51% #1658: Sexual Harassment In The Workplace
On today’s 51%, I speak with long-time women’s rights attorney Gloria Allred about the allegations of sexual misconduct against New York Governor Andrew Cuomo, and pick her brain about what it means to be a feminist. And we’ll hear from New York State Senator Alessandra Biaggi about her own experiences with the governor.
According to the U.S. Equal Employment Opportunity Commission, about 7,500 claims of sexual harassment were submitted in 2019; this includes reports from the private sector and state and local government workplaces. It represents a 10% increase from 2015.
According to a 2018 survey by the nonprofit “Stop Street Harassment,” 81 percent of women and 43 percent of men have experienced some form of sexual harassment during their lifetime. More than half of those women reported unwelcome sexual touching.
So it’s not a total surprise that the state capitol in Albany, New York has found itself in the middle of another reckoning over sexual harassment this spring.
Governor Cuomo Controversy
Long-time women’s rights attorney Gloria Allred is representing one of several women accusing New York Governor Andrew Cuomo of sexual misconduct. The allegations vary from under the shirt groping to kisses on the cheek and probing questions about sexual preferences.
The third-term Democrat denies touching anyone inappropriately.
Allred’s client Sherry Vill, who came forward March 29th, says Governor Cuomo came to her Rochester area home in 2017 to survey flood damage. Vill says he grabbed her face and kissed her without her consent.
“And when I walked in I said to the governor, ‘do you think that we have to live like this?’ that’s when the governor looked at me, approached me, took my hand, and pulled me to him. He leaned down over me and kissed my cheek. I was holding my small dog in my arms and I thought he was going to pet my dog but instead he wedged his face between the dog and mine and kissed me on the other cheek.”
Allred also displayed a photo of the alleged encounter.
Governor Cuomo faces an investigation overseen by Attorney General Tish James and an impeachment inquiry in the state Assembly.
Allred says the problem with men, especially those in power, is that they don’t think they need to ask for permission to invade a woman’s personal space. She says women have a right to personal boundaries.
“You know, grabbing women and doing whatever some powerful men want to do with them is almost considered normal and I think we have to break out of that normalization of what some men think they have a right to do to women without asking them, without seeking their permission, without seeking their advanced consent.”
Governor Cuomo has apologized for making people feel uncomfortable.
Allred says “good intentions” are irrelevant. Because what one man views as “comforting someone” or “just greeting someone” the women could view as a huge invasion of space.
“I don’t know why people think it’s OK to touch a woman at all, especially a woman that a person is just meeting, without her consent,” Allred said.
There has been social media backlash against Vill, with some saying a kiss on the cheek is “not that bad” or that she seemed to enjoy it at the time. Allred says critics need to put themselves in Vill’s shoes.
“He’s almost 6 feet tall, she approximately 5 feet tall,” Allred said. “She said he towered over her and there was nothing that she could do. So, do I take this seriously? Jacquelyn, yes, I do. And I will continue to take all of the allegations of all of the women seriously.”
Alessandra Biaggi is a Democratic New York State Senator representing parts of Westchester County and New York City. She says she experienced bullying while working for Cuomo and has been sexually harassed in her career, which is why she feels so passionate about The Sexual Harassment Working Group -- a group of former legislative staffers from Albany.
“Who either have from their own accounts and experiences unfortunately experienced either harassment or abuse, in some instances rape, at the hands of legislators or other legislative staffers who at the time that they experienced this harm were really not protected by the legislature in a way that allowed them to have justice because it was very calcified into the culture of Albany to protect abusers rather than the ones who were being abused,” Biaggi said.
Biaggi says they are working to shift that culture by advocating for bills that make workplaces safer. She says the best way to make this legislation happen is to give survivors a seat at the table.
“And they continue to not only pursue justice on behalf of other survivors but to really be at the forefront of every single conversation that is centered around the voices of survivors, of harassment, abuse, misconduct and assault,” Biaggi said.
Biaggi says the group is prioritizing five bills to keep New York moving in what she calls a “forward direction.” To transform a culture that she says silences survivors.
One bill makes the state and all public employers subject to the Human Rights Law. She calls it “eliminating their license to harass” by codifying that the staff of elected and appointed officials are employees of the governmental entity that they work for -- whether it’s New York state, a city, a county, or a smaller municipality.
