- It seemed that nothing could touch New
York governor Andrew Cuomo after helping the state battle back against its high COVID 19 infection rates. He even wrote a book about it but then governor Cuomo had
to face allegations related to two separate scandals. Each of which might have been
enough to topple a governor who wasn't receiving such
a stellar approval ratings. At this point, multiple
people have come forward accusing governor Cuomo of multiple acts of sexual harassment, and
many are accusing the governor of having perpetrated
a policy that has led to the deaths of thousands
of nursing home residents. What are these allegations
and is governor Cuomo in legal hot water. (upbeat music) Sponsored by ting mobile. So the first scandal plaguing Andrew Cuomo involves sexual harassment. So far seven women have
accused the governor of sexual harassment of various kinds. And in response, Cuomo has dished out the sexual harassment
defense combo played it heaping tablespoon,
invited, and do it aside of cancel culture and an extra helping of "I know now the times have changed "and these interactions
are no longer appropriate." - I understand that
sensitivities have changed and behavior has changed and I get it. And I'm gonna learn from it. - Governor, it's 2021, sexual
harassment has been an issue for a very long time. And you're claiming
that you didn't realize that times have changed until this year. That in and of itself is a
problem, especially because less than two years ago, Cuomo
criticized the legal standard for sexual harassment in
a highly informed way. - The current law says sexual harassment has to be severe or pervasive. Severe or pervasive. Look at those words, it has
to be severe to break the law. It has to be pervasive. And when you look at the
case law on that threshold you have some despicable acts that have been performed repeatedly, where the court has determined. They're not severe enough, or
they're not pervasive enough. "They are only sporadic".The court said. And sporadic is not pervasive. Oh, so I can sporadically
sexually harass someone as long as I don't go so far as
it becomes pervasive. - So it sounds like governor
Cuomo was very familiar with modern sexual harassment law. But since he's now very curious
about the state of the law what is the legal standard
for sexual harassment? And what is the distinction
between acts that are sporadic and behavior that is legally pervasive? Well, we start with the
definition of sexual harassment. Sexual harassment is a form of sex discrimination
that violates title seven of the civil rights act of 1964. We generally use the
term sexual harassment to describe a wide range of
workplace conduct, but for sexual harassment to
actually be actionable in court it must satisfy a legal standard. Sexual harassment can consist
of unwanted sexual advances or other unwelcome
conduct that is motivated by the victim's gender. This conduct can result in
a tangible personal action like a demotion, or is
so severe or pervasive as to alter the terms and
conditions of employment. Now who can be a victim
of sexual discrimination. Really anyone the perpetrator may be of the same or opposite sex or maybe a supervisor or a
coworker, or even a non-employee. And when the harasser is the
boss courts can generally perceive the situation to be more severe. Now, there are generally two
kinds of sexual harassment. The first type is often referred to as quid pro quo, harassment quid pro quo harassment
occurs when a person most often the supervisor
asks an employee to perform some sort of sexual favor in exchange for benefits
like a raise or promotion. And this is also a threat
scenario where a supervisor pressures a subordinate to
do something that they want or suffer an adverse
consequence like termination or provide some benefit
for taking the action that they wouldn't otherwise take. Now, the second type of sexual harassment is called
a hostile work environment. And a hostile work environment is one in which "discriminatory
intimidation, ridicule and insult is sufficiently
severe or pervasive as to alter the conditions
of a victim's employment." So let's talk about that severe and pervasive standard in
Harris V. Forklift systems. The Supreme court said that determining whether a workplace is sufficiently toxic "is not, and by its nature cannot "be a mathematically precise test." And the court set forth
a number of factors that courts have to
consider when evaluating whether conduct is severe
and pervasive enough to create a hostile work environment such as how frequent is
the discriminatory conduct. How severe is it? Is it physically threatening? Is the conduct humiliating? Does the behavior interfere with an employee's work performance? Is the employee complaining of isolated comments? And this isn't a mathematical test. There is a true controversy
over the ways courts apply title seven severe
and pervasive standard. - Oh. So I can sporadically
