Sexual Harassment Laws Strengthened By Cuomo May Lead To His Undoing

Governor Andrew Cuomo, after repeatedly denying a series of sexual misconduct allegations against him, decided to change course this week. Speaking by phone to reporters on Wednesday, the governor said he would no longer answer questions about whether he had said, done, or behaved inappropriately while dueling investigations by the State Attorney General’s office and the New York State Assembly are underway.

“Let the lawyers do their job and let them conduct the review and then we can talk about it when we have facts established,” Cuomo said.

No matter how long the investigations may take, Cuomo faces a perilous situation made worse by the sexual harassment laws he championed and signed two years ago. They are among the strongest in the nation and now serve to strengthen the hand of the complainants who have come forward against him.

“Thanks to the governor, the New York State sexual harassment laws are great,” said attorney Marjorie Mesidor, who specializes in employment law and sexual harassment claims as a partner at Phillips and Associates. “They’re great for plaintiffs. They’re great for employees who are bringing forth complaints of sexual harassment.”

Prior to the changes in 2019, New York laws governing sexual harassment mirrored the stricter federal law that required plaintiffs to show that the accused created a hostile work environment through conduct that was “severe and pervasive.”

“There were cases where where employees’ breasts had been touched, but [only] a single time and they were not considered sexual harassment,” Mesidor said, referring to plaintiffs she represented before the law changed.

The “severe and pervasive” threshold was removed from the law, and it was further expanded to say a complainant does not need to file a formal grievance for a person to be liable for harassment.

Under the terms set by the current state law, if the AG’s report finds Cuomo in violation, he could face civil action and fines. So far, there has been one allegation referred to the Albany Police Department that could lead to a criminal charge.

But the biggest impact of a damning report would be a devastating political fall from grace, and possible ouster from office.

“If these things are substantiated, the blowback from the fact that you have a person in the public trust who violated that, it can not be overstated,” said Mesidor. “If he did this, how do we trust this guy?” she added.

The investigation is in the hands of the lawyers now. After going back-and-forth with Cuomo’s office, the State Attorney General’s office hired two lawyers in private practice: Joon Kim, the former Acting U.S. Attorney in the Southern District, and Anne Clark, an employment lawyer whose experience includes prosecuting sexual harassment claims. The State Assembly, which authorized its own investigation as a potential lead up to an impeachment, hired the white-shoe law firm of Davis Polk, and it’s unclear how that investigation will unfold. Neither team commented on the status of their investigations.

READ MORE: How Would An Impeachment Work In New York?

Investigators typically interview the complainants, the accused, and any witnesses while also reviewing any evidence to support claims made by either side. The order those interviews are conducted, Mesidor said, can influence the narrative that investigators develop and may tilt an investigation in favor of one side or the other. Ultimately, the credibility of the complainants and the accuser plays a major role in the outcome, she said.

“Unless they have a recording, or video or photograph or something outside of themselves, that undeniably establishes that what they said happened, happened, it really is going to be left to an issue of credibility,” Mesidor said.

There is circumstantial evidence that can help bolster an individual’s claim. Mesidor said she often asks a client what they did right after an alleged incident of sexual harassment took place. If they say, for example, they texted their best friend and told them about it, she asks for the texts.

“Those are contemporaneous texts,” Mesidor said, that could help prove something actually happened. “Does that make it ironclad? No, but it helps a lot,” she added.

In her Medium post and in the recent New Yorker article, Lindsay Boylan, one of the women who has accused Governor Cuomo of sexual harassment, recounted contemporaneous calls she made to her husband, texts to her mother, and even emails from other senior employees in the Cuomo administration that could be reviewed by investigators.

Boylan, who first went public in tweets in December 2020, may have another case against the governor and his staff related to their leak of her personnel records, something that the governor’s counsel Beth Garvey has defended.

That, experts say, exposes Cuomo to a whole other set of liabilities.

“That’s what someone in my field would generally look at as ‘actionable retaliation’,” said Kevin Mintzer, an employment law attorney who represented two women, Chloe Rivera and Tori Burhans Kelly, in their sexual harassment lawsuit against former Assemblymember Vito Lopez and former Assembly Speaker Sheldon Silver.

Mintzer said under state and federal law, speaking up about sexual harassment, even to the press, is supposed to be protected activity. He described the release of Boylan’s confidential personnel files as a clear example of retaliation because it was done after she spoke up in an effort to discredit and intimidate her, while also dissuading others from coming forward.

At the same time as the AG and Assembly are conducting their investigations, the Times Union reported that the executive chamber is conducting its own investigation into allegations against Cuomo.

The governor has also hired two attorneys from the firm Arnold & Porter according to the Wall Street Journal: Paul Fishman, a former U.S. Attorney in New Jersey, and Mitra Hormozi, who worked with the governor when he was State Attorney General. The attorneys are reportedly available to accompany staff from the governor’s office during interviews for either of the investigations. That could mean that attorneys hired on behalf of the executive chamber would be sitting in on the testimony of people who work there and may have witnessed abuse.

In a statement, the Sexual Harassment Working Group, a group of former legislative staffers who have pushed for changes in the law governing sexual harassment and the workplace culture in Albany, called that a form of “witness tampering.”

“It could easily function as a screening of what the staffers might say, thus unfairly providing Cuomo and his enablers inside knowledge to craft their own defense and further intimidate witnesses,” the SHWG said in a statement. “Worse yet, staffers may reasonably fear that they cannot be fully honest under such monitoring by the attorneys selected by, and with a duty to, their employer,” they added.

A spokesperson for Cuomo did not respond to a request for comment.

READ MORE: A Timeline of Cuomo’s Colliding Scandals

Erica Vladimer, one of the co-founders of the SHWG, said it’s been hard watching the women coming forward now go through a process that she knows all too well. In January 2018, she made sexual harassment allegations against former Senator Jeff Klein, chair of the Independent Democratic Conference, a group of Democrats that shared power with the Republicans to give them majority control.

She spent hours talking with investigators — “A lot of the times I was not only repeating myself and talking about what I experienced, but also feeling like I had to defend myself,” Vladimir told Gothamist/WNYC. “It truly felt like I was a witness to my own trauma.”

Three years later, Vladimer is still stuck in legal proceedings that stem from her allegations “It’s exhausting,” she said.

READ MORE: “He Wouldn’t Have Done That if I Was Man,” Why Ana Liss Spoke Out

So far, Charlotte Bennett, Ana Liss and Lindsay Boylan have all been interviewed by attorneys hired to conduct the AG’s investigation. In a statement Thursday, Liss said she met with investigators for two hours over Zoom. She said she provided details of her experience working in the executive chamber from 2013 to 2015 and the, “unsolicited attention paid to me by the governor and the sexually hostile work environment perpetuated by him and senior staff.”

“During my time in the Executive Chamber, it was a toxic, verbally abusive, retaliatory workplace, especially for young women like myself,” Liss said. “I look forward to continued cooperation with this effort, and I support others who may wish to come forward.”

Additional reporting from Gwynne Hogan