“Currently federal Title VII contains a carve-out for the personal staff of elected officials – which is crazy,” Biaggi said. “And so it exempts those workers from protections against discrimination and harassment. And so it’s been used as a weapon to deny employees recourse.”
Biaggi recalled the 2014 resignation of one state Assemblyman after seven legislative staffers accused him of sexual harassment. Biaggi says the staff weren’t allowed to officially bring any claims against him, though—
“Because they were not ‘employees.’”
Biaggi interned for former Congressman Joseph Crowley, and worked as Assistant General Counsel for Governor Cuomo’s Office of Storm Recovery. She also served as counsel in Governor Cuomo's counsel’s office, and as a member of his executive clemency team. She says based on her experience with the governor, she believes the allegations of bullying and harassment.
Orchard: “One thing that has been noted over and over from former aides in his administration is the bullying that they experienced from Secretary Melissa DeRosa in particular. It’s been said that Cuomo hides his harassment behind a “phalanx of strong women”—“
Orchard: “What was your experience?”
Biaggi: “That is absolutely the experience that I have witnessed personally and also heard others witness as well.”
Biaggi claims Cuomo’s progressive agenda and public promotion of female staffers is a veneer.
“Behind the scenes is not only an attempt to undo or to prevent some of the policies that have actually moved forward in the legislature from coming to the floor,” Biaggi said, “but there is an attempt to also intimidate, berate, belittle, condescend, threaten and really cause harm to anybody—whether it’s a member of their own team, whether it’s a legislator, a member of the press, or just a regular public New Yorker walking on the street who happened to tweet something that is critical of the governor – any of those people are considered ‘an enemy of Andrew Cuomo.’”
Biaggi is Chair of the Senate Ethics and Internal Governance Committee. She claims Cuomo’s vindictiveness is carried out by top aides. Governor Cuomo’s spokesperson has acknowledged the office is a “hard-charging” environment that is not for everyone, but denies harassment claims.
Cuomo has resisted widespread calls to resign as his political troubles mount, including an investigation into the reporting of nursing home deaths during the COVID-19 pandemic. Cuomo said he would not bow to “cancel culture.” Biaggi says he’s hiding behind buzzwords.
“To him, people saying that he should be held accountable for his bad behavior is considered ‘cancel culture,’ when in reality what it actually is is people finally, in unison, speaking out about the abuse that he has waged against them,” Biaggi said.
Biaggi says people are finally seeing the Cuomo she experienced firsthand. She says she’s spoken to legislators across the country about their experiences with their own governors, Democrats and Republicans, and she said those talks made her realize how abusive and abnormal New York government can be.
Biaggi says another bill ensures legislative and judicial staff who report violations of law and misconduct are not retaliated against. Others extend the statute of limitations for reporting harassment, ban “no rehire” clauses in workplace settlement agreements, and one require lobbyists to take annual sexual harassment training.
“The lobbyists are also the ones who are perpetuating harm,” Biaggi said. “And so we’ve got to make sure that it extends beyond just the traditional workplace but also beyond, into the ‘lobbies’ of the legislature.”
Biaggi says she didn’t vote for Cuomo in the last election, and she won’t be voting for him “ever again.”
“If he does not resign, our responsibility as a legislature is to have a true, transparent, and accountable impeachment process go forth,” Biaggi said. “What we know so far about this is that the investigation will take months, which is just outrageous in its own right and I think we should be outraged. The importance of this issue is the timeliness of how we deal with it, and they know that, too. And so that leads me to really believe that this is a slow-walking of the process.”
Biaggi sponsors bill S-738 – concerning NDAs for victims of sexual harassment.
“This is a bill that will really build on the protections that were passed into law last year, and also the year before, by ensuring that survivors are not financially liable about speaking out against their experience,” Biaggi said.
Biaggi says Non-Disclosure Agreements have been used, historically, to silence the voices of sexual harassment.
“Even though the survivor really may genuinely want to sign an NDA to protect their own privacy, which of course we can understand, there’s a liquidated damages clause and those clauses in those NDAs are often used by employers to financially deter a survivor from changing their mind,” Biaggi said. “And so what the bill will do is protect survivors who do choose to sign NDAs from having to pay liquidated damages from having to speak out about their experience.”