sexually harass someone as long as I don't go so far as
it becomes pervasive. - Well, yeah, that is possible. So let's talk about the allegations against
governor Cuomo himself. Cuomo had a lot to say about how the legal standard hurts sexual harassment victims but what do the women who worked for Cuomo have to say about
his particular conduct? Charlotte Bennett, a
25 year old former aid to the governor said he
hit on her several times. He asked her questions, including whether she had, "Ever been with an older man?" and whether she was monogamous
in her relationships Cuomo knew Bennett had been
the victim of sexual abuse and once asked her if she, "Had trouble enjoying being with someone "because of her trauma." Cuomo didn't dispute Bennet's
allegations explaining instead that he had never
intended to offend anyone. "At work sometimes I
think I am being playful "and make jokes that I think are funny." "I do on occasion, tease people "in what I think is a good natured way." But let's use some common sense. If the boss asked
somebody how their history of abuse impacts their sex life does that really truly fit the, "It was just a joke defense." It depends on how a jury
would these circumstances but it doesn't seem like
a jokey conversation. Or at least not one
that should be tolerated in this day and age. Now the Supreme court's severe and pervasive standard was meant to, "Filter out complaints attacking "the ordinary tribulations
of the workplace "such as the sporadic
use of abuse of language "gender related jokes,
and occasional teasing." A few straight remarks often
may make work uncomfortable but they don't automatically make the work environment hostile in the legal sense. But the other allegations
against Cuomo go even further. Other victims say that
Cuomo was not just a talker. He was also a toucher. An anonymous former aide says that Cuomo groped her Cuomo
allegedly called the woman to the governor's mansion under the guise of needing help with his cell phone. According to a police report, "They were alone in
Cuomo's private residence "on the second floor of the mansion "When he closed the door
and allegedly reached "under her blouse and
began to fondle her." The woman came forward after the people noticed
that she was crying while watching Cuomo
deny other allegations of sexual harassment against him. Another former Cuomo
aid Lindsey Boylan said that Cuomo once kissed
her without her consent and suggested they play strip poker. Boylan says that Cuomo told
her he had a crush on her and started calling her by
the name of his ex-girlfriend. And apparently his actions
may have escalated over. - I am embarrassed by it. - Another woman allegedly
had the same experience as Boylan. Another former Cuomo staffer analysts told the wall street journal
that Cuomo started out by asking her about her love life and calling her sweetheart which escalated to touching
her back, kissing her hand. Eventually he called her Sparky, Blondie sweetheart and honey. Now, when you combine unwanted touching and unwanted advances and
comments, you're probably in the ballpark of a
legally actionable claim for a hostile work
environment under title seven. Now, presumably Cuomo will still claim that these were allegations
from different people at different times, and no
one filed a formal complaint against him and all of these
things even taken together don't rise to the severe
and pervasive standard to make a hostile work environment claim under sexual harassment law. And some of these things are in fact valid defenses under title seven, but perhaps not all of it. Which takes us to the
New York Human Rights Act because title seven is a federal law and it's not the only law that's at issue when you're talking
about sexual harassment. What about New York law in
what may be a delicious irony. Andrew Cuomo is actually responsible for changing the way
that New York interprets the severe and pervasive standard, which should actually make it easier for his potential victims to sue. New York was actually one of
the first states to decide that the severe and
pervasive standard let too many people get away with
offensive workplace behavior. Previously New York state
law, mirrored title seven and required an employee to show that the alleged harassment
was severe and pervasive in order to say an actionable
claim against an employer. But in 2019 New York
amended its human rights act to eliminate the severe and pervasive standard
entirely under the act. And employee only has to show that the alleged harassment or rises above the level of petty slights
and trivial inconveniences. The new law also removes
one of the key defenses used by employers that the employee never used. The employer's internal
complaint procedure. There's also a new three
year statute of limitations. So if Cuomo did indeed harass anyone over the last three years they have a clear path to
Sue under New York law. So congratulations,
governor, you played yourself you did the right thing
