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Labor Law: NY's Andrew Cuomo’s statements on harassment show common misunderstandings around harassment
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Labor Law

Labor Law: NY's Andrew Cuomo’s statements on harassment show common misunderstandings around harassment

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20150817_MBZ_KAREN

RTD Metro Business law columnist, Karen Michael.

What is harassment?

To New York Gov. Andrew Cuomo, “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.”

Cuomo was responding to a reporter who asked the governor about his earlier admissions that he may have made remarks to a staffer that could be considered “insensitive or too personal.”

The governor also said that he never meant to make anyone feel uncomfortable and never said anything he believed to be inappropriate.

That the governor of New York so grossly misunderstands harassment could explain why we seem to have made so little progress since the #MeToo movement.

Just last week, the Equal Employment Opportunity Commission announced a $410,000 settlement with Walmart over allegations that a male employee engaged in years of sexual harassment to women including touching and making lewd and sexual comments. One employee complained and a manager allegedly told her to “stand up for herself” instead of addressing the male employee’s outrageous behaviors.

When I conduct harassment investigations, the person accused will frequently profess no intention to “harass” and will usually justify the actions by stating that no one complained.

Harassment occurs when:

  • A person engages in behavior because of someone’s protected class such as gender;
  • The conduct is unwelcome;
  • A reasonable person would find the behavior offensive — this is an objective test;
  • The person experiencing the conduct found the behavior offensive — this is a subjective test;
  • The behavior is severe or pervasive effecting the person’s working conditions; and
  • The company knew about the behavior and failed to act for coworker harassment or the company is strictly liable for the supervisor’s behavior unless it can provide a specific affirmative defense.

Nowhere in this test is the intent to “harass” or the need for someone to tell the perpetrator to stop.

The problem with preventing harassment is that there are too many misconceptions, like those held by Cuomo.

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Here are key considerations to understand harassment:

1. Harassment is in the eye of the beholder, not the intent of the perpetrator.

2. The perpetrator need only be engaging in the behavior because of the person’s sex, race or national origin, not with the “intent” to “harass” or harm the person. The person may have the intent to date the employee, wrongly believing it is welcome, or just intending to exert power or control over the worker.

3. A person is not required to tell the perpetrator that the behavior is offensive or say to stop, before it is considered harassment. It is the responsibility of the perpetrator to not engage in the behavior in the first place.

4. A targeted employee who may be smiling and participating is not necessarily consenting. That person is likely doing so to get along.

5. Creepy behavior can equate to harassment.

To avoid claims of harassment, workers are well-advised to eradicate any discussion of sex at work.

Do not discuss your own sex life or ask others about theirs. Do not flirt, proposition, touch, lurk or make personal comments, including compliments and comments about appearance. Do not send text or direct messages that are creepy and too familiar.

Make these assumptions: No one at work wants to date you. No one at work wants to hear about your sex life. No one at work wants to talk about their own sex life.

And if they claim to want to, don’t assume it’s consensual. It often isn’t, and you may hear about it later.

Eradicating harassment is in the control of every worker, and management plays a key role of addressing harassment when they are made aware of it.

Companies must make a priority to train employees and managers to identify — and stop — harassment from occurring within the workplace and after hours between employees.

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com.

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