Cuomo supported the #MeToo motion till it grew to become a goal.

New York Governor Andrew Cuomo sexually molested eleven women and created a “hostile” work environment for women, according to a report by New York Attorney General Letitia James dated August 3, 2021. The independent investigators who issued the 165-page report noted a “pattern” of inappropriate behavior by the governor that included both “unwanted touch” and comments of “lewd and sexual nature”. The report also highlighted cases of retaliation against at least one prosecutor.

Cuomo abused the people he represented in office

Two thoughts quickly came to mind after reading the August 3, 2021 report. First, Governor Cuomo had to resign or be removed from office. Second, the governor’s accusers should have filed formal complaints with the U.S. Equal Opportunities Commission (EEOC) and / or the New York State equivalent.

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Obviously, I wasn’t alone in the thought that Governor Cuomo had to go. President Joe Biden said the same thing on August 3, and virtually everyone but the governor, his inner circle, and his attorney appeared to agree with the president. Fortunately, Cuomo finally realized the inevitable and submitted his resignation with effect for 14 days from August 10th.

But to my knowledge, no one has mentioned that Governor Cuomo’s prosecutors would have been in a much stronger position, let alone a much safer position, had they filed formal complaints with the EEOC. Although the August 3 report rightly concluded that “protected activity” goes well beyond filing a formal complaint with the EEOC, one of the most powerful weapons in the decades-long struggle to protect women from sexual harassment in the workplace is 18 US Code Section 1513, the federal act that criminalizes retaliation against witnesses, victims, or informants.

Specifically, in 2002, Congress amended federal law on obstruction of justice and criminalized retaliation against anyone who provided truthful information to federal law enforcement agencies about a “possible” violation of a federal law. The amended Federal Act on the Obstruction of Justice provides in a relevant section: “Anyone who knowingly engages in acts that harm an individual, including impairment of a person’s legal employment or livelihood, in order to assist a law enforcement officer with the intent to retaliate Truthful information in connection with the commission or possible commission of a federal criminal offense will be punished according to this title with a fine or a prison sentence of a maximum of 10 years or both. “

Of course, sexual harassment is a “federal offense,” and the August 3 report concluded that Governor Cuomo was heavily involved in it. The August 3 report also found that the governor and several members of his close circle had retaliated against the governor’s first accuser, Lindsey Boylan. The EEOC is a “law enforcement agency” and if Boylan had filed an EEOC complaint, Cuomo would face the possibility of a 10-year prison sentence.

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The question that needs to be asked is: Why haven’t Governor Cuomo’s prosecutors filed formal complaints with the EEOC? I suspect there are two reasons why they didn’t.

First, they rightly feared retaliation from Cuomo, who as governor of New York had far more power than they did. According to a recent study, 63% of workers who file an EEOC complaint lose their job. Brittany Commisso, “Executive Assistant # 1” on the Aug. 3 report, stated during her CBS television interview with the 9th Commisso that she has filed a criminal complaint against the governor with the Albany District Attorney for saying it was “the right thing” and because she wants her little daughter to realize that women have a voice and that they shouldn’t be afraid to stand up for themselves.

Second, the governor’s prosecutors have likely realized that the EEOC is overworked, understaffed and, tragically, does not have the resources it needs to actually enforce the sexual harassment law. Both of these reasons – fear of retaliation and a broken EEOC enforcement system – explain why so many women continue to be sexually harassed in the workplace.

There are more victims. We need better law enforcement.

Governor Cuomo apparently thought, until he stepped down too long, that he could get away with molesting women. Many powerful men seem to think so. But given the high profile of Cuomo’s case, the governor didn’t get away with it. Harvey Weinstein, Bill O’Reilly, and Matt Lauer didn’t get away either. Unfortunately, that can rarely be said if the sexually harassing boss is not in public.

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And that brings me to my most important point: I hope the Cuomo-Imbroglio will encourage leaders to devote more resources to state and state civil rights enforcement agencies so that women who are bullied far from the media spotlight can enjoy justice like this the governor’s received brave accusers are now beginning to receive. After all, the law against sexual harassment needs to be more than just words on the page of a code. It has to be enforced.

Scott Douglas Gerber is a law professor at Ohio Northern University and an associate researcher in Brown University’s Political Theory Project.

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