and immediately follow that up potentially allegedly
by doing the wrong thing. Now, what this means for his
political career is uncertain. New York attorney general Letitia James has appointed an independent
investigator to look into these claims. And many of the prominent
Democrats and Republicans in New York have called
on the governor to resign. The governor has often dismissed
this as cancel culture. But if indeed these allegations are true this isn't cancellation,
it's just consequences. Which takes us to the second scandal that Cuomo is facing related to nursing homes and COVID patients. Cuomo second scandals
started with a dispute over how the state of New
York handled COVID patients in nursing homes between March
25th and May 10th in 2020. Early in the pandemic on March 25th Cuomo state health
department ordered nursing homes to accept recovering COVID
19 patients from hospitals. The directive said that if a nursing home resident
had been hospitalized and was stable enough to be discharged the nursing facility
needed to readmit them. Cuomo rescinded the order on May 10th but what's the problem here? Well, on March 23rd, just
before Cuomo's March 25th order the federal government issued guidance on how to handle COVID 19 in nursing homes not surprisingly the
guidance boil down to this a patient must be medically ready for discharge to a
long-term care facility. And the facility must be capable of caring for patients
recovering from COVID 19. If either of those
conditions could not be met the facilities should not admit the person because they could spread COVID-19 throughout the entire nursing home. Now, the first area of
dispute here is whether the state department of
health order conflicted with the federal government's guidance. Cuomo says it did not. The New York health department's order requires a doctor to confirm a resident is
medically stable for a return. The order also says staff must conform to new York's requirements on environmental cleaning and PPE. On the other hand, it
clearly urges nursing homes to readmit COVID 19 patients, "No resident shall be denied
readmission or admission "to the NH nursing home
solely based on a confirmed "or suspected diagnosis of COVID-19." NHs are prohibited from requiring a hospitalized
resident who is determined medically stable to be tested for COVID-19 prior to
admission or readmission. That's pretty strong language. And it precluded nursing
homes from doing testing as a basis for denying
a patient readmission. New York's logic was that removing recovering
patients would free up hospital capacity which was thought to
be in dwindling supply. And at one point was at
almost full capacity. However, we now know that this could have
been a dangerous move. Recovering patients still shed the virus creating a strong possibility that they could infect other people in the nursing homes if they
were not properly quarantine. And the people in nursing homes tend to be over the age of 70, the
very age group that is most at risk of death from COVID-19. Cuomo claims that he followed the Trump administration's
guidelines on nursing homes. But after the March 25th order,
there was immediate pushback by various advocacy groups
who felt that Cuomo was mandating the nursing homes
admit COVID 19 positive people regardless of whether they
could meet safety standards. Cuomo himself, publicly
pressured facilities to find space for COVID patients. - They don't have the right to object. - He said on April 23rd. And yet Cuomo's further comments on that day actually did
track the federal guidelines. - So if you can't provide adequate care you can't have the patient in your facility and that's
your basic fiduciary obligation. I would say ethical obligation. And it's also your legal obligation. If you can't provide adequate care the person must be transferred. If you have COVID people,
they have to be quarantined. They have to have separate staff. That's the rule. If you can't do it we'll put them in a
facility that can do it. That's the rule - That's the underlying
issue, but there's also an undercounting and
potential under-reporting issue regarding the data
related to nursing home deaths. Now the second scandal
also involved how the state calculated and reported
nursing home deaths. In particular when a nursing home resident who contracted COVID 19 died after being transported to
a hospital for treatment. The person wasn't included as, "Nursing home death." In New York, this wasn't
immediately apparent from the numbers and
explanation the state officials were releasing to the press. Eventually by May though
the state confirmed that it did not include
these deaths in its count. And while the legislature and media were asking
about the correct numbers Cuomo was enjoying great
national popularity for his televised COVID-19 briefings and promoting his book American
