August 3, 2021 highlight a few preventive measures employers should take to protect their employees and minimize the company’s risk.

Verbal Harassment

In a series of conversations in 2020 with an aide, the Governor made inappropriate comments, including, (in talking about potential girlfriends for him, that he would be willing to date someone who was as young as 22 years old; asking her whether she had been with older men; saying to her during the pandemic that he was “lonely” and “wanted to be touched”; telling (her) that if she decided to get a tattoo, she should get it on her butt, where it could not be seen; asking whether she had any piercings other than her ears . . .

Many workplaces are rife with verbal harassment. Employers often learn the hard way that managers have made subordinates uncomfortable or threatened through “playful banter” or “locker room talk.” Employers should make clear that gender-based, offensive, and harassing comments are not allowed in the workplace. Do not assume that “everyone knows it was a joke.”

The law provides that comments and questions alluding to romantic availability and physical attractiveness need not be overtly sexual or motivated by sexual desire to constitute unlawful harassment. [Footnote - See, Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir 2010).] Indeed, it does not matter whether the speaker intended to harass his or her co-worker; if the effect creates of a hostile work environment, the employer is subject to liability. [Footnote – See, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).

Physical Harassment

After Trooper #1 joined the PSU, the Governor sexually harassed her on a number of occasions, including by: running his hand across her stomach, from her belly button to her right hip, while she held a door open for him at an event; running his finger down her back, from the top of her neck down her spine to the middle of her back, saying “hey, you,” while she was standing in front of him in an elevator . . .

Unwanted physical touching in the workplace is never acceptable. Lingering hugs, neck rubs, and other forms of touching create significant issues of civil, and in some extreme cases, potential criminal, liability for employers. [FN – See Redd v. New York Div. of Parole, 678 F.3d 166, 180 (2d Cir. 2012) (“[d]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”).

In order to minimize risk, employers should make clear that unwanted physical touching of co-workers is strictly prohibited. Moreover, best practices dictate that all employees should made aware to whom they can report any such behavior. Reports of any kind of unwanted touching should be investigated thoroughly. Moreover, New York now requires most employers to conduct annual trainings on sexual harassment.

Hostile Work Environment

The complainants also described how the culture within the Executive Chamber—rife with fear and intimidation and accompanied by a consistent overlooking of inappropriate flirtations and other sexually suggestive and gender-based comments by the Governor—enabled the above-described instances of harassment to occur and created a hostile work environment overall.

It is this action, or lack thereof, that leads so many employers to find themselves on the wrong end of a workplace harassment claim. Too often we see supervisors, manager and owners simply look the other way. They may assume both parties are consensually engaged on a conversation. They may assume it is just in fun, or they may simply not focus on what they see and hear. In addition to having strong policies and training in place, we advise our clients to take action when they see or hear something that doesn’t feel right. We also encourage them to document that action. Well-documented and appropriate response to claims of harassment show a good-faith effort on the part of an employer, and can mitigate claims of fostering a hostile work environment.

If there is something positive to come out of this report, and the dark shadow it cast upon Albany, it is that employers can take this opportunity to revisit their own policies and procedures when it comes to workplace harassment. Such efforts will not only help protect your business interests, but it will help keep your employees safe and happy in the workplace, and free from harassing behavior.

Click here to read the complete report from the independent investigation into Governor Cuomo.

B. Kevin Burke Jr. is an attorney with Gross Shuman, P.C. He focuses his practice on the litigation of contract disputes, labor and employment issues, intellectual property protection, and trade secret cases. He can be reached at 716.854.4300 ext. 292 or kburke@gross-shuman.com.