What is retaliation in the workplace? Cuomo allegations raise legal questions

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A recent report about the sexual harassment allegations against New York Gov. Andrew Cuomo revealed that the governor's legal concerns may extend beyond the actual alleged harassment to efforts to retaliate against the first woman to come forward.

The Wall Street Journal reported Friday that after former Cuomo staffer Lindsey Boylan accused Cuomo of harassing her and kissing her without consent, Cuomo's aides tried to discredit her by trying to get information on her from other ex-employees.

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"The subtext was clear: I was being asked to dish dirt on her," said one former Cuomo aide who told the Journal that a current member of the administration asked about their time working with Boylan.

Boylan herself said in her Feb. 24 Medium post that after she first tweeted about her experiences working for Cuomo in December 2020, portions of a personnel file she had never seen and believed was confidential "were leaked to the media in an effort to smear me."

These allegations raise questions as to whether Cuomo and his administration may have engaged in retaliation against Boylan over her sexual harassment claims. This is when an employer punishes someone for engaging in a legally protected activity, such as reporting sexual harassment.

While retaliation is often thought of as an act against a current employee who brings a complaint, employment attorney Misty Marris told Fox News that retaliation after someone is no longer an employee is possible and can take many forms. This could include interfering with someone getting a job, saying things about them online or in the media, filing a police report or ethics complaint, or even bringing a counterclaim in a lawsuit.

"Digging up dirt on someone because they made a complaint [of] sexual harassment certainly could fall under the retaliation category, especially depending on how it is used," Marris said.  "If it is being used to disparage someone because they complained about sexual harassment that is actually text book retaliatory conduct."

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On the other hand, Marris noted, if they dig up information as part of an investigation, that could be proper and permitted.

Fox News reached out to Boylan asking if she has considered a retaliation claim but she did not immediately respond.

Marris also pointed out that besides the impact that digging up dirt or launching a smear campaign could have on that particular person, it could also have a far-reaching effect on others.

"The conduct has a chilling effect on victims coming forward with a complaint," Marris said, saying that someone else who may have experienced sexual harassment may be "immediately deterred from coming forward for fear of the same thing" being directed at them.

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One such person, former Cuomo aide Ana Liss, said she was called by an administration official about Boylan. Liss told the Journal that senior Cuomo adviser Rich Azzopardi called her eight days after Boylan's December tweet that accused Cuomo of sexual harassment. She said Azzopardi asked her if Boylan had contacted her.

Liss eventually came forward with her own allegations against Cuomo, claiming that the governor spoke and acted inappropriately towards her. At the time Azzopardi called, however, it made her nervous.

"I felt intimidated, and I felt bewildered," she told the Journal.

That feeling of intimidation, Marris said, "is actually exactly why the law is in place and what it seeks to protect."

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Azzopardi told the Journal that the reason he asked Liss and others if Boylan had contacted them was because after she posted her tweets, "she, and her lawyers and members of the press began reaching out to former members of the Chamber, many of whom never worked with her." Azzopardi said that the people Boylan contacted "were upset by the outreach" so "we proactively reached out to some former colleagues to check in and make sure they had a heads up."

Boylan flatly denied this, tweeting that she did not contact anyone in December and did not have an attorney at that point in time.

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