Former New York Gov. Andrew Cuomo on Aug. 3, just 20 days before his resignation, said: “Now I’ve always said my office is a demanding place to work and that’s not for everything. the world.”
This is a rather charitable way of describing an office that, according to the New York Attorney General’s report, most staff described as “toxic” and “full of bully-like behavior, where loyalty flawlessness towards the governor and his senior staff was greatly appreciated. . Former press secretary Cassie Moreno described the office as “a control environment unlike anything you can imagine.”
The title of a New York University Law School panel asked a pertinent question: “Demanding or humiliating?” Powerful Workplaces and the Cuomo Scandal. Panelists included Debra Katz, co-author of this article, who represents Charlotte Bennett, a former member of Cuomo’s staff and one of his accusers.
The panel discussed the differences between demanding and humiliating workplaces and questioned whether demanding standards are just an excuse for the demeaning treatment of subordinate workers. Of course, many workplaces have high standards for their employees, and many employees look forward to the challenge. However, the conduct that took place in Cuomo’s executive chamber would have gone beyond behavior that could be attributed to a fast-paced and dynamic work environment.
The excuse of “workplace culture”
The excuse of a “demanding” work culture is often used to lessen or invalidate allegations of workplace harassment. The idea is that these workplaces are not hostile or toxic and that anyone who sees them as such simply cannot hack them. So why do many people accused of workplace harassment use the “demanding” nature of their office culture as a justification for their mistreatment of their subordinates?
Part of the answer may lie in the law. Hostile work environment complaints, like many discrimination complaints, use a “reasonable person” standard. The courts look at the frequency of the conduct; its seriousness; whether it is physically threatening, demeaning or just an offensive statement; and whether it unreasonably interferes with an employee’s job performance.
Characterizing a complainant as unable to meet the demands of the office is an attempt to stay in and exploit a legal gray area. This tactic is more insidious in the context of a male stalker characterizing his accusers in this light.
It highlights archaic gender norms that have been used for decades to keep women completely out of the workplace and reinforces the current version of the same idea: Women who report abuse are either too sensitive or just not enough ” hard ”to handle the job.
After Cuomo’s resignation, now is the time to examine the links between “demanding” offices and workplace harassment.
The GA report was based on the conclusions of a 2016 report by a small working group of the Commission for Equality in Employment. This EEOC report found several risk factors that can lead to workplace harassment. For starters, the report found that “significant power disparities” can be a risk factor for workplace harassment.
Younger, lower-ranking workers are more susceptible
Lower status workers are more likely to be harassed precisely because they lack the power to challenge abuse, and higher status workers may feel emboldened to exploit them. Additionally, lower status workers, such as junior employees or new associates, may be particularly concerned about the ramifications of reporting harassment, which may include job loss or other forms of harassment.
Likewise, workplaces with many “young adults” can increase the risk of harassment. The EEOC report found that these young adults may lack the self-confidence to resist unwelcome openings and are more likely to be exploited by older colleagues or superiors. This susceptibility is increased when the older colleague is more established in his position.
“High-value” employees, according to the EEOC report, are yet another risk factor, as senior management may be reluctant to challenge their behavior and high-value employees sometimes think “that the general rules of the workplace. work does not apply to them “while” the behavior of such persons may continue outside the sight of anyone with the authority to stop it.
Of course, harassment and bullying is ultimately about power dynamics. Having power can make an individual feel “uninhibited” and “more likely to engage in inappropriate behavior”.
In fact, Cuomo represents what the EEOC report called the “Superstar Harasser.” These people are privileged with “higher incomes, better housing and different expectations”. This can lead to “a self-perception that they are above the rules, which can lead to abuse”. The report, like the citizens of New York and members of its legislature, found that such superstars are not worth keeping.
Whether defending Cuomo is a good legal strategy remains to be seen. Much of Cuomo’s alleged conduct is illegal under federal and state law. He was charged on October 28 with a sexual offense. Cuomo has denied all charges against him.
EEOC recommendations for initial issues
The EEOC report made several recommendations for fostering positive work environments and addressing harassment before it reaches a level where actionable conduct has occurred. The EEOC recommends that employers, among others, devote sufficient resources to investigating allegations of workplace harassment.
When it turns out that harassment has occurred, ensure that the discipline is prompt and proportionate to the seriousness of the offense; zero tolerance policies are not encouraged. Employers should also consider instituting workplace civility and bystander intervention training as part of a holistic harassment prevention program.
Most work environments are unacceptable long before they reach the level of illegality, and most people will agree that we are well past the time when the excuse of having “high” standards can be used. justification for all types of inappropriate behavior in the workplace. When employers describe their workplaces as demanding, it would be fair to ask what exactly is required and who, if any, would be free to say no.
This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.
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Debra S. Katz is a founding partner of Katz, Marshall & Banks LLP. She currently represents Charlotte Bennett, one of the many women who have accused Andrew Cuomo of sexual misconduct.
Alexandria Smith is a lawyer at Katz, Marshall & Banks LLP.