Allred has come under fire in the past for securing Non-Disclosure Agreements, or NDAs, for her clients. Allred fired back, “Advocates who call confidential settlements ‘hush money’ are ignorant of the law.”
Allred says her job is to protect clients and do what they want and authorize. And many of those clients prefer the privacy of a confidential settlement.
“They don’t want anyone to know that they have lodged a complaint or filed a claim against their employer,” Allred said. “They don’t want anyone to know that they’ve been raped or sexually assaulted or sexually abused, or forced to watch pornography, or had their breasts or their derrieres grabbed. They don’t want anyone to know that and they have a right to privacy.”
Allred says even with an NDA, clients can still go to the police and file a report and still testify in a criminal case. She says they could also testify publicly in someone else’s case.
Biaggi says the NDAs can be great for survivors who don’t want anyone to know what happened to them, but—
“The problem with these NDA’s is that it has this provision in there where it says that if you speak out about your abuse – and when I say speak out I’m talking about speaking out even to your therapist, or to a friend, or to a family member like your mother of father, and somebody finds out, you can be accountable for speaking out because that is a violation of your NDA,” Biaggi said.
And Biaggi says liquidated damages, what the survivor would have to pay for speaking about the abuse after the NDA is signed – means a hefty fee.
“It could be upwards of tens of thousands of dollars that someone who had to endure and survive sexual harassment assault and abuse now is going to be financially held accountable because they used their voice,” Biaggi said.
Allred says she’s never encountered an instance in which someone paid damages for speaking to a therapist, but she also said confidential settlements come in all different shapes and sizes with all different terms.
Biaggi says she is a survivor of childhood sexual abuse.
“One of the things that I experienced and really struggled with was being silent,” Biaggi said. “Because I felt so much shame around what happened to me. And I really did believe that I was going to actually go to my grave with what happened and I would never really talk about it.”
Biaggi says when she finally did open up, it didn’t fix all her problems, but it did give her one thing:
“What I definitely felt was a liberation from the dark places of shame and the places that abuse keeps a lot of people in,” Biaggi said.
Biaggi says it takes most people upwards of ten years to speak out about their abuse, and some never do. After gathering the courage to tell people what happened, she doesn’t want victims to be muzzled by an NDA.
“There is positives to NDAs but the negative portion of NDAs is this liquidated damages clause,” Biaggi said. “It has to go.”
Decades into her high-profile legal career, Allred says the battle against sexual harassment has come a long way. She’s seeing higher settlements in court than ever.
“I had a case, our law firm did, at the end of 2019 which we tried,” Allred said. “It was a sexual harassment case for one victim of sexual harassment against a billionaire.”
The billionaire’s name was Alki David, heir to a Greek Coca-Cola bottling fortune. The jury found him liable for battery, sexual battery and sexual harassment against his former employee, Mahim Khan a production assistant who worked at his Los Angeles-based media companies. She alleged he thrust his pelvis into her face and simulated oral sex.
“A jury came back with a verdict of $58,250,000 dollars for our one victim of sexual harassment,” Allred said. “So that is something that we would never have seen 10, 15 years ago.”
Allred says juries are starting to understand how serious sexual harassment can be and there has been a shift in understanding the harm it can do to women. She says sexual harassment is a barrier to equal employment opportunity.
“Because if a woman has to suffer sexual harassment, then that interferes with her right to just be judged on her merits and enjoy equal employment opportunity,” Allred said. “That’s why it’s against the law. Sexual harassment is a form of sex discrimination.”
Allred says the #MeToo movement caught fire, which has helped, but she says she’s been doing “MeToo” for 45 years. She says what she’s seen in that time is that when women are victimized in the workplace it places them in a “no-win” situation.
“That if they say yes to the harasser, then the harasser at some point may get tired of them and fire them,” Allred said. “And if they say no to the harasser then he may go into ego shock and then at some point decide that he doesn’t want her around anymore because she’s not agreeing to what he wants sexually from her.”
Et tu, feminist?
Allred says workplace harassment damages women economically, socially, emotionally, and often physically. She says it’s one of the many reasons she’s a feminist – a word so many people, men and women, seem to be triggered by.
