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Know Your Rights State Employees: Sexual Harassment

Posted by Giovanna A. D'Orazio | Feb 26, 2021 | 0 Comments

New York Governor Andrew Cuomo has been in the news constantly since the beginning of the pandemic.  At first, he earned celebrity-status with his daily briefings and (agree with him or not) decisiveness when there wasn't much leadership on the national level.  Recently, however, he is much beleaguered both in connection with his handling of nursing home COVID-related deaths as well as in light of allegations of sexual harassment

The sexual harassment allegations against Governor Cuomo are detailed in former Deputy Secretary of Economic Development Lindsey Boylan’s essay published on Medium.  Working for the Governor from 2015 through her resignation in 2018, she details alleged inappropriate sexual or appearance-based comments, meetings, touching and an unwanted kiss.  The Governor has denied the allegations.  

In light of this, we are talking about how employees of State government are protected from workplace harassment, and what their recourse might be in these situations.  State employees are protected from sexual harassment and discrimination both by federal Title VII and the New York State Human Rights Law.  (It is noted that any Civil Service Law, union, or PERB issues that could arise in state employment are outside the scope of this article).

Complaints

If an individual is still employed, an employee always has the option to report sexual harassment.  We acknowledge the irony in this particular situation, but the Cuomo administration has attempted to address harassment and discrimination by creating a better process for investigating and addressing complaints by state employees through its GOER (Governor's Office of Employee Relations) complaint process.  

Generally speaking, whether through GOER or some other complaint procedure, when an employer receives a complaint of harassment or discrimination, it should be taken seriously and investigated.  Complaints of discrimination and harassment are also protected from retaliation.  To fall under retaliation protections, it is important to make sure your complaint actually references illegal harassment (like sexual) – generalized workplace bullying because your boss or coworker is a jerk is not necessarily protected.

We do acknowledge that there are many reasons why an employee may not make an official report of sexual harassment while it's happening and why a survivor of sexual harassment or assault may keep silent for years but then feel compelled to speak.  Ms. Boylan states that she came forward when Governor Cuomo's name was mentioned as the potential US Attorney General.  Similarly, Dr. Christine Blasey Ford came forward when now-Justice Brett Kavanaugh was nominated for a lifetime appointment to the Supreme Court.  In our practice, contrary to popular belief that plaintiffs are litigious and immediately dying to sue, it often takes a significant period of time for someone to come to terms with what happened and decide how they want to address it.

That being said, particularly when your harasser is a coworker as opposed to your boss, the law (especially Title VII) wants you to give the employer the opportunity to make it right.  So, making a complaint should at least be considered.

Resigning

Ultimately Ms. Boylan resigned from her employment.  Often, resigning can be the best thing for an employee's mental health and well-being.  From a legal perspective, however, if the employee also wants legal recourse (such as recovering lost wages due to a period of unemployment following a resignation), resigning – as opposed to being terminated – can make the legal battle more difficult.  The standard on a “constructive discharge” is quite difficult and requires the employee to demonstrate that the conditions of employment were so intolerable that a reasonable person would have been forced to resign.

Our societal standards are evolving on these issues and, while there continue to be cases on the books where egregious conduct like groping was considered NOT to be sufficiently hostile, it is likely that, as these cases make their way through the courts in contemporary times, we will start to see more hostile work environment and constructive discharge cases surviving.

Legal Recourse

Employees can sue their employers for hostile work environments, forced resignations, terminations and other “adverse employment actions” such as a failure to promote, that result from illegal conduct like sexual harassment or discrimination, or retaliation for making a report.

A lawsuit under federal Title VII requires making a complaint to the EEOC.  The EEOC then has at least 180 days to investigate the claim and issue any findings.  After 180 days, you can request a “Right to Sue” and pursue your claims in court.

State law claims can be raised in a lawsuit or at the Division of Human Rights.  Unlike federal law, there is no requirement that you go to the agency first prior to pursuing a lawsuit.  In fact, unlike losing at the EEOC which does not prevent you from filing a lawsuit, there is risk involved in going to the Division and being unsuccessful so you should speak to an attorney to be sure you understand your rights and options.

Employees considering litigation should always be mindful of applicable time deadlines.  Filing a GOER complaint does not suspend any applicable deadlines to pursue your case in court or at the EEOC.  So, if you are not getting anywhere, but you have suffered an event that would start the clock ticking on a claim (for example, a termination, failure to promote, involuntary leave, etc.), you will need to decide if you should take a more formal step to preserve your legal rights.

Successful employment plaintiffs can recover back pay, future lost wages, emotional distress damages and their attorneys' fees.  Additionally, lost retirement is a significant element of damages for employees in the State retirement system.  Punitive damages are not generally available against the State.

If you have been fired because of discrimination or retaliation for reporting harassment, or resigned due to an intolerable work environment, please feel free to contact us.  We are happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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