As we recently learned, Andrew Cuomo resigned his position as Governor of New York State. Although I started writing this post before Gov. Cuomo’s announcement, it still provides valuable insights into workplace sexual harassment.
Over the last few days, I’ve spent several hours reading and rereading the Report of Investigation into Allegations of Sexual Harassment by Governor Andrew M. Cuomo, and his response contained in the Position Statement of Governor Andrew M. Cuomo Concerning the Sexual Harassment Allegations Made Against Him. [Are you serious? Just the titles are longer than anything I want to read about a politician. You need a life!] These documents are fascinating to me [right, you and about five other people] from a professional perspective because I’ve spent more than a decade conducting workplace investigations. My work has spanned a broad spectrum of alleged behaviors and individuals in both the public and private sectors. I’ve conducted investigations in multiple states, and, acting as a subject matter expert, I’ve reviewed and provided feedback on investigations conducted by internal HR departments and attorneys. [OK, we get it, you’re well known, busy, and boring…what’s your point?]. With that somewhat unique perspective, I feel compelled to share some thoughts, not only on the specific documents and circumstances involving Gov. Cuomo, but also the broader points and take-aways from the situation.
Like the individual at the center of this issue, I’m a slightly past middle-aged white male and proud of my Italian heritage. [Fortunately, that’s where the comparison ends!] I’ve also been critical of some of Gov. Cuomo’s decisions and policies. So, for objectivity and to help the reader see the broader scope [and hopefully stay awake], I’ve changed the scenario from one concerning Andrew Cuomo to one involving a family business owner in NY. Finally, please remember that the use of humor does not mean the issues are taken lightly.
Background
In 2018, Gov. Cuomo signed legislation requiring all employers, including the state, to provide annual interactive sexual harassment prevention training to all employees, including documented proof of attendance. Then, in August 2019, Gov. Cuomo signed additional legislation that further strengthened the state’s laws against sexual harassment, including:
- Amending the definition of an “employer” to include all employers in the state, including the state and its political subdivisions, regardless of size.
- Lowering the burden of proof for harassment claims from the federal standard – actions that ”would be considered severe or pervasive” – to actions that rise above “what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
- Further defining unlawful harassment to include any activity that “subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories,” and
- Extending the statute of limitations to file a sexual harassment complaint with the NY State Division of Human Rights (“DHR”) from one year to three years.
Also, the state’s definition of sexual harassment includes “any unwanted verbal or physical advances, sexually explicit derogatory statements or sexually discriminatory remarks made by someone which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, [or] which interfere with the recipient’s job performance.”
Everybody loves a Cannoli, right?
Anthony Cannoli, CEO of Cannoli’s Cannolis!, and his family are well-known in the community. Anthony’s father founded and was the CEO of Cannoli’s Cannolis! for several years. Then, after a series of CEOs from outside the family, Anthony Cannoli stepped in and has run the family business for more than a decade. Fans and foes alike generally agree that Anthony Cannoli is proud of all he and his family have accomplished, and especially his Italian heritage.
Earlier this year, 11 women alleged Anthony Cannoli sexually harassed them. Included were nine current or former employees and two women who alleged Cannoli touched them inappropriately at separate events he attended.
There were also hostile work environment allegations describing the culture of the Cannoli’s Cannolis! office as rife with fear and intimidation, “extremely toxic, extremely abusive.” Getting “yelled at in front of everyone” was commonplace, and the culture “was controlled largely by [Anthony Cannoli’s] temper, and he was surrounded by people who enabled his behavior.” Mr. Cannoli “makes all this inappropriate and creepy behavior normal like you should not complain,” and he knew “he could get away with it because of the fear that he knew we had.” “Everyone knows he’s very vindictive.”
Cannoli’s attorney rebutted that “his leadership style is results-oriented.” His “high expectations for his staff are the same irrespective of gender,” and that “the pressure and demands of that environment are not for everyone.” Further, Mr. Cannoli admits “he is informal with his staff and banters with all employees…” and compares his actions to those of Senator Chuck Schumer, who allegedly “describes his staff as ‘family,’ enjoys teasing [employees] about their relationship status and encourages them to get married and have kids.”
Clearly, Mr. Cannoli believes his actions were misunderstood and misrepresented by the complainants.
Cannolis are Italian!
Well-aware of the NY human rights laws regarding sexual harassment, Cannoli vehemently denied some of the allegations while admitting to many others, generally with one caveat or another:
- No offense was intended.