But Allred says people who don’t like the word “feminist” should look it up.
“It’s simply a person who believes in equal rights for women with men,” Allred said. “Legally, socially, economically, politically. In every way.”
Biaggi says she sees men in politics triggered by the word feminist all the time, even if they don’t admit it.
“And the way that it shows up is in different laws that are passed, or comments that are made,” Biaggi said. “There’s also these little ways that we see it happening, right? When a woman speaks up any time and says something and is spoken over or is interrupted. That’s another way I think that people give us their ‘tell’ on whether or not they actually do believe in and are feminists themselves. And so I think we have to really look out for those subtle cues.”
Biaggi says politics has a long way to go.
“There are still old ways of thinking that are calcified into some of the leadership styles of our legislative process,” Biaggi said.
For example, she’s trying to close what’s called the “voluntary intoxication loophole.” The loophole says if you are voluntarily intoxicated in the state of New York, you decided to drink, and you are raped, unless there is clear evidence like a video, the victim has no case.
“So there are a lot of perpetrators of rape that are falling through the cracks of justice,” Biaggi said.
Biaggi says in these talks with other state senators, the same questions keep coming up.
“The conversation that goes along the lines of this,” Biaggi said, “OK. ‘We need to work on this bill,’ O’K let’s talk about it. If someone’s being accused of rape and they thought the person consented but the person didn’t consent, how is that person supposed to know if they consented or not?’ So that in and of itself is highly problematic and a serious issue of victim blaming. But when I respond and say, ‘A person should not have sex with somebody if they do not have explicit consent because yes is yes and no is no, there’s almost like a bewilderedness to what I’ve said that they can’t even imagine because, ‘Well how are they supposed to know?’”
Biaggi says progress would be faster with more women in politics.
Allred noted that President Obama described himself as a feminist while in office. She said he was the first. This sound is from NBC News from the 2016 Women’s Summit:
Obama: “I know you’re really here to see Michelle or Oprah, actually they’re together so you’re here to see both of them. I cannot compete with them but I did want to stop by and make one thing very clear. I may be a little grayer than I was eight years ago, but this is what a feminist looks like.”
A Woman’s Place
20 states have never had a woman as governor. Including California and New York. The United States has also never had a female president.
Allred says there’s a reason.
“Because no one ever gives women any rights,” Allred said. “We always have to fight to win them. And we haven’t fought hard enough, long enough well enough. It’s as simple as that. It took 72 years for us to win the right to vote. It really disturbs me when people say, ‘Oh women were given the right to vote in 1920.’ No one ever gave it to us, we had to fight all that time to win it. Women marched, they lobbied, they fasted, they went to jail, they were arrested. There they were forcibly fed because they wouldn’t eat because women didn’t have the right to vote. Some of them died.”
Allred says the status quo is powerful. She says women need to resist that, at least until the most powerful political leader in the world can advocate for us.
“We have a saying. ‘A woman’s place is in the house. The White House,’” Allred said. “And so we just have to keep on keeping on, fighting for that day when we will have a woman president – a woman who believes in women’s rights.”
Allred says don’t hope for it. She calls hope a child’s word. She says instead – work for it.
In September of 2020, the United States Government Accountability Office released a report on workplace sexual harassment.
It is 83 pages long and mostly focuses on data from federal workers. For good reason – the report found that all of the data on sexual harassment uses different types of questions and metrics. So it’s like comparing apples to oranges. Or rather, inappropriate touches to inappropriate comments over varying lengths of recall. The GAO included results from national surveys, the Centers for Disease Control and Prevention’s National Institute for Occupational Safety and Health, the Pew Research Center, and MSPB’s 2016 Merit Principles Survey, based on respondents from a random sample of federal employees. It found that the structure of the question and the recall period varies such that the results indicate anywhere from just 4% of women experiencing workplace harassment to 52%.
The study concludes the EEOC needs to develop a national survey that includes sex-based harassment. Saying, QUOTE “The federal government could play a valuable role in realizing a nationwide survey to illuminate the magnitude of the problem of sexual harassment, including the costs to employees and employers, and to inform business and government policy decisions to reduce its occurrence.”
As of April 2021, no such survey has been developed.