Former New York Gov. Andrew Cuomo, on Aug. 3, just 20 days before he resigned, said, “Now, I have always said my office is a demanding place to work and that it is not for everyone.”
This is a rather charitable way to describe an office that, according to the New York Attorney General’s report, most staffers described as “toxic” and “full of bullying-type behavior, where unflinching loyalty to the governor and his senior staff was highly valued.” One former press officer, Cassie Moreno, described the office as “an environment of control unlike anything you can even picture.”
The title of a New York University School of Law panel posed a pertinent question: “Demanding or Demeaning? Powerful Workplaces & the Cuomo Scandal.” The panelists included Debra Katz, a co-author of this article, who is representing Charlotte Bennett, a former Cuomo staffer and one of his accusers.
The panel discussed the differences between demanding and demeaning workplaces and questioned whether demanding standards are just an excuse for the demeaning treatment of subordinate workers. Of course, many workplaces have exacting standards for their employees and many employees exult in rising to the challenge. However, the conduct that took place in the Cuomo executive chamber allegedly went well past behavior that could be attributed to a fast-paced and dynamic work environment.
The ‘Workplace Culture’ Excuse
The excuse of a “demanding” workplace culture is often used to diminish or invalidate claims of workplace harassment. The idea is that these workplaces are not hostile or toxic and anyone who views them as such simply couldn’t hack it. So why do many people accused of workplace harassment use the “demanding” nature of their office culture as a rationale for their mistreatment of subordinates?
The answer may lie, in part, in the law. Hostile work environment claims, like many discrimination claims, use a “reasonable person” standard. Courts look at the frequency of the conduct; its severity; whether it is physically threatening, humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
Characterizing a complainant as unable to meet the demands of the office is an attempt to remain in—and exploit—a legal gray area. This tactic is more insidious in the context of a male harasser characterizing his female accusers in this light.
It beckons forth antiquated gender norms used for decades to keep women out of the workplace altogether and reinforces the current version of the same idea—women who come forward about mistreatment are being too sensitive or simply are not “tough” enough to handle the job.
Following Cuomo’s resignation, now is an opportune time to examine the connections between “demanding” offices and workplaces harassment.
The AG’s report drew on conclusions from a 2016 report from an Equal Employment Commission select task force. This EEOC report found several risk factors that can lead to workplace harassment. To begin, the report found that “significant power disparities” can be a risk factor for workplace harassment.
Young, Lower-Ranked Workers More Susceptible
Low-status workers are more susceptible to harassment precisely because they lack the power to challenge the mistreatment, and high-status workers may feel emboldened to exploit them. Furthermore, low-status workers, such as junior staffers or new associates, may be particularly concerned about the ramifications of reporting harassment, which can include job loss or other forms of harassment.
Similarly, workplaces with many “young adults may raise the risk for harassment.” The EEOC report found that these young adults may lack the self-confidence to resist unwelcome overtures and are more susceptible to being taken advantage of by older co-workers or superiors. This susceptibility is increased when the older co-worker is more established in their position.
“High value” employees according the EEOC report, are yet another risk factor since senior management may be reluctant to challenge their behavior and the high-value employees sometimes believe “that the general rules of the workplace do not apply to them” while “the behavior of such individuals may go on outside the view of anyone with the authority to stop it.”
Of course, harassment and bullying are ultimately about power dynamics. Having power can make an individual feel “uninhibited” and “more likely to engage in inappropriate behaviors.”
In fact, Cuomo represents what the EEOC report termed the “Superstar Harasser.” These individuals are privileged with “higher income, better accommodations, and different expectations.” This can lead to “a self-view that they are above the rules, which can foster mistreatment.” The report, like the citizens of New York and members of its Legislature, found that such superstars are not worth keeping around.
Whether Cuomo’s defense is a sound legal strategy remains to be seen. Much of Cuomo’s alleged conduct is illegal under state and federal law. He was charged Oct. 28 with a misdemeanor sex crime. Cuomo has denied all of the accusations leveled against him.
EEOC Recommendations for Heading Off Trouble
The EEOC report offered several recommendations for fostering positive work environments and addressing harassment before it rises to a level where actionable conduct has occurred. The EEOC recommends that employers, among other things, devote sufficient resources to investigate workplace harassment allegations.
When harassment is found to have occurred, ensure that discipline is prompt and proportionate to the severity of the infraction; 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 workplace environments are unacceptable long before they rise to the level of illegality, and most people would agree that we are well past the time when the excuse of having “demanding” standards can serve as a justification for all types of inappropriate workplace behaviors. When employers describe their workplaces as demanding, it would be fair to ask what exactly is being demanded and who, if anyone, 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 several women who have accused Andrew Cuomo of sexual misconduct.
Alexandria Smith is a legal fellow at Katz, Marshall & Banks LLP.