If one reads the detailed report released yesterday by New York Attorney General Letitia James, the allegations against Governor Andrew Cuomo, which included unwanted touching, inappropriate comments of a sexual nature and the like, are no different than most other cases of sexual harassment. It is, therefore, not surprising that Governor Cuomo, a former champion of the “Me Too” Movement, resigned rather than face impeachment proceedings.
But one thing is different here, and it is an important lesson to be learned by all employers. It should no longer be acceptable for a supervisor to be an “equal opportunity” bully in the workplace. Employers should put an immediate stop to this boorish behavior because, as we have seen with Governor Cuomo, the nuanced argument that an equally tough and highly demanding boss does not discriminate, easily can be refined further by proving that bullying of women is different. In this regard, the law is clear: if women are treated differently because of their sex, even without conduct directed at them of a sexual nature, they nevertheless can state a claim for sexual harassment.
Title VII, which protects employees from race, gender and religious discrimination, and its state law counterparts, have been held not to be “a general civility code” that prohibits verbal or physical harassment in the workplace. Therefore, a supervisor who bullies all of his or her employees—whether by, for example, using gender-neutral language while they harshly criticize subordinates, call them incompetent or stupid, or require them to work long hours or under oppressive circumstances-- does not violate the discrimination laws because the supervisor treats men and women equally poorly. In the case of Governor Cuomo, however, those complaining alleged that his bullying of women was different from how he treated men. They claim that he targeted them and would not have treated men in the same heavy-handed way.
What is the lesson to be learned here? Employers taking the position in litigation that a supervisor is difficult and gruff with all gets a plaintiff to the goal line and it is not that difficult for plaintiff’s counsel to carry the ball into the end zone by proving that the supervisor was even tougher on women. Therefore, employers need to make clear to all supervisors, especially those who are “rough around the edges,” to tone it down and act civilly when dealing with all employees.