crisis leadership lessons from the COVID-19 pandemic. And Cuomo was well on his way to America's governor status. Just like Rudy Giuliani had once been considered America's mayor. And like Rudy Cuomo had
high approval ratings that led many to speculate that he would one day become president. And what happened next? Well, as Rudy knows pride
go with before the fall. By fall Trump's justice
department was on the case. And assistant AG sent Cuomo
a request for complete data on all public and private
nursing home facilities. Cuomo claimed he was being harassed by the Trump administration but it wasn't just the
Trump justice department. A patient advocacy group
did a foyer request for nursing home data. And of course he was still tangling with the legislature over the numbers. And at the same time, Cuomo
tried to Stonewall everyone. But in January Cuomo's
own attorney general Letitia James issued a
scathing report on the matter, "This preliminary for the 62 facilities. "And the time periods noted above suggest "the COVID-19 resident deaths associated "with nursing homes in New
York state appear to be "under counted by DOH
by approximately 50%." The health department
quickly revised the death report showing an additional 3,829 deaths of nursing home residents. Governor Cuomo and
Michigan governor Whitmer issued a joint statement complaining that they were facing scrutiny from a Trump administration. That was hell bent on revenge. The former president apparently hated both of these public officials
who clashed with him often. But here's the thing, "You can't complain that
there's a political witch hunt "if you actually did something wrong." And it's probably fair
to say that it should not have taken nine months for
the state to be upfront about these particular numbers. Based on the facts that we have now, it looks like not all of Cuomo's
actions were on the level. But the question is did governor Cuomo violate any law? Obviously governors receive
wide latitude in terms of the policy decisions
that they have to make. Well, when the Trump justice
department sought data on the nursing home
matters, it's cited as power under the civil rights of
institutionalized persons act. The CRIPA authorizes
the U S attorney general to investigate conditions of confinement at state and local government institutions such as prisons, jail,
juvenile correction facilities and publicly operated nursing homes. Now CRIPA only applies
to public facilities which only account for about 5% of the state's nursing homes. But the attorney general
can investigate widespread deficiencies that seriously
jeopardize the health and safety of public
nursing home residents. However, the government
does not have authority under CRIPA to investigate
isolated incidents or to represent individuals. For the attorney general to sue. There has to be a
reasonable cause to believe that the nursing home conditions
are egregious or flagrant that they are subjecting residents to, "Grievous harm." And that they are part of a, "Pattern or practice of resistance "to a resident's constitutional
or federal rights." So the CRIPA covers things like a pattern of sexual abuse, neglect unmet mental health needs,
or inadequate education and facilities that host children. Was the situation in new York's public
nursing homes, abusive or grossly neglectful? That has yet to be determined. But in July New York health
authorities presented data allegedly showing that the Corona virus had infected nursing homes far earlier than once believed. In that, "Readmitting residents
that had been hospitalized "for coronavirus did not contribute "to a higher fatality
rate in those facilities." But that's just one opinion given by Cuomo's own health authorities during the same month that
he signed his book deal. The report compiled by attorney general James saw things differently. James found, "Lack of compliance with
infection control protocols "insufficient personal
protective equipment PPE "for nursing home staff
insufficient COVID-19 testing "for residents and staff
in the early stages "of the pandemic and the
state reimbursement model "for nursing homes that gave, "Financial incentive to owners "of for-profit nursing
homes to transfer funds "to related parties "ultimately increasing their
own profit instead of investing "in higher levels of staffing and PPE." Cuomo claims that other States issued similar nursing home directives and are not being investigated. However, once again, that
doesn't tell us anything about whether what New York did would be considered widespread abuse
or neglect under the law. Although Cuomo hasn't resigned,
he has lost the support of the democratic party in the state which controls both houses
of the state government. And the Senate judiciary
committee has opened an impeachment inquiry. Now that's a lot of scandals for one governor and
it's only been possible because whistleblowers have come forward. And if you have personal
information that Andrew Cuomo may have broken the law,
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