- She “processed what she heard through her own filter” (referring to a complainant he knew was a sexual assault survivor).
- “On occasion, I do slip and say sweetheart, or darling, or honey,” so-called terms of endearment he used because he’s “old fashioned.”
Here’s where, as an Italian, I start to hit my forehead with the palm of my hand. Anthony Cannoli recorded a video in which he attempted to discredit claims of inappropriate touching by focusing on his self-described lifelong gesture of touching, holding, and kissing people’s faces:
- “I’ve been making the same gesture in public all my life.”
- “I actually learned it from my mother (roll picture of Mama Cannoli touching his face), and my father (now roll Papa Cannoli doing the same).”
- “It’s meant to convey warmth, nothing more.”
- “There are hundreds, if not thousands, of photos of me using the exact same gesture.”
- “I do it with everyone (roll photo montage of Cannoli holding and kissing the faces of children and adults from all walks of life, including famous people and political leaders), Black and White, young and old, straight and LGBTQ, powerful people, friends, strangers, people I meet on the street.”
- In response to an allegation that he kissed an employee on the forehead at the office Christmas party and said Ciao Bella (hello beautiful), “I don’t remember doing it, but I’m sure that I did.”
- “I do kiss people on the forehead. (Roll photo montage showing Cannoli doing what he describes.) I do kiss people on the cheek. I do kiss people on the hand. [OK, I’ve tried to keep quiet to this point, but the woman whose hand he’s kissing looks like she wants to punch him. Probably should have skipped that one!] I do embrace people. I do hug people – men and women.”
To that last point about hugging people, in response to one of the complaints of inappropriate touching, Cannoli told the investigators that the woman was the “initiator of the hugs,” while he was “more in the reciprocal business.” [What does that even mean?] But he “would go along” with the tight hugs because he didn’t “want to make anyone feel awkward about anything.”
No more Cannoli
I hope you enjoyed the analogy of Anthony Cannoli. But since Andrew Cuomo resigned, I want to get back to his voice. In Gov. Cuomo’s lead-up to announcing his resignation, in one breath, he claimed, “I take full responsibility for my actions.” Then, in the next, he again attempted to excuse his behaviors. “I do hug and kiss people casually – women and men. I have done it all my life. It’s who I’ve been since I can remember.” [Heard it all before.] However, what came next was the most telling: “In my mind, I’ve never crossed the line with anyone. But I didn’t realize the extent to which the line has been redrawn.” [Wait, what? Did he seriously say that?] “There are generational and cultural shifts that I just didn’t fully appreciate. And I should have.”
Governor, it’s difficult for me to believe you weren’t acutely aware of the generational and cultural shifts. Those shifts appear to be, in large part, the basis for recent changes you made to the state’s human rights laws. [HE’S LITERALLY THE ONE WHO RE-DREW THE LINE!] Remember when you called the federal “severe or pervasive” standard for harassment claims “absurd” and lowered the burden of proof in NY State to behaviors beyond “petty slights or trivial inconveniences?” It’s part of the sexual harassment prevention training you mandated every employee receive annually. [I think he was busy that day. I read his assistant took the training for him and signed his name on the acknowledgment form.]
Surely, I’m not the first person to mention that, as an employer, all that needs to be shown is that you “knew or should have known” your behaviors were beyond “petty slights or trivial inconveniences.” [State and federal agencies love the “knew or should have known” concept!] Also, don’t forget about the mountain of case law showing the courts repeatedly rejecting “the notion that a harasser’s innocent intent will defeat liability.” Your “I’m Italian” defense won’t go far. Check out Carosella v. U.S. Postal Service (1987). In his defense against sexual harassment charges, Patrick Carosella stated, “I’m an Italian; I have a bad habit of maybe grabbing people…whether it’s a female or male.” [Spoiler Alert: He lost!] I’m guessing your “I’m old fashioned” and “I’ve been doing it my entire life” defenses would be equally ineffective.
Mr. Cuomo, I agree, there have been, and there will continue to be, significant generational and cultural shifts in our lifetime. Yes, I recognize them because it’s my responsibility as a business owner with employees and clients, and as an HR professional [isn’t it kinda his job too?]. But most importantly, I recognize them because I’m a son, brother, husband, father, grandfather, friend, and human being who respects the dignity of the people around me. As especially my daughter is fond of pointing out, I’m not perfect in this, or any area of my life. But I make no excuses and try to get a little better every day. I hope you will learn to do the same.
Posted by Frank Cania, president of HR Compliance Experts LLC.